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S.C.C. No. 02279 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S.; Hart and Matthews, JJ.A. BETWEEN: GREGORY MICHAEL JEWETT and HER MAJESTY THE QUEEN Respondent Ann Copeland for the Appellant Gordon S. Gale, Q.C. for the Respondent Appeal Heard: January 29, 1991 Judgment Delivered: January 29, 1991 THE COURT: Leave to appeal granted but appeal dismissed, per oral reasons for judgment of Matthews, J.A.; Clarke, C.J.N.S. and Hart, J.A. concurring. The reasons for judgment of the Court were delivered orally by: MATTHEWS, J.A.: The appellant, after guilty pleas on April 17, 1990, was sentenced by Judge R. E. Kimball to eight months incarceration on each of seven counts of break, enter and theft into dwelling houses in the city of Dartmouth. He now appeals from those sentences which total 56 months, alleging that they are harsh and excessive in his circumstances. In his factum he adds a further ground: the disparity with the sentences for offences imposed upon his co‑accused, three months on each count, for a total of 21 months. The first four of the offences occurred between February 12 and 21, 1990. The guilty pleas to those took place on February 26, 1990. From March to 28, 1990, while awaiting sentencing set for April 17, 1990, the appellant and his co‑accused committed the other three offences. The appellant is 22 years old, with Grade 8 education and single. He had sad and stormy upbringing. He has prior criminal record of nine convictions, including four break and enters. Judge Kimball sentenced the appellant and his co‑accused at the same time. In some detail he considered all of the arguments placed before him and the appropriate principles of sentencing. Break and enter into private dwelling is considered to be of such serious nature that the maximum penalty is life imprisonment. The trial judge considered the benchmark set by this Court in R. v. Zong (1986), 72 N.S.R. (2d) 432 of three years for one such break and enter. He considered that the appellant pled guilty; the extent of his cooperation with the police; the rather negative presentence report; remorse; rehabilitation; whether the sentences should be consecutive or concurrent; his reasons for choosing consecutive; the principle of totality; deterrence, both specific and general; that some of the stolen goods were recovered; that a substantial number, of value approximately $16,000, were not recovered; the effect of such crimes on the victims; the prevalence of crimes of this nature in the community; that the appellant has not learned much from his previous dispositions; and that three of the offences occurred while the appellant was waiting sentencing for the first four. Judge Kimball adequately and properly set out his reasons for the disparity of the sentences. Briefly put, the co‑accused was three and a half years younger; the appellant was the leader and the co‑accused the follower in the offences for which they were jointly charged; the appellant negotiated the disposal of some of the stolen items; and that the co‑accused had virtually no record, one breach of an undertaking when he was a youth. The trial judge said, respecting the co‑accused: “... But again say by way of summary, you're three and half years younger; you have no record to speak of at all; there is more in your case to justify us in thinking that you need not as much individual deterrence. So hopefully you will learn from this lesson and in that sense be unlike Mr. Jewett who never learned thing from, or very much at least, from the previous dispositions made in other Courts at other times earlier in his life. You too will go to jail. It will be substantial period of imprisonment." By virtue of s. 687(1) of the Code this Court must consider the fitness of the sentences appealed against. After considering the submissions made by counsel, the record before us which includes the decision of Judge Kimball and the submissions made to him both on behalf of the appellant and his co‑accused, it is our unanimous opinion that the trial judge made no reversible error in law. The total sentence imposed is neither manifestly excessive nor unfit having regard to all of the circumstances. Accordingly, although we grant leave to appeal, we dismiss the appeal. J.A. Concurred in: Clarke, C.J.N.S. CANADA PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus GREGORY MICHAEL JEWETT HEARD BEFORE: His Honour Judge R. B. Kimball DATE HEARD: April 17, 1990 PLACE HEARD: Dartmouth, N. S. COUNSEL: John Feehan, Esq., for the Crown Anne Copeland, for the Defence (Jewitt) APPEAL ON SENTENCE S.C.C. No. 02279 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: GREGORY MICHAEL JEWETT and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: MATTHEWS, J.A. (orally)

22 year old male pled guilty to seven counts of break, enter and theft - prior criminal record of nine convictions, including four break and enters - co-accused sentenced to three months for each count totalling 21 months - eight months on each count for a total of 56 months upheld on appeal - the trial judge properly considered that the appellant pled guilty, the extent of his cooperation with police, the presentence report, remorse, rehabilitation, whether the sentences should be consecutive or concurrent, his reasons for making them consecutive, the principles of totality, deterrence, and other relevant factors - the co-accused was three and one half years younger with no record and was not the ringleader.

a_1991canlii2497.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 108 Date: 2010 03 12 Docket: Q.B.G. 1667 of 2008 Judicial Centre: Regina BETWEEN: AMY CATHERINE WHITE AND MICHELLE NEX PLAINTIFFS (RESPONDENTS) and GLAXOSMITHKLINE, INC. DEFENDANT (APPLICANT) Brought under The Class Actions Act, S.S. 2001, c. C-12.01 Counsel: Robert W. Leurer, Q.C. and Khurrum Awan for the defendant (applicant) E.F. Anthony Merchant, Q.C. and Nicholas Robinson for the plaintiffs (respondents) JUDGMENT BALL J. March 12, 2010 [1] The plaintiffs have applied for certification of proposed multi-jurisdictional class action involving Paxil (paroxetine hydrochloride), prescription drug approved in Canada for the treatment of depression, anxiety disorder, panic disorder, and other conditions. The plaintiffs claim that Paxil is ineffective and harmful to persons under 18 years of age. [2] The plaintiffs’ motion for certification seeks an order appointing John-Paul Field as representative plaintiff for the class. An affidavit sworn by Mr. Field on December 7, 2009 has been filed in support of the motion for certification. The defendant applies for leave to cross-examine Mr. Field on his affidavit. [3] The defendant’s application is brought pursuant to Rule 317 of The Queen’s Bench Rules, which states: 317(1) Upon any motion or petition evidence may be given by affidavit, but the court may, on the application of either party, order the attendance for cross-examination of the person making such affidavit. (2) The costs of any cross-examination under subrule (1) shall be borne by the party applying for the cross-examination. [4] Counsel for the plaintiffs, Mr. Merchant, opposes the application on the basis that an order for cross-examination under Rule 317(1) is an exceptional discretionary remedy that should not be granted routinely in any action, including proposed class action. Mr. Merchant submits that this claim is simple and straight-forward: children and adolescents under 18 took Paxil, it was ineffective and they want their money back. He says that there is no need for clarification through cross-examination. [5] Mr. Merchant also submits that the details and validity of Mr. Field’s personal claim (including whether or not he suffered adverse effects from the use of Paxil) are irrelevant to the common issues; that Mr. Field has already disclosed all of his medical records so that further cross-examination is unnecessary; and, that concern about the suitability of Mr. Field to act as representative plaintiff is the type of issue that every defendant in every proposed class action could put forward as justification for leave to cross-examine. The essence of his argument is, therefore, that if cross-examination is permitted in this case it will be permitted in every case and the requirement for leave under Rule 317 will become meaningless. [6] The question of when court should permit cross-examination on affidavits filed in support of class action certification motions was thoroughly considered by Smith J. (as she then was) in Hoffman et al v. Monsanto Canada Inc. et al (2003), 2003 SKQB 564 (CanLII), 242 Sask. R. 286 (Sask. Q.B.). In that decision, the court considered the traditional test for cross-examination in affidavits under Rule 317(1) and then stated: B. Is there an enhanced right of cross-examination under the Class Actions act? [11] It is my view that the general principles described above apply in the context of an application for certification under the Act. Nonetheless, the desirability or necessity for cross-examination, and considerations of potential injustice to the parties must, of course, be judged in the context of the application in support of which the affidavits in question are filed. There are number of characteristics of certification application that may, in some contexts, enhance the claim of an application for leave to cross-examine. [12] First, and most obviously, the criteria that must be met for successful application for certification as class action are set out in s. of the Act, quoted above. The applicant for certification must establish, inter alia, the existence of an identifiable class, in connection with the issues that the plaintiffs propose to certify as common issues, the existence of common issues, and whether class action is the preferable procedure for resolving these common issues. The proposed representative plaintiffs must establish that they are appropriate. [13] In applying the general principles relevant to the discretion to be exercised pursuant to Rule 317(1), it must therefore be asked whether the cross-examination sought will assist in the ultimate determination of the s. enquiry. Section 7(2) of the Act makes it clear that an order certifying an action as class action is not determination of the merits of the action. Accordingly, cross-examination going solely to the merits of the plaintiff’s claim is not permissible. Overlap may, however, occur, between evidence relevant to the merits of the action and evidence relevant to one or more of the s. criteria. [14] In previous ruling in this action respecting the propriety of certain affidavit material filed by the plaintiffs (2003 SKQB 174 (CanLII), 233 Sask. R. 112), the Court emphasized the importance of providing, on the certification motion, proper evidentiary record for the resolution of these issues, commenting, in part, as follows: [42] have concluded that the better position is that, on the certification application, evidence as to the merits of the action is admissible only insofar as that evidence is also relevant to an issue to be determined on the motion. Overlap may, however, occur, as there is an onus on the proposed representative plaintiff to provide some evidentiary basis tending to show that he or she is proper representative of the proposed class, which may include evidence that he or she has suffered loss or damage, and an onus to establish the definition of the proposed class and proposed common issues, which may require some evidence that other members of the proposed class have suffered loss or damage sufficiently similar to that of the proposed representative plaintiff to raise common issues. [43] In addition, it is now widely accepted that, despite the mandatory language of s. (‘The court shall certify an action as class action ... if the court is satisfied that [the five criteria are satisfied]’), the court has relatively wide discretion in relation to the requirement in ss. 6(d) of the Saskatchewan Act that class action be the preferable procedure, and that the exercise of this discretion requires consideration of the scope and nature of the proposed litigation as whole and balance of the relevant factors. Accordingly, the desirability of providing, on the certification motion, as complete picture as possible of the proposed action, including the scope of the issues raised both in the claim and in defence, has generally been viewed by the courts as helpful in determining whether class action proceeding is the preferable procedure ... (emphasis in original text) [15] Certification of an action as class action has significant affect on the defendants, for defence of such an action absorbs considerable resources. They are entitled to defend such an application fully and this right entails the right to explore matters raised within the plaintiff’s affidavits, including matters pertaining to the deponents themselves, for the purpose of clarifying what may be ambiguous, expanding or narrowing the scope of what is said in the affidavit, or exploring matters going to the credibility of the affiant. [16] Further, the issues to be resolved on certification application are complex and trial of an issue is not practical alternative where there is conflict in the evidence. Thus, while the jurisprudence from other Canadian jurisdictions which do not have restrictive rule comparable to our Rule 371(1) must be read with some caution, many decisions relating to the propriety of specific questions sought to be put by way of cross-examination of an affidavit in support of an application for certification as class action are relevant and helpful, for the criteria for certification in those jurisdictions are closely parallel to our own. [7] The above reasoning in Monsanto, supra, has been expressly adopted and applied by Barclay J. in Cole et al v. Prairie Centre Credit Union Ltd. et al (2007), 2007 SKQB 171 (CanLII), 295 Sask. R. 159 (Sask. Q.B.), by Zarzeczny J. in Brooks v. Canada (Attorney General) 2009 SKQB 75 (CanLII) (Sask. Q.B.) and by Popescul J. in Schroeder et al v. DJO Canada Inc. et al (2009), 2009 SKQB 169 (CanLII), 334 Sask. R. 258 (Sask. Q.B.). It will also be adopted and applied in this case. [8] In Schroeder, supra, Popescul J. permitted cross-examination with the following comments: [49] adopt the approach, analysis and reasoning in Monsanto and the cases that have followed it. The general principles relating to when court ought to exercise its discretion and grant request to permit cross-examination on an affiant’s affidavit apply to class action proceedings. Specifically, although there is no inherent right to cross-examine on an affidavit, leave ought to be granted, albeit not routinely, in appropriate circumstances. An appropriate circumstance, in the context of certification application, would be when the cross-examination sought would assist in determining the outcome of s. inquiry. [50] In the circumstances of this case, am convinced that the cross-examinations sought will assist in the ultimate determination of the certification application that it is therefore appropriate to exercise my discretion in favour of granting the requested relief. Although determining issues such as the adequacy of the representative plaintiffs may be relatively simple, the question of whether common issues exist and predominate over other issues and whether the class action procedure is the preferable procedure may require more extensive record. Permitting the requested cross-examinations will ensure that an adequate evidentiary record is before the Court. Accordingly, the defendants’ request to cross-examine the plaintiff affiants is granted. [9] In their conclusions, all of the above decisions support the view that leave to cross-examine under Rule 317 is granted more readily in proposed class actions than it is in other civil proceedings. None support the proposition that proposed representative plaintiff is immune from cross-examination in respect of his or her individual claim. In Hoffman et al v. Monsanto Canada Inc. et al (2003), 2003 SKQB 174 (CanLII), 233 Sask. R. 112 (Sask. Q.B.), Smith J. reviewed number of authorities and concluded at paras. [46] These authorities support the view that, on certification application, the court will be assisted by as full picture as possible of the nature and scope of the proposed litigation, including an indication of the nature of the evidence that may be relevant to both the claim and the defence with respect to both the common and the individual issues. [47] Finally, this view is also reflected, in Saskatchewan, in our Rule 82(2)(b), which requires an application for certification to be supported by an affidavit: (b) setting out the basis of the proposed representative plaintiff’s personal claim, where applicable, and the reason the proposed representative plaintiff believes that common issues exist for the rest of the members of the class. (Emphasis added) [10] In summary, cross-examination of proposed representative plaintiff may explore matters pertaining to his or her individual claim in the context of issues that must be determined by the court pursuant to ss. and 6.1 of The Class Actions Act, S.S. 2001, c. C-12.01. Every case must be determined on its own facts. [11] In number of decisions, evidence elicited in cross-examination of proposed representative plaintiff has been relied upon by the court where it established, despite assertions to the contrary in his affidavit, that the affiant had no wish to act as representative plaintiff, no understanding of the requisite duties and responsibilities, or no knowledge and experience in the litigation process. See: R. v. Spurr 2009 SKQB 478 (CanLII), [2009] S.J. No. 729, per Laing CJQB; Frey et al v. Bell Mobility et al, 2006 SKQB 328 (CanLII), 282 Sask. R. per Gerein J.; Hoffman et al v. Monsanto Canada Inc. et al (2005), 2005 SKQB 225 (CanLII), 264 Sask. R. per Smith J. In those cases, cross-examination provided insight into situations where the person signing the affidavit knew very little about, or actually disagreed with, its contents. [12] By way of example in this case, if cross-examination were to establish that the common issues exclude recovery for all of the matters that are important to Mr. Field, or if his personal claim is in conflict with the claims of class members, it would be relevant to his capacity to fairly and adequately represent the interests of the class as required by s. 6(1)(e)(i) of the Act. [13] turn now to the material before the court on this application. In my view, there are number of statements contained in Mr. Field’s affidavit which, when considered in relation to the statement of claim and the motion for certification, invite clarification. Taken as whole, they are relevant to issues that must be determined by the court under ss. and 6.1 of The Class Actions Act. Accordingly, evidence adduced by way of cross-examination on his affidavit might well complete the evidentiary record and be of assistance to the court. [14] will not attempt to list all such statements. Rather, will comment on Mr. Field’s proposed role within the larger structure of the case. Mr. Merchant asserts that the claim is simple. He says that it is made by or on behalf of persons who took Paxil when they were under 18 years of age, that the drug was ineffective and that “they want their money back”. However, the claim appears to be more than that. The statement of claim defines the proposed class as follows: 11. The Plaintiffs bring this action on behalf of themselves, their families, and other similarly situated members of the Class and seek compensation for their purchase of an ineffective and unsafe drug. 12. The Class includes all persons who used or ingested Paxil while under the age of 18 and all persons, corporations, and other entities including, but not limited to, health care plans, the public and private health care insurers, and provincial health departments, who purchased, acquired or paid for Paxil for the treatment of any person under the age of 18 who are: (a) resident in the province of Saskatchewan; or (b) resident outside of Saskatchewan, 13. The Class seeks redress and compensation from the Defendants for economic loss and other harms and damages incurred as result of the Defendants’ manufacture, marketing and distribution of Paxil, an unsafe and ineffective pharmaceutical product, to members of the Class. [15] The motion for certification contains similar description of the proposed class: (b) defining the class as “all persons who used or ingested Paxil while under the age of 18 and all persons and entities including, but not limited to, public and private health care insurers, who purchased, acquired or paid for Paxil for the treatment of any person under the age of 18, wherever resident”. [16] The affidavit of Mr. Field, who resides in British Columbia and asserts that he took Paxil when he was under 18, contains the following statements concerning his proposed role as representative plaintiff for members of the proposed class: 2. was born on September 18th, 1983 in British Columbia and have resided in British Columbia for most of my life. took the prescription drug Paxil for anxiety disorder and panic attacks and other psychiatric conditions for approximately years while was under 18 years of age. My condition was characterized by agoraphobia and social phobia. 9. My parents purchased Paxil on my behalf from variety of stores throughout British Columbia. Out of pocket expenses were incurred to buy Paxil and my parents’ insurance covered the balance of the purchase price of Paxil. 16. On the basis of the article from the British medical journal The Lancet, attached to this my Affidavit as Exhibit “D”, believe that the Defendant’s behaviour was “an abuse of the trust” put in my physicians and that Paxil had global sales of US $4.97 billion in 2003. [17] As stated in his affidavit neither Mr. Field or his parents paid for the Paxil he took. It was paid for by an insurer. Accordingly, any claim for reimbursement of the purchase price is necessarily brought by or on behalf of his insurer. If that is also true for the other individuals referred to in paragraph 11 of the statement of claim, then for all practical purposes the claims for reimbursement are in reality being advanced, not by the individuals under 18 who took Paxil, but by the “corporations and other entities”, including the health care plans, health care insurers and provincial health departments referred to in paragraph 12 of the statement of claim. Those same entities are referred to as “public and private health care insurers” in clause (b) of the motion for certification quoted at paragraph 15 above [18] These facts alone are relevant to consideration of whether Mr. Field would be an appropriate person to fairly and adequately represent the interests of the class, and whether class action would be the preferable procedure for the resolution of the common issues. They are therefore relevant to the court’s inquiries under s. of The Class Actions Act. However, it is when they are considered in relation to other statements in Mr. Field’s affidavit, in relation to allegations contained in the statement of claim and in relation to the common issues the plaintiffs seek to have certified that the role of Mr. Field as proposed representative plaintiff becomes somewhat confusing. [19] The statement of claim contains number of allegations that Paxil was not just ineffective, but harmful to persons under 18. Examples include the following: 26. GSK misrepresented information concerning the safety of Paxil. Defendants found through their own clinical trials that there was an increased risk of adverse events including but not limited to suicide, suicidal tendencies, aggressiveness, hostility and mania associated with the use of Paxil but have continuously failed to warn consumers. 28. The Plaintiffs purchased, acquired or paid for Paxil for minors or for themselves without knowledge of the lack of efficacy or the increased risks of suicide, suicidal tendencies, aggressiveness, hostility and mania associated with use in children and adolescents. 29. Defendants’ failure to publish, disseminate or inform its consumers of the results of its clinical trials regarding the lack of efficacy and serious safety concerns of Paxil’s use in children and adolescents and the Defendants’ publication of limited clinical trial results which falsely implied the safety and efficacy of Paxil has misled all consumers who purchased Paxil for the treatment of children and adolescents. 43. GSK’s studies also demonstrated substantially increased risk of suicidal thoughts and acts. Combined, studies 329, 377 and 701 showed that certain possibly suicide related behaviours were approximately two times more likely in the Paxil group than the placebo group. The extension phase of study 329 and study 716 provided support for the presence of such risk in youngsters taking Paxil. [20] These allegations are repeated in Mr. Field’s affidavit. few examples include: 10. At the time of purchase my parents and were unaware of the dangers and risks posed by Paxil. No mention was made by any of my physicians or other care givers of the dangers and negative side effects associated with using the drug as an adolescent. 14. On the basis of the article attached to this my Affidavit as Exhibit “C”, the Health Canada advisory attached as Exhibit “B”, and the Canadian Medical Association Journal Article attached as Exhibit “A”, believe that taking Paxil put me at increased risk of suicidal ideation and am grateful that chose not to make an attempt to take my own life. 17. While taking Paxil my anxiety worsened, had increased negative feelings, the severity of my depression increased, romanticized about committing suicide, had heightened sense of hopelessness, lacked motivation and energy more than before took Paxil, engaged in self-harming behaviour such as cutting myself with scissors, which did not do prior to taking Paxil. Most often, did not speak to others about these feelings. [21] Although both the statement of claim and the affidavit of Mr. Field are replete with allegations that Paxil is harmful to children and adolescents under 18 and that it increased their risks of suicide attempts or self-harm, those assertions are entirely absent from the common issues described in the statement of claim and listed in Mr. Field’s affidavit. Rather, the proposed common issues are carefully confined to whether Paxil was an ineffective treatment for persons under 18 years of age and whether GSK “is liable to account to any of the class members on restitutionary basis for any part of the proceeds of the sales of Paxil”. [22] The common issues proposed in the application for certification are not only devoid of the allegations of harm in the statement of claim, they appear to be inconsistent with Mr. Field’s personal expectations and motivation as he has explained them in paragraph of his affidavit: 5. The financial, emotional, physical and psychological stress that has been involved in my ordeal makes participating in the within action an important endeavour for me. It is important to me that the Defendant be held accountable. [23] Accepting that Mr. Field (or his family) did not pay for his Paxil, and recognizing that the common issues are confined to claiming reimbursement “on restitutionary basis” because Paxil is said to have been ineffective (rather than harmful), it appears that the common issues being put forward for certification will not enable Mr. Field to recover anything for the issues important to him. He will be confined to pursuing an individual claim. Again, these matters are relevant to whether he would be an appropriate person to fairly and adequately represent the interests of the class. [24] Counsel for the applicant, GSK, has assured the court that the proposed cross-examination of Mr. Field is expected to take no more than half day and that it will be conducted at any reasonable location chosen by Mr. Field and plaintiffs’ counsel. Accordingly, cross-examination on his affidavit will not result in an injustice to Mr. Field. [25] I find that a cross-examination of Mr. Field may assist the court in applying the criterion set out in ss. 6 and 6.1 of The Class Actions Act to the certification application. The application for leave to cross-examine him on his affidavit is granted. It will take place at such date, time and place as may be agreed upon between counsel or as will be further ordered by the court. Any costs incurred by plaintiffs’ counsel to attend may be spoken to at the certification hearing.

The plaintiffs have applied for certification of proposed multi-jurisdictional class action involving Paxil, prescription drug approved in Canada for the treatment of depression, anxiety, panic disorder and other conditions. The plaintiffs claim that Paxil is ineffective and harmful to persons under 18 years of age. The defendant applies for leave to cross-examine the representative plaintiff on his affidavit pursuant to Rule 317 of The Queen's Bench Rules. HELD: The decisions reviewed by the Court all support the view that leave to cross-examine under Rule 317 is granted more readily in proposed class actions than it is in other civil proceedings. None support the proposition that proposed representative plaintiff is immune from cross-examination in respect of his or her individual claim. Cross-examination of proposed representative plaintiff may explore matters pertaining to his or her individual claim in the context of issue that must be determined by the court pursuant to s. and s. 6.1 of The Class Actions Act. A cross-examination of the plaintiff in this case may assist the court in applying the criterion set out in s. 6 and s. 6.1 of The Class Actions Act. The application for leave to cross-examine is granted.

e_2010skqb108.txt

J. IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2009 SKPC 71 Date: June 17, 2009 Information: 5927697 Location: Nipawin Between: Her Majesty the Queen and Percy Andrew Kenny Appearing: Mr. T. Healey For the Crown Mr. D. Loewen For the Defendant JUDGMENT B. MORGAN, INTRODUCTION: [1] Mr. Kenny is charged under The Wildlife Act Regulations, 1981 with use of a searchlight when hunting. Specifically, the section reads: 11.1(2) For the purpose of ensuring the safety of hunters and the public, searchlight shall not be used for the purposes of hunting wildlife. [2] The trial proceeded on the basis of an Agreed Statement of Facts, filed as Exhibit P-1, and the production of five other exhibits. Upon that occurring, the Crown closed its case, and the sole defence witness was Mr. Kenny. At the outset, thank both counsel, and in particular Mr. Loewen and his client, for proceeding in this manner. The net result is that there was significant saving of Court time, and the case was able to be decided on simplified and expeditious basis. [3] On September 14, 2007, officers of Saskatchewan Environment and Resources Management (“SERM”) were in surveillance aircraft flying above the Fort `a la Corne Provincial Forest near Choiceland, Saskatchewan. At approximately 11:45 p.m., the officers first saw vehicle which they observed to travel approximately 14 kilometres in an easterly direction on the Division Road, and then turn north for short distance on the Torch Trail road. The SERM officers in the aircraft were in communication with SERM officers who were on patrol in vehicles on the ground, and those vehicles were guided towards the subject vehicle and pulled it over at 12:15 a.m. Overall, then, this vehicle was under surveillance on continuous and ongoing basis for approximately 30 minutes or so. [4] In that vehicle were three individuals. The driver and owner was the defendant Percy Kenny. Sitting next to Mr. Kenny in the front seat of the truck was his nephew Tyrone Hryniuk. In the back seat of the four door extended cab truck was Mr. Kenny’s son Morgan Kenny. Each of Tyrone Hryniuk and Morgan Kenny were seated next to 30-30 rifles. The rifle that was in the back seat next to Morgan Kenny had one live round in the chamber, and four live rounds in the magazine. The rifle that was next to Tyrone Hryniuk was also loaded. Each of Tyrone Hryniuk and Morgan Kenny acknowledged that they knew the rifles were loaded. [5] Also located in the vehicle and entered as exhibits were one million candle power spotlight, which was mounted on cord that plugged into the cigarette lighter, as well as bird and animal caller that had included in it cassette tape of bull and cow mating sounds. This bird and animal caller consists of small box, approximately half the size of lunch pail, with bull horn type speaker on top. When the tape is played, the device is capable of calling or attracting moose from up to one-half mile to one mile away. Both the spotlight and bird and animal caller were located on the rear seat of the vehicle. Additionally, there were 14 rounds of ammunition located in the vehicle, which were compatible with the two rifles that were seized. [6] All three occupants of the vehicle were very polite and cooperative with the SERM officers who had pulled them over, and readily provided an explanation of their activities during the previous day and evening, that is, this being just past midnight, the immediately preceding time frame of the day and evening before. [7] Mr. Kenny’s evidence was that he had dropped his son Morgan and nephew Tyrone off in the Fort `a La Corne Provincial Forest earlier that morning, had then gone shopping in Prince Albert with his wife, and had returned to pick up his son and nephew after they had spent the day hunting. As it turns out, their hunt was unsuccessful. Mr. Kenny says that they got into the vehicle and fell asleep within five minutes. His evidence was that he was driving through the area, and admittedly using the searchlight to cast beam around, as he was looking for an acquaintance of his because the acquaintance’s wife had told him earlier that day that her husband was in the Fort `a La Corne area hunting. He adamantly denies that he or in fact any of the three of them were hunting at the time they were observed and stopped. [8] In assessing credibility, am guided by the well-known principles in R. v. McKenzie (P.N.) (1996), 1996 CanLII 4931 (SK CA), 141 Sask. R. 21 (C.A.) as follows: First, if believe the accused, must acquit. Secondly, if am unable to decide whom to believe, must acquit. Third, if do not believe the evidence of the accused but am left in reasonable doubt by it, must acquit. Fourth, even if am not left in doubt by the evidence of the accused, must ask myself whether, on the basis of the evidence which do accept, am convinced beyond reasonable doubt by that evidence of the guilt of the accused. [9] The time honoured rule is that the burden is on the Crown to prove the constituent elements of the offence beyond reasonable doubt with credible evidence, and the defendant is presumed to be innocent unless and until he is proven guilty. am not to treat this as contest in which must accept one version of events over the other; trial is not an either/or proposition. The Crown bears the burden throughout the case; there is no onus on the defendant to prove anything. In total, must be satisfied on the evidence that do accept of the guilt of the defendant beyond reasonable doubt in order to convict. [10] Having gone through that analysis, and for the reasons that follow, I do not believe the evidence of the defendant, and I am not left in doubt by it. On all of the evidence, am convinced of his guilt beyond reasonable doubt. [11] First, do not believe that Mr. Kenny was, as he says, looking for Mr. Russell Black. It is not credible to believe he happened to run into Mr. Black’s wife in Prince Albert (Mr. Black also being resident of English River First Nation, as is Mr. Kenny), that he would mention to her that he was going into the forest to pick up his son, and that this woman would then ask him to look for her husband, who happened to also be in the same forest hunting. question why he would think he would have any prospect of finding Mr. Black, when he had no idea in what part of the forest he may have been in. Further, of course, by the time he started to look, it was dark. It simply isn’t credible to believe that he thought he could find someone in vast area such as provincial forest in the first place, let alone at night. [12] Further, note that Mr. Kenny stated that it took him 45 minutes to an hour driving through the Fort `a La Corne Forest to arrive at the location where he dropped his son and nephew off, and his evidence was that he picked them up at the same spot, albeit, of course, hours later. He had to be aware, when he was traversing distances of that nature, that the chances of locating Mr. Black were infinitesimal. He acknowledged in cross-examination as much, when he agreed with the Crown’s suggestion that finding Mr. Black would have been like looking for needle in haystack. He had stated, on more than one occasion, that he didn’t have clue where he (i.e., Mr. Kenny) was. He obviously had some idea, because he returned to the same area that he dropped his son and nephew off, to pick them up, so also question his professed ignorance of his surroundings. The point remains, however, that he would have the Court believe that he was in vast tract of land, in the dark, hoping to locate someone else who was there, hunting. As it was dark, the first thought that should have crossed his mind, if not that the task he was setting for himself was virtually impossible, was that Mr. Black had probably ceased hunting due to darkness. [13] As well, it lacks any degree of probability that the first thought that would come to his mind, when he picked up his son and nephew, was that Mr. Black may have been hurt by moose. Mr. Kenny’s evidence was that there had been gentleman from his home area who had been attacked by moose in the Fort `a La Corne area, and was seriously hurt. That was his justification, apparently, for feeling that the same fate might have befallen Mr. Black. As he put it, after picking up his son and nephew, “...right away my mind started going crazy...what if Russell got hurt?”. There is simply no logical reason why one would assume that Mr. Black might have had the same fate that someone else from his home community might have suffered. That is such remote possibility, given all the potential reasons why Mr. Black might not be able to be located in huge area such as the provincial forest. All it establishes, in my mind, is that, if in fact Mr. Kenny was concerned about moose attacking Mr. Black, Mr. Kenny was of the view there were significant numbers of moose in the area. That would give him reason to be using searchlight to hunt at night. It wouldn’t give him reason to suspect “a moose stomped on his head”, referring to Mr. Black. [14] As well, although there was no evidence as to the precise time that it became dark on September 29, 2007, the first sighting of Mr. Kenny’s vehicle by the surveillance aircraft was approximately 11:45 p.m. If when he picked up the hunting party it was, in his words, “getting dark”, at the very least, at the time he was first observed, he had to have been looking for Mr. Black for two hours. He was then followed for another 30 minutes from the time he was initially observed. If finding Mr. Black was, in his words, akin to finding needle in haystack, it defies belief to accept that he would have been trying to do this for two and one-half hours, in the dark, when he had no idea where Mr. Black possibly could have been. His evidence was that he was just getting ready to leave the forest when he was stopped by the SERM officers. He then testified that he told one of the SERM officers that he intended to continue his search for Mr. Black. find this to be one more example of an unreliable story, one that was made up after the fact to fit what is, by all accounts, very suspicious set of circumstances. have little confidence that in fact Mr. Kenny was seriously concerned that Mr. Black might have been injured by wayward moose. [15] On the other hand, as the Crown argues, all of the indicia of hunting at night with the use of searchlight are present in this case. It cannot escape notice that there were two loaded firearms in the vehicle; cannot accept that they were loaded simply because there was mere oversight by Mr. Kenny’s companions, and him, in ensuring they were unloaded at the time he picked them up. Mr. Kenny had one million candle spotlight in his vehicle, and he acknowledges he was using it. He was driving slowly, by his own admission, on roads that were in prime hunting area. All of these factors point heavily in the direction of hunting at night with the aid of searchlight. [16] certainly accept defence counsel’s observation that there is no evidence that the moose caller was being used. However, there was no evidence from anyone that any efforts whatsoever were being made to locate Mr. Black, other than shining the spotlight. If one were truly looking for an injured individual in large forest, certainly one would assume that the searching parties would have been yelling and making noise to try to attract the subject’s attention. Yet from Mr. Kenny’s evidence, his two companions had fallen asleep within five minutes of getting into the truck, as they were tired from their day of hunting. [17] At the end of the day, simply cannot accept the explanation offered by Mr. Kenny. What am left with are some uncontroverted facts, all of which are consistent only with an inescapable inference that Mr. Kenny was employing the searchlight for the purposes of hunting wildlife. [18] The terms “searchlight”, “hunting”, and “wildlife”, are all defined in the Act or the Regulations. Exhibit P-3, the million candle power searchlight, clearly casts “a beam of light” amply demonstrated by the Agreed Statement of Facts and the observations of both the SERM personnel in the surveillance aircraft and the SERM employees that pulled Mr. Kenny over. [19] “Hunting” in the Act includes the act of “searching for” wildlife, “wildlife” being defined as vertebrate animal of any species that is wild by nature in Saskatchewan; wildlife would include the very animals the cassette tape was designed to attract. Indeed, the area in which Mr. Kenny was located is, according to the Agreed Statement of Facts, an excellent locale for moose, and they were at the time that he was apprehended in the “peak of the moose rut”. [20] On all the evidence, I am satisfied beyond a reasonable doubt that Mr. Kenny was using the searchlight for the purposes of hunting wildlife, and I find him guilty. [21] The Crown had indicated that, in the event conviction was entered, forfeiture of the exhibited items would be sought. Section 79(4) of the Act reads as follows: When person is convicted of contravention of any provision of this Act or the Regulations other than an offence mentioned in subsection 2, the Court may order that any article or vehicle seized in connection with the offence is forfeited to the Crown and is to be disposed of in manner approved by the Minister. [22] invite counsel to make their submissions respecting potential forfeiture at this time as to any items that were “seized in connection with the offence”. [23] Section 76 speaks to prohibition period during which convicted individual cannot apply for or obtain any big game licence, game bird licence, or fur licence, and section 74 of the Act speaks to the monetary penalty for contraventions of the Act or Regulations. Counsel can speak to those matters as well at this time.

Mr. Kenny is charged under The Wildlife Act Regulations, 1981 with use of a searchlight when hunting. Specifically, the section reads: 11.1(2) For the purpose of ensuring the safety of hunters and the public, a searchlight shall not be used for the purposes of hunting wildlife. The case was decided on the basis of credibility. The Court reviewed the requirements for assessing credibility and found it did not believe the accused. The Court stated that, on all the evidence, it was convinced beyond a reasonable doubt that the accused was using a searchlight for the purpose of hunting wildlife. HELD: The accused is guilty as charged.

2_2009skpc71.txt

Layh, J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 216 Date: 2018 07 31 Docket: QBG 416 of 2017 Judicial Centre: Saskatoon BETWEEN: ROYAL BANK OF CANADA and DOREEN PEARL PARTRIDGE Counsel: Ljiljana Zerajic for the plaintiff no one appearing for the defendant FIAT ROTHERY J. July 31, 2018 [1] The issue is whether the pro rata distribution of purchase money proceeds and non‑purchase money proceeds in any deficiency judgment pursuant to judicial sale extends to the total outstanding amount of the mortgage. That is, whether the pro rata distribution applies solely to the indebtedness of principal and accrued interest, or applies to all costs of the outstanding mortgage, including solicitor‑client costs permitted under the mortgage. [2] The plaintiff, Royal Bank of Canada [RBC], applies by notice of application for a deficiency judgment against the defendant, Doreen Pearl Partridge [Partridge], pertaining to the non‑purchase money portion of the outstanding indebtedness to RBC pursuant to her mortgage. RBC also applies to have its lawyers’ costs assessed on solicitor‑client basis. The judicial sale by real estate listing was previously confirmed by the order of Danyliuk J. of October 27, 2017. [3] As directed by Toronto‑Dominion Bank Schell, 2014 SKQB 344 (CanLII) at paras 17‑18, 461 Sask 257, counsel has appropriately applied by notice of application to have solicitor‑client costs assessed and to have the judgment for the deficiency amount set. And, as directed by Walker Bank of Montreal, 2017 SKCA 42 (CanLII), 415 DLR (4th) 277 [Walker], counsel for RBC has appropriately calculated the proceeds from the judicial sale that must be distributed pro rata between the purchase money and non‑purchase money balances owing. Partridge had originally executed mortgage for $191,000, of which $176,000 was advanced to purchase her condominium unit and $15,000 was advanced for other purchases. Thus, the non‑purchase money portion of the loan advanced and secured by the mortgage was 8% of the total mortgage. [4] The property sold pursuant to an Order Nisi for Sale by Real Estate Listing for $156,000. In accordance with the Order Nisi, and as set out in Rule 10‑47(5)(c) of The Queen’s Bench Rules and its corresponding Form 10‑47C, the sale proceeds were distributed to pay outstanding property taxes, real estate commission, and the principal and interest due under the mortgage in the sum of $141,945.36. This sum is referred to as the “net sale proceeds” to be distributed pro rata as directed by Walker at paragraph 35. [5] As at November 1, 2017, the amount of principal and interest owing on the non‑purchase money portion of the mortgage was $21,256.86. Applying 8% of the net sale proceeds, calculated as $11,355.63, against the outstanding balance of the non‑purchase money portion of the mortgage, the deficiency of principal and interest is $9,901.23 as at November 1, 2017. As requested in paragraph 9 of the affidavit sworn by the officer for RBC, RBC “is seeking judgement in the amount of $9,901.23 with interest from November 1, 2017 to the date of judgment at the rate of 2.79 per cent per annum.” I find that RBC is entitled to a deficiency judgment for principal and interest owed under the mortgage in the amount requested. [6] RBC claims it is entitled to solicitor‑client costs, and other costs accrued by RBC under its mortgage. The issue is whether such costs should be subject to the pro rata calculation for the non‑purchase portion of the mortgage, that is, 8% of the total costs incurred. [7] It is settled law that mortgagee is entitled to solicitor‑client costs if the obligation to pay those costs is included as term of the mortgage. See: Fidelity Trust Co. Hawrish (1986), 1986 CanLII 3118 (SK CA), 55 Sask 10 (CA) at para 3‑4 [Hawrish]; and Royal Bank of Canada Lafond, 2009 SKQB 346 (CanLII) at para 7, 341 Sask 195. [8] Such is the situation with this mortgage. The solicitor‑client costs charged to RBC by its counsel total $7,227.00, plus disbursements of $301.47, GST of $367.42, and PST of $433.62. [9] This is sale by real estate listing that was conducted in smooth and timely fashion. The solicitor‑client costs to be awarded by this court fall squarely within the reference point referred to in CIBC Mortgages Inc. Greyeyes, 2017 SKQB 313 (CanLII). That is, RBC is entitled to an order for solicitor‑client costs in the amount of $4,500.00. RBC is entitled to taxable disbursements of $121.47, non‑taxable disbursements of $180.00, and the applicable GST and PST. [10] RBC also claims two other charges pursuant to its mortgage. First, RBC has paid to the condominium corporation the sum of $2,528.90 for arrears of condominium fees. Pursuant to s. 63 of The Condominium Property Act, 1993, SS 1993, C‑26.1, the condominium corporation may register lien against the title of the condominium owner’s unit for unpaid contributions to the common expense fund or the reserve fund. These are charges that are allowable pursuant to s. 11 of The Limitation of Civil Rights Act, RSS 1978, L‑16 [LCRA]. See: CIBC Mortgages Inc. Eldstrom, 2014 SKQB 337 (CanLII) at para 9, 458 Sask 314 [Eldstrom]. Thus, the condominium fees paid by RBC are assessments levied against the mortgagor’s land and are recoverable under the terms of the mortgage. [11] Secondly, RBC claims $1,461.92 for its payment of property management charges for securing and caring for the property, appraisal fee and utilities. These charges are permitted by s. 8(1) of the LCRA. Any inspections and administration fees have not been claimed by RBC. See: Hawrish, at para 5; Eldstrom at paras 8‑9; and Royal Bank of Canada Leschinski, 2012 SKQB 286 (CanLII) at para 5, 401 Sask 242. Thus, the property management charges of $1,461.92 are recoverable under the terms of the mortgage. [12] Counsel for RBC submits that the total of the assessed solicitor‑client costs, the total condominium fees and the total property management charges ought to be added to the deficiency judgment, along with the prorated principal and interest due. Counsel argues that it was required to incur the extra legal costs to proceed by judicial sale in order to pursue recovery of the deficiency against Partridge. RBC should not have the solicitor‑client costs prorated in accordance with the non‑purchase money portion of the mortgage. [13] The Saskatchewan Court of Appeal in Walker was not required to address the prorating of solicitor‑client costs because the parties had consented to having the matter remitted to the Queen’s Bench judge. However, Walker is instructive in explaining the policy objective of s. of the LCRA. The protection of s. of the LCRA continues to apply to only that portion of the mortgage loan that was given to secure the purchase price of the land. It logically follows that the protection of s. of the LCRA pertains to all costs which are part of the outstanding mortgage amount. In this case, the pro rata calculation of the non‑purchase money mortgage is 8% of the total outstanding mortgage amount. RBC is entitled to judgment against Partridge for 8% of the solicitor‑client costs, condominium fees and property management charges. [14] It is hereby ordered that RBC is granted judgment against Partridge in an amount calculated as:(a) the sum of $9,901.23 with interest from November 1, 2017, to the date of judgment at the rate of 2.79% per annum, representing the deficiency of principal and interest owed under the mortgage;(b) 8% of solicitor‑client costs assessed at $4,500.00 and 8% of disbursements and applicable taxes;(c) 8% of the condominium fees of $2,528.90 paid by RBC; and(d) 8% of the property management charges of $1,461.92 paid by RBC. [15] Counsel for RBC is directed to prepare draft judgment for my consideration in accordance with the terms of this order. “A.R. Rothery” J. A.R. Rothery

Statutes – Interpretation – Limitation of Civil Rights Act, Section 2The plaintiff bank applied by notice of application for a deficiency judgment against the defendant pertaining to the non-purchase money portion of the outstanding indebtedness to the plaintiff pursuant to her mortgage and to some other costs related to the mortgage. The original mortgage executed by the plaintiff was for $191,000 of which $176,000 was advanced to purchase her condominium and $15,000, eight per cent of the total, was advanced for other purchases. The property sold for $156,000 pursuant to a judicial sale. The sale proceeds were distributed to pay outstanding property taxes, commission, and the principal and interest due under the mortgage in the amount of $141,945 and the net sale proceeds were to be distributed pro rata. As at November 1, 2017, the principal and interest owing on the non-purchase money portion of the mortgage was $21,250. The plaintiff requested judgment for the deficiency in the amount of $9,900 with interest to the date of judgment. It claimed it was entitled to solicitor-client costs and other costs accrued by it under the mortgage. The issue was whether such costs should be subject to the pro rata calculation for the nonpurchase portion of the mortgage, that is, 8 percent of the total costs incurred. HELD: The application was granted. The court found that the plaintiff was entitled to a deficiency judgment for principal and interest owed under the mortgage in the amount requested. It was also entitled to judgment against the mortgagee for eight percent of the solicitor-client costs, condominium fees and property management charges.

5_2018skqb216.txt

2000 SKQB 366 Q.B.G. A.D. 1998 No. 766 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: BIG QUILL RESOURCES INC. APPLICANT (PLAINTIFF) and POTASSIUM SULPHATE COMPANY ALSASK INC. and ROBERT NYLEN RESPONDENTS (DEFENDANTS) William J. Klebeck for Big Quill Resources Inc. Jeffrey N. Grubb for Potassium Sulphate Company Alsask Inc. and Robert Nylen JUDGMENT ALLBRIGHT J. September 5, 2000 [1] The applicant Big Quill Resources Inc., by way of notice of motion, seeks the following relief:1. An Interlocutory Injunction pursuant to section 65 of The Queen’s Bench Act and Queen’s Bench Rule No. 387(a) prohibiting and restraining the Respondent Potassium Sulphate Company Alsask Inc., or any person or party claiming under or through the Respondent Potassium Sulphate Company Alsask Inc., from producing and manufacturing potassium sulphate at its plant located at or near Alsask, Saskatchewan, until further order of this court;2. An order pursuant to section 65 of The Queen’s Bench Act and Queen’s Bench Rule No. 387(a) prohibiting and restraining the Respondents, Robert Nylen and Potassium Sulphate Company Alsask Inc., or any person or party claiming under or through them, from selling, marketing or otherwise disposing for profit potassium sulphate produced at the plant of the Respondent Potassium Sulphate Company Alsask Inc. located at or near Alsask, Saskatchewan, until further other [sic] of this court;3. Such further and other ancillary relief ordered by way of injunction, or otherwise, as counsel may advise and this Honourable Court may allow;4. Costs of this application. [2] In summary, the applicant seeks injunctive relief against the respondent such as would prohibit the respondent from producing any potassium sulphate, and would further enjoin both defendants from selling, marketing or otherwise disposing of any potassium sulphate during the life of the injunctive order. [3] The factual foundation upon which the applicant relies is set forth in detail in the affidavit of Harvey Haugen, businessman resident at the town of Wynyard, in the Province of Saskatchewan wherein he deposes as follows: 1. THAT, at all material times to this action, have been the President and Director and Shareholder of the Plaintiff, BIG QUILL RESOURCES INC., and, as such, have personal knowledge of the matters and facts herein deposed to, except where stated to be on information and belief and, whereso stated, verily believe the same to be true. 2. THAT, prior to 1991, the Potash Corporation of Saskatchewan (hereinafter called “PCS”) was involved in Pilot Project utilizing facilities located at Big Quill Lake near Kandahar, Saskatchewan, said Pilot Project being to develop plant to manufacture potassium sulphate utilizing ion exchange technology and process. That myself and one Les Hoiseth were employees of PCS during this Pilot Project phase which commenced on or about the month of September, 1985. 3. THAT, in 1991, several employees of PCS, including myself and Les Hoiseth, incorporated the Plaintiff, BIG QUILL RESOURCES INC., (hereinafter called “Big Quill”) and Big Quill purchased the Pilot Project plant from PCS that year. Concurrent with the purchase of the Pilot Project plant from PCS, Big Quill also obtained an exclusive license from PCS to utilize the ion exchange technology developed by PCS to produce potassium sulphate and attached and marked as Exhibit “A” to this my Affidavit is copy of the Technology Licensing Agreement between PCS and Big Quill Resources Inc. dated August 29, 1991. 4. THAT Big Quill further developed the ion exchange technology and began producing potassium sulphate at an expanded plant located at Big Quill Lake near Kandahar, Saskatchewan, in 1991 and began marketing potassium sulphate throughout Canada and the United States and, to limited extent, overseas. 5. THAT, to the best of my knowledge, in 1991 there was no other plant in the world that manufactured potassium sulphate utilizing ion exchange technology. 6. THAT Les Hoiseth subsequently left the employ of Big Quill in July, 1994 and became involved with one Lloyd Virag, then President and principal shareholder of Sotec Products Ltd., company involved with the production and manufacture of sodium sulphate at plant near Cabri, Saskatchewan. Les Hoiseth approached Big Quill in the fall, 1994, regarding establishing manufacturing plant near Alsask, Saskatchewan, to produce potassium sulphate utilizing ion exchange technology. The Defendant POTASSIUM SULPHATE COMPANY ALSASK INC. (hereinafter referred to as “PSC Alsask”) was incorporated subsequently for that purpose. 7. THAT, in May, 1995, Big Quill and PSC Alsask entered into two agreements, the first being Technology Licensing Agreement whereby Big Quill agreed to grant to PSC Alsask the right and license to use ion exchange technology to produce potassium sulphate, copy of which Technology Licensing Agreement dated May 23, 1995, is attached and marked as Exhibit “B” to this my Affidavit, and the second agreement being an Exclusive Marketing Agreement whereby PSC Alsask agreed that Big Quill would market all of the potassium sulphate produced by PSC Alsask, copy of which Exclusive Marketing Agreement dated May 23, 1995 is attached and marked as Exhibit “C” to this my Affidavit. 8. THAT, subsequent to the signing of the documents marked as Exhibits “B” and “C”, respectively, to this my Affidavit, PSC Alsask, primarily with the technical assistance of Les Hoiseth, constructed plant near Alsask, Saskatchewan, to produce potassium sulphate. 9. THAT am advised by Lloyd Virag, and verily believe the same to be true, that PSC Alsask has been manufacturing potassium sulphate since the early spring or summer of 1997 and that PSC Alsask has been marketing the potassium sulphate on its own behalf. 10. THAT am advised by Lloyd Virag, and verily believe the same to be true, that PSC Alsask has, to December 31, 1998, produced slightly in excess of 11,000 metric tonnes of potassium sulphate and had marketed slightly in excess of 10,000 tonnes of potassium sulphate on its own behalf. 11. THAT, to date, PSC Alsask has not paid any funds whatsoever to Big Quill under the terms of the Technology Licensing Agreement and/or the terms of the Exclusive Marketing Agreement, and as result thereof, the within litigation was commenced in February, 1998. 12. THAT Big Quill has made repeated requests to PSC Alsask to comply with the two agreements to no avail. 13. THAT PSC Alsask has not allowed representatives of Big Quill to enter or examine the potassium sulphate plant constructed by PSC Alsask near Alsask, Saskatchewan, with view to determining whether PSC Alsask is utilizing an ion exchange technology licensed to it under the Technology Licensing Agreement marked as Exhibit “B” to this my Affidavit and it is only as result of Examination for Discovery, and under threat of court application to produce documents, that sufficient documentation was produced by the Defendant, PSC Alsask to Big Quill for Big Quill to determine exactly whether the technology being utilized by PSC Alsask to produce potassium sulphate is the technology licensed to PSC Alsask by Big Quill under the Technology Licensing Agreement. 14. THAT Big Quill has obtained an expert opinion report from an independent engineer that concludes that “the process used by PSC Alsask clearly falls under the Technology Licensing Agreement signed with Big Quill Resources Inc.” 15. THAT the curriculum vitae of the expert engineer, Ed Hinz, is attached and marked as Exhibit “D” to this my Affidavit and the written expert opinion report of Ed Hinz dated March 22, 2000, is attached and marked as Exhibit “E” to this my Affidavit. 16. THAT all of the documentation to which Mr. Hinz reviewed to provide his expert opinion is set out on the last page of Exhibit “E”, which documentation is included in binder approximately five inches thick and which said binder can be provided to the court, if necessary. 17. THAT verily believe that Big Quill has established prima facie case that the Defendant PSC Alsask is utilizing ion exchange technology licensed to it under the Technology Licensing Agreement attached and marked as Exhibit “B” to this my affidavit and that the Defendant PSC Alsask is in breach of the Technology Licensing Agreement as result of not paying any licensing fee whatsoever as contemplated under section of the said Technology Licensing Agreement. 18. THAT am advised by Lloyd Virag, and verily believe it to be true, that PSC Alsask had been put into receivership by its secured creditors in or about the month of May, 1999, and that PSC Alsask is still producing potassium sulphate and marketing it under the receiver’s management. 19. THAT have been made aware that another corporation, Prairie Sulphate Corporation, has apparently acquired the assets of PSC Alsask, which no doubt includes the ion exchange technology utilized at the plant of PSC Alsask to manufacture potassium sulphate, and attached and marked as Exhibit “F” to this my Affidavit is Notice to Customers document of Prairie Sulphate Corporation confirming that Prairie Sulphate Corporation has acquired the assets of PSC Alsask. 20. THAT the Defendant Robert Nylen was the Vice-President in charge of marketing at Big Quill from November, 1991, to November, 1995. 21. THAT, during the term of his employment, the Defendant Robert Nylen executed Confidentiality Agreement dated December 29, 1994 and attached and marked as Exhibit “G” to this my Affidavit is copy of said Confidentiality Agreement. 22. THAT have been advised by Robert Nylen, and verily believe the same to be true, that, prior to his employment with Big Quill, he never had any experience in marketing potassium sulphate and, further, am advised by Robert Nylen, and verily believe the same to be true, that he has been employed as Senior Marketing Manager for the Defendant PSC Alsask since October 1, 1996. 23. THAT the Defendant Robert Nylen, in the said Confidentiality Agreement, agreed that the agreement applied to all client lists of Big Quill and the Defendant Robert Nylen, in paragraph of the said Confidentiality Agreement, agreed that he will not use, directly or indirectly, during or after his employment with Big Quill any of the proprietary and confidential information obtained as result of his employment, particularly including client lists. 24. THAT attached and marked as Exhibit “H” to this my Affidavit is client list of Big Quill provided to our legal counsel at the Examination for Discovery in the within action and am aware and verily believe it to be true that PSC Alsask has been marketing and selling potassium sulphate to various customers and clients of Big Quill which are disclosed on the client list attached and marked as Exhibit “H” to this my Affidavit. 25. THAT Big Quill is now making this application for an interlocutory injunction to restrain and prohibit PSC Alsask, or any party claiming under or through it, from manufacturing potassium sulphate using the ion exchange technology licensed to it under the Technology Licensing Agreement and, further, for an interlocutory injunction restraining and prohibiting Robert Nylen and/or PSC Alsask, or any party claiming under or through them, from marketing potassium sulphate produced at the plant of PSC Alsask, at or near Alsask, Saskatchewan for the following reasons: (i) That Big Quill has now only been able to establish prima facie case that the ion exchange technology licensed under the Technology Licensing Agreement is being used by PSC Alsask to produce potassium sulphate due to the fact that it only obtained documentation this spring sufficient to confirm the design of PSC Alsask plant and the flow charts illustrating the process being used to manufacture potassium sulphate at the said plant. Further, it has been only this spring that Big Quill has been able to determine through an independent expert that PSC Alsask is utilizing the ion exchange technology licensed to PSC Alsask by Big Quill under the Technology Licensing Agreement; (ii) That, even though damages are claimed in the Statement of Claim of the Plaintiff Big Quill, damages in all likelihood cannot be recovered due to the fact that PSC Alsask is in receivership and has been in receivership for more than one year; (iii) That there is now urgency in obtaining requested interlocutory injunctions as result of Prairie Sulphate Corporation apparently having acquired the assets of PSC Alsask as stated in paragraph 19 herein. 26. THAT make this my Affidavit in support of an interlocutory injunction restraining and prohibiting PSC Alsask, or any person or party claiming under or through it, from producing and manufacturing potassium sulphate at its plant at or near Alsask, Saskatchewan, due to its breach of the Technology Licensing Agreement and, further, for an interlocutory injunction prohibiting the Defendants Robert Nylen and/or PSC Alsask, or any person or party claiming under or through them, from selling, marketing or otherwise disposing of potassium sulphate manufactured at the said plant in Alsask, Saskatchewan due to breach of the Exclusive Marketing Agreement. [4] In response, the respondents rely upon the affidavits of Lloyd Virag, Robert Nylen and Guy Mommaerts. [5] Lloyd Virag, of Cabri, Saskatchewan’s affidavit provides as follows: 1. am the former President and CEO of Potassium Sulphate Company Alsask Inc. (“PSC Alsask”), one of the defendants named in the within action, and as such have personal knowledge of the matters and facts herein deposed to except where stated to be based upon information and belief and where so stated, verily believe the same to be true. 2. Potassium sulphate is form of fertilizer. Although its specific uses vary with quality, it is used generally in the agricultural and horticultural markets, as well as in the oil patch as an additive to drilling mud. 3. Its two major secured creditors placed PSC Alsask into receivership on or about May 10, 1999, with KMPG Inc. being the receiver and manager. PSC Alsask’s assets were liquidated by the receiver/manager and the company no longer carries on business. In particular, neither PSC Alsask nor its receiver/manager currently manufactures or markets potassium sulphate. 4. The assets of PSC Alsask were sold to Prairie Sulphate Corporation (“Prairie Sulphate”). am currently the General Manager of Prairie Sulphate. In disposing of the assets of PSC Alsask, the receiver/manager solicited proposals for the purchase of such assets. In addition to Prairie Sulphate, understand that the plaintiff, Big Quill Resources Inc. (“Big Quill”), also sought to acquire the assets of PSC Alsask from the receiver/manager, but was unsuccessful in its bid. 5. Prairie Sulphate has no contractual or other relationship with Big Quill. Further, other than having acquired the assets of PSC Alsask through the receiver/manager, Prairie Sulphate has no contractual or other relationship with PSC Alsask. 6. Although was the President and CEO of PSC Alsask, and am currently the General Manger of Prairie Sulphate, the companies are unrelated. The shareholders of PSC Alsask were the Saskatchewan Opportunities Corporation, Saskatchewan Government Growth Fund II and Sotec Products Ltd. was one of 17 equal shareholders in Sotec Products Ltd., but such company made an assignment into bankruptcy in early 1998. The shareholders of Prairie Sulphate are Saskatchewan Government Growth Fund II Ltd., Saskatchewan Government Growth Fund III Ltd., Lloyd Virag and Rose Virag, Robert Nylen and Betty-Lynn Nylen, Wayne Galecki and Marilyn Galecki and an American investor. 7. Sotec Products Ltd. initiated the development of the potassium sulphate plant near Alsask, Saskatchewan in 1994, and such was taken over by PSC Alsask in the spring of 1995. 8. have reviewed the Affidavit of Harvey Haugen sworn June 29, 2000 in relation to the within application and make the following comments: (a) PSC Alsask did begin producing and marketing potassium sulphate in the summer of 1997. (b) With respect to the Exclusive Marketing Agreement attached as Exhibit “C” to the Affidavit of Harvey Haugen, PSC Alsask maintains that Big Quill made fundamental misrepresentations and breaches in relation to such contract and as consequence PSC Alsask’s purported obligations under such contract have been discharged. Particulars of the misrepresentations and breaches by Big Quill are referred to in the Statement of Defence and Counterclaim filed on behalf of the defendants in the within action, and confirm that such particulars are true and accurate. Further, Big Quill was well aware prior to PSC Alsask commencing production and marketing of potassium sulphate in 1997 that PSC Alsask would not be having Big Quill market its product. (c) Contrary to the assertion of Harvey Haugen, PSC Alsask did not receive from Big Quill the technology described in the Technology Licensing Agreement attached as Exhibit “B” to the Affidavit of Harvey Haugen. Attached hereto and marked as Exhibit “A” to this my Affidavit is copy of the May 30, 1995 letter with enclosures that PSC Alsask received from Big Quill. PSC Alsask received no other written or verbal information from Big Quill that could even remotely be considered technology. Further the information that is provided in the May 30, 1995 letter from Big Quill is generic, could be obtained from many science texts, and is not information that would assist PSC Alsask in establishing the plant it developed near Alsask, Saskatchewan. In addition to personally having many years of experience in producing and marketing sodium sulphate, many of the technical personnel employed by PSC Alsask also had significant experience at producing sodium sulphate and/or potassium sulphate. Although there are differences between producing sodium sulphate and potassium sulphate, the fundamental principles are the same. One of the people who assisted in setting up the PSC Alsask potassium sulphate plant was Les Hoiseth. As noted in the Affidavit of Harvey Haugen, Les Hoiseth left the employ of Big Quill in July of 1994, long before PSC Alsask entered into the Technology Licencing Agreement and Exclusive Marketing Agreement attached as Exhibits “A” and “B” respectively to the Affidavit of Harvey Haugen. The assistance Les Hoiseth provided to PSC Alsask was not by or on behalf of Big Quill, but rather was on his own behalf with his personal technical knowledge. In addition to the internal expertise, PSC Alsask sought the assistance of outside experts to establish its potassium sulphate plant at Alsask, Saskatchewan. One of such experts was Advanced Separation Technologies (“AST”), company based out of Florida, U.S.A. Attached hereto and marked as Exhibit “B” to this my affidavit is true copy of February 9, 1995 fax from AST, such fax confirming that AST had no limitations regarding the production of potassium sulphate with its ISEP equipment. ISEP equipment for the production of potassium sulphate is based upon ion exchange techniques. PSC Alsask eventually decided not to go with AST’s system, but such demonstrates that Big Quill was not the only source for such technology. (d) PSC Alsask established its plant near Alsask to produce potassium sulphate through an ion exchange and crystallization process. Such is NOT patented process. While Big Quill undoubtedly had system of machines and equipment that were configured in certain way so as to utilize an ion exchange and crystallization process to produce potassium sulphate, such was not the only one that could be utilized to produce potassium sulphate. As an analogy, ion exchange is comparable to process that water softener might utilize to soften water. Although each company in the water softener business will follow the same basic scientific principles to soften water, their machines may be unique in terms of how they utilize the scientific principles. The process itself is matter of scientific principle available to the public, whereas the intricacies of each company’s machine may be private and proprietary to each separate company. In the present case, Big Quill is attempting to assert that it somehow has proprietary interest in the scientific principles known as ion exchange and crystallization. Such process, however, consists of public, non-patented scientific principles, and Big Quill provided no machinery or equipment to PSC Alsask. All equipment utilized by PSC Alsask to establish its potassium sulphate plant at Alsask was either purchased from third parties, or was specifically manufactured for PSC Alsask purposes. Again, although PSC Alsask’s potassium sulphate plant uses ion exchange and crystallization to produce potassium, it does so via system that was developed completely independently of Big Quill and is not modelled on or copied from Big Quill. (e) PSC Alsask entered into the Technology Licensing Agreement with the view to considering Big Quill’s potassium sulphate production system as possible option for its Alsask plant. If PSC Alsask decided to model Big Quill’s system (equipment included) and use its technology, then PSC Alsask would become obliged to pay the fee specified in the Technology Licensing Agreement. If, however, PSC Alsask decided not to use Big Quill’s technology, then no fees would be payable. Just as PSC Alsask decided not to use the ISEP equipment offered by AST, it also decided not to model Big Quill’s system or use its technology. Instead, PSC Alsask developed its own system from scratch with the assistance of third parties and NOT Big Quill. One of the primary reasons PSC Alsask decided not to use Big Quill’s technology was that it could not obtain sufficient assurances that Big Quill’s system was efficient enough for PSC Alsask’s needs. As it turns out, was informed by Harvey Haugen at his May 26-27, 1999 examination for discovery in the within action that Big Quill itself did not use its ion exchange technology to produce potassium sulphate when it expanded its plant in 1997, but rather implemented different production technology based upon what is known as the glaserite method. (f) Robert Nylen commenced his employment at PSC Alsask in or about October, 1996. Robert Nylen is currently employed by Prairie Sulphate. Robert Nylen has not disclosed to either PSC Alsask or Prairie Sulphate any information characterized as “Proprietary and Confidential Information” in the Confidentiality Agreement attached as Exhibit “G” to the Affidavit of Harvey Haugen. 9. Prairie Sulphate currently employees [sic] 21 people and its sole business is producing and marketing potassium sulphate at its plant near Alsask. If any injunction were granted that prevented it from producing and marketing potassium sulphate, such would effectively put it out of business. 10. am informed by legal counsel for the defendants herein that pre-trial conference in relation to the within action has been scheduled for Tuesday September 12, 2000. [6] The affidavit of Robert Nylen, of Saskatoon, Saskatchewan, Market Manager provides as follows: 1. am one of the defendants named in the within action, and as such have personal knowledge of the matters and facts herein deposed to except where stated to be based upon information and belief, and where so stated verily believe the same to be true. 2. am currently employed by Prairie Sulphate Corporation (“Prairie Sulphate”), the company that acquired the assets of PSC Alsask from the receiver and manager of such company, KPMG Inc. My principal area of responsibility with Prairie Sulphate is marketing potassium sulphate. am also shareholder of Prairie Sulphate. was neither shareholder nor director of Potassium Sulphate Company Alsask Inc. (“PSC Alsask”), the other defendant named herein. 3. The plaintiff, Big Quill Resources Inc. (“Big Quill”) previously employed me, from November, 1991 to November, 1995. left the employ of Big Quill to pursue other interests in northern Saskatchewan. In the late summer of 1996, noticed an ad in the newspaper in which PSC Alsask was looking for an employee with marketing experience. responded to the PSC Alsask ad and was the successful applicant and commenced employment with PSC Alsask in October, 1996, approximately 11 months after left the employ of Big Quill. 4. The Confidentiality Agreement attached as Exhibit “G” to the Affidavit of Harvey Haugen sworn June 29, 2000 was signed by me on December 29, 1994, which was approximately years after had started working for Big Quill. neither received, nor was promised, any consideration of value for signing the Confidentiality Agreement. simply signed the document. 5. Although PSC Alsask did sell some potassium sulphate to third parties that were also customers of Big Quill, emphatically deny that disclosed or used any “Proprietary and Confidential Information” as described in the Confidentiality Agreement attached as Exhibit “G” to the Affidavit of Harvey Haugen. When joined the employment of PSC Alsask in October, 1996, had no written client lists or other written information that belonged to Big Quill. Further, did not solicit Big Quill customers on behalf of PSC Alsask. To the extent that PSC Alsask made sales of potassium sulphate to third parties who were also customers of Big Quill, such parties initiated the contact with PSC Alsask looking for product, and not the other way around. 6. recognize the client list attached as Exhibit “H” to the Affidavit of Harvey Haugen as one that developed when was employed by Big Quill. did not keep copy of such document when left the employ of Big Quill. From the document it appears to have been faxed on May 24, 1995. As noted above, on May 24, 1995 was still employed by Big Quill. further note that although someone else from Big Quill might have faxed the client list, at no time did ever do so. 7. currently earn my living marketing potassium sulphate for Prairie Sulphate. If the injunction sought by Big Quill against me in the within application is granted, my livelihood would be completely cut off. [7] The affidavit of Guy J. Mommaerts, of Elmira, Ontario, Professional Engineer, provides as follows: 1. am the Technical Director of Ion Exchange Services Canada Inc., and as such have personal knowledge of the matters and facts herein deposed to except where stated to be based upon information and belief, and where so stated verily believe the same to be true. 2. am professional engineer with many years of ion exchange experience. In my current role as Technical Director of Ion Exchange Services Canada Inc. provide expert resource assistance to parties utilizing ion exchange processes. Attached hereto and marked as Exhibit “A” to this my Affidavit is true copy of my Curriculum Vitae. The information contained in my Curriculum Vitae is true and accurate. 3. On February 14, 2000, inspected the potassium sulphate production plant near Alsask, Saskatchewan that was developed by Potassium Sulphate Company Alsask Inc. (“PSC Alsask”). The purpose of my visit was to determine whether the potassium sulphate production system utilized at the PSC Alsask plant was capable of being produced from “scratch”, and secondly whether the information provided to PSC Alsask by Big Quill Resources Inc. (“Big Quill”), including Big Quill’s May 30, 1995 letter to PSC Alsask with enclosures, was capable of allowing PSC Alsask to develop the production system it did. Attached hereto and marked as Exhibit “B” to this my Affidavit is true copy of the report prepared in relation to my review of the PSC Alsask plant, and the information contained therein is true and accurate. 4. Based upon my inspection of the PSC Alsask plant, as well as the various documents reflected in my attached report, come to the conclusion that although PSC Alsask had developed plant capable of producing potassium sulphate using ion exchange and crystallization techniques, the equipment and process configuration was quite capable of being designed from scratch without the use of whatever technology Big Quill might have possessed. In addition, in and of itself the information provided to PSC Alsask by Big Quill, including the May 30, 1995 letter with enclosures, would not be sufficient in terms of affording one the ability to establish potassium sulphate production plant using ion exchange and crystallization techniques. Not only was the information of general nature that could be obtained from many scientific text books and little experimenting, one would require considerably more knowledge and technical skill than one could glean from such information to construct the plant that PSC Alsask did. It is therefore my opinion that PSC Alsask did not use Big Quill’s technology to develop its plant near Alsask Saskatchewan. [8] The affidavits filed by the parties are conflicting on all of the substantive issues. [9] The statement of claim in this matter was issued on the 16th day of February, 1998 and the statement of defence and counterclaim were filed on March 31, 1998. The parties conducted examinations for discovery on May 26 and May 27, 1999. [10] At the request of the parties settlement pre-trial conference has been scheduled for Tuesday, September 12, 2000 at Saskatoon. [11] The applicant’s notice of motion seeking the particularized relief was brought returnable on August 3, 2000. [12] The application before the Court for an interlocutory injunction raises the following issues: 1. Whether the applicant has demonstrated that there is serious question to be tried in respect of its claim against either of the defendants; 2. Whether the applicant will suffer irreparable harm if the relief sought is denied; and 3. Whether the balance of convenience favours granting the injunctive relief sought. [13] Section 65 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01, in part reads as follows: 65(1) judge may, on an interlocutory application, grant mandamus or an injunction or appoint receiver where it appears to the judge to be appropriate or convenient that the order should be made. (2) An order pursuant to subsection (1) may be made unconditionally or on any terms and conditions that the judge considers appropriate. [14] Rule 387 of the Queen’s Bench Rules of Practice and Procedure provides as follows: 387A Subject to the provisions of The Queen’s Bench Act, interim orders for mandamus or an injunction or the appointment of receiver or for the interim preservation of property may be made by the court on an ex parte application or upon notice as the court may direct. [15] The framework within which relief by way of interlocutory injunction, may be granted was considered by the Saskatchewan Court of Appeal in Goodsman et al. v. Saskatchewan Power Corp. (1997), 1997 CanLII 9711 (SK CA), 152 Sask. R. 143. At pp. 147-149 Tallis J.A. for the Court observes as follows: As an initial matter we observe that an injunction is an equitable remedy which does not issue as of right or to restrain an act the injurious consequences of which are merely trifling. The exercise of equitable discretion includes the ability to deny as well as grant injunctive relief. An injunction should issue only when the intervention of court of equity is necessary to effectually protect property rights against injuries otherwise irremediable: see Weinberger v. Romero-Barcelo (1982), 102 S. Ct. 1798 and Board of Education of Dysart School District et al. v. Board of Education of Cupar School Division No. 28 (1996), 1996 CanLII 5042 (SK CA), 148 Sask. R. 41; 134 W.A.C. 41 (C.A.). In Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers Local 832 and Labour Board (Man.), 1987 CanLII 79 (SCC), [1987] S.C.R. 110; 73 N.R. 341; 46 Man. R. (2d) 241; 18 C.P.C. (2d) 273; 38 D.L.R. (4th) 321; 25 Admin. L.R. 20, the Supreme Court articulated three-stage test for granting interlocutory relief. This test was reaffirmed in RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), 1994 CanLII 117 (SCC), [1994] S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R. (4th) 385; 54 C.P.R. (3d) 114 at p. 334 [S.C.R.]: “Metropolitan Stores adopted three-stage test for courts to apply when considering an application for either stay or an interlocutory injunction. First, preliminary assessment must be made of the merits of the case to ensure that there is serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending decision on the merits. .” In dealing with the first stage of the test, the court in RJR-MacDonald stated at pp. 337-338 [S.C.R.]: “What then are the indicators of ‘a serious question to be tried’? There are no specific requirements which must be met in order to satisfy this test. The threshold is low one. The judge on the application must make preliminary assessment of the merits of the case. The decision of lower court judge on the merits of the Charter claim is relevant but not necessarily conclusive indication that the issues raised in an appeal are serious: see Metropolitan Stores, supra, at p. 150. Similarly, decision by an appellate court to grant leave on the merits indicates that serious questions are raised, but refusal of leave in case which raises the same issues cannot automatically be taken as an indication of the lack of strength of the merits. “Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. prolonged examination of the merits is generally neither necessary nor desirable. “Two exceptions apply to the general rule that judge should not engage in an extensive review of the merits. The first arises when the result of the interlocutory motion will in effect amount to final determination of the action. This will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial. Indeed Lord Diplock modified the American Cyanamid principle in such situation in N.W.L. Ltd. v. Woods, [1979] W.L.R. 1294, at p. 1307: ‘Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.’ “Cases in which the applicant seeks to restrain picketing may well fall within the scope of this exception. Several cases indicate that this exception is already applied to some extent in Canada.” With respect to the second stage of the test irreparable harm the court summarized the appropriate approach in this way at pp. 340-341 [S.C.R.]: “Beetz, J., determined in Metropolitan Stores, at p. 128, that ‘[t]he second test consists in deciding whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm’. The harm which might be suffered by the respondent, should the relief sought be granted, has been considered by some courts at this stage. We are of the opinion that this is more appropriately dealt with in the third part of the analysis. Any alleged harm to the public interest should also be considered at that stage. “At this stage the only issue to be decided is whether refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. “‘Irreparable’ refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former include instances where one party will be put out of business by the court’s decision (R.L. Crain Inc. v. Hendry (1988), 1988 CanLII 5042 (SK QB), 48 D.L.R. (4th) 228 (Sask. Q.B.)); where one party will suffer permanent market loss or irrevocable damage to its business reputation (American Cyanamid, supra); or where permanent loss of natural resources will be the result when challenged activity is not enjoined (MacMillan Bloedel Ltd. v. Mullin, 1985 CanLII 154 (BC CA), [1985] W.W.R. 577 (B.C.C.A.)). The fact that one party may be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able to collect damages, although it may be relevant consideration (Hubbard v. Pitt, [1976] Q.B. 142 (C.A.)).” And finally with respect to the third stage of the test balance of inconvenience and public interest considerations the court stated at pp. 342-345 [S.C.R.]: “The third test to be applied in an application for interlocutory relief was described by Beetz, J., in Metropolitan Stores at p. 129 as: ‘a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending decision on the merits’. In light of the relatively low threshold of the first test and the difficulties in applying the test of irreparable harm in Charter cases, many interlocutory proceedings will be determined at this stage. [16] While the outstanding substantive issues between the parties are cast in conflicting terms through the contents of the affidavits to which have earlier referred, am satisfied that in conducting preliminary assessment of the matter, that the applicant has demonstrated that there is serious question between the applicant and the respondents to be tried. am therefore satisfied that in accordance with the established jurisprudence, that must now determine whether the applicant would suffer irreparable harm if the application were refused and in addition must conduct an assessment as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending trial of the issues on their merits. [17] In considering the issue of irreparable harm in the event that the interlocutory injunction is not granted, am mindful of the fact that the action was commenced on February 16, 1998, and that from the material, the applicant has been aware since some time in 1997 that PSC Alsask was producing and marketing potassium sulphate on its own. The applicant has also been aware for some time of PSC Alsask’s May 10, 1999 receivership when the applicant ostensibly offered to purchase PSC Alsask’s assets from the receiver. While the applicant has asserted through the affidavit of Harvey Haugen, reason for only now bringing the injunction application, am of the view that the potential matter of delay is factor to be considered in assessing whether the applicant will suffer irreparable harm if the interlocutory injunction is not granted. [18] In light of the settlement pre-trial conference scheduled for September 12, 2000, and upon considering the respective positions of the parties, I am of the view that the applicant has not demonstrated that it will suffer irreparable harm if the interlocutory injunction is denied. It well may be that the matter is resolved at the settlement pre-trial conference, or in the event that it is not, the parties would appear to be in position to shortly proceed to trial where full canvass of the conflicting positions of the parties would occur. [19] have also considered the third factor, that being an assessment as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending decision on the merits, and am of the view that the respondents, particularly the respondent Robert Nylen would suffer greater harm from the granting of the injunctive relief than would the applicant from the denial of that relief. The respondent Robert Nylen makes his living marketing and selling potassium sulphate. That is his only livelihood and if the injunction is granted he would ostensibly lose that livelihood. When comparing the situations of the applicant, and the respondent Potassium Sulphate Company Alsask Inc., the affidavits disclose that both of these corporate entities believe they would suffer significant harm, in the case of the applicant if the injunction is not granted, and in the case of the corporate respondent, if the application is granted. On balance, I am satisfied that the respondent corporation would suffer greater harm if the injunction were granted, than would the applicant corporation suffer if the injunction were not granted at this stage of the litigation. [20] Accordingly, I am of the view that the applicant has not, on the second and third stages of the three stage test, demonstrated an entitlement to the obtaining of injunctive relief and accordingly I dismiss the application for an interlocutory injunction with costs to the respondents in any event of the cause.

The applicant sought an interlocutory injunction pursuant to s.65 of the Queen's Bench Act and Queen's Bench Rule 387(a) prohibiting and restraining the respondents from producing and manufacturing potassium sulphate near Alsask until further order; an order restraining the respondent from selling, marketing, or disposing of the potassium sulphate for profit until further order; other ancillary relief; costs of the application. HELD: The application was dismissed with costs to the respondents in any event of the cause. The applicant did not demonstrate an entitlement to injunctive relief on the second and third stages of the three stage test. The applicant demonstrated there was a serious question to be tried but failed to demonstrate it would suffer irreparable harm. The delay (the action was commenced February 16, 1998) was considered. On balance the respondents would suffer greater harm if the injunction were granted as the respondent Nylen makes his living marketing and selling potassium sulphate.

d_2000skqb366.txt

J. 1989 S.H. No. 67294 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: CAULETTE BARBARA BEZANSON, by her Guardian Ad Litem, HAROLD BEZANSON PLAINTIFF (DEFENDANT BY COUNTERCLAIM) and DAVID W. BOUTILIER DEFENDANT (PLAINTIFF BY COUNTERCLAIM) SUPPLEMENTAL DECISION HEARD BEFORE: The Honourable Justice A. David MacAdam, by written submissions DECISION: Written Decision Released May 9, 1994 COUNSEL: Raymond F. Wagner, Counsel for the Plaintiff David Miller, Counsel for the Defendant MACADAM, J. MACADAM, J. Caulette Barbara Bezanson, the plaintiff, by decision dated November 5, 1993, was found two‑thirds and the defendant, David W. Boutilier, was found one‑third responsible for the injuries suffered by Ms. Bezanson in an accident that occurred on the No. Highway on October 21, 1987. Mr. Boutilier's vehicle struck Ms. Bezanson while she was attempting to cross the No. Highway on her bicycle. The decision of this court, in addition to apportioning responsibility for the accident, fixed her general damages at $50,000, including non‑pecuniary loss for pain and suffering and loss of amenities of life at $25,000 and loss of past and future income including loss of future occupational and career opportunities, or diminution of earning capacity, also in the sum of $25,000. Damage to the defendant's vehicle was determined at $1,255.25. In concluding the decision, this court stated: "Subject to hearing from counsel, the plaintiff shall have her costs in this action, on party and party basis, on Tariff 'A', Scale (basic) and fix the amount involved at $50,000.00." Counsel have advised that they have been unable to agree on a number of matters related to interest and costs and counsel for the defendant lists as outstanding issues: 1. The apportionment of costs and the effect of settlement offers made by the parties; 2. The pre judgment interest rate; 3. Limitation on the period during which pre judgment interest will run. 1. APPORTIONMENT OF COSTS AND EFFECT OF SETTLEMENT OFFERS The practice of apportioning costs in motor vehicle negligent cases, consistent with findings of fault, has been followed in this court, at least, where the findings of fault relate to the happening of the event causing the accident rather than to any aggravation of the injuries or failure to mitigate their effect. The apportionment of costs in case involving contributory negligence was considered by the late Chief Justice Cowan in Tzagarakis v. Stevens (1968), N.S.R. (1965‑69) 453. At pp. 461‑462 he held: "I have made enquiries as to the practice recently followed by trial judges in this Division with regard to costs, where there is division of fault and there is no counterclaim and in cases where there is counterclaim. find that the practice since Brewster v. Spicer, supra, has been to award the plaintiff who is found partly at fault portion of his costs, such portion to be the same percentage recovery as is found with respect to damages, and to allow the defendant portion of his costs, such portion being the same percentage as is found to be applicable to fault on the part of the plaintiff. This practice has, apparently, been sanctioned by the Appeal Division in the case of Langille v. Zwicker (1967), 1967 CanLII 625 (NS CA), 66 D.L.R. (2d) 196; N.S.R. 1965‑69 448, where, in an action by pedestrian against the operator of motor vehicle, the jury found that the operator was not at fault and judgment was entered for the defendant with costs. The Appeal Division allowed the appeal and apportioned fault 50/50 between the parties and Currie, C.J.N.S., said at p. 199: The costs should be based on 50% to each party, both as to the trial and the appeal. This rule appears to apply whether there is counterclaim or not." Cooper, J.A. in White v. Carter (1974), 1973 CanLII 1235 (NS CA), N.S.R. (2d) 60, on behalf of the Nova Scotia Supreme Court, Appeal Division, stated at p. 64 that he agreed with the practice of apportioning costs based on findings of fault, as stated by Chief Justice Cowan in Tzagarakis, supra. In MacPherson v. Campbell and MacIver (1980), 45 N.S.R. (2d) 401, Glube, J. (as she then was) reviewed number of authorities, including Tzagarakis, and assessed costs in the same proportions as liability and in Whitman v. Moore (1978), 28 N.S.R. (2d) 631, Macintosh, J. similarly awarded costs in the same percentages as the findings of fault. On the other hand, Burchell, J. in Fraser v. Ross and Ross (1983), 64 N.S.R. (2d) 87, although assessing the plaintiff 10 percent contributory negligence because of the failure to wear seat belt, awarded full costs to the plaintiff. At page 89: "The general rule (and the one followed in my written reasons) is that costs follow the event. In the ordinary case of contributory negligence there is logical division of costs that matches the allocation of fault. note, however, that in each of those cases the offsetting negligence was negligence that contributed directly to the accident. The point is not made explicitly in any of the opposing line of cases cited by the plaintiffs, but agree that they reflect distinction made between the ordinary case of negligence contributing to the occurrence of an accident and cases (like those involving seat belts) where the contributory negligence only caused an aggravation of injuries. In the present case it has been shown that the accident was entirely the fault of the deceased defendant, Clarence Ross. The contributory negligence of the several plaintiffs has only served to limit the extent to which their losses due to injuries are compensable. The situation is not unlike the common case in which plaintiff succeeds on an issue of fault but fails to prove part of his claim." Unlike other areas of civil litigation where costs are awarded, as general rule, where party is successful in obtaining an award greater than any offer made prior to litigation, the practice in cases involving contributory negligence appears to be to apportion costs in the same percentage as the findings of fault. The authorities recognize that there may be instances where court may exercise its discretion pursuant to rule 63.02 and award costs other than in the same proportions as the findings of fault. In Dempsey v. Brown (1986), 71 N.S.R. (2d) 416, in case where he apportioned liability 20 percent against the plaintiff and 80 percent against the defendant, Nathanson, J. awarded costs in the same proportions as liability. After referring to number of the authorities, including Tzagarakis v. Stevens and White v. Carter, as to the practice of the Nova Scotia Courts, he referred to the discretion in trial court to apportion costs in different percentage than the findings on liability. He noted, however, that the discretion "must be exercised judicially" and in the majority of such cases the court should provide reasons for the exercise of such discretion. At page 418: "Special circumstances might warrant an exercise of discretion so that the general practice is not followed in particular case. However, no such special circumstances were disclosed here." The accident occurred on October 21, 1987. The Originating Notice (Action) and Statement of Claim were issued on January 27, 1989, the Defence and Counterclaim on February 7, 1989, and the Defence to the Counterclaim on March 21, 1989. The Notice of Trial, initially with jury, and the Record for Trial Judge were filed on July 27, 1992, and the trial was held on February 23, 24 and March 12, 1993. The plaintiff filed an Offer to Settle on January 29, 1993, in the amount of $35,000 and the defendant filed an Offer to Settle on February 9, 1993, in the amount of $2,000 together with withdrawal of his Counterclaim. The plaintiff submits that the award to the plaintiff, with interest for six years at 9.41 percent per annum, and disbursements, less the Counterclaim, approximates the amount of the Offer to Settle. Counsel suggests as result, Civil Procedure Rule 41A.09 is applicable and the plaintiff is entitled to double his costs. In the event the eventual award is below the plaintiff's offer, counsel suggests that we should exercise our discretion to either increase the Tariff applicable or double costs in the circumstances of this case. In support of his submission he quotes from the decision of Justice Grant in Goode v. Oursen, S.H. No. 06130, and in particular at page 5: "I consider rule 41A.11 has the purpose of encouraging parties to make realistic offers to settle by rewarding parties who make realistic offers even though they may be slightly lower or higher than the eventual award, after trial." The discretion in Civil Procedure Rule 41A.11 may well serve to alleviate hardship or unfairness caused by the general practice of awarding costs in contributory negligence case in the same proportion as the findings of fault. Such practice may very well unfairly prejudice plaintiff by excessively reducing its entitlement to costs where the actual final award approximates an earlier offer of settlement by the plaintiff and is substantially in excess of any offer made the defendant. The statement by Justice Grant may very well be applicable in such situation However, we are not persuaded to exercise our discretion, nor that comments of Justice Grant are applicable in the present circumstances. The only Offer to Settle made by the plaintiff was in excess of five years following the accident and was withdrawn less than month later. It does not approximate the eventual recovery by the plaintiff nor, in the words of Grant, J., is it "slightly lower or higher then the eventual award, after trial." The plaintiff will, therefore, have one‑third of its taxed costs on Tariff "A", scale 3 (basic). The defendant was, two‑thirds successful on his Counterclaim. However, the Counterclaim was for only $1,255.25. In the circumstances, am not disposed to award costs to the defendant on the Counterclaim. The defendant in its offer of settlement, in addition to offering sum of $2,000, offered to withdraw the Counterclaim. To award 70 percent of the costs on the Counterclaim would be, in the circumstances, inequitable and unfair to the plaintiff. The court exercises its discretion and declines to award costs on the Counterclaim. The defendant submits, in the alternative, that if costs are only awarded to the plaintiff, the "Amount Involved" should be limited to the amount of the plaintiffs actual recovery, namely the sum of $16,666.67. We do not agree. The reduction in the actual recovery by the plaintiff is the result of the apportionment of fault in respect to the accident, not because of the plaintiff having either aggravated her injuries or failed to mitigate the effects of the accident. To reduce the "Amount Involved" would, in the circumstance, create a double reduction in the costs to which the plaintiff is entitled and would, therefore, not be appropriate. For the purpose of taxation of the plaintiff's costs, the amount involved will be the sum of $50,000 as stated in our decision of November 5, 1993. 2. PRE‑JUDGMENT INTEREST RATE The awards of $25,000 for non‑pecuniary loss for pain and suffering and loss of amenities of life and $25,000 for loss of past and future income, including loss of future occupational and career opportunities or diminution of earning capacity, were made as at the date of trial. In fixing the rate of interest to be awarded to the plaintiff note the statement of Chipman, J.A. in Bush v. Air Canada (1992), 1992 CanLII 2566 (NS CA), 109 N.S.R. (2d) 91, at p. 105: "[60] double recovery should be avoided in the exercise of trial judge's discretion under ss. 41(i) and (k) of the Judicature Act, supra. The conclusion must be that to the extent that inflation was taken into account for the period between the accrual of the cause of action and the trial, the judge should then adjust the interest rate so that it is not taken into account for second time. This exercise should be carried out in fixing the rate and requires an examination of the award to determine whether inflation from the date the cause of action arose has been taken into account. Judges should take particular care in cases where long period of time has elapsed between the time the cause of action arose and the assessment of damages. It is in these cases where one can more often say with confidence that the award has grown by inflation from what it would have been at the time from which interest starts to run. In many cases, judge may not be able to say with any degree of certainty that an inflation factor has been built into the award. In these cases when the second step is taken, commercial rate of interest would generally be appropriate. Where, however, judge is satisfied that inflation has been built in, rate such as the discount rate of 2½% per annum is appropriate. If the trial judge does not do this, double recovery results to the plaintiff. An injustice is therefore done which requires interference by an appeal court with such an exercise of discretion." In the circumstances the appropriate rate of interest to be applied is 2.5 percent per annum. 3. PERIOD FOR PRE‑JUDGMENT INTEREST The Notice of Trial was filed more than five years after the date of the accident. The plaintiff submits the passage of time is accountable by the youth of the plaintiff, the normal time to bring case to trial, court delays and the nature of the injuries that she suffered. Although counsel may be correct that, in the normal course of circumstances, delays of three to four years may be expected from the date of an accident to the date of trial, it does not justify nor explain the delay in filing the Notice of Trial in the present case. We are also not persuaded that the long delay in bringing this matter to conclusion should be countenanced because the medical evidence at trial indicated the earlier medical optimism on her long‑term prognosis had not been borne out over time. The long periods of inactivity in prosecuting this matter are not now to be justified because the prognosis for Ms. Bezanson is less optimistic than it earlier had been. If the delay is to be justified because her recovery is less than the doctors had expected, then counsel could never, without risk of being sued, either effect settlement or proceed to trial, until claimant has either totally recovered or the expert opinions on the degree of continuing disability are such as to leave little, if any, chance of being either too optimistic or unrealistic in their assessment of the degree or permeance of disability. The impact of such position on civil litigation and the resolution of civil disputes is untenable. The plaintiff is, therefore, entitled to interest for period of three and one- half years. J. Halifax, Nova Scotia

The plaintiff was found to be two-thirds and the defendant one-third responsible for an accident which occurred when the defendant's car hit the plaintiff as she tried to cross the highway on her bicycle. The court awarded costs to the plaintiff fixed at the amount involved - the quantum of general damages. The parties were unable to reach an amount of settlement. In this matter, the defendant argued that the costs should be fixed at the amount actually recovered by the plaintiff. Awarding the plaintiff one-third of her taxed costs, that to reduce costs by the percentage of fault of the plaintiff and to reduce the amount involved would be a double reduction.

5_1994canlii4347.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Warren Wright, Blaine Arthur Wright, Murray Allison Wright, Brenda Anne Doherty, and Jean Cleary, v. Linda Alice Cournoyer, 2003NSSC092 Date: 20030507 Docket: 166177 Registry: Halifax Between: Warren Wright, Blaine Arthur Wright, Murray Allison Wright, Brenda Anne Doherty, and Jean Cleary v. Linda Alice Cournoyer Defendant Judge: The Honourable Justice Frank Edwards Heard: April 15, 16 17, 2003, in Halifax, Nova Scotia Counsel: Ms. Helen L. Foote, for the Plaintiffs Colin D. Bryson, Esq., for the Defendant By the Court: [1] The Plaintiffs seek a detailed accounting from their sister of her dealings with their mother’s financial affairs pursuant to a Power of Attorney. The Plaintiffs are five of the children of Bessy Marion Wright who died on August 8, 1999, at the age of 86. From 1992 until her death, Ms. Wright lived with her daughter, Linda Cournoyer, the Defendant. [2] On November 12, 1992, Ms. Wright gave the Defendant general Power of Attorney. As well, from 1992 onward, the Defendant’s name was also on Ms. Wright’s bank account. The bank account was used solely for Ms. Wright’s money, there being no co-mingling of any of Ms. Cournoyer’s money in this account. All monies that remained in this account at the time of Ms. Wright’s death were transferred to an estate account. [3] Ms. Wright executed her last Will and Testament on December 13, 1996. Probate of the Will was granted to Linda Alice Cournoyer as Executrix on September 29, 1999. Ms. Cournoyer filed an inventory with the Probate Court showing her mother’s assets at the time of her death totalled $56,089.74. The Plaintiffs expected that there would be assets in excess of $100,000.00. The basis of the Plaintiffs’ expectation is that their mother had sold two properties she owned respectively on November 13, 1992, and March 1, 1993. The net proceeds from the former sale was $49,897.25 and from the latter, $51,037.83. In addition, their mother also collected pensions ranging between approximately $1,100.00 per month to $1,300.00 per month from 1992 until her death. The Plaintiffs were aware that Ms. Cournoyer was charging her mother approximately $500.00 rent per month. They feel therefore that their mother should have been able to live solely on her pension income without ever having to have touched the principal from the proceeds of the sale of her two properties. In short, they believe that approximately $50,000.00 of their mother’s money is missing. [4] The Defendant’s position is that her mother was mentally competent and completely able to manage her own financial affairs from 1992 until her death in 1999. Ms. Cournoyer says that the reason for the Power of Attorney and the joint bank account was her mother’s convenience. Ms. Wright was physically infirmed and unable to easily get back and forth to a bank. Ms. Cournoyer would cash cheques for her mother or make cash withdrawals at her mother’s request and bring the money to her. She says that her mother received the bank statement at the end of each month and was well able to read and understand the bank statements. She says that on all occasions the money was withdrawn at her mother’s instruction. Ms. Cournoyer testified that her mother had excess funds for the first time in her life after the sale of her two properties. She was generous person who shared her new-found prosperity with others, especially her church and members of Ms. Cournoyer’s family, including Ms. Cournoyer herself. [5] In December 1994, Ms. Wright lent Ms. Cournoyer and her husband $19,000.00 to purchase new motor vehicle. Ms. Cournoyer testified that her mother had wished to give her the money for the car but that Ms. Cournoyer refused and took loan instead. She says she repaid approximately $2,000.00 and deposited the remaining $17,000.00 in the estate account after her mother died. [6] On the issue of Ms. Wright’s competency, heard evidence from her family doctor, Dr. Hilda Fox. Dr. Fox was Ms. Wright’s family doctor between 1988 and 1999. Dr. Fox’s records show that she saw Ms. Wright 36 times between 1996 and 1999. The essence of Dr. Fox’s evidence is that Bessy Wright displayed no evidence of any mental incompetence. In that regard, her evidence is consistent with that of Linda Cournoyer and Linda Cournoyer’s 21 year old daughter, Celine Cournoyer. also heard from Barbara Gidney, 43 year old lady who has known Bessy Wright for eight years prior to her death. Ms. Gidney had regular visits with Ms. Wright as part of regular church fellowship. She was confident that Ms. Wright was mentally alert. [7] The only evidence which suggested Ms. Wright was not mentally competent was that of the Plaintiff, Brenda Anne Doherty. Ms. Doherty described two telephone conversations with her mother. On one occasion, her mother apparently forgot to whom she was speaking, and in another, forgot that she had received package sent few days before by Ms. Doherty. These instances were put to Dr. Fox on cross-examination. In Dr. Fox’s opinion, such lapses are normal and are not concern unless they are repeated “over and over again”. [8] I have no difficulty in concluding that Bessy Wright was mentally competent at the time of her death. As such, she had the ability to manage her own financial affairs and to spend or give away her money as she pleased. As far as Linda Cournoyer is concerned, she could only be called upon to account for her use of he Power of Attorney if she had used the Power of Attorney during the incapacity of her mother. [9] Section of the Powers of Attorney Act, R.S.N.S. 1989, c. 352 reads as follows: “5.(1) Where donor of an enduring power of attorney becomes legally incapacitated, judge of the Trial Division of the Supreme Court may for cause, on application, (a) require the attorney to have accounts passed for any transaction in involving the exercise of the power during the incapacity of the donor; (b) require the attorney to attend to sow cause for the attorney’s failure to do anything that the attorney is required to do as attorney or any order made pursuant to this Act; 5.(2) Where an attorney is ordered to have accounts passed, the attorney shall submit the accounts for approval to the Court or, where judge of the Court so orders, to the Public Trustee at such intervals as the judge may order and, when approved, the attorney shall file the accounts with the Prothonotary of the Supreme Court for the county where the application is heard.” [10] Accordingly, I am dismissing the Plaintiffs’ action. Ms. Wright never suffered from any mental incapacity during her life time and therefore Ms. Cournoyer is not required to account to the Plaintiffs for her dealings with her mother’s finances. [11] As the successful litigant, Ms. Cournoyer is entitled to her costs which assess on the basis of an amount involved of $50,000.00. Under Scale of Tariff “A” she is therefore entitled to $4,875.00 in costs plus reasonable disbursements to be taxed. The Plaintiffs are jointly and severely liable for payment of these costs which may be deducted from their respective entitlements in the estate. Order accordingly.

The plaintiffs sought a detailed accounting from their sister of her dealings with their mother's financial affairs pursuant to a Power of Attorney prior to the mother's death. , plaintiffs' action dismissed; the defendant was not required to account to the plaintiffs for her dealings with her mother's finances. The mother was mentally competent and able to manage her own affairs at all times prior to her death; the Power of Attorney was granted solely for the mother's convenience as she was physically infirm. The daughter could only be called upon to account for her use of the Power of Attorney if it was used when the mother was incapacitated.

8_2003nssc92.txt

J. Q.B. A.D. 2000 No. 83 J.C. Y. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: BRUCE ALLAN ZALYS, of St. Albert, Alberta, as Litigation Guardian of CHELSEA ZALYS, STACEY ZALYS, DANA ZALYS and ADELLE ZALYS, all of St. Albert, Alberta and BRENDA ZALYS DEFENDANT Cheryl A. Cuelenaere for the plaintiffs David K. Rusnak for the defendant JUDGMENT MATHESON J. June 28, 2000 [1] The plaintiff, as litigation guardian of his four daughters, has alleged that the defendant has wrongfully, in breach of a trust, retained the sum of $20,000.00 to which his daughters are entitled. BASIS OF CLAIM [2] Mabel Zalys was the mother of the plaintiff and the defendant. There were two other children: Brian and Wanda Paulmark. [3] Bruce and Brian reside in Edmonton. Wanda resides in Scarborough and Brenda resides near Yorkton, where the parents also resided. [4] In 1992 Mabel placed $17,500.00 in bank account in the name of Brenda. Mabel added $8,000.00 to the account few years later. The sum of $500.00 from the account was given to Brenda. Thus, the principal amount in the account was $25,000.00. [5] Brenda has testified that Mabel told Brenda that she was to receive the interest earned on the bank account. Brenda reported the interest as income in her income tax returns each year. [6] In 1995, Wanda’s name was added to the account as joint owner. Brenda stated that Mabel was concerned that Brenda, who does great deal of driving in connection with her employment, might be killed in an accident. [7] Mabel was diagnosed with cancer in late 1997. It was terminal. She died on March 24, 1998, at which time there was still $25,000.00 in the bank account in the joint names of Brenda and Wanda. [8] Brenda testified that Mabel had told her that the money in the bank account was to be held for payment of debts of Mabel’s estate, with the balance to be divided between Mabel’s four children. In furtherance of that purpose Mabel requested, in 1992, that Brenda endorse three cheques, in blank, which could be given to Bruce, Brian and Wanda if anything happened to Brenda. [9] On January 26, 1998, Mabel, who had been hospitalized, wrote series of instructions on several pieces of paper, including the following: ... Brenda all p. signed cheques by you, in the amount of $5000. each. These will be given to Sharon and she’ll fill in the names of the four granddaughters and their account nos. Then deposit them. The remainder $5000. is for Jonathon. [10] Sharon is the plaintiff’s wife, and the mother of the four granddaughters. Jonathon is the grandson of Mabel. [11] The instructions were given to Brenda. She apparently took them home with her. She stated that after she had read the notes Mabel did not at any time instruct her orally to provide the cheques to the granddaughters. [12] The plaintiff testified that on February 7, he visited Mabel in the hospital. Mabel informed the plaintiff of the instructions, written on January 26, which had been delivered to Brenda. [13] The following day Mabel requested the plaintiff, according to the plaintiff’s testimony, to write out her directions, which the plaintiff did: Chelsea, Stacey, Daina and Ardelle each to receive $5,000.00 each for education. After Parents are gone, house at 90-4th North to be sold and divided ways. Brian, Bruce, Brenda, Wanda. Brenda to mail checks this week from mom. Mom’s name removed from house title, Dad’s added. Brenda, Bruce added. Bruce’s name added to mom and dad’s at acre. My wishes “Mabel Zalys” [14] Brenda never saw the foregoing document during Mabel’s lifetime. Consequently, the plaintiff must rely on the January 26, 1998 instructions written entirely by Mabel. [15] Brenda testified that subsequent to receiving the January 26, 1998 handwritten instructions, Mabel told Brenda to hold the money for Mabel’s benefit in the event that she got better and needed it, or if she needed special attention while still ill. Brenda further testified that on March 8, 1998, Mabel told Brenda, while watching telemiracle on television, to give the money to charity. However, on March or 10, according to Brenda, Mabel told Brenda not to give the money away as she would not have any other funds. [16] Brenda never did provide the four $5,000.00 cheque to the granddaughters. After Mabel’s death Brenda transferred the bank account to credit union account. Some of the money was spent for Mabel’s funeral and other expenses. But there is still over $20,000.00 in the account. ALLEGED TRUST [17] The plaintiff has submitted that the written instructions by Mabel to Brenda to prepare four cheques of $5,000.00 to each of the granddaughters constituted the establishment of a trust, and that Brenda thereupon became the trustee, for the benefit of the four granddaughters, of the sum of $20,000.00. [18] An almost identical situation was revealed in McIntyre v. Royal Trust Company, 1946 CanLII 249 (MB CA), [1946] W.W.R. 210 at 212 (Man. C.A.). [19] Royal Trust had in its possession all of the share certificates of Pennefather, who presented the following instructions in writing: To the Royal Trust Co. Please sell the above stocks at the market price and pay the proceeds to the Dom. Govt. for application on Annuity Contract #69534 in the name of Mrs. Daisy McIntyre. “[Sgnd.] F. R. Pennefather.” [20] Royal Trust Company sold the stocks. The proceeds of sale were credited to Pennefather on Friday. The following Sunday, Pennefather died, before Royal Trust Company had completed the instructions by transferring the funds to the credit of the annuity contract of Daisy McIntyre. [21] Daisy McIntyre submitted that Pennefather had divested himself of any interest in the stocks and that Royal Trust Company was trustee for Daisy McIntyre. However, it was noted, at p. 213, that Daisy McIntyre was “volunteer”, not having given any consideration to either Pennefather or Royal Trust Company which would create an equity in her favour. [22] Reference was made to Hanbury’s Modern Equity, ch. III, entitled “Equity will not Assist Volunteer” where, at p. 156, it was stated that: trust is not validly created where there is mere intention of creating trust, or voluntary agreement to do so, and the settlor himself contemplates some further act for the purpose of giving it completion.... [E]quity will not interfere to perfect an imperfect gift [23] In McPherson v. L’Hirondelle, 1927 CanLII 48 (SCC), [1927] S.C.R. 429, Newcombe J. for the court stated at p. 435-36: ... [A]n incomplete voluntary transfer will not be construed as a declaration of trust unless it appear that there is an intention to declare a trust, and not merely to make a transfer. [24] Newcombe J. also endorsed, at p. 436, the following statement of Jessel M.R. in Richards v. Delbridge (1874), L.R. 18 Eq. 11 at 15: If it (a settlement) is intended to take effect by transfer, the court will not hold the intended transfer to operate as declaration of trust, for then every imperfect instrument could be made effectual by being converted into perfect trust. CONCLUSION [25] The written instructions of Mabel do not contain any words which could possibly be construed as a declaration of trust. Mabel quite clearly, at the time of writing the instructions, wanted Brenda to prepare four cheques in the amount of $5,000.00 each for the benefit of the four granddaughters. Mabel intended, by her written instructions, to make monetary gifts to her four granddaughters. The fact that Brenda did not take the necessary steps to complete the intended gifts during Mabel’s lifetime does not result in that intention being converted into a declaration of trust. [26] The plaintiff alleged that Brenda “committed fraud upon the infant plaintiffs”. The allegation was never withdrawn nor proved. [27] Asserting an unfounded allegation of fraud justifies, without more, special order as to costs: Wong v. Schienbein et al. (1986), 1986 CanLII 3370 (SK QB), 49 Sask. R. 86 (Q.B.). [28] The claim of the plaintiff is dismissed, with costs to the defendant, to be taxed on the basis of double column 2.

Plaintiff, as litigation guardian for his four daughters, alleged that the defendant, in breach of a trust, wrongfully retained $20,000 to which his daughters are entitled. Mabel, mother of the plaintiff and the defendant, set aside $20,000 in a bank account. Prior to her death, Mabel gave written instructions to the defendant to give $5,000 to each granddaughter. The defendant claimed that the money was to be held to pay the estate's expenses and then be divided among Mabel's children. The money was never issued to the granddaughters. The plaintiff claims that the written instructions to the defendant constituted the establishment of a trust and that the defendant is the trustee of the money for the benefit of the granddaughters. HELD: Plaintiff's claim dismissed with costs to the defendant to be taxed at double column 2. An incomplete voluntary transfer will not be construed as a declaration of trust unless it appears that there is an intention to declare a trust, and not merely make a transfer. Mabel's written instructions do not contain any words that could possibly be construed as a declaration of trust. She intended to make monetary gifts. The fact that the defendant did not take the necessary steps to complete the intended gifts during Mabel's lifetime does not result in that intention being converted into a declaration of trust. As to costs, the plaintiff alleged that the defendant committed fraud and this was never withdrawn nor proven. Asserting an unfounded allegation of fraud justifies a special order as to costs.

2_2000skqb301.txt

R. V. WILLICK QB07319 Date of Judgment: September 12, 2007 Number of Pages: 13 QUEEN'S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 324 Date: 2007 09 12 Docket: J. No. of 2006 Judicial Centre: Saskatoon RE RELEVANCE OF WIRETAP TO CHARTER APPLICATION BETWEEN: HER MAJESTY THE QUEEN and WENDELL WILLICK Counsel: Sandeep S. Bains for the Crown Daryl E. Labach for Wendell Willick JUDGMENT POPESCUL J. September 12, 2007 INTRODUCTION [1] This is an application by the accused, Wendell Willick, for an order thatevidence obtained by way of a telephone interception be ruled inadmissible because it isirrelevant. Alternatively, Mr. Willick seeks exclusion of the intercepted communicationon the basis that it was conducted in violation of s. 8 of the Canadian Charter of Rightsand Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act1982 (U.K.), 1982, c. 11, and therefore ought to be excluded under s. 24(2). [2] The accused stands charged as follows:WENDELL WILLICK, of the City of SASKATOON, inthe Province of Saskatchewan, stands charged that he, the saidWendell Willick did1. BETWEEN THE 8TH DAY OF JANUARY, A.D.1996 AND THE 23RD DAY OF NOVEMBER A.D.1999 AT OR NEAR SASKATOON, SASKATCHEWANBEING IN A POSITION OF TRUST OR AUTHORITYTOWARDS [THE COMPLAINANT], A YOUNGPERSON, DID FOR A SEXUAL PURPOSE TOUCHDIRECTLY THE BODY OF [L.S.], A YOUNGPERSON, WITH A PART OF HIS BODY TO WIT,HANDS AND PENIS, CONTRARY TO SECTION153(1)(a) OF THE CRIMINAL CODE. The indictment was amended on July 27, 2007, by consent, to read "153(1)(a)" ratherthan "153(a)". [3] The police believed that the accused sexually assaulted the complainant or alternatively had sexual contact with her while in position of trust and that it would be advantageous to their investigation to intercept telephone communication between the complainant and the accused wherein the complainant would attempt to engage the accused in conversation concerning the alleged improper activity. An authorization to intercept private communications was obtained from Provincial Court judge. The complainant consented to the procedure and did in fact contact the accused and engage him in conversation that was surreptitiously intercepted by the police. [4] transcript of the conversation was made. Both the Crown and the accused agreed that the transcript was an accurate transcription of the telephone conversation and that, for the purposes of this application, decision could be made on the basis of the transcription without the necessity of playing the actual recording in court. [5] The accused raises three arguments. These arguments can be summarized as 1. The evidence of the conversation is inadmissible because it is irrelevant. 2. The learned Provincial Court judge who issued the authorization did so in error because there was no basis upon which he could conclude that there were reasonable grounds to believe that information concerning the offences would be obtained through the interception sought and, therefore, the evidence ought to be excluded pursuant to s. 24(2). 3. The authorization to intercept private communications provides that the offences in which private communications may be intercepted were ss. 271(1) and 273.1(2)(c) of the Criminal Code, R.S.C. 1985, c. C-46, neither of which is the offence currently charged, and therefore there has been breach of s. of the Canadian Charter of Rights and Freedoms and the evidence obtained should be excluded pursuant to s. 24(2). ANALYSIS I. Issue No. Is the evidence of the conversation relevant? [6] I have read the transcript. After having done so, it is immediately evidentthat the contents of the communication are in fact "relevant". There is clearly nexus between the conversation of the complainant and the accused and the substance of the charge before the court. The complainant and the accused are obviously discussingintimate details of their relationship. The conversation is logically probative to the charge. The evidence is therefore, subject to any Charter application, admissible. II. Issue No. Did the learned Provincial Court judge who issued the authorization have sufficient evidence before him to do so? [7] The accused argues that the learned Provincial Court judge that authorized the private communications intercept had no basis for doing so. Section 184.2(3) of the Criminal Code stipulates that the judge to whom the application is made must be satisfied that there are reasonable grounds to believe that information concerning the alleged offence will be obtained through the interception sought. Because the police did not know for sure that the complainant would be able to elicit relevant communications from the accused, so goes the argument, this threshold requirement was not met. [8] The affidavit of the police officer that was before the learned Provincial Court judge in support of the request for the authorization to intercept private communications was filed with the court. That affidavit states that if the authorization to intercept private communications is granted, the police intend to have the complainant initiate communication with the accused regarding their alleged sexual activity in anticipation of eliciting responses from the accused that would provide evidence concerning the alleged offences. [9] The accused argues that such an intention amounts to pure speculation and falls short of what could be considered to be reasonable grounds to believe that information concerning the offence would be obtained through the interception sought. [10] It is important to note that this court does not conduct the review de novo. This court is not mandated to second-guess the issuing judge, but instead must merely examine the original material in order to determine whether there was an appropriate basis for the order. If there was sufficient affidavit evidence upon which the issuing judge could have granted the authorization, this court ought not to interfere. See R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] S.C.R. 1421, 60 C.C.C. (3d) 161. [11] The position of the Crown is that the police had reasonable and probable grounds to believe that the accused had committed offences. The complainant was prepared to initiate telephone call to the accused and engage him in conversation which would likely cause the accused to make admissions or statements which could be confirmatory of her allegations. Specifically, the investigating officer's affidavit states as 12. believe the complainant, [the complainant], is being truthful in her allegations and that her motive in reporting these incidents is to come to grips with her psychological needs and to bring these assaults to an open forum where the person responsible is held accountable. believe that the interception of the private communications of [the complainant] and Wendell Willick will afford evidence, concerning the sexual assaults upon [the complainant]. 13. [The complainant] has consented to have her private communications with Wendell Willick intercepted in order to assist the police in the investigation of the offences outlined above. 14. If the authorization to intercept private communications is granted, it is intended to have [the complainant's] intimate communication with Wendell Willick regarding the above sexual assaults recorded, in anticipation of eliciting responses from Wendell Willick that would provide evidence concerning these offences. [12] The learned Provincial Court judge certainly had some evidence from which he could conclude that information concerning the offence would be obtained through the interception sought when the complainant engaged the accused in conversation involving their alleged sexual activity. It is reasonable to presume that such scenario could quite likely result in producing evidence highly relevant to the investigation. As a result, I find that there the learned provincial court judge did in facthave sufficient evidence before him to issue the telephone intercept authorization. III. Issue No. Can evidence obtained pursuant to valid authorization to intercept private communications be used in relation to an offence not specified in the authorization? [13] The authorization to intercept private communications contains the following provision: 4. The offences in respect in which private communications may be intercepted are offences contrary to Sections 271(1) and 273.1(2)(c) of the Criminal Code of Canada and any conspiracy, or attempt to commit, or being an accessory after the fact or any counseling procuring or inciting in relation to such offences. [14] This provision was undoubtedly intended to comply with s. 184.2(4)(a) of the Criminal Code that states: 184.2(4) An authorization given under this section shall (a) state the offence in respect of which private communications may be intercepted. [15] Section 183 of the Criminal Code specifies the offences for which authorizations may be obtained. Section 183(a)(xliv) includes s. 271, (sexual assault). [16] It is noteworthy that also included in the authorization is s. 273.1(2)(c). However, this section is not one of the offences listed within s. 183(a). In fact, it is not even section that creates an offence. Rather, it is the section that deals with defining the term "consent" for the purposes of sexual assault offences in ss. 271 to 273. Also of note is that the offence with which the accused is currently charged, namely, s. 153(1)(a), is not an offence for which wiretap authorization can be granted because it is not listed in [17] At the time that the authorization was granted the police were investigating complaint that eventually led to the accused being charged with offences under both ss. 271 and 153(1)(a) of the Criminal Code. In the affidavit filed in support of the application is the following paragraph: 2. The offence in respect of which an Authorization to Intercept Private Communications where consent is given is being sought is a) Sexual Assault contrary to Section 271(1) of the Criminal Code of Canada b) Abuse of Position of Trust, Power or Authority contrary to Section 273.1(2)(c) of the Criminal Code of Canada. [18] Obviously, including the reference to s. 273.1(2)(c) is an error in that it is neither charge listed in the definition section nor section that creates an offence under the Criminal Code. However, s. 271(1) was an offence under investigation and one for which an authorization could be granted. [19] The accused was eventually charged with both ss. 271(1) and 153(1)(a) of the Criminal Code. After the preliminary inquiry, he was committed to stand trial on the charge under s. 153(1)(a), but was discharged of the sexual assault charge (s. 271(1)). As result, the situation that now presents itself is that the Crown is now seeking to introduce evidence on charge of s. 153(1)(a) that was collected pursuant to an authorization granted in relation to the investigation of an offence under s. 271(1). [20] The position of the accused is that the authorization specifies the offences for which private communications may be intercepted and the evidence collected is limited to those specified offences. Because the offence under s. 153(1)(a) is not included in the authorization, the evidence obtained was collected illegally. He argues that evidence illegally obtained in this manner ought to be considered to be conscriptive evidence, within the meaning of R. v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607, 113 C.C.C. (3d) 321, and therefore once it is established that breach of s. has occurred, the evidence ought to be automatically excluded without the necessity of s. 24(2) analysis, because the admission of the evidence would render the trial unfair. [21] However, after analyzing the provisions of the Criminal Code and therelevant case authorities, I have concluded that there is no Charter breach, and that theevidence is, in fact, admissible and ought not to be excluded. [22] The authorization clearly permits the police to intercept privatecommunications in relation to an offence under s. 271(1) of the Criminal Code. Thatinvestigation was live and bona fide at the time that the authorization was obtained. The law in this country is that evidence of other crimes revealed during the course of lawful intercept process does not render the evidence obtained inadmissible in relation to an offence not named in the authorization. The focus, therefore, is on whether the interception was lawfully obtained and executed and not on what is discovered. [23] In R. v. Welsh (1977), 1977 CanLII 1215 (ON CA), 32 C.C.C. (2d) 363 at 373-74, 74 D.L.R. (3d) 748, the Ontario Court of Appeal made the following statement: In my opinion, an interception complies with both the Code and the authorization if it is made in respect to stated offence, i.e., for the purpose or object of investigating or gathering evidence with respect to the named offence. The fact that the pursuit of the objective of the authorization reveals evidence of other crimes does not affect the lawful character of the interception. It cannot be said that the evidence in this case is rendered inadmissible on this ground. [Emphasis in original] [24] Subsequently, the Supreme Court of Canada in R. v. Commisso, [1983] S.C.R. 121, 1983 CanLII 160 (SCC), C.C.C. (3d) 1, followed the reasoning in R. v. Welsh and held that evidence obtained pursuant to valid authorization in relation to the investigation of specified offences can also be used in relation to other non-specified offences. [25] Here, the police obtained a valid authorization to intercept privatecommunications in relation to an offence under s. 271(1) of the Criminal Code. Duringthe investigation of that charge, they obtained evidence which is relevant to an offenceunder s. 153(1)(a). The fact that the offence of s. 153(1)(a) is not named in theauthorization nor included as an offence for which an authorization to intercept privatecommunications could be obtained, does not affect the admissibility of the evidence. The simple principle being followed is that as long as the authorization to intercept private communications was validly obtained and executed in bona fide way, evidence of other offences gathered during the valid process is admissible. [26] There is no evidence before the court to suggest or from which it could be inferred that the police purposely navigated around the fact that offences under s. 153(1)(a) are not eligible for intercept authorizations. Clearly, the police believed they were pursuing an offence under s. 271(1) and in the course of that lawful intercept process, obtained evidence relevant to another offence. [27] Therefore, there is no Charter breach. [28] Alternatively, even if there was breach of s. due to an invalid authorization to intercept private communication or because the offence before the court is not one specified in the authorization, such breach does not lead to automatic exclusion under s. 24(2) of the Charter as the accused asserts. The accused relies upon the reasoning of the Supreme Court of Canada in R. v. Stillman, supra, for "automatic exclusion" without engaging the weighing process outlined in s. 24(2). The accused argues that the evidence under consideration should be classified as conscriptive evidence. According to the reasoning in Stillman, if the evidence is conscriptive and the Crown fails to demonstrate on balance of probabilities that the evidence would have been discovered by alternate non-conscriptive means, then its admissibility will render the trial unfair. Therefore, the court ought to, as general rule, exclude the evidence without considering the seriousness of the breach or the effect of exclusion on the repute of the administration of justice. In other words, the accused submits that because the wiretap evidence was obtained outside of the framework of the authorization, unless the Crown can prove that the evidence would have inevitably been discovered, admission of that evidence would render the trial unfair. As result, the accused argues, once the breach is established, there is no need to weigh the factors in accordance with s. 24(2). [29] However, disagree with the accused's characterization of the evidence under consideration as being "conscriptive". The law is clear that evidence produced as result of wiretap is non-conscriptive evidence. [30] In R. v. Babinski (2005), 2005 CanLII 789 (ON CA), 193 C.C.C. (3d) 172, 27 C.R. (6th) 45, the Ontario Court of Appeal confirmed that consent-based intercept that had been obtained without an authorization, prior to R. v. Duarte, 1990 CanLII 150 (SCC), [1990] S.C.R. 30, 53 C.C.C. (3d) 1, was not conscriptive. In light of the reasoning contained in Duarte, the participant telephone intercept conducted without judicial authorization was found to be in contravention of s. of the Charter. The issue then became whether the intercept evidence should be excluded under s. 24(2) of the Charter. The defence in Babinski, as was the case here, argued that the recording of the intercepted private communication ought to be characterized as conscriptive evidence because the consenting party essentially acted as police agent in the course of the conversation. The defence emphasized in that case, as was the case here, that the fact that the agent had initiated the conversation at the direction of the police, made the communication conscriptive. However, the Court of Appeal held that whether or not the consenting party was police agent had no bearing on whether the communication was conscriptive. The court relied upon cases such as R. v. Wijesinha, 1995 CanLII 67 (SCC), [1995] S.C.R. 422, 100 C.C.C. (3d) 410; R. v. Stillman, supra; R. v. Pope (1998), 129 C.C.C. (3d) 59, 1998 ABCA 267 (CanLII), 20 C.R. (5th) 173 (Alta. C.A.); and R. v. Rendon, [1997] O.J. No. 5505 (C.J. (Gen. Div.)) (QL), and upheld the Crown's position that the intercepted communications of an accused in violation of s. does not amount to conscriptive evidence for the purposes of s. 24(2) of the Charter. [31] The court, at paras. 37, 38 and 40 in Babinski, reasoned as follows: [37] The statements made by the appellant in the tape-recorded conversation certainly emanated from him. However, nothing in the circumstances in which the statement was made, or in the conversation itself, could possibly constitute state compulsion. Ms. Mead merely directed the conversation in way that was intended to elicit admissions concerning the break and enter. She in no way coerced or otherwise pressured the appellant to speak about the break and enter. The appellant was under no compulsion to speak to Ms. Mead and nothing she said compelled him to make the statements that he made. [38] The fact that the appellant did not know that the police were intercepting and recording the conversation was relevant to whether the appellant's privacy right was infringed. The surreptitious recording of the conversation denied the appellant the ability to choose his audience, an integral aspect of personal privacy: Duarte, supra, at p. 16. The fact that the appellant was denied his right to choose his audience does not mean that what he said to Ms. Mead was compelled. The surreptitious recording did not compel or coerce the appellant to speak. The recording was not conscriptive evidence in the sense described in Stillman. [40] The intercepted communication was non-conscriptive evidence and was properly admitted by the trial judge. [32] Therefore, even if the evidence was obtained in violation of s. 8 of theCharter, such evidence is considered to be non-conscriptive evidence. Where the evidence is non-conscriptive, the court ought to go on to do balancing as to whether or not the evidence ought to be excluded pursuant to s. 24(2) of the Charter. Where s. 24(2) is triggered, the analysis proceeds through three sets of factors: trial fairness, seriousness of the breach, and the effect of exclusion. See R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265, 33 C.C.C. (3d) 1. [33] In this case if there was a breach it was not serious and was inadvertent -the result of unmindful draftsmanship. There is no evidence of bad faith. There is noevidence of manipulation. As a result, I view the seriousness of the breach, if there wasone, to be minimal, and to admit the evidence would not bring the administration ofjustice into disrepute. CONCLUSION [34] Accordingly, I find that the evidence is relevant and admissible in that itdoes not violate the accused's s. 8 rights. Even if it did, the evidence is non-conscriptive and ought not to be excluded under s. 24(2) because the breach was not serious and inadvertent and admitting the evidence would not bring the administration of justice into disrepute. Therefore, the accused's applications are dismissed. J. M.D. POPESCUL

This is an application by the accused for an order that evidence obtained by way of a telephone interception be ruled inadmissible because it is irrelevant. Alternatively, the accused seeks exclusion of the intercepted communication on the basis that it was conducted in violation of s. 8 of the Charter and ought to be excluded under s. 24(2). The accused is charged with abuse of a position of trust contrary to s. 153(1)(a) of the Code. HELD: The evidence is admissible. The accused's application is dismissed. 1) After examining the transcript of the conversation, it is immediately evident that the contents of the communication are relevant. The complainant and the accused are discussing the intimate details of their relationship. The conversation is logically probative to the charge. 2) The learned provincial court judge did in fact have sufficient evidence before him to issue the telephone intercept authorization. The complainant was prepared to initiate a telephone call to the accused and engage him in a conversation which would likely cause the accused to make admissions or statements which could be confirmatory of her allegations. 3) The authorization clearly permits the police to intercept private communications in relation to an offence under s. 271(1) of the Code. That investigation was live and bona fide at the time that the authorization was obtained. The law in this country is that evidence of other crimes revealed during the course of a lawful intercept process does not render the evidence obtained inadmissible in relation to an offence not named in the authorization. The focus is on whether the interception was lawfully obtained and executed, not on what is discovered. Here the police obtained a valid authorization to intercept private communications in relation to an offence under s. 271(1) of the Code. During the investigation of that charge, they obtained evidence which is relevant to an offence under s. 153(1)(a) of the Code. The fact that the offence of s. 153(1)(a) is not named in the authorization nor included as an offence for which an authorization to intercept private communications could be obtained, does not affect the admissibility of the evidence. Therefore, there is no Charter breach. 4) Even if the evidence was obtained in violation of s. 8 of the Charter, such evidence is considered non-conscriptive evidence. Where the evidence is non-conscriptive, the court ought to go on to do a balancing as to whether or not the evidence ought to be excluded pursuant to s. 24(2) of the Charter. The factors to be considered are trial fairness, seriousness of the breach and the effect of exclusion. In this case if there is a breach, it was not serious and was inadvertent, the result of unmindful draftsmanship. There is no evidence of bad faith. There is no evidence of manipulation. The seriousness of the breach, if there was one, was minimal, and to admit the evidence would not bring the administration of justice into disrepute.

d_2007skqb324.txt

J. 1997 S.H. 130431 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: GRANVIEW FARMS LIMITED, body corporate AND ­- CBCL LIMITED, body corporate DECISION HEARD: At Halifax, Nova Scotia before the Honourable Justice Allan P. Boudreau in Chambers on November 24th and 25th, 1997. OF ORAL DECISION: November 28th, 1997 WRITTEN RELEASE OF DECISION: January 28, 1998 COUNSEL: Michael Wood, for the Plaintiff T. Arthur Barry, for the Defendant BOUDREAU, J. (ORAL): This is the decision in the applications of Granview Farms Limited and CBCL Limited. OVERVIEW Granview Farms Limited, which is the plaintiff in the present action, is the successor corporate entity of Turf Masters Landscaping Limited by virtue of an amalgamation of the two companies. During 1989 Turf Masters obtained subcontract to perform most of the work on recreational park and sports field for the City of Dartmouth. The consultants for the City on the project were the present defendants, CBCL Limited. CBCL had been involved in the evaluation of the land for the site of the park for previously planned international calibre soccer and sports field. In this earlier evaluation CBCL and Jacques Whitford had produced reports indicating subsurface site instability with significant potential problems. As result, the City had abandoned the idea of an international calibre field and instead proceeded with recreational park with some playing fields. In 1989 Turf Masters bid on and obtained the subcontract for most of the construction without being aware of the two consultants' reports regarding site problems as these were not included or otherwise disclosed during the tendering and contract process with the City. Shortly after commencing the work Turf Masters recognized there were significant subsurface problems with the site which made and would obviously make their work more difficult and costly. This resulted in disputes over the contract, but at no time during the work did Turf Masters elect or declare the contract frustrated or otherwise terminated. It finished the work during 1990 and 1991 but in the meantime had commenced an action under the Mechanics' Lien Act, which will refer to as "the first action" for unpaid monies, which in the end consisted primarily of claim for extra or additional work which had to be performed because of the alleged undisclosed site conditions. The first action which was commenced under the Mechanics' Lien Act against the City was continued but was ultimately framed as claim in quantum meruit under the Act and was adjudicated as such all the way to the Supreme Court of Canada. Prior to the trial of this first action CBCL had been joined as third party by the City. At trial Turf Masters obtained judgment against the City and CBCL jointly and severally, but that was overturned on appeal and leave to appeal to the Supreme Court of Canada was denied. Granview commenced the present action in 1996 directly against CBCL alleging negligent misrepresentation based on the non-disclosure of the pre-existing site reports and claiming the damages not recovered in the first action as well as significant additional damages against CBCL. CBCL has made this first application to strike out the statement of claim in the present action on the basis of res judicata or "cause of action estoppel", as it is sometimes known, and abuse of process. Granview has made subsequent application to strike out certain parts of CBCL's defence to Granview's negligent misrepresentation claim alleging some of these questions have already been decided in the first action and that the doctrine of "issue estoppel" applies to those questions or issues. At the prehearing conference directed that the two applications be heard together at the hearing set for November 24th and 25th, 1997 because of the significant overlap and common issues of fact and law. For the purposes of these applications Granview and Turf Masters are one and the same. FACTS It is common ground that the two site evaluation reports prepared by CBCL and Jacques Whitford were not provided or otherwise brought to Turf Masters attention prior to Turf Masters bidding, obtaining and entering into the contract and commencing the work about October of 1989. CBCL was the project consultants to the City during the tendering process and through to the completion of construction. As stated earlier, the work was commenced about October of 1989 and Turf Masters became aware of significant subsurface site problems shortly thereafter and prior to stopping work for the season in November of 1989. In December of 1989 Turf Masters filed lien claim against the City and commenced court action pursuant to the Mechanics' Lien Act. There were discussions between the parties about site problems and resulting extra work as early as the spring of 1990. Turf Masters resumed the work in the late spring or early summer of 1990 and in July 1990 it filed further lien claim. Turf Masters had retained experts or consultants as early as the spring and early summer of 1990. Turf Masters continued to advance and amend its claim during 1990 while at the same time continuing to work pursuant to the contract. Turf Masters became aware of the CBCL and Jacques Whitford site reports in late 1990 or early 1991 as result of discovery examinations which took place during that time. In January of 1991 Turf Masters filed third or further amended statement to the claim of its original action and completed the work in the early summer of 1991. During August of 1991, Mr. Alan Streatch of Turf Masters sent detailed letter to the general contractor outlining Turf Masters' claims because of the alleged site problems resulting in extra work, materials and costs. During the late spring of 1992, Turf Masters changed its solicitors from McInnes Cooper Robertson to Charles Lienaux and soon thereafter applied to the court for further amendment to the statement of claim which application was granted. It is in this new lengthy and very detailed statement of claim that the first action was in effect reframed in quantum meruit. It alleged in clear terms non-disclosure of the soil reports of CBCL and Jacques Whitford as basis for the claim. This amended statement of claim claimed the liability of the City for non-disclosure of the reports flowed in part at least from the agency relationship between the City and its consultants, CBCL. As result, the City joined CBCL as third party to the action in September of 1992 claiming indemnity from CBCL and alleging, inter alia, negligent misrepresentation or negligence on the part of CBCL. By the end of 1992 Turf Masters had settled all its claims with the general contractor. There were no other outstanding claims arising out of the Mechanics' Lien Act except for the first action. The remaining action was between Turf Masters, by then called Granview, the City, and third party indemnity claim by the City against CBCL which alleged negligence or negligent misrepresentation on the part of CBCL. The action was then an action in quantum meruit commenced as Mechanics' Lien claim and containing third party claim now alleging cause of action in tort against the third party. The claim had up to this time continued within the framework of the original Mechanics' Lien action without any apparent serious consideration of the appropriate forum or jurisdiction for the action as it was then cast. However, that changed significantly in early 1993. On January 5th, 1993 Turf Masters' counsel, Mr. Lienaux, wrote to then Chief Judge Palmeter of the County Court raising concern about the appropriateness of continuing the first action pursuant to the Mechanics' Lien Act in view of the fact that the Mechanics' Lien aspect of the case appeared to have been settled and because the one remaining claim outstanding against the City was then framed in quantum meruit and not on the contract which led to the filing of the original lien action. It is clear Turf Masters was at this time considering its options as to which forum was appropriate to continue its remaining claims or causes of action arising from the non-disclosure of the site reports. Mr. Lienaux states the following in the last paragraph on page of his January 5th, 1993 letter. The purpose of requesting the Pretrial Conference is to seek determination of the issue whether this matter should continue in the County Court as Mechanics' Lien claim or if it would be proper at this stage to seek consent Order to convert/transfer the matter into the general Court which will be consolidated into one Supreme Court as of January 31, 1993." Paragraphs 11 and 12 of the Agreed Statement of Facts filed August 11, 1997 are also very pertinent as to Turf Masters' position with regard to the course it would choose for any further litigation of its claim, and quote these two paragraphs: "11. Charles Lienaux, solicitor for Turf Masters Landscaping Limited, wrote to Jean McKenna, solicitor for the City of Dartmouth copying Michael Pugsley, solicitor for CBCL and Alan Streatch, on March 3, 1993 enclosing copy of Mr. Mac Williams' Expert Report `relating to problems experienced by Turf Masters Landscaping Limited in the course of completing the Akerley Boulevard Park.', and noting that Mr. Lienaux would be filing an amended pleading with respect to the amounts being claimed. Notification was also given that Mr. Lienaux would be pursuing claims based either upon quantum meruit or upon negligent misrepresentation. Mr. Lienaux stated on page of that letter that: 'I also note that no longer see any sense in pursuing claim under the Contract between TAG (being the General Contractor) and Turf Masters. The claims which shall be pursing on Turf Masters' behalf shall be based either upon quantum meruit or alternatively upon negligent misrepresentation.' (Emphasis added). He stated further: ‘According to Mr. Williams' findings CBCL knew at the time it issued the tender call for the work that it would be necessary for Turf Masters to do extensive extra work at this site because of subsurface soil conditions described in two reports in CBCL's possession. However, CBCL did not disclose this information.' 12. Charles Lienaux, solicitor for Turf Masters Landscaping Limited, wrote to Michael Pugsley, solicitor for CBCL, copied to Jean McKenna, on April 13, 1993 enclosing copy of the brief filed with the Court respecting the Plaintiffs application for leave to amend its Statement of Claim. After setting out the law when the Civil Procedure Rules permit party to amend and the purpose of amendments, Mr. Lienaux took the position that if his amendments are not allowed, the Plaintiff would be vulnerable to defence that the Plaintiff Turf Masters was splitting its cause of action and any such relief sought in second or subsequent action would be barred by the doctrine of res judicata. Mr. Lienaux referred to the principle that '...all potential reliefs arising out of cause of action must be dealt with in the one action or such relief is thereafter merged by the doctrine of res judicata', citing Smith's Field Manor Development Limited v. City of Halifax (No. 2) (1988), 87 N.S.R. (2d) 1. (Emphasis added) At page of his brief, Mr. Lienaux stated ‘If the Plaintiff is not permitted to make the amendments requested the Plaintiff would be barred from raising such allegations in any future action because they would be barred according to the foregoing legal authority.’” The above quoted paragraphs indicate clearly that Turf Masters was, as far back as March 3, 1993, considering all its legal remedies and avenues for relief for the non-disclosure of the site reports. It not only considered the doctrine of quantum meruit, but also the doctrine of negligent misrepresentation as the two possible remedies or avenues of relief to recover damages allegedly flowing from the non-disclosure. It had by this time all but abandoned the pursuit of relief under the contract which had been the basis for the initial lien claim and resulting action. While Turf Masters had originally sued the City only, by this time CBCL was an involved third party to the litigation. The City in its third party claim had alleged negligence on the part of CBCL. Turf Masters in its letter of March 3, 1993 had also alleged the possible negligent misrepresentation of CBCL because of the failure to disclose but ultimately claimed relief for this non-disclosure only against the City. This was apparently based on the agency principle that the negligence of CBCL was also the negligence of its principal, the City. Turf Masters made no attempts whatsoever at any time during the first action to recover any damages directly against CBCL but relied on the non-disclosure of CBCL to justify its claim in quantum meruit against the City. By March 3, 1993 and well before the trial of the first action, the County Court had merged with the Supreme Court and therefore there were no jurisdictional impediments to Turf Masters or Granview commencing an action against CBCL in the same Court, seeking additional relief. This was not done or attempted. Turf Masters thereafter continued its action against the City only and only in quantum meruit with the City continuing against the third party, CBCL, for indemnity alleging breach of contract or negligence against CBCL. After very extensive discoveries, the trial was held over 18 days between June of 1993 and January of 1994. The trial judge rendered judgment in favour of Turf Masters in September of 1994 against the City and CBCL jointly and severally. This decision and judgment were appealed in June of 1995 and in August of 1995 the Court of Appeal granted an order allowing the appeal and the decision and order of the trial judge were set aside. Turf Masters applied for leave to appeal to the Supreme Court of Canada and in March of 1996 the Supreme Court denied the leave application. There can be no question the litigation of the first action has been very expensive for all the parties; to the point where the trial judge commented: "It seems to me that the cost of this litigation far exceeded the amount of the claim". Mr. Streatch states in his affidavit that Turf Masters and Granview have spent in excess of $250,000.00 on legal, expert and survey fees and one can only infer that the City and CBCL have also expended very significant amounts to defend the first action all the way to the Supreme Court of Canada. During the latter half of 1996 Granview commenced the present action against CBCL directly, alleging negligent misrepresentation on the basis of the same failure to disclose the two site reports which was litigated on quantum meruit basis in the first action. Granview has not only claimed the same damages as claimed in the first action, but seeks additional economic loss damages as well as some $250,000.00 expended on the first action which failed due to Turf Masters not being able to establish its case on quantum meruit basis. The principle justifications advanced by Granview in opposition to CBCL's application to stay these proceedings is that an action in tort is not enforceable under the Mechanics' Lien Act and that it was therefore not possible to litigate the issue of the negligent misrepresentation against CBCL within the four corners of the first action. Granview also takes the position, as stated in the affidavit of its former solicitor Mr. Lienaux, and at page of its brief, that it was reasonable to take "wait and see" attitude with respect to what damages may be left unrecovered after the first action. For this reason and also because damages for economic loss were allegedly still accruing during or around 1993, Granview decided to hold back its potential claim in negligence in order to later claim further or unrecovered damages. ISSUES will first set out the issues which pertain to the application of CBCL to strike out the statement of claim of Granview and to stay or dismiss the proceedings. 1. Should Granview's statement of claim be struck out on the basis of res judicata/cause of action estoppel? 2. Should Granview's action be stayed or dismissed as an abuse of process of the court? Res Judicata While CBCL's application is undertaken pursuant to Civil Procedure Rule 14.25 and the Courts' power on such applications pursuant to Rule 37.10, it is clear the basis for the motion are the doctrines of res judicata and abuse of process. Granview has raised as its first issue the question of whether its present claim could have been pleaded in the first action under the Mechanics' Lien Act. While this question is clearly relevant as factor which the court may consider in deciding the two issues which have previously stated; in my view, it is not by itself determinative issue. This aspect should be considered along with the other relevant factors outlined in the authorities where courts have considered the issues of res judicata and abuse of process. These issues were recently considered by our Court of Appeal in Montreal Trust Company of Canada et al v. Hoque in its October 27, 1997 decision, being docket: C.A. #137284 and indexed as Hoque v. Montreal Trust Company of Canada 1997 CanLII 1465 (NS CA), [1997] N.S.J. No. 430. In that decision Justice Cromwell reviews the authorities for the unanimous court and lays down and explains the tests to be applied and the considerations courts must weigh in resolving there issues. These are not remedies granted lightly because of the obvious serious consequences for the parties. Justice Cromwell begins his analysis by stating the two competing fundamental legal principles at p.14 as follows: "This ... involves the interplay between two fundamental legal principles: first, that the courts should be reluctant to deprive litigant of the opportunity to have his or her case adjudicated on the merits; and, second, that party should not, to use the language of some of the older authorities, be twice vexed for the same cause. Distilled to its simplest form, the issue ...is how these two important principles should be applied to the particular facts of this case." Justice Cromwell then lays out the two main or broad principles of res judicata at page 15 as follows: “Res judicata is mainly concerned with two principles. First, there is principle that '...prevents the contradiction of that which was determined in the previous litigation, by prohibiting the relitigation of issues already actually addressed.': see Sopinka, Lederman and Bryant, The Law of Evidence in Canada (1991) at p.997. The second principle is that parties must bring forward all of the claims and defences with respect to the cause of action at issue in the first proceeding and that, if they fail to do so, they will be barred from asserting them in subsequent action. This '...prevents fragmentation of litigation by prohibiting the litigation of matters that were never actually addressed in the previous litigation, but which properly belonged to it."' He goes on to say at p.16 that; "Cause of action estoppel is usually concerned with the application of this second principle because its operation bars all of the issues properly belonging to the earlier litigation. As was the case in the Hoque appeal, it is this second principle which is being relied upon by CBCL in this application. CBCL's principle submission is that all matters or legal remedies which should have been raised in the first action, the facts of which were actually raised in the first action, cannot now be relitigated under different legal concept. Justice Cromwell goes on to state that; firstly; res judicata requires that the previous court decision be final and between the same parties or their privies. There can be no question that the first decision is final, leave having been denied by the Supreme Court of Canada. While CBCL was not originally named as defendant in the first action, it became full third party litigant by being joined for indemnity by the City. This resulted because of the allegations of non-disclosure by CBCL raised in the pleadings of Turf Masters against the City. find that both of the first two basic requirements of res judicata are met. Justice Cromwell reviews several authorities then summarizes the test to be applied in the following manner at page 19 and 20. The submission that all claims that could have been dealt with in the main action are barred is not borne out by the Canadian cases. With respect to matters not actually raised and decided, the test appears to me to be that the party should have raised the matter and, in deciding whether the party should have done so, number of factors are considered.” Justice Cromwell then reviewed good many cases and analyses the various tests considered in those cases and summarizes the authorities at page 24 as follows: Although many of these authorities cite with approval the broad language of Henderson v. Henderson, supra, to the effect that any matter which the parties had the opportunity to raise will be barred, think, however, that this language is somewhat too wide. The better principle is that those issues which the parties had the opportunity to raise and, in all the circumstances, should have raised, will be barred. In determining whether the matter should have been raised, court will consider whether the proceeding constitutes collateral attack on the earlier findings, whether it simply asserts new legal conception of facts previously litigated, whether it relies on 'new evidence that could have been discovered in the earlier proceeding with reasonable diligence, whether the two proceedings relate to separate and distinct causes of action and whether, in all the circumstances, the second proceeding constitutes an abuse of process." (Emphasis added) Justice Cromwell then goes on to review many cases from factual point of view to analyse how the stated principles are applied and again summarizes the test at pages 38 and 39 as follows: My review of these authorities shows that while there are some very broad statements that all matters which could have been raised are barred under the principle of cause of action estoppel, none of the cases actually demonstrates this broad principle. In each case, the issue was whether the party should have raised the point now asserted in the second action. That turns on number of considerations, including whether the new allegations are inconsistent with matters actually decided in the earlier case, whether it relates to the same or distinct cause of action, whether there is an attempt to rely on new facts which could have been discovered with reasonable diligence in the earlier case, whether the second action is simply an attempt to impose new legal conception on the same facts or whether the present action constitutes an abuse of process." I find that, on the basis of all of the affidavits, the first action as amended from time to time and as adjudicated, the agreed statement of facts and the present pleadings, that the application of CBCL ought to be granted. am satisfied that Granview/Turf Masters should have raised the point now asserted in the second action, at the very latest, in early 1993 and well before trial. It appears to have been well aware of the factual basis for the present allegation well before that time, namely in late 1990 and early 1991. find that the question of whether an allegation in tort can be adjudicated in Mechanics' Lien action may have accounted for an initial reluctance to proceed directly against CBCL for non-disclosure, but it does not justify the "wait and see" attitude adopted by Granview during 1993. In my opinion, the memo to file of then Chief Judge Palmeter dated January 21, 1993 does little, if anything, to justify or excuse the "wait and see" attitude of Granview in its failure to bring forward claim in negligent misrepresentation. If anything, the memo shows willingness on the part of the Court to accommodate the proceedings as economically and expeditiously as possible, altogether. This sentiment was also expressed by Justices Bateman and Jones at the various Court of Appeal proceedings before trial. This inaction deprived CBCL of the opportunity to have the matter litigated once and for all. Well before trial, there were no impediments to having either separate action heard at the same time as the first action in consolidation or joinder of causes. In fact, Granview was aware as far back as January 1993 that, for all practical purposes the Mechanics' Lien aspects of its claim were gone. It threatened to proceed in negligent misrepresentation against the City and CBCL but never did. By not doing so, it deprived, with very significant prejudice might add, CBCL of the opportunity to have the same factual argument litigated at that time. If the present action proceeds, CBCL intends to join the City as third party this time and the same factual assertions will be relitigated. find no reasonable justification for the "wait and see" attitude of Granview in the circumstances of this case and the factual assertions made by Granview and contained in the first action. I find that the present cause of action is the very same one litigated in the first action, simply under a different legal concept. The fact that different legal concepts may bear different damages does not change the cause of action. find that Granview clearly chose its legal concept in the first action and cannot now choose different legal concept to expand its available damages. That is precisely one of the justifications advanced by Granview in support of its opposition to CBCL's application. The increased potential damage pool as result of the application of different legal concept does not constitute new facts which could not have been discovered with reasonable diligence. In all the circumstances of this case, the "wait and see" attitude of Granview is not justified. When one considers the opportunities for Granview to plead its entire case before the trial in 1993 and the horrendous costs encountered in that first action, the denial of any opportunity for CBCL to attempt to have all the allegations heard at that time constitutes serious prejudice. In my opinion it was possible to have the entire allegations heard at one trial, or at the very least it should have been attempted. I am satisfied that to allow Granview to now basically relitigate the same action on the same factual basis on a different legal concept which it considered but did not proceed with would be an abuse of process of the court. Many tens of thousands of dollars by the parties, not to mention court time and resources, would have to be expended on relitigation of the same factual cause of action. I therefore grant CBCL\'s application and strike out the statement of claim and dismiss the present action. The second application heard was that of Granview requesting that certain paragraphs of CBCL's defence be struck out pursuant to Civil Procedure Rule 14.25 on the basis of res judicata and abuse of process. This application originally claimed that the issue of CBCL's negligence had been decided by combination of the trial judge's and the Court of Appeal's decisions in the first action. In effect, Granview was initially claiming summary judgment of its negligence action with damages to be assessed. During oral argument Granview scaled down this claim and argued that only certain aspects of negligence had been decided by the previous decisions in the first action. As understand the last position of Granview in this application it is that breach of the standard of care, and possibly some aspects of causation should be the subject of res judicata, in other words, issue estoppel. While it is not technically necessary to decide this second application in view of my ruling on the first application of CBCL, can say would have no hesitation in dismissing this application. Firstly, agree with CBCL's contention that there is no final decision or judgment on any of the issues alleged by Granview to be the subject of issue estoppel. There is no final decision at all in Granview's favour. The entire decision and order of the trial judge was set aside by the Court of Appeal and many of the findings were called into question. Secondly, the comments of the Court of Appeal on certain factual matters surely cannot constitute res judicata or final judgment on cause of action which Granview says was not litigated in the first action, namely the alleged misrepresentation of CBCL. There appears to me to be fundamental inconsistency in that argument. The application of Granview is therefore dismissed. Costs of $2,500.00 are awarded to CBCL in the first application, plus its disbursements to be taxed if they cannot be agreed upon. presume they may be able to be agreed upon if they are not too extensive. also award costs of $1,000.00 to CBCL on the second application, plus disbursements to be taxed if they cannot be agreed upon. J. Halifax, Nova Scotia

The plaintiff was subcontracted by the City of Dartmouth to build a sports field. The defendant were the project consultants for the City, and were involved throughout the tendering process and construction. Their report indicated a number of significant potential problems. The plaintiff was not made aware of the report when it bid on the project. The plaintiff subsequently became aware of the problems, which made their work more costly. After completing the work, it commenced a claim for the additional work which had to be performed due to the undisclosed site conditions. The defendants were joined by the City as a third party to that action. The plaintiff was successful at trial, but the decision was overturned on appeal. The plaintiff then commenced the present action directly against the defendant, alleging negligent misrepresentation. The defendant applied to strike the action on the basis of res judicata and abuse of process. Granting the application, that the present cause of action is the same one litigated in the first action, simply under a different legal concept. To allow the plaintiff to relitigate the same action on the same factual basis would be an abuse of process.

3_1998canlii1477.txt

1994 S.H. No. 111838 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: PICK O'SEA FISHERIES LIMITED and NATIONAL UTILITY SERVICE (CANADA) LIMITED DEFENDANT HEARD: at Halifax, Nova Scotia, before the Honourable Justice Jamie W. S. Saunders in Special Chambers, April 4, 1995 DECISION: April 5, 1995 (Orally) RELEASE OF ORAL: April 28, 1995 COUNSEL: Jonathan C.K. Stobie, Esq., for the Plaintiff D. Kevin Latimer, Esq., for the Defendant SAUNDERS, J. (Orally): Were time available, my preference would have been to give written reasons which would have been more elaborate than these. However, would not have had time to do that this month and it is in the best interests of the parties that they know the outcome and my basis for arriving at the following conclusions. In that way, should the unsuccessful party wish to appeal my decision or should transcript of these proceedings be required for any ancillary matters in Ontario, that could be arranged in short order. glean the following summary of the facts from the pleadings. The plaintiff is the successor corporation of an amalgamation which included Sweeney Limited, Yarmouth, Nova Scotia based company involved in catching, processing and marketing of fish and fish products. The defendant corporation has offices in Ontario and Quebec and held itself out as an energy efficiency consultant. The parties entered into so‑called Letter Arrangement whereby the defendant would conduct detailed energy performance evaluations of the plaintiff's operations and make recommendations for improvements and reductions in costs. The plaintiff paid the defendant what the plaintiff terms deposit and what the defendant calls service fee of Eight Thousand Dollars ($8,000.00) and agreed to pay Fifty Percent (50%) of every energy savings enjoyed for period of sixty months, provided such savings were the result of whatever of the defendant's recommendations were approved by and implemented by the plaintiff. The plaintiff complains that the defendant failed to conduct the detailed analysis it undertook and that any recommendations were superficial and of no help to the plaintiff. The plaintiff has rejected the defendant's efforts to claim substantial payments alleged by the defendant to represent its share of the plaintiff's energy savings, the plaintiff taking the position that such savings were entirely unrelated to any advice from the defendant and were, instead, the result of price reductions offered by its own suppliers of fuel. The plaintiff has claimed, first, return of its Eight Thousand Dollar ($8,000.00) "deposit"; second, declaration that the Letter Arrangement does not constitute an enforceable contract; third, if it does, that the plaintiff is not liable under the contract to the defendant, and fourth, if the plaintiff is liable, then only to the extent of liability determined by this court. On the hearing yesterday, had the benefit of lengthy arguments from Messrs. Latimer for the defendant, and Stobie for the plaintiff. typed statement confirming two agreements reached by counsel was filed. also gave leave to Mr. Stobie to tender an Affidavit sworn by Mr. Weld, March 8, 1995. Mr. Latimer confirmed that he did not oppose such tender by Mr. Stobie. The Statement of Claim was issued December 7, 1994. The defendant was served in Ontario on December 9, 1994. The Prothonotary issued default judgment on December 23, 1994 for the sum of Eight Thousand Dollars ($8,000.00), plus Two Thousand, Eight Hundred and Eighty Dollars ($2,880.00) in interest, plus Four Hundred and Four Dollars and Forty Two Cents ($404.42) in costs, for total of Eleven Thousand, Two Hundred and Eighty Four Dollars and Forty Two Cents ($11,284.42). By Interlocutory Notice filed March 2, 1995, the defendant applied, pursuant to Civil Procedure Rule 12.06, to set aside the default judgment. The matter was originally set down for Regular Chambers to be heard on March 9, 1995. asked that it be assigned to Special Chambers before me on April 4, 1995. The defendant makes three arguments in support of its application to set aside the default judgment. The first two arguments are procedural, going to the substance of the relief obtained, in that the plaintiff, it is said, did not meet the requirements for obtaining a default order from the Prothonotary and that, therefore, such order should be set aside for irregularity as of right. In the alternative, the defendant argues the merits relying upon Affidavit evidence, including that Affidavit deposed to by Ms. Lois Roberts, one of its counsel in Ontario. The defendant says that there are legitimate triable issues between the parties and that there is a reasonable excuse to explain its failure to file a defence. There were attempts to resolve this matter. The defendant offered to pay One Hundred Dollars ($100.00) as throw‑away costs, provided the plaintiff consented to setting aside its default judgment. That was unacceptable to the plaintiff which was loath to relinquish its default judgment without first securing promise from the defendant that it would either forthwith file defence, or if so advised, apply for stay of the plaintiff's action based on the doctrine of forum non conveniens. It is obvious to me that the question of trying this case in Nova Scotia or in Ontario and the tactical advantages or disadvantages to each party, has been an underlying consideration driving the positions adopted by this plaintiff and by this defendant. The defendant does not want strings attached to it securing setting aside of the default judgment. The plaintiff does not relish giving up its present leverage in way that would allow the defendant to pursue the litigation in Ontario at considerable cost and inconvenience to the plaintiff, who is without any presence there. Were the default judgment to be set aside, then the plaintiff asks for directions pursuant to Civil Procedure Rule 25.01, to ensure that this underlying issue, that is, whether Nova Scotia or Ontario is the appropriate forum, is addressed. It should be noted that on December 23, 1994, the defendant commenced its own action against the plaintiff which arises from the same events which form the subject of the plaintiff's Nova Scotia action. In Ontario, the defendant claims damages from the plaintiff for Three Hundred and Ninety Five Thousand Dollars ($395,000.00) plus associated relief. The plaintiff herein has engaged Ontario counsel to apply for judgment in that Province, based on the default judgment in these proceedings here and for an Order dismissing the Ontario action on grounds of res judicata or abuse of process or, in the alternative, for an Order staying the Ontario proceedings on the grounds of forum non conveniens. The defendant\'s application to set aside the default judgment is dismissed for the following reasons: agree with Mr. Stobie that any irregularities which may have prompted the issuance of the Prothonotary's default judgment are not such as to cause me to find that the Order is nullity. Although technically, the plaintiff ought to have sought the court\'s leave to take default under Civil Procedure Rule 12.03 (1), because the statement of claim had combined a request for declaratory relief with a claim for what I consider to be liquidated damages, such a procedural omission did not, in my view, in the circumstances of this case, materially affect the defendant. It is difficult to see how the defendant was possibly prejudiced as it had already made it clear to the plaintiff that it was not going to file a defence in this jurisdiction. think the cases relied upon by the defendant to support its principal arguments are distinguishable and will now turn to some of those cases. First, Anlaby v. Praetorius (1888), 20 Q.B. Div. 764 and also the case of Baker v. Abunnadi (1980), 12 C.P.C. 1. In those cases, the plaintiff had made premature filing of default judgment before the time of delivery of defence had expired. In such cases, it is obvious to me that the defendant would be prejudiced. It is to be remembered, as highlighted by Mr. Stobie in his pre‑hearing memorandum, that the decision in Baker was criticized in an accompanying annotation which made the point that the right to set aside the judgment was qualified by the British Columbia Rule 2(4) which required the application to be made within reasonable time. have considered the remarks by Cameron, J. as she then was, in Saunders v. Lewis (1990), 1990 CanLII 7221 (NL SC), 83 Nfld. and P.E.I. Reports 1, where she wrote at page "Generally, judgment obtained on the basis of an error of substance will be set aside. Irregularities will not automatically result in the default judgment being considered nullity, nor with (sic) judgment be set aside for technical imperfections in the procedure used." (underlining mine). also note in the case of Szczesniak v. Farocan Inc. (1992), 1992 CanLII 4533 (NS SC), 115 N.S.R. (2d) 292, the following remarks of Justice MacAdam in paragraph 38 "In the absence of any authority indicating that, in exercising my discretion under Civil Procedure Rule 12.06, am unable to vary the default judgment so as to give effect to those claims that were liquidated and to set aside the judgment in respect to those claims that were unliquidated, am not prepared to order that the totality of the default judgment is to be set aside on account of irregularity nor that the defendant is entitled to any costs." Mr. Latimer has argued that the plaintiff's failure to obtain default judgment in compliance with Civil Procedure Rule 12.03, was to use the language of some of the cases, breach of procedural requirement which goes to the root of our conceptions of the proper procedure in litigation, thereby entitling his client to have the default judgment set aside as of right ex debito justitiae without terms imposed by the court. He placed considerable reliance on the 1888 Court of Appeal decision in Anlaby. My attention was drawn to that portion of Lord Justice Fry's speech at page 768 and Lord Justice Lopes' at page 270. must say was initially attracted to the defendant's submission. However, on further analysis, do not think they are applicable here. In that case, the plaintiff's judgment was irregular because he did not have right to such judgment in the first place. It was premature. It was obtained before the time limit for making an appearance had expired. In word, the plaintiff had no right to his judgment. In such circumstances, do not doubt but that the defendant's remedy was automatic ex debito justitiae. That is not the case here. This plaintiff had the right to obtain default judgment the moment this defendant failed to defend by the latest possible date, that being December 22, 1994. The plaintiff filed its default, as forewarned, the next day, December 23, 1994. There are other important differences between the cases. The English Rule, excusing non‑compliance, which drew comments from Lords Fry and Lopes and upon which Mr. Latimer relies, provides "non‑compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or judge shall so direct..." In England, this non‑compliance with any rule of practice would not avoid proceedings, unless the court otherwise directed. think our own Civil Procedure Rule 2.01 goes further than that. It states that any failure to comply is to be treated as simple irregularity which will not nullify any of the proceedings, unless otherwise ordered. do not think the difference is mere semantics. The result is presumed unless or until the court determines otherwise. The other provisions of Civil Procedure Rule 2.01(1) give clear indication of the court's supervisory and remedial powers. Further, Rule 2.02 places responsibility on the applying party to take certain actions and avoid certain other actions if it intends to seriously impugn the irregularity. Finally, in Praetorius the court held that they were not dealing with an instance of non‑compliance with rule nor with an irregularity in acting under any rule. As Justice Fry said at page 769 "The irregular entry of judgment was made independently of any of the rules; the plaintiff had no right to obtain any judgment at all.. There is strong distinction between setting aside judgment for irregularity, in which case the Court has no discretion to refuse to set it aside..." (underlining mine) That is both materially different from the facts before me and think quite different than the scope of our own Civil Procedure Rules. In Nova Scotia, do have clear discretion not to nullify proceedings for reasons of irregularity. Whereas, my reading of the old English cases is that there was no such discretion to refuse to set aside in those specific circumstances. So to, in Baker v. Abunnadi, to which have already made reference and which is relied upon by this defendant. In that case, the plaintiff's default judgment was set aside as being premature, as it was obtained before the expiry of the time available to the defendant to file an appearance. Similarly, in Craig v. Kanssen, (1942) K.B. 256, the English Court of Appeal held it was beyond question that the default judgment ought to be set aside following an admitted failure to serve that defendant with the very summons upon which the order was based. In summary, find that the cases relied upon by the defendant to support its primary argument, are not applicable to the circumstances with which am faced. The older cases which held that an irregularly obtained judgment was nullity, are, think, inconsistent with the interpretation and application of our own Rules to which have earlier made reference. Here, the plaintiff's mistake was not one of substance rendering its claim for relief nullity. It had the right to default. It attempted to exercise it. It merely erred in choosing the Prothonotary as being the appropriate authority to grant it. Further, find that the claim for return of the sum of Eight Thousand Dollars ($8,000.00) meets the definition of "liquidated" damages in the authorities presented to me and is, therefore, claimable and recoverable upon default. think it also significant that had the plaintiff's Statement of Claim been restricted to the demand for Eight Thousand Dollars ($8,000.00), which is what, in fact, the plaintiff eventually obtained in the Prothonotary's default order, that order would be unassailable. Were it necessary for me to decide, would likely have found that the defendant had failed to bring itself within the requirements of Civil Procedure Rule 2.02. Given the flurry of communications between Mr. Stobie and Ms. Roberts in December 1994 and the obvious state of readiness evident between them both, the defendant could have acted much more promptly in applying to set aside the plaintiff's default order, rather than waiting until mid February 1995 before deciding to engage Mr. Latimer to apply to set it aside. now turn to the third and final argument of the defendant which will require brief analysis of the merits of the defendant's defence and excuse. deal first with the law applicable to this part of the application. Civil Procedure Rule 12.06 provides "The court may, on such terms as it thinks just, set aside or vary any default judgment entered in pursuance of Rule 12." The leading case in Nova Scotia is Ives v. Dewar, 1948 CanLII 275 (NS CA), [1949] D.L.R. 204 where Mr. Justice Parker said at p. 206: "Before the interlocutory judgment should have been set aside, it was necessary for the appellant to show by affidavit, facts which would indicate clearly that he had good defence to the action on the merits; not necessarily defence that would succeed at the trial because the action was not being tried on that application; but facts which would at least show beyond question that there was substantial issue between the parties to be tried. He must also show by affidavit why his defence was not filed and delivered within the time limited by the Rules. The reasons thus disclosed are material matters which the judge or Court should consider in determining whether the application to set aside the judgment should be granted or refused." The first branch of the two‑fold test may be dispensed with quickly. Mr. Stobie concedes that there are triable issues between these parties. However, he says that the defendant has failed to establish any reasonable excuse for its failure to file a defence. agree with Mr. Stobie. This was not a mistake or an oversight. This was not an omission through inadvertence or insufficient time or other pressing business. It was not a failure to file a defence but rather, a deliberate decision not to file a defence. can come to no other conclusion from clear reading of the correspondence passing between Mr. Stobie and Ms. Roberts. will now refer to some of those letters in detail. The first important letter is that of Mr. Stobie to Ms. Roberts sent by telecopier and dated December 19, 1994. He begins by acknowledging receipt of her letter dated December 15, 1994. He refers back to his letter of December 8, 1994 by which he told her he was in the process of preparing an Originating Notice and Statement of Claim and, in fact, enclosed with that communication, copy of the draft. He points out that it was served upon the corporate secretary of Ms. Roberts' client on December 12, 1994. In the second paragraph, Mr. Stobie goes on to explain to Ms. Roberts the application of Civil Procedure Rules relating to service and the time limits within which defence must be filed. He indicates the specific date, that is, the final date by which defence ought to be filed and confirms very clearly in the fourth paragraph of his letter, that if defence is not received by that date, he will be filing default judgment against Ms. Roberts' client on Friday December 23, 1994. He goes on to refer to her earlier communication which described her preparation of Statement of Claim on behalf of her client. He asks her to disclose whether it will be originating out of this jurisdiction or that of the Province of Ontario. He goes on to suggest that if the former, then it appeared to him the appropriate procedure would be for her client to add its counterclaim to the Nova Scotia proceedings. If, on the other hand, the action were commenced in Ontario, then he advises he would have to obtain instructions to determine whether he was authorized to accept service of such pleading. Her letter to Mr. Stobie is dated the next day, December 20, 1994, sent by facsimile confirming receipt of his and indicating that her client intends to commence action in Ontario as being, in her words, "the most appropriate forum for the resolution of their dispute." She goes on to indicate that her client does not submit to nor attorn to the jurisdiction of Nova Scotia, that being the place where Mr. Stobie commenced his action. The next communication appended to the Affidavit of Ms. Roberts, is telecopier communication from Mr. Stobie to Ms. Roberts dated December 23, 1994, confirming receipt of her December 20th letter and indicated that having regard to the position she articulated in her letter, he has proceeded to enter default judgment. He encloses copy of the order for default totalling Eleven Thousand Two Hundred and Eighty Four odd dollars. He asks her to say whether the judgment will be paid forthwith or whether he will be obliged to take enforcement proceedings. In his letter to her dated December 23, 1994, also sent by telecopier, he advises that he is not authorized to accept service. This is acknowledged by Ms. Roberts' letter dated December 28, 1994, simply enclosing copy of her client's Statement of Claim which she is in the process of having served upon the defendant in that action. consider the communications to which have made reference, to be clear evidence of strategic position deliberately adopted by the defendant. Having been forewarned by Mr. Stobie, Ms. Roberts was well aware that the consequences of not filing defence would be default in Nova Scotia. The defendant has not brought itself within the scope of the remarks of Chief Justice Cowan in Pinard and Pinard v. Bushell et al. (1975), 20 N.S.R. (2d) 317 at p. 333: "It is not sufficient...for him to give reasons, but the reasons must show that he has reasonable excuse for the delay..." Nor the observations of Mr. Justice Cooper in Errol B. Hebb and Associates v. Enterprises Ltd. (1977), 23 N.S.R. (2d) 369 at p. 375: "...an explanation for delay capable of furnishing basis for the exercise of the discretion of the chambers judge." find there is no basis for me to exercise my discretion in favour of this defendant. With respect, cannot accept Mr. Latimer's submission that the plaintiff rushed to judgment; that the defendant had impliedly sought an extension of time within which to file defence, or that Ms. Roberts was waiting for Mr. Stobie to reply on the subject of the most appropriate forum. The letters to which have referred belie that. Even after the default judgment was entered, there is not the slightest complaint raised in the correspondence from Ms. Roberts that she was taken by surprise, or mistaken, or was dealing with Mr. Stobie under some misapprehension. If she had any such concerns, they were not matters which Mr. Stobie was ever asked to address. He had obtained his default judgment just as he said he would. It was not as if Ms. Roberts had invited Mr. Stobie's participation on the forum question. She announced her client's position by letter to Mr. Stobie of December 20, 1994. In the face of that letter, it would be self‑evident to Mr. Stobie that the defendant had no intention of defending in Nova Scotia. As such, the defendant is, in my view, barred from relief. find the circumstances of this case similar to that which faced Justice Trainor in the British Columbia Supreme Court in Bank of Montreal v. Thompson (1977) C.P.C. 72. There, the defendant had allowed default judgment to be entered in British Columbia on the basis of advice from California lawyer, that the judgment would not be enforceable in California. Justice Trainor held that this amounted to wilful and deliberate decision to ignore the proceedings in British Columbia. Notwithstanding the faulty legal advice in California, the defendant knew that there would be judgment against him in British Columbia. The application to lift the default judgment was dismissed. Counsel for the defendant here, has referred to and relied upon the decision of the Nova Scotia Court of Appeal in the case of Ross, Barrett Scott v. Simanic (1994), 30 C.P.C. (3d) 145. There, the court dismissed an appeal from the decision of Justice Bateman wherein she allowed the defendant's motion to set aside the plaintiff's default judgment. She concluded that there were number of triable issues and that the defendant had presented reasonable excuse for his failure to defend. Her reasons for the latter were expressed in these words and am now referring to the extract quoted by Justice Hallett writing for the Court of Appeal at page 148 of the case report cited earlier. These are Justice Bateman's findings "I am satisfied that Mr. Simanic in failing to defend the Nova Scotia action did not appreciate the consequences of doing so, and that he understood that the action in Nova Scotia was not properly constituted or could be adequately responded to in Ontario... In the circumstances, find that there was no wilful or excessive delay on Mr. Simanic's part in moving to set aside the default judgment. The applicant has met the burden of establishing that there is substantial issue to be tried and that he has reasonable excuse for failing to file defence." Leaving aside that portion of the Court of Appeal Judgment which dealt with whether the chambers judge had erred in admitting certain evidence challenged as hearsay, Justice Hallett, after dismissing that ground of appeal, then went on to consider the "second ground" which was really the first of the Appellant's Factum, that being that there was no evidentiary justification for Justice Bateman's finding that the defendant had reasonable excuse. The Appellant complained that the only basis for her coming to that conclusion, was the deliberate decision made by the defendant not to defend the Nova Scotia action. On the contrary, Justice Hallett in writing for the Court of Appeal, determined that there was sound evidentiary basis for the chambers judge to have come to that conclusion. In his argument yesterday, Mr. Latimer stressed this statement from the decision of Justice Hallett appearing at page 153 "I cannot accept counsel's argument that the deliberate decision not to attorn to the jurisdiction of the Nova Scotia courts should not be regarded as reasonable excuse for failing to file defence." (emphasis per Hallett, J.A.) Mr. Latimer urges me to apply that statement here. With deference, do not think Justice Hallett would wish to be taken to say, that by his rejecting the Appellant's submission, that therefore refusal to defend for fear of attorning to jurisdiction would always amount to reasonable excuse. Every case depends on its own set of facts. The observation of Justice Hallett may well be dicta and in any event, it is qualified by his frequent references to the fact that the defendant did not appreciate the consequences of not appearing to the action in Nova Scotia and that the defendant, lay person, had relied upon defective legal advice. To illustrate, will refer to at least six such references by Justice Hallett. "The respondent did not defend in Nova Scotia because of the legal advice he received; although it would appear to be questionable advice it was the reason why the respondent did not file defence to the Nova Scotia action.. Nor is the fact that he agreed to the course of action that was proposed by his counsel. His agreement does not negate the fact that underlying the respondent's decision not to file defence was the advice he had received." (p. 153). And back at page 151 "She..."(referring to Justice Bateman)"found that the respondent did not appreciate the consequences of not defending; the respondent's testimony supports this finding. She also found that he understood the action in Nova Scotia may not have been properly constituted; the respondent's testimony supports this. She also found that he understood an adequate response could be made in Ontario; the respondent's testimony supports this finding." All of those factors are materially different than the case before me. In the result, see no evidentiary basis sufficient to persuade me that in order to do justice between these parties, should exercise my discretion in favour of the defendant. This is especially so, where as here, the defendant (hardly neophyte to litigation elsewhere) was not willing to cure its default by either agreeing to commit itself to forthwith defend in Nova Scotia or bring motion to stay on the basis of forum non conveniens. The defendant\'s apparent intention to avoid the jurisdiction of the Nova Scotia Supreme Court, while simultaneously drawing the plaintiff into litigation in Ontario where it has no presence, is, in my view, incapable of constituting a reasonable excuse, as contemplated by this court\'s interpretation of Civil Procedure Rule 12.06 in previous cases. For all of these reasons then, the defendant\'s application is dismissed with costs to the plaintiff in the amount of One Thousand Dollars ($1,000.00). It is, therefore, unnecessary for me to consider the plaintiff's subsidiary request for directions, pursuant to Civil Procedure Rule 25, nor the issue of appropriate forum.

The plaintiffs statement of claim was served on the defendant in Ontario two days after it was issued. Two weeks later the prothonotary issued default judgment for $8,000, plus $2,880 in interest and $404.42 in costs. The defendant applied, pursuant to Civil Procedure Rule 12.06, to set aside the default judgment, on the ground that the plaintiff did not meet the requirements for obtaining a default judgment from the prothonotary or, in the alternative, on the merits that it had, by affidavit evidence, raised triable issues and provided a reasonable excuse for its failure to file a defence. Dismissing the application with costs of $1,000 to the plaintiff, that although the plaintiff ought to have sought the court's leave to take default judgment such a procedural ommission did not, in the circumstances, prejudice the defendant. Further, while there were triable issues between the parties, the defendant's failure to file a defence was neither a mistake nor an oversight, but rather a deliberate decision so as not to attorn to Nova Scotia jurisdiction, and therefore was not a reasonable excuse.

1995canlii4465.txt

J. IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2008 SKPC 160 Date: November 26, 2008 Information: 24112648 and 43395555 Location: Saskatoon Between: Her Majesty the Queen and Arthur Cachene Appearing: Sandeep Bains For the Crown Allen McGuire For the Accused DECISION ON AN APPLICATION TO EXCLUDE EVIDENCE W.K. TUCKER, 1. The accused is charged with the offence of aggravated assault on Victor McKay on February 21, 2008. Prior to his trial, the accused, through his counsel, gave notice that he would be making an application to the court for ruling that the accused’s rights under the Charter of Rights and Freedoms, (hereinafter referred to Charter), had been infringed, and seeking remedy for that infringement. At the trial, Crown counsel called six witnesses to testify, and, during the course of the evidence of the sixth witness, requested that the court enter into voir dire. 2. The purpose of the voir dire was to hear and determine an application by counsel for the accused, for a ruling finding that the rights of the accused under sections 8, 9, and 10 (a) and (b) of the Charter had been infringed. The remedies sought were, firstly, stay of proceedings regarding the charges before the court, or, in the alternative, the exclusion of evidence obtained from the accused while he was being held in detention at the Saskatoon Police Service building. 3. By agreement of counsel, all of the evidence taken on the trial proper was made applicable to the voir dire. Crown and defence counsel agreed that the Crown would call the witnesses on the voir dire, thus giving defence the opportunity to cross-examine them. The Crown called three witnesses on the voir dire, those being Constable Epp, Sergeant Huisman, and Sergeant Johnson, all of the Saskatoon Police Service. The defence did not call any witnesses on the voir dire. 4. The evidence on the voir dire indicated that on February 21, 2008, Constable Epp was directed to 2112 Main Street East in Saskatoon because of complaint of disturbance. She was in uniform, in marked patrol car, operating alone. Constable Hudec also arrived at the building in his own patrol car. The two officers entered the building, and were directed to apartment 4. That apartment was occupied by the accused. 5. Constable Epp testified that when they arrived at the apartment at 10:37 am, they knocked on the door and were admitted into the apartment by the accused. Both the accused and Mr. McKay were in the apartment. There was no one else in the apartment at that time. Both the men were sitting at the table, but everything appeared to be normal. Neither of the men appeared to be injured, there was no sign of blood in the apartment, and the officers concluded, essentially, that there was not problem at that time. They had spoken to person who had been in the apartment before the police arrived, had left his jacket there, and wanted the police to recover it for him. The accused handed jacket to that individual while the police were present and that person left. When the police left the apartment after spending about five minutes there, the accused and Mr. McKay were alone in the apartment. 6. Constable Epp was directed back to the same building about half hour after she had left it, on another complaint of disturbance. They were again directed to the same apartment. Constable Epp knocked on the door and received no response. She knocked again, and called out the accused’s name. The accused asked who it was, and she responded that it was the police. The accused opened the door, and the police entered. She observed that Mr. McKay was lying on the floor, covered in blood, with large amount of blood on the floor underneath him, and blood on the wall near him. The accused was the only other person in the apartment, and she observed red substance on his face and hands. She advised the accused he was being detained with respect to an apparent assault causing bodily harm, and placed handcuffs on him. She had no further conversation with him at the time because she, and another police officer who had arrived at the same time, were both occupied with attending to Mr. McKay. An ambulance was called for Mr. McKay, it arrived, and Mr. McKay was transported away by ambulance at 11:35 am. 7. Constable Epp then asked the accused what happened. The accused first said he was in the bedroom when it had happened and then said Mr. McKay fell. Constable Epp decided she had sufficient grounds to arrest the accused and arrested him for assault. She read him the standard police warning to which he replied “yeah”. She then read him the standard right to counsel, to which he responded “yeah”. The accused appeared to understand her, and was cooperative with her, although earlier he had been belligerent in responding to her partner. Constable Epp took the accused to her patrol car, intending to take him to detention. 8. While that was happening, Sergeant Pittman arrived at the scene. Sergeant Pittman was her immediate superior. Constable Epp told Sergeant Pittman what had happened, and Sergeant Pittman told her that there were not sufficient grounds to arrest the accused, and that she should “unarrest” him, but to keep the accused detained. In cross-examination, Constable Epp indicated that Sergeant Pittman had left it up to her as to whether to continue the detention and had suggested she try and get statement from the accused. She did reiterate that she was told by Sergeant Pittman to detain the accused, and that he had taken over the investigation. 9. Constable Epp spoke to the accused in the patrol car and told him that he was no longer under arrest, but that he would still be detained, that he could contact counsel at the police station, and that he could provide statement after he talked to his lawyer. The accused was transported, handcuffed, to the police station by Constable Epp. At the station he was taken to the detention area, booking sheet was completed, and the accused was placed in booking room. 10. In the booking room, the accused said he wanted to talk to Cathy Bohachik. Constable Epp testified that she thinks that she, Constable Epp, looked in the telephone book for the name of Cathy Bohachik, but she is not sure that she actually did so. She did say to the accused that she thought that Cathy Bohachik was with Legal Aid. The accused responded “OK, Legal Aid is fine”. Constable Epp then put the accused in touch with the legal aid duty counsel and left him alone to talk to counsel. She took no further steps to assist the accused to contact Cathy Bohachik personally, and made no further enquiries of the accused regarding counsel. After his telephone conversation the accused did not express any dissatisfaction with respect to his contact with counsel. He declined to give any statement to the police. 11. With regard to the circumstances of the accused’s confinement, the handcuffs were removed and he was kept in room with police officer guarding the open door and keeping him under observation. 12. Sergeant Pittman met with Sergeant Huisman and outlined the situation to him, including the arrest, “un-arrest”, and detention of the accused. By this time the police had learned that the injuries to Mr McKay were life threatening, with real possibility that Mr. McKay might die from those injuries. Sergeant Huisman, who was in the Major Crimes Unit of the police service, agreed to take charge of the investigation. Sergeant Huisman was told that the accused was in custody for aggravated assault. He testified that he did not direct his mind to the fact that the accused had been “un-arrested”, or to the status of the accused as being detained, rather than being under arrest. He testified that he was satisfied that sufficient grounds existed for the accused to be arrested, but he did not direct the arrest of the accused or take other steps to clarify the status of the accused. 13. Sergeant Huisman spoke with Constable Epp and advised her that the investigation was now in the hands of Major Crimes, and that he had charge of it. He directed her to contact the police forensic Identification Section to have the accused “processed”, and then, because he believed that time was of the essence, he contacted Sergeant Johnson of the Identification Section directly, to request the immediate processing of the accused. 14. Sergeant Johnson attended at the detention area at 1:20 pm to “process” the accused. She did not know about his status as arrested or detained, and did not enquire into it. The processing consisted of taking numerous photographs of the accused, testing blood-like stains on his person and clothes with “hemosticks”, taking swabs of those substances which the “hemosticks”indicated were positive for blood, and seizing the clothing of the accused. The accused was cooperative throughout the procedure. Constable Epp assisted Sergeant Johnson in the process. 15. Crown and defence entered into evidence on the voir dire, an agreed statement of fact which became Exhibit D-3 and is reproduced below. [16] The photographs taken of the accused have already been entered into evidence with the consent of the accused as part of Exhibit P-1, and, accordingly, are not part of the evidence which the defence seeks to have excluded. The tests, swabs, and seized clothing, and the consequent analysis of those items, are the evidence the defence seeks to have excluded. [17] Turning now to the grounds for the accused’s application, will deal firstly with the allegation that the accused’s rights under section 10 (b) of the Charter were infringed. That section reads, in part: Everyone has the right on arrest or detention; (b) to retain and instruct counsel without delay and to be informed of that right ... The position of the defence is that the right under Section 10 (b) includes the right to retain and instruct counsel of choice, and that the police officer with custody of an accused has an implementational duty to assist the accused to do that. In this case, defence submits, the accused asked for counsel, Cathy Bohachik, by name, but the police officer put the accused in contact with legal aid duty counsel instead. [18] The onus of establishing that right has been breached is on the accused. In this case, there is no evidence to establish that the accused did not speak to Ms. Bohachik. The agreed statement of fact establishes that Ms. Bohachik was employed with Legal Aid, and the officer connected the accused with lawyer working for Legal Aid. Presumably, simple request by the accused to speak with Ms. Bohachik could have produced that result. Since the accused did not testify, we do not know one way or the other, but the onus is on him to establish the breach. One can infer from the fact that the application was made, that no contact with Ms. Bohachik was made. The application proceeded on that assumption, and am prepared to accept it for the purposes of this proceeding. [19] The evidence shows that the accused asked for Ms. Bohachik by name. Constable Epp thought, correctly as it turned out, that Ms. Bohachik was solicitor employed with Legal Aid, and communicated that information to the accused. His response was “OK, Legal Aid is fine”. The exchange does not indicate that the accused was being refused or hindered in obtaining counsel of his choice, but rather that Constable Epp was assisting him, which led to the accused, on his own initiative, saying that Legal Aid in general was suitable to him. [20] Exhibit D-3 establishes that there are several ways to contact Legal Aid by telephone. The evidence of Constable Epp establishes that she contacted Legal Aid duty counsel by telephone. There is no evidence that the numbers for Legal Aid in the telephone book would be more likely to produce contact with Ms. Bohachik than direct contact with duty counsel. Either way, simple request by the accused to speak with Ms. Bohachik would, if she was available, in all likelihood, have resulted in the desired contact. [21] The fact remains, however, that on his own initiative, the accused requested contact with Legal Aid generally, and that was provided to him. An analogous situation would be an accused who asks for private lawyer “A”, and upon being told that lawyer “A” was practising with the firm “A, C”, says any of those lawyers would be fine. Placing him in contact with any one of the lawyers would comply with his request for counsel of choice. [22] Defence counsel has cited the cases of R. v. McLaren, 2001 SKQB 493 (CanLII), and R. Steinhauser,[1999] O.J. No. 522 in support of his position. Those cases deal with substantially different fact situations. In McLaren, the accused said “I don’t have lawyer. have to phone my wife” in response to the officer advising him of his right to counsel. The police officer then put the accused in contact with duty counsel without giving him any opportunity to contact his wife, or to choose counsel in any other fashion. In Steinhauser, the accused asked to speak to particular lawyer. When the officer tried to reach that lawyer, the officer reached only an answering machine. Apparently without any discussion with the accused, the officer contacted duty counsel, and placed the accused in contact with that duty counsel. The accused throughout had insisted he wanted contact with his named lawyer. [23] In the present case, the accused was not only put in direct contact with Legal Aid duty counsel after having said that legal aid was fine, but he had the immediate and reasonable opportunity to contact a particular Legal Aid lawyer by requesting her by name from another legal aid lawyer. [24] The accused has not satisfied me that his Charter rights were not observed with respect to Section 10 (b). [25] turn now to the second argument with respect to the application by the accused. It is based on sections 8, 9, and 10 (a) of the Charter which read: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention a) to be informed promptly of the reasons therefor; [26] The position of the accused is that when the accused was “un-arrested” by Constable Epp, but, nonetheless, detained in custody, that his detention was arbitrary and unlawful, and the subsequent “processing” by Sergeant Johnson was an unlawful, and unreasonable, search and seizure by her, being neither pursuant to warrant, nor incident to lawful arrest. The accused further argues that once he had been “un-arrested” he was not advised of the reason for his detention until after the processing procedure. [27] Defence counsel relies primarily upon the Supreme Court decision in R. v. Mann [2004] S.C.C. 52, together with other cases. The Mann decision established, amongst other things, that common law power of investigative detention exists which allows police officer to briefly detain person for investigative purposes, without advising the person of his or her right under the Charter to retain and instruct counsel. The right of detention does not include right to search, except for the purpose of searching for weapons to ensure the safety of the officer. The detention must be as brief as possible under the circumstances, and does not include the transportation of the detainee to the police station, or detention there. [28] The position of the Crown is that the status of the accused when he was “un-arrested” did not change, in that while he was ostensibly being detained for investigation, his transportation to the police station, his detention there including the “processing”, examination and seizure amounted to “de facto” arrest. He was given the opportunity to consult counsel, and treated in all respects as though he was in custody after an arrest. The Crown relies primarily on the Supreme Court decision in R. Latimer, 1997 CanLII 405 (SCC), [1997] S.C.R. 217, together with other cases. [29] In Latimer, the police deliberately decided not to arrest the accused, although they made it clear to him that he was detained and in custody. He was advised of his right to counsel, given the standard police caution, and told the reason for his detention. He was then taken to the police detachment, where he was reminded of his rights regarding counsel and the warning. He gave statement to the police. The Supreme Court held that the statement was admissible into evidence. The court held that even though the police had made conscious decision not to arrest the accused, their treatment of him amounted to “de facto” arrest and not an arbitrary detention. [30] In my opinion, before one considers whether the evidence seized from the accused, Mr. Cachene, was seized while he was under investigative detention or “de facto” arrest, one must first consider his status after he was “un-arrested” by Constable Epp. The concept of an “un-arrest” is novel one to me. Neither Crown nor defence counsel cited any case authority dealing with that concept. My own search of the case law, while by no means exhaustive, did not produce any cases dealing with that concept. In order to consider the issue, one must first ascertain what constitutes an arrest. [31] In R. Asante-Mensah, 2003 SCC 38 (CanLII), [2003] S.C.J. No. 38, Binnie, J. Speaking on behalf of unanimous court wrote: Arrest at Common Law 33. good starting point is the description of an arrest at common law provided by Lord Diplock in Holgate-Mohammed v. Duke, [1984] A.C. 437 (H.L.), at p. 441: 1. The word "arrest" ... is term of art. First, it should be noted that arrest is continuing act; it starts with the arrester taking person into his custody, (sc. by action or words restraining him from moving anywhere beyond the arrester's control), and it continues until the person so restrained is either released from custody or, having been brought before magistrate, is remanded in custody by the magistrate's judicial act. [Emphasis added.] See also Murray v. Ministry of Defence, [1988] W.L.R. 692 (H.L.), at p. 699. [32] Applying this common law definition of arrest to the present situation, it is apparent that telling person that he is no longer under arrest, without releasing him from custody, does not terminate the arrest. It is only by ending the custody of the accused, by releasing him, that the arrest is ended, and the accused is “un-arrested”. [33] It was not argued before me that Constable Epp did not have sufficient grounds to arrest the accused. In my opinion she did have sufficient grounds. The arrest being legally made, it follows that the arrest continued until it was legally ended by his release. [34] Both Crown and defence counsel argued the case on the assumption that the “un-arrest” ended the arrest. The Crown argued that the continuing detention of the accused, and his handling by the police, constituted “de facto” arrest as described in Latimer, supra. Defence counsel argued that Latimer must be taken to have been overruled by the decision in Mann, supra. At para. 35 of that decision, Iacobucci, J., writing for the majority of the court, said .... police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of hunch, nor can it become de facto arrest. [35] The Latimer decision is not referred to at all in Mann. would be loathe to decide that unanimous decision of the Supreme Court is overruled by inference, in later decision which does not even refer to it. am encouraged in the belief that Mann did not overrule Latimer by the fact that at para. 46 of Asante-Mensah, supra, Iacobucci, J. wrote of the decision in Latimer as follows: 46 Arrest may also be effected by words and restraint on liberty which is accompanied by submission. This is how Whitfield was interpreted in Latimer, supra, where the accused, Saskatchewan farmer, was detained by police on suspicion of terminating the life of his handicapped daughter. The police, for their own reasons, intended to stop short of arresting him and no "words of arrest" were spoken. No force was used. However, the issue, for purposes of s. of the Charter ("arbitrary detention"), was defined by the Court as what the person arrested understood. It was concluded that he submitted to go with the police because he understood that he was under compulsion to do so. There was, in the words of Lamer C.J., de facto arrest (para. 25). Latimer considered himself deprived of "his liberty to go where he pleases": Spicer v. Holt, [1977] A.C. 987 (H.L.), at p. 1000. [36] The explanation for the apparent contradiction is, in my opinion, that, in Latimer, the court found that there was an actual, legal arrest at the commencement, not an actual investigative detention which was transformed into an arrest. The Mann case and the Latimer case are, therefore, not contradictory, and the former does not need to, and does not, overrule the latter. [37] In summary, I find that the initial arrest by Constable Epp was lawful, was not terminated by the purported “un-arrest” of the accused, and continued throughout the search and seizure at the police station. Even if I were in error in that finding, his continued detention after the purported “un-arrest” constituted a “de facto” arrest as described in Latimer. [38] There is no suggestion in the evidence before me that the accused misunderstood his actual status in any way, or that he was prejudiced by the “un-arrest”. The accused has not established that he was the subject of “unreasonable search or seizure” resulting in a violation of his rights under the Charter. [39] There is no reason to consider remedy under section 24 (2) of the Charter. Any relevant evidence obtained by Sergeant Johnson is admissible according to the ordinary rules of evidence. Wilfrid K. Tucker,

The accused is charged with aggravated assault. A voir dire was held to determine whether the accused's s. 8, s. 9, s. 10(a) and s. 10(b) Charter rights were breached. HELD: There was no breach of the accused's Charter rights. 1) There is no evidence to establish that the accused did not speak to legal counsel. The agreed statement of facts establishes that the accused asked to speak with Ms. Bohachik, a lawyer with Legal Aid. The police officer put the accused in contact with legal aid duty counsel instead. When the officer told the accused that Ms. Bohachik worked with Legal Aid the accused said 'ok, Legal Aid is fine'. The accused was put in contact with Legal Aid duty counsel. There was no breach of the accused s. 10(b) rights. 2) Applying the common law definition of arrest to the present situation, it is apparent that telling a person that he is no longer under arrest, without releasing him from custody, does not terminate the arrest. It is only by ending the custody of the accused by releasing him that the arrest is ended and the accused is 'un-arrested'. It was agreed that the officer had sufficient grounds to arrest the accused. The arrest being legally made, it follows that the arrest continued until it was legally ended by his release. The arrest continued throughout the search and seizure at the police station. The Court finds that his continued detention after the purported 'un-arrest' constituted a de facto arrest. 3) There is no evidence that the accused misunderstood his actual status or that he was prejudiced by the 'un-arrest'. The accused has not established that he was the subject of 'unreasonable search or seizure' resulting in the violation of his rights under the Charter.

2008skpc160.txt

S.C.C. 02385 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Hallett, Matthews and Freeman, JJ.A. BETWEEN: ALBERT D. DOYLE and HER MAJESTY THE QUEEN Respondent Barbara J. Beach for the Appellant Bruce P. Archibald for the Respondent Appeal Heard: March 27, 1991 Judgment Delivered: March 27, 1991 THE COURT: Appeal allowed and new trial ordered per reasons for judgment of Hallett, J.A.; Matthews and Freeman, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: HALLETT, J.A.: This is an appeal from conviction for carrying a concealed weapon, a push dagger, contrary to Section 89(a) of the Criminal Code. It is clear from the remarks of the learned trial judge that he did not consider the definition of weapon as set out in Section 2 of the Criminal Code. He founded the conviction solely on the basis the push dagger was concealed on the accused person. This case was tried before the Appeal Division handed down its decision on November 14, 1990, in R. v. Roberts in which the Court interpreted the 1985 definition of weapon as contained in Section of the Criminal Code. That definition is as follows: "'weapon' means: (a) anything used or intended for use in causing death or injury to persons whether designed for such purpose or not, or (b) anything used or intended for use for the purpose of threatening or intimidating any person, and, without restricting the generality of the foregoing, includes any firearm as defined in section 84." In this case, before convicting the accused of Section 89(a) offence, the trial judge would have to be satisfied that the Crown had proven beyond reasonable doubt not only that the push dagger was concealed but that it was weapon as defined in Section of the Criminal Code. On the second element of the offence, the trial judge would have to be satisfied that the accused intended to use the push dagger to cause injury or death to persons or intended to use it for the purpose of threatening or intimidating any person. That is question for the trial judge. As the trial judge did not consider this, the appeal must be allowed. We disagree with the argument that there is no evidence from which an inference of the accused's intent in having the concealed push dagger on his person might be drawn. It is question for the trial judge, considering all the circumstances, to determine if the Crown has proven the essential intent element of this offence. Considering the evidence, it would be inappropriate to enter an acquittal. The appeal is allowed and a new trial ordered. Under the circumstances, there is no need to consider if the sentence imposed was, fit. Hallett, J.A. Concurred in: Matthews, J.A Freeman, J.A. CANADA PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus ALBERT D. DOYLE HEARD BEFORE: His Honour Judge G. H. Randall DATE HEARD: October 4, 1990 PLACE HEARD: Halifax, Nova Scotia COUNSEL: D. Presse, Esq., for the Crown B. Beach, for the Defence CASE ON APPEAL S.C.C. 02385 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: ALBERT D. DOYLE and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: HALLETT, J.A. (Orally)

This was an appeal from a conviction for carrying a concealed weapon, a push dagger, contrary to s.89(a) of the Criminal Code. For the appellant, that the trial judge failed to consider whether the knife fit the definition of a weapon under s.2 of the Criminal Code and, in addition, failed to satisfy himself that the accused intended to use the dagger to cause injury or death or for the purposes of threatening or intimidating. The matter was remitted for a new trial.

1991canlii2535.txt

1997 S. AM. NO. 3027 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: FRED HAINES and TOWN OF AMHERST DECISION HEARD: at Amherst, Nova Scotia before The Honourable Justice John M. Davison, December 1‑3, 1998 DECISION: December 29, 1998 COUNSEL: Ms. Cindy Ann Bourgeois, Solicitor for the Plaintiff Mr. C. Peter McLellan, Q.C. Ms. Tara Erskine, Solicitors for the Defendant DAVISON, J.: Between 1981 and January 1996 the plaintiff was an employee of the defendant and over the substantial portion of that employment he acted as Town Clerk and Chief Administrative Officer. In this proceeding, he seeks indemnity for money he paid for legal expenses incurred as a result of charges he faced for alleged violation of s. 368 of the Criminal Code of Canada and s. 27 of the Municipal Affairs Act. He also seeks to recover fine he paid following his plea of guilty to the charge under the Municipal Affairs Act. The defendant counterclaims for an amount of $11,717.94, which were legal fees remitted to the plaintiff and paid by employees of the defendant under an alleged mistake of fact that the plaintiff was acting in the course of his duties when the event which gave rise to the legal fees occurred. For period of time the defendant was interested in developing commercial complex in downtown Amherst for the purpose of revitalizing the business area:‑ The Amherst Business Improvement Development Commission (B.I.D.C.) is comprised of volunteers and members of the council of the defendant. In the spring of 1992, B.I.D.C. approached the defendant with the proposal to continue with the construction of buildings which was an atrium in the Town Centre. The project was known as the Atrium Project. On April 2, 1992, David Dunnett, who was the executive director of B.I.D.C. and person with legal training made presentation to the defendant's Committee of the Whole. Involved in the Atrium Project would be B.I.D.C., the defendant and Adsheen Properties Limited which was the contractor and the owner of the lands on which it was to construct the Atrium Project. On April 6, 1992, an agreement was tabled which was signed on April 7, 1992. The plaintiff was present at the meeting of the Committee of the Whole on April 2, 1992 and the plaintiff in his testimony referred to notes of the events which took place during the meeting. The defendant was to advance to the project, in the form of grant, the sum of $164,000. Notes of the meeting were introduced into evidence and the complete notes are as follows: Notes of C/W held at 5:00 p.m., Town Hall, April 2, 1992. Present: Mayor Purdy, D/Mayor Reid, Councillors Bishop, Rodrigues, Paris and Fox, David Dunnet, Rhonda Kelly, Brian Creighton, Fred Haines, Ron Patterson, and Linda Smith. Absent: Councillor Gouchie Brian Creighton noted that he had met with David Dunnet re: the concerns that Council had on the Atrium Project, especially with regards to security for the Town. David Dunnet discussed the project and outlined the funding: ATRIUM COSTS $675,000. Town of Amherst 164,000. BIDC 50,000. Prov. of N.S. 126,000. CDA 75,000. Community Initiatives 160,000. $575,000. Adsheen 100,000. Adsheen Apartment Complex $600,000. Retail 225,000. 825,000. BIDC will hold the mortgage for $100,000 which will be paid to the Town. The lawsuit has been released pending signing of contract. Brian Creighton advised Council that he had no trouble with the presentation made by David. Signing officers will include of the following with one having to be Councillor. Mr. Husain Councillor Fox Councillor Bishop Rhonda Kelly Brian advised Council to have motion to sign the letter of contract and this will be done Monday night. Mr. Haines will redo the agenda for Monday night to add this item. It should be noted that Brian Creighton was present and he was the Town's solicitor. The lawsuit referred to arose out of an earlier attempt to construct the Atrium Project, and it was one of the conditions of the 1992 attempt at construction to have the lawsuit dismissed. The plaintiff testified about the details of the Atrium Project. The defendant provided funding partly as result of library to be included in the buildings. The grant of $164,000 had no repayment provisions. The contribution of B.I.D.C. of $50,000 was as result of loan from the defendant to B.I.D.C. to be repaid in five years. Mr. Haines said the $100,000 from Adsheen would come to Adsheen from B.I.D.C. which received it from the defendant. It was to be repaid in six installments. It was the evidence of Mr. Haines the $100,000 loan was to be used by Adsheen to pay $90,000 balance outstanding for taxes on the lands on which the Atrium Project was to be built. The money to be advanced by the defendant came from its Special Reserve Fund which was created pursuant to s. 24 of the Municipal Affairs Act and which reads as follows: Special reserve fund 24 (1) The council of city, town or rural municipality may create, continue or provide for special reserve fund consisting of (a) capital‑reserve section into which shall be paid (I) any surplus remaining from the sale of debentures where the surplus is not required for the purpose for which the debentures were issued, (ii) any surplus remaining in sinking fund where the debentures in respect of which the sinking fund was established are repaid, (iii) the residual capital grant paid under the Municipal Grants Act where it is not expended in the fiscal year in which the grant was paid, (iv) any insurance or sale proceeds received pursuant to Section 26, (v) any proceeds received by the municipality from the termination or winding up of municipal enterprise as defined in the Municipal Finance Corporation Act, (vi) all or any part of any surplus of the municipality which the council by resolution determines is to be transferred to the capital‑reserve section of the special reserve fund pending its expenditure for the capital purpose for which it is reserved, and (vii) such amounts as the council may appropriate to the capital‑reserve section of the special reserve fund pursuant to its charter, the Municipal Act or the Towns Act; (b) an equipment‑reserve section into which (I) may be paid such amounts as the council deems proper to provide for the purchase and replacement of motor vehicles, machinery and office or other equipment of any kind, and (ii) shall be paid the proceeds from the sale or disposition of anything referred to in subclause (I); and (c) an operating‑reserve section into which shall be paid such amounts as the council may appropriate to this section of the special reserve fund pursuant to its charter, the Towns Act or the Municipal Act. Withdrawal from capital‑reserve section (2) The sums of money in the capital‑reserve section of the special reserve fund may only be withdrawn from the fund with the consent in writing of the Minister and may only be used for (a) capital expenditures for which the municipality has authority to borrow pursuant to this Act; (b) repayment of the principal portion of outstanding capital debt of the municipality where the original borrowing was approved by the Minister. Withdrawal from equipment‑reserve section (3) The sums of money in the equipment‑reserve section of the special reserve fund may only be withdrawn upon resolution of the council and may only be used for the purchase of motor vehicles, machinery and office or other equipment of any kind. Withdrawal from operating‑reserve section (4) The sums of money in the operating‑reserve section of the special reserve fund may only be withdrawn upon resolution of the council and may be used for any purpose for which the council has authority to expend money. The Municipal Affairs Act, s. 27 is an offence section and it reads: 27 Any councillor who moves, seconds or votes for any resolution to divert any money in special reserve fund to any purpose other than that authorized by Section 24, and any treasurer or official who makes any transfer or signs any cheque or instrument to divert any money from any such fund to purpose not so authorized is liable on conviction to penalty not exceeding five hundred dollars and, in default of payment, to imprisonment for period not exceeding sixty days. In his evidence, Mr. Haines referred to B.I.D.C. and Adsheen as partners in the development of the Atrium Project and this description gains some support from the minutes of the meeting of Amherst Town Council held on April 6, 1992 which states those two parties agreed to "jointly develop" the complex. At this meeting Council authorized the signing of an agreement with B.I.D.C. One councillor voted against the agreement out of fear of the extensive amount of funding the defendant was to make. The councillor was also concerned precedent would be set in "lending $100,000 to private developer". That was the sum the plaintiff says was to be used to pay the outstanding real property taxes on Adsheen's lands. Normally borrowing resolutions which involved borrowing from the Special Reserve Fund are drafted by the Department of Municipal Affairs. But the plaintiff prepared the borrowing resolution in this case as the construction season had started. There is no question he had authority from the defendant to do this. The resolution was passed by the defendant's council at meeting on April 21, 1992. The resolution was to borrow the $100,000 from the Special Reserve Fund and these were the funds the plaintiff said were eventually to go to Adsheen. The borrowing resolution was signed by the mayor and the plaintiff on April 22, 1992, and it reads as follows: TOWN OF AMHERST BORROWING FROM SPECIAL RESERVE FUND $100,000 File SR 92‑01 (Atrium) WHEREAS Section 24(2) of the Municipal Affairs Act provides that no money shall be withdrawn from the Capital Reserve section of the Special Reserve Fund except with the consent in writing of the Minister of Municipal Affairs, and for the purposes identified in that Section; AND WHEREAS the Council of the Town of Amherst deems it necessary to borrow sum not exceeding One Hundred Thousand Dollars ($100,000) for the purpose of the acquisition, erection, alteration, addition to, improvement, furnishing and equipping of buildings and structures for any municipal purpose;, namely an atrium; BE IT THEREFORE RESOLVED THAT the Council of the Town of Amherst borrow from Special Reserve Fund sum not exceeding One Hundred Thousand Dollars ($100,000) for the purpose set out above; AND the amount so borrowed shall be repaid in six (6) equal instalments of $16,667 each, without interest, the first instalment to be paid on or before one year from the date on which this resolution shall have been approved by the Minister of Municipal Affairs and the remaining instalments to be paid in each year thereafter until the entire principal sum is repaid. THIS IS TO CERTIFY the foregoing is true copy of resolution duly passed at duly called meeting of the Council of the Town of Amherst held on the 21st day of April 1992. GIVEN under the hands of the Mayor and Clerk and under the seal of the Town this 22nd day of April, 1992. Clerk The plaintiff, on April 30, 1992 executed cheque for $100,000 on the defendant's Special Reserve Fund. David Dunnett, chairperson of B.I.D.C. who did not testify, asked the plaintiff to make the cheque payable to Adsheen Properties Limited and the plaintiff complied with this request without questioning Dunnett as to why the payee should not be the B.I.D.C. in accordance with the agreement. The plaintiff testified that after the cheque cleared the bank, he thought it should have been made payable to B.I.D.C. so he added B.I.D.C. to the cancelled cheque and then realized that should not have been done. He scratched B.I.D.C. from the cheque, initialled the cheque and filed it. The plaintiff was asked if he brought this to the attention of the defendant's council and said he did not because he did not think it was an important matter. In January 1994 the Atrium Project failed. Adsheen Properties Ltd. ran out of money and its principal officer left the province. During that same month, the plaintiff was charged with serious criminal offence. The information reads in part that he, between April 1, 1992 and May 15, 1992: ...did knowingly cause officials of the Department of Municipal Affairs for the Province of Nova Scotia to act upon forged document to wit: borrowing resolution from the Special Reserve Fund for one hundred thousand dollars ($100,000), as if it were genuine contrary to section 368(1)(6) of the Criminal Code. The charge upset the plaintiff. There was no indication the borrowing resolution, signed by the mayor and town clerk of the defendant, was forged. The defendant's council suspended the plaintiff with pay and he sought legal advice. He retained Warren Zimmer with respect to the criminal charge and Ronald Mitton with respect to his employment difficulties arising initially because he was suspended with pay when the charge was laid. The preliminary inquiry as to the charge under section 368(1)(b) was scheduled for August 24, 1994, and on that day, the Crown withdrew the charge but the plaintiff pleaded guilty to an offence which was contrary to section 27 of the Municipal Affairs Act. The information with respect to that charge stated that between the first day of April 1992 and May 30, 1992 he: ...being an official of the Town of Amherst, did sign cheque which diverted money from the Special Reserve Fund for purpose not authorized by section 24 of the Municipal Affairs Act, contrary to section 27 of the Municipal Affairs Act, R.S. c. 296. The plaintiff, on the advice of counsel, pleaded guilty to this charge. He states he was advised there would be three‑day preliminary inquiry and conviction of fraud, no matter how remote, would result in criminal record. The plaintiff paid fine of $500.00. The defendant paid the sum of $5,351.44 to Franklin Burke, which is the firm where Ronald Milton practises law, and paid an amount of $6,366.50 to Warren Zimmer. Both cheques are dated May 6, 1994 and the defendant seeks recovery on the ground the amounts were paid under mistake of fact and should be reimbursed to the defendant under the principle of unjust enrichment. The mistake of fact was, according to the defendant, the persons who wrote the cheques believed the plaintiff was acting in the course of his duties as employee of the defendant when the legal services were required. The two cheques were signed by Ronald Patterson, the Town Engineer and Linda Smith who, at this time, was Director of Finance for the defendant. Both testified at trial. Ronald Patterson spoke about the Atrium Project and how B.I.D.C. took "lead role in partnership with the developer" and brought the proposal to the defendant. Patterson said he asked the plaintiff to bring in his legal bills and they were sent to the defendant's insurer. Patterson said he told the Town Council on May 4, 1994 that he was attempting to have the insurer pay the legal bills and that he received no response from the Council at that time. The insurer refused to pay the legal accounts, but Patterson still did not receive any instructions from the Town Council. Accordingly, the legal accounts were paid by the cheques signed by Mr. Patterson and Ms. Smith. Mr. Patterson stated he was aware the defendant paid legal fees of employees in the past, although he had no recollection they paid legal fees for an employee who had been charged with criminal offence. He was not advised by any person not to pay the legal account. He said he believed the plaintiff was acting in the course of his duties. Linda Smith was an employee of the defendant from 1968 until December 1995. Over the last five years she was Director of Finance and assumed the role of Town Clerk to replace the plaintiff, at the request of the defendant. The plaintiff advised her that his legal accounts were increasing and she suggested he send them to the defendant. He did not ask her to pay the accounts. During the course of her evidence, Ms. Smith did comment on the concern over Adsheen Properties Ltd. unpaid tax bill. She said the taxes were discussed and no moneys toward the project were to be paid until its taxes were paid. In March 1994 there was special meeting of the Town Council held in camera to discuss resolution to dismiss the plaintiff from his employment with the defendant. The plaintiff and his counsel attended the meeting and the reasons for the dismissal were described in the Resolution as follows: 1. That he did not properly protect the interests of the Town of Amherst in the manner in which he authorized payment of $100,000.00 out of the Special Reserve Fund of the Town of Amherst with the result that cheque from this fund dated April 30, 1992 was payable solely to Adsheen Properties Limited. 2. That he did alter in material way the said cheque after it cleared the Town's bank account. 3. That he did not fulfil his duty of frankness and full disclosure in his subsequent discussions with the Town Council of the Town of Amherst concerning the said cheque and the alteration of the said cheque. The Resolution was signed by two persons, Milu Rodriques and Cyril Reid, who were Town Councillors and the only witnesses for the defendant in this proceeding. The motion for dismissal was not passed by the meeting. The plaintiff's suspension with pay expired when he went back to work in September 1994. His employment with the defendant ceased in January 1996. The first witness for the defence was Cyril Reid, who was Town Councillor from 1982 to 1994. It was his view that staff of the defendant did not have authority to pay legal bills incurred by employees unless staff received authority from the Town Council or committee of Council. It was also the view of Mr. Reid that when the Town Council discussed the letter of agreement at the April 6th meeting, there was no connection between the $100,000.00 the defendants would make available and the unpaid realty taxes of Adsheen Properties Limited. It was said to be the expectation of Mr. Reid that when the resolution, prepared by the plaintiff, came back from the Department of Municipal Affairs, monies would go to B.I.D.C. When he saw the cheque, Adsheen and B.I.D.C. were designated as payees. The name of B.I.D.C. was scratched out. He confronted the plaintiff and it was the evidence of Mr. Reid that the plaintiff said he was approached by Mr. Dunnett and "in moment of weakness" he scratched out the name of B.I.D.C. Mr. Reid testified that members of Town Council thought the cheque had originally been made out to two parties and the Town's solicitor was requested to approach the bank. Later the plaintiff said "he was doodling" and that is how both names appeared on the cheque. Mr. Reid was shown minutes of meeting of Town Council held October 3, 1994, where it was resolved not to pay the plaintiffs legal accounts and that the plaintiff be required to pay the town for the amounts submitted to legal counsel by the cheques signed by Mr. Patterson and Ms. Smith. Mr. Reid was asked why should the defendant not pay the plaintiff for the legal fees, and he replied that the defendant's counsel understood the plaintiff was guilty of "a lesser charge", so he was not acting for the defendant. Mr. Reid said the plaintiff was suspended because of "tampering with the cheque" and the various stories he related. Mr. Reid admitted on cross examination he did not look at the documents setting out charges against the plaintiff and that he believed the plaintiff was charged under the Criminal Code with respect to the cheque he executed. Mr. Reid said he knew the charge under the Criminal Code was withdrawn and that the decisions reached by the Town Council were based on the plaintiffs guilty plea to the charge under the Municipal Affairs Act. The final witness for the defence was Milu Rodriguez who was Town Councillor from 1991 to 1994. He also stated when he first saw the cheque executed by the plaintiff, he thought that both B.I.D.C. and Adsheen Properties Ltd. were payees. The plaintiff told Mr. Rodriguez he was acting under instructions of Mr. Dunnett, but that he should not have written the cheque in that manner. Mr. Rodriguez wanted to pursue the bank because the cheque only contained initials of one person. When he found out the plaintiff "doodled" and put the name on the cheque after it was cashed, Mr. Rodriguez thought the plaintiff should be dismissed. He said that was serious offence and reason for dismissal. Mr. Rodriguez spoke about the criminal charge to which the plaintiff pleaded guilty and said the defendant did not pay the legal bills because he was not acting on the part of the defendant. On cross examination Mr. Rodriguez admitted he was not aware of the charge the plaintiff faced. In fact, he thought the charge related to the changing of the cheque. He did agree the borrowing resolution was not forged document. FINDINGS OF FACT accept the evidence of the plaintiff. He was forthright and, in my view, truthful witness. During cross examination he admitted without question the truth of facts which could be adverse to his interests. For example, he freely admitted he was aware of limitations placed on borrowings from the Special Reserve Fund, that it was up to him to‑decide what were capital expenditures, that all the money should have gone only to B.I.D.C. and that they were not to go to Adsheen and that it was his responsibility to see the funds were so directed. His evidence took on this type of directness. There is no question, and I so find, that any improper or unauthorized or unlawful act of the plaintiff was not done for his own personal gain. This was common ground between the parties. The plaintiff said he listened to Mr. Dunnett and he drafted the cheque in favour of the developer. The plaintiff said he made mistake, and agree with that characterization. find that the plaintiff did not intend any criminal act. The plaintiff said he broke the law and by that he meant he violated s. 27 of the Municipal Affairs Act. He said he inade this mistake while performing his duties as an employee of the defendant. What he did was not authorized by law, but he maintains he did not do an act which was not authorized by the defendant. Making the cheque was authorized but his wrong was making it payable to Adsheen Properties Ltd. There was no evidence before me to explain why he was charged with an offence under Section 368(1)(b) of the Criminal Code which reads: (1) Every one who, knowing that document is forged, (a) ... (b) causes or attempts to cause any person to use, deal with, or act on it, as if the document were genuine, (c) is guilty of an indictable offence, and liable to imprisonment for term not exceeding ten years; The information maintains the forged docuinent was the borrowing resolution. There is no reference to the cheque. Everyone agrees the borrowing resolution was not forged document. The Crown withdrew this charge at the preliminary inquiry. The defendant takes the position that this was plea bargaining, and as part of that process he was charged with the offence under the Municipal Affairs Act. On the evidence there was absolutely no basis for the Criminal Code charge. It is difficult to understand why it was laid. further find the councillors who testified for the defendant had, at the relevant time, little knowledge of the charges against the plaintiff. Mr. Reid said the plaintiff was suspended because of cheque tampering, and he thought that the cheque was why he was charged under the Criminal Code. Similar evidence came from Mr. Rodriguez who felt the plaintiff should be disinissed for "tampering" with the cheque, and he believed that the charge related to the cheque. fmd these two councillors did little to determine the facts before they voted for dismissal of the plaintiff. POSITION OF THE PARTIES It is the plaintiffs position the writing of the cheque had nothing to do with the charges levied against him. It is argued the charge, to which he pleaded guilty, relates to the purpose for which the cheque was issued in that the purpose was not authorized under s.24 of the Municipal Affairs Act. With respect to the charge under the Municipal Affairs Act, the Special Reserve Fund is to be used only for the capital expenditures. The land on which Atrium Projects was to be constructed was not owned by the defendant. It is argued the Town Council knew they were dealing with project which was not capital asset of the defendant. It is said the plaintiff was following directions of his einployer who knew funds were not going for capital expenditure. It is the position of the defendant that the question of law that is in issue is that an employee cannot seek indeinnity for expenses from his employer which arose when the employee broke the law. Performing tasks outside the law says the defendant is outside the scope of duty. It is fundainental to the case, defendant counsel argues, that if the employee breaks the law "he is on his own". DISPOSITION The common law doctrine of respondeat superior recognizes an employee acting within the scope of his duties is an instrument of his einployer's will. Employees are to be reimbursed for losses, liabilities or expenses incurred in the course of employment. This right to indemnification has limitations as expressed in Halsbury's Laws of England, 4th edition Volume 16 at para. 35. Implied duty to indemnify employee. An employer is under an implied duty to indemnify or to reimburse the employee, as the case may be, against all liabilities and losses and in respect of all expenses incurred by the employee either in consequence of obedience to his orders, or incurred by him in the execution of his authority, or in the reasonable perforinance of the duties of his employment. Notwithstanding the fact that an employee was acting in the course of his employment, he may, however, lose his right of indemnity or reimbursement where the liabilities or expenses did not arise out of the nature of the transaction which he was einployed to carry out, but were solely attributable to his own default or breach of duty, or where, by reason of his conduct, he has forfeited his right to receive any remuneration for his services. There are also limitations which attach to indemnifications due to an agent from principal as expressed in Halsbury, supra. Volume 1(2) at para. 125. Liabilities to which right does not extend. An agent is not entitled to reimbursement or indeinnity in respect of expenses or liabilities incurred in consequence of his own default or breach of duty, or transactions which are outside the scope of his authority and have not been ratified by is principal. There is no right of indemnity in respect of the consequences of transactions involving breach of the criininal law where the party performing them knows that they are unlawful, or where, being ignorant of theft illegality, he knows the circumstances which render them unlawful, or where the transaction is contrary to public policy. Consequently an agent who makes contract which is prohibited by statute, or makes payments which it is criminally illegal for him to make, is not only debarred from recovering any reinuneration but is not entitled to any indeinnity against his expenses in such transaction. Where the agent's conduct amounts to tort, but not crime, he is at common law entitled to be indemnified against expenses and liabilities if the transaction was not manifestly tortious or tortious to his knowledge. It is the position of the defendant the plaintiff performed criminal act by issuing cheque to Adsheen Properties Limited for funds to be withdrawn from the Special Reserve Fund for purpose which was contrary to the purpose of the borrowing resolution to borrow for capital expenditure. To appreciate the position of an employer who has an employee who commits an act which is criminal in nature refer to The Duty and Liability of Employers (Fourth Edition) by Roberts, Wallace and Graham at p. 121 et seq: Where the servant has been guilty of criminal offence, it inay be that the act is of such character as to induce the jury to say that it could not have been done in furtherance of his master's business or interests, but the mere fact that the servant's act amounts to criminal offence is not sufficient to take the case out of the general rule. master is, therefore liable to an action for‑ dainages even in respect to criminal act committed by his servant when done by him in the course of his employment and in the master's interest. But he is not responsible if the servant inerely avails himself of the facilities afforded him in his position as servant to commit criminal act for his own purposes. It is general principal of law that in order to constitute criminal offence there must be, as an essential ingredient, that which is commonly described as mens rea, or, in other words, malice, inattention, or guilty knowledge, according to the nature of the particular offence concerned. It is also principle of law that servant's condition of mind is not to be imputed to his master. Consequently, master is not, as rule, liable criminally for the act of his servant, unless he has expressly authorized or assented to its being done, or the act itself is one which, from its very nature, must be presumed to be the act of the master. To this rule, however, there are exceptions. Thus proceedings which are criminal, at any rate in point of form, may be taken against master with respect to any of the following acts when done by his servant in the course of his employment, though without the knowledge of the master, or even against his express orders. First, acts which, in the interest of the public, are by statute prohibited absolutely. Where, however, it is contended that it was the intention of the legislature to punish without requiring proof of moral guilt, such an intention must be very clearly established. For, until the contrary is shown, the general principle with regard to mens rea is applicable to statutory as well as to common law offences. ... In other words, it is necessary to look at the object of each Act that is under consideration in order to see whether, and, if so, how far, knowledge is of the essence of the offence created. The purpose of the sections on special reserve funds in the Municipal Affairs Act was to protect the public by establishing and regulating fund which restricts the use for which tax dollars can be used. There are situations where penal restrictions are legislated to protect the public such as the Weights and Measures Act, R.S.C. 1927, c. 212 which is the Statute considered in R. v. Piggly Wiggly Canadian Ltd., 1933 CanLII 294 (MB CA), [1933] D.L.R. 491 (Man.C.A.) The employer was found liable for acts of his employee in the weighing of sugar and Chief Justice Prendergast states at p. 493: The term "quasi‑criminal" generally applied to such infractions is thus not appropriate, the fact being that the legislating body, faced with the duty of protecting certain interests, finds itself at times unable to do so, otherwise than by enacting prohibitions so broad that they may occasionally strike at dealings altogether innocent of wrongful intent or even neglect. It was found the statute indicated mens rea was not an eleinent of the offence. Under the charge pursuant to s. 27 of the Municipal Affairs Act the plaintiff signed cheque to divert money from the Special Reserve Fund for purpose not authorized by s. 24 of the Act. The plaintiff admits he committed an error. have found the error was not committed for any purpose which was of benefit to the plaintiff. Nor are there facts which permit me to draw the inference he wrote the cheque in manner to render more probable payment by the developer of the realty tax, which incidentally, would be to the benefit of the defendant. His evidence is he wrote the cheque with the knowledge the money was to go to B.I.D.C. and with the knowledge moneys would not be going to capital expenditure if used for payment of taxes or other uses by the developer not connected with capital expenditures. The legislation clearly invoked protection for the public and the tax dollars of the public by providing for conviction and fines of individuals in their personal capacity. There need not be proof of mens rea. Although there was no criminal intention, the plaintiff knew of the statutory limitations and, find, knew the purpose of those limitations. It is not relevant whether he wrote the cheque in that manner because of inattention or guilty knowledge, it was an act which has to be deemed to be outside his einployinent. In iny view, the breach of this statute by the plaintiff and the consequences of the breach does not permit indemnification from the defendant for the fine or expenses arising out of the charge under s. 27. The breach arose solely out of his own default. cannot accept the subinission of Ms. Bourgeois, counsel for the plaintiff that the defendant was not the owner of the property on which the project was to be constructed and that the councillors of the defendant knew money was not to be used for capital expenditure because the property was not owned by the defendant. Therefore, it is argued, the resolution to advance money for the project was flawed and the substance of the charge should not be the writing of the cheque but should be the inherent nature of the resolution. Even if cheque had not been written, it is said there was an infringeinent of s. 27 by all councillors who voted for the resolution. The defendants had the advice of chartered accountants and its solicitor. The solicitor, according to the notes of the April 2nd, 1992 meeting, "had no trouble" with the presentation by B.I.D.C. Most of the councillors, approved of the funds coming from the Special Reserve Fund. The arguinent of counsel for the plaintiff is that all were instrumental in violation of s. 27. Counsel for the defendant points out the Act does not define capital expenditures as being money spent on property owned by the defendant. Section 24(2)(a) restricts withdrawal from the fund to use for "capital expenditures for which the municipality has authority to borrow pursuant to this Act." There was no evidence as to the capital expenditures for which the defendant has authority to borrow. There was no evidence before the court to find there were violations of s. 27 of the Act other than the writing of the cheque by the plaintiff. The court has reached the conclusion the defendant should not reimburse the plaintiff for expenses arising from the plea of guilty to s. 27 of the Municipal Affairs Act. But a different conclusion is reached by the court with respect to the expenses relating to the charge under s. 368(1)(b) of the Criminal Code. Reference is made to the position of public officer in relation to his municipal einployer in The Law of Canadian Municipal Corporations (2nd edition) by Ian MacF. Rogers Q.C. At p. 214.8 of that text there appears the following: 37.5 Costs of Proceedings When the conduct of public officer has been sustained as legal, he has just claim for reimbursement of any charges he has been put to in upholding the legality of his actions including legal costs, but when his actions violate the law he has no right to be reimbursed in the absence of express statutory authority(a). Thus is [sic] seems that municipality has the power to indemnify its officers or councillors against liability incurred by reason of any done in bona fide discharge of official duties(b). Members of local authority defending themselves against groundless action have been held entitled to reimburse themselves for their costs(c). In this proceeding the plaintiff drafted borrowing resolution. In doing so he was performing his duties in the course of his employment. The document was not forged. It was entirely legal document. The actions of the plaintiff as they related to that document and as they related to the Department of Municipal Affairs with respect to that document were authorized and legal and performed in the course of his employment. review of the account of Warren Zimmer points out that realistically all of his services related to the criminal code charge except entering the plea of guilty to the charge under the Municipal Affairs Act. It is practical to consider all of Mr. Zimmer's charges relate to the s. 368(1)(b) charge for which the plaintiff is entitled to indemnification from his employer. On the evidence, the conduct of the plaintiff was legal and by withdrawing the charge the Crown acknowledges the lack of guilt connected with the federal charge. Why did the defendant not pay the fees not only for the apparent reasons, but also because of the resolution in the meeting of Town Council on June 13th, 1994, which stated: "Council agreed the town should not pay any more of Fred's legal bills unless he is found not guilty"? Possibly the reason stems from the fact, as is apparent from the evidence of Councillors Reid and Rodriguez, the Council was ill‑informed about the nature of the charges. It is the argument of Mr. McLellan, for the defendant, that the plaintiff did something wrong as evidenced by his guilty plea to the charge under the Municipal Affairs Act. It is said the actions of the plaintiff which gave rise to the plea, the issuing of the cheque, aroused suspicions. Pursuant to the resolution, the approval was for the money to go to B.I.D.C. The plaintiff changed that and by the "execution" of the resolution the defendants say that created the problem. He broke the law and even if he was "overcharged" the two charges come from the same facts. With respect, cannot accept this argument. There is no relationship between the breach of s. 27 with the essential ingredients of the charge under the Criminal Code where the Crown must prove the resolution was forged. It must have been false document as defined by s. 321 of the Criminal Code as document: (a) the whole or material part of which purports to be made by or on behalf of person (I) who did not make it or authorize it to be made, or (ii) who did not in fact exist, (b) that is made by or on behalf of the person who purports to make it but is false in some material particular, (c) that is made in the name of an existing person, by him or under his authority, with fraudulent intention that it should pass as being made by person, real or fictitious, other than the person who makes it or under whose authority it is made; The Crown would have to prove the plaintiff knew the document was false and that he intended it be used or acted upon as genuine to the prejudice of another. There is absolutely no evidence of existence of these ingredients not of any of the inclusions of making false document as set out in s. 366(2) of the Code. On the evidence, find the Crown had no choice but to withdraw the charge of violation of s. 368 (1)(b) of the Criminal Code regardless of the charge under s. 27 of the Municipal Affairs Act. The defendant should reimburse the plaintiff for fees paid by the plaintiff to Warren Zimmer. The plaintiff was executing his authority from his employer and performing the duties of his employment. There were no circumstances from the evidence at trial which would permit the defendant not to perform its implied duty to indemnify for expenses arising from this very serious criminal charge. The defendant is not responsible for the fees paid to Ronald Mitton. The reasons for the difficulties that arose with respect to the employment contract relate to the issuing of the cheque and the allegation the plaintiff was not forthright in his role with respect to the cheque. He pleaded guilty to the charge under the Municipal Affairs Act which would warrant discussions on his employment. He is not entitled to reimbursement for expenses arising from his own default. Ronald Mitton's firm submitted two accounts relating to legal work in connection with the plaintiffs employment difficulties with the defendant. The sum of the two accounts was $5,351.44 and the defendant paid this amount to the law firm by cheque, dated May 6th, 1994. It seems Warren Zimmer sent two accounts with respect to legal services involving the charge under s. 368(1)(6). The first account is dated March 8th, 1994 and is in the amount of $6,366.50. It was paid by the defendant by another cheque dated May 6th, 1994. The plaintiff paid further account from Mr. Zimmer dated September 6th, 1994. This was in the amount of $13,020.10. The plaintiff also claims expenses of $482.84 for expenses related to the Criminal Code charge. In summary, the plaintiff is entitled to recover from the defendant an amount of $13,502.94 and pre judgment interest. The defendant is entitled to recover from the plaintiff the sum of $5,351.44 and pre judgment interest. set the rate of pre‑judgment interest at 6%. The plaintiff is not entitled to be reimbursed for his fine. The defendant is not entitled to receive payment from the plaintiff monies paid by the defendant to Warren Zimmer. Costs are in the discretion of the court and should follow the event. It has been determined in this province that the costs of counterclaim should be limited to the extent the counterclaim increased the cost of the proceeding. The substantial portion of this proceeding involved the plaintiff's attempt to recover his legal fees from the defendant. It seems appropriate to assess the amount involved at the approximate difference between the amounts recovered $8,000.00. The defendant shall pay costs to the plaintiff in the amount of $1,550.00.

The plaintiff was for 15 years the Town Clerk of the defendant municipality. He sought indemnity for legal expenses he incurred as a result of charges he faced for violation of s. 368 of the Criminal Code and s. 27 of the Municipal Affairs Act. The criminal charge was dropped when he plead guilty to Municipal Affairs Act charge, of diverting money from the special reserve fund for an unauthorized purpose. The defendant counterclaimed for monies it had already paid to the plaintiff. Awarding the defendant $13,502, and the defendant $5,351 on the counterclaim, that the defendant should not reimburse the plaintiff for expenses arising out of the plea of guilty on the Municipal Affairs Act charge, as the plaintiff admitted to his mistake. They should reimburse the plaintiff for expenses arising out of the criminal charge, however. In committing his mistake, which was honest and not done for personal gain, he was performing his employment duties.

d_1998canlii12460.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 249 Date: 2012 06 22 Docket: NJ 22 of 2010 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and MICHAEL WAYNE GAMBLE Counsel: K. Humphries for the Crown C. Lavier for the accused DECISION MAHER J. June 22, 2012 Introduction [1] On November 9, 2010 after trial, I found the accused, Michael Gamble, guilty of aggravated assault contrary to s. 268 of the Criminal Code and breach of an undertaking contrary to s. 145(3) of the Criminal Code. The Crown then applied to have Mr. Gamble declared a dangerous offender. On January 26, 2011 ordered that Mr. Gamble be remanded for an assessment pursuant to s. 752.1 of the Criminal Code. The consent of the Attorney General was filed as well. Position of the Crown [2] The Crown submits that Michael Gamble should be found dangerous offender within the meaning of s. 753.(1)(a)(ii) and he should be sentenced to an indeterminate sentence. Position of Mr. Gamble [3] That the evidence does not meet the statutory requirements of dangerous offender designation and that long-term offender designation is the appropriate finding with term of imprisonment from four to eight years in penitentiary for the predicate offence followed by lengthy supervision order toward the statutory maximum. [4] sentencing hearing was held with viva voce evidence from Dr. R. W. Holden who had done forensic assessment of Mr. Gamble pursuant to the order of the court. The Crown called thirteen witnesses who provided evidence about Mr. Gamble’s prior criminal convictions. Transcripts and documentation from previous sentencing hearings were filed. Previous pre-sentence reports were filed as well. The Crown called expert evidence about street gangs in Saskatoon and as well Corrections Services Canada officials testified as to gangs and gang involvement in the penitentiary. There was evidence from the correction workers employed at the Saskatoon Correctional Centre as to Mr. Gamble’s conduct while on remand. [5] The defence called Father Andre Poilievre, volunteer who works with inmates at the Saskatoon Correctional Centre. Mr. Gamble testified on his own behalf. Relevant Law The Dangerous Offender Provisions of the Criminal Code as Amended in 2008 [6] The provisions of the Criminal Code that apply on this dangerous offender application are as follows: 753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing failure to restrain his or her behaviour and likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or [7] One must as well consider the definition of “serious personal injury offences” as defined in s. 752 as follows: (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder involving (i) the use or attempted use of violence against another person or ... and for which the offender may be sentenced to imprisonment for ten years or more, ... [8] In the event that was to find Mr. Gamble dangerous offender the Criminal Code provides three sentencing options as set out in ss. 753(4) and (4.1): (4) If the court finds an offender to be dangerous offender, it shall (a) impose sentence of detention in penitentiary for an indeterminate period; (b) impose sentence for the offence for which the offender has been convicted which must be minimum punishment of imprisonment for term of two years and order that the offender be subject to long-term supervision for period that does not exceed 10 years; or (c) impose sentence for the offence for which the offender has been convicted. (4.1) The court shall impose sentence of detention in penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is reasonable expectation that lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or serious personal injury offence. [9] In addition, am satisfied that the provisions relating to the general sentencing principles and objectives as set out in ss. 718 to 718.2 of the Criminal Code have application in addition to the statutory provisions related to the dangerous offender proceedings. [10] Section 718 sets out the following objectives of sentencing: 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. [11] Section 718.1 provides the following: 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [12] Section 718.2 provides the court must take into consideration number of principles and in particular s. 718.2(e) which provides: (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. [13] The Alberta Court of Appeal reviewed the 2008 amendments in R. v. Warawa, 2011 ABCA 294 (CanLII), 278 C.C.C. (3d) 409 (C.A.) where Rowbotham J.A. made the following comments: The 2008 Amendments made two changes to the dangerous offender regime that are significant to this appeal. The wording in section 753(1) has changed from "may" to "shall", making the finding that an offender is dangerous mandatory once the statutory criteria are made out. Prior to the 2008 Amendments, sentencing judges retained discretion to decline to declare as dangerous an offender who met the statutory criteria. 10 With the 2008 Amendments, the discretion has shifted to the sentencing stage. Whereas previously an indeterminate sentence was mandatory when an offender was declared dangerous, now the court sentencing dangerous offender has discretion to impose an indeterminate sentence or fixed sentence, with or without long-term supervision order (section 753(4)). However, that discretion is limited by the newly added section 753(4.1) which creates presumption that an indeterminate sentence shall be imposed unless the court is "satisfied by the evidence adduced during the hearing of the application that there is reasonable expectation that lesser measure ... will adequately protect the public against the commission by the offender of murder or serious personal injury offence." [14] In R. v. Downs, 2012 SKQB 101 (CanLII), 391 Sask. R. 240 (Q.B.), Mills J. commented the following on the amendments: In my opinion, that entire approach has been supplanted by the new legislation. The initial application to label someone dangerous offender is accomplished within the application of the criteria in the legislation to the offender's circumstances. The Court's consideration of reserving the dangerous offender designation for the worst of the worst has been subsumed into the legislation. Parliament, through its amendment, has, in fact, determined that those offenders who fall within the criteria enumerated are, by definition, the worst of the worst and deserving of the dangerous offender designation. This issue is of particular significance to Mr. Downs because review of his big picture, including his family circumstances, his employment record, his conviction record and previous sentences, would not obviously label him as the worst kind of criminal society demands be locked up indefinitely in order for protection. There appears to be, however, no place to apply the comments found in Johnson, Lyons and Lemaigre in the structure of the designation post amendment. The Crown, in argument, stated that Mr. Downs does not present himself as typical dangerous offender. agree. The Crown further argues that it does not matter so long as the criteria contained in the new legislation are met. reluctantly agree. [15] am satisfied on review of the Criminal Code provisions and the relevant case law that if one, or more, of the criteria in s. 753.(1)(a) are proven by the Crown beyond reasonable doubt, must find Mr. Gamble dangerous offender. The Crown, as well, must establish pattern of repetitive behavior. Gunn J. made the following comments in R. v. Kakakaway, 2003 SKQB 205 (CanLII), 58 W.C.B. (2d) 310 at para. 110 to 115: 110 The Crown must establish pattern of repetitive behaviour by the offender. These words are not defined in the Criminal Code. 111 In R. v. Langevin (1984) 1984 CanLII 1914 (ON CA), 11 C.C.C. (3d) 336 (Ont. C.A.), Lacoursiere J.A. considered the meaning of "pattern of repetitive behaviour" as set out in s. 753(a)(i) of the Criminal Code. In that case two similar offences were committed by the accused. In separate incidents he grabbed girls from behind, took them to secluded place, ordered them to undress and had forced anal and vaginal intercourse with them. In each case the accused was stranger to his victim, and threatened them to ensure their co-operation. Each was released only after assurances not to tell anyone were extracted from them. 112 At p. 348 of his judgment Lacoursiere J.A. said the following: In my opinion this element [pattern of repetitive behaviour] is not based solely on the number of offences but also on the elements of similarity of the offender's behaviour.... 113 In R. v. Lewis (1984), 1984 CanLII 2027 (ON CA), 12 C.C.C. (3d) 353 (Ont. C.A.), Howland C.J.O considered an application under s. 688(a)(i) [now 753(a)(i)] wherein it was argued there was not sufficient "pattern of repetitive behaviour" as the offences committed were different. The court held the section does not depend simply on the number of offences but on the repetitive nature of the offender's behaviour. 114 In Neve, supra, the Alberta Court of Appeal set forth four elements which must be satisfied pursuant to s. 753(1)(a)(i). The four elements are: (a) pattern of repetitive behaviour which may be established in one of two ways: (i) Where there are similarities in terms of the kind of offences; (ii) Where the offences themselves are not similar in kind, but in result, in terms of the degree of violence inflicted on the victims. Because the pattern of behaviour must be "repetitive", one episode of violence will not be enough under this subsection. (b) The predicate offence must form part of the pattern of repetitive behaviour. (c) The pattern must show failure by the offender to have restrained his behaviour in the past. The "impugned conduct must show that the offender has failed to restrain his or her behaviour in the past and there exists likelihood of causing death, injury or severe psychological damage through failure to restrain that behaviour in the future." Likelihood means more than possibility and at the very least means more probable than not. (d) The pattern must demonstrate likelihood of death, injury, or severe psychological damage to other persons through failure to restrain his or her behaviour in the future. The court must be satisfied that the pattern of conduct is substantially or pathologically intractable. (Per LaForest in R. v. Lyons, 1987 CanLII 25 (SCC), [1987] S.C.R. 309 at 338). 115 In Neve, supra, the court considered the nature of similarity necessary to establish pattern under either s. 753(1)(a)(i) or 753(1)(a)(ii). The court held that pattern can be established on "two different bases". At para 111, the court stated: ... The first is where there are similarities in terms of the kind of offences; the second where the offences themselves are not similar in kind, but in result, in terms of the degree of violence or aggression inflicted on the victims. Either will do. Thus, the mere fact that an offender commits variety of crimes does not mean that no pattern exists. There is no requirement that the past criminal actions all be of the same or similar form, order or arrangement; though if this has occurred, it may well suffice. [16] As well, Ottenbreit J. (as he then was) made the following comments when defining pattern in R. v. Casemore, 2009 SKQB 306 (CanLII), 336 Sask. R. 110 (Q.B.) when he said the following at para. 9: "pattern" does not need to equate to similar fact evidence; general similarity is sufficient. There need not be lengthy history of violence or aggression for pattern to be found, so long as there are sufficient elements of similarity in the offender's behaviour. The pattern must contain an element that the dangerous behaviour was not restrained in the past, and there must be likelihood that the same behaviour in the future will not be restrained and will cause death, injury or severe psychological damage. Or, alternatively, the pattern must contain aggressive behaviour which demonstrates substantial degree of indifference to the reasonably foreseeable consequences to the victims of the offence. The Predicate Offence [17] In my judgment of November 9, 2010 reported as R. v. Gamble, 2010 SKQB 414 (CanLII), 363 Sask. R. 311 (Q.B.), I found that Mr. Gamble stabbed the victim, Wesley Delaronde, several times on the right side of his mid-section with a knife. held Mr. Gamble’s actions were not premeditated and were of limited duration as shown on the video surveillance DVD entered by the Crown. found the accused not guilty of attempted murder (s. 239 of the Criminal Code) but found him guilty of the included offence of aggravated assault (s. 216(1) of the Criminal Code). On conviction for this offence an offender may be sentenced to imprisonment for term not exceeding fourteen years. [18] Given the conviction and the Criminal Code provisions for imprisonment, I am satisfied that the predicate offence is a serious personal injury offence within the meaning of s. 752 of the Criminal Code. Personal Circumstances of Michael Gamble [19] Michael Gamble was born August 26, 1990 in Saskatoon, Saskatchewan. He is the fourth oldest of six siblings. His older brothers, Jordan, age 27 and Preston age 26, are both currently incarcerated in Saskatoon. Preston apparently is serving time for manslaughter. Both Jordan and Preston have been associated with gangs in the Saskatoon area. [20] Kendra, who is 23, basically initially raised the children in the family home. The mother, Nancy, had personal problems and was not present significant amount of the time when Michael was growing up. When Michael was 13 he ran away and his mother Nancy sent him to live on the Beardy’s Reserve with an uncle. He lasted there for about one and one-half years. [21] In his educational endeavours he attained somewhere between grade seven and grade eight within the school system of Saskatoon. However, he did attain his GED while incarcerated at the Saskatoon Correctional Centre. He has been sentenced in excess of fifteen times to Kilburn Hall and the Paul Dojak Centre. His employment has been minimal with some work driving fork lift on potato farm while under conditions from an order of the court. Criminal Record [22] The following is summary of his criminal record which commenced in August of 2005: 2004-06-08 1) carrying concealed weapon (1-8) Probation yr Saskatoon S. 90 CC (2 chgs) Youth Justice Court 2) mischief under $5000 S. 430(4) CC 3) Break, enter theft S. 348(1)(B) CC 4) Fail to comply with Recog. S. 145(3)CC (5 chgs) 5) Break enter with intent S. 348(1)(a) CC (2 chgs) 6) obstruct peace officer S. 129(a) CC 7) Fail to attend court S. 145(2)(a) CC 8) Poss of Weapon S. 88 CC 2004-12-09 1) Break enter with intent 1) mos. mos. under Saskatoon, SK s. 348(1)(a) CC supervision in the (Youth Justice Court) Community 2) Poss of weapon 2) mos. mos. Under Supervision in the community mandatory prohibition order S. 51(1) of YCJA 3) Fail to comply with disposition 3) Time served S. 137 YCJ Act chgs. 2005-04-05 Escape lawful custody 10 days days under S. 145(1)(a) CC supervision in the community 2005-07-08 Unlawfully at large 19 days days under supervision S. 145(1)(b) CC in the community 2005-08-16 Unlawfully at large 42 days 21 days under supervision Saskatoon, SK s. 145(1)(b) CC in the community Youth Justice Court 2005-11-02 Obstruct Peace Officer Time served Saskatoon, SK s. 129(a) CC (Youth Justice Court) 2006-02-14 Robbery mos. mos. under supervision Saskatoon, SK s. 344(b) CC in the community probation yr. (Youth Justice Court) mandatory prohibition order under S. 51(1) if YCJ Act 2006-10-19 Obstruct Peace Officer Probation mo. Saskatoon, SK s. 129(a) CC (Youth Justice Court) 2007-05-08 1) Assault with weapon 1) 12 mos. mos. under supervision Saskatoon, SK s. 267(a) CC in the community mandatory (Youth Justice Court) prohibition order s. 51(1) YCJ Act Judicial determination of serious violent offence made under s. 42(9) of 2) Fail to comply with disposition 2) time served S. 137 of CC 2007-07-24 1) Fail to comply with disposition (1 2) mos mo under Saskatoon, SK s. 137 YCJ Act (2 chgs) supervision in the community (Youth Justice Court) 2) Poss of weapon s. 88 2008-03-31 1) Assault with weapon (1 2) 14 mos mos under Saskatoon, SK s. 267(a) CC supervision in the community on each (Youth Justice Court) 2) Mischief under $5000 Chg mandatory or discretionary Prohibition order s. 51 YCJ Act 3) unlawfully at large s. 145(1)(b)CC 3) 14 mos. mos under supervision In the community 2008-07-29 Order after review Regarding charges concluded 07 May 08 Youth Justice Court Count #1 07 July 24, and 03 Mar 31, an order Saskatoon, SK After review was held before Judge M. Irwin who ordered that the YP serve the last two (2) mos. of his secure custody disposition in open custody. 2008-12-04 Assault s. 266 CC 60 days cons. Adult Court Count Saskatoon, SK 2010-11-09 Aggravated assault 268(1) [23] His record discloses wide range of sentences from time served to maximum of twenty-one months in closed and open custody. His record involves eight weapons related offences, four break and enter, several unlawfully at large and escaping lawful custody. He was convicted in 2006, when he was fifteen years of age, of robbery and in May of 2007 of assault with weapon when he was sixteen years old and again convicted in March of 2008 of assault with weapon when he was seventeen years old for which he received fourteen months. In December of 2008 he was convicted of an assault and sentenced to sixty days in custody. He was then convicted of the predicate offence in November of 2010. [24] The Crown has provided in exhibits PS-4 and PS-5 two binders summarizing the various court documents for offences that Mr. Gamble has been convicted of and which are outlined in his record that has been summarized herein. It is important to do an analysis of the various offences and the penalties assessed therein which propose to do: June 8, 2004, convictions the accused was thirteen years nine months old, involved twelve individual charges. Offences ranged from failure to comply with undertakings to possession of concealed weapons. There is no indication of violence to others. Sentence one year probation. January 5, 2005 the accused was fourteen years of age. Offences were break, enter with intent, possession of weapon, failure to comply with disposition (three counts). The accused had been on remand for fifteen weeks. His sentence was eight months in custody with four months supervision after credit for remand time of eight months. April 5, 2005 the accused was fourteen and one-half years old. Charge was escape lawful custody. The accused while on secure open custody went to an aboriginal festival and he disappeared at banquet, he was re-arrested on April 3, 2005. Sentence ten days secure custody, five days supervision. July 28, 2005 the accused was fourteen years eleven months. Charge unlawfully at large. On June 16, 2005, Gamble was to attend an appointment with child and youth services worker. He was to take the bus to the appointment. He failed to keep the appointment and did not return to the Centre. He was at large for twenty-four days. Sentence nineteen days custody, nine days community supervision. August 16, 2005 the accused fifteen years old. Charged with unlawfully being at large. Gamble had been given four-hour pass, did not return within the time frame. He was arrested at 11:00 p.m. that day. Sentence forty-two days in custody, twenty-one days supervision in the community. November 2, 2005 the accused was fifteen years two months. Charged with obstructing peace officer. He pled guilty of giving false name and date of birth to police officer. Sentence was time served. February 14, 2006 the accused was fifteen years six months. Charge robbery s. 344(b) of Criminal Code. Robbery involved the taking of toque by Gamble and co-accused from another individual. Sentenced to six months secure custody and three months supervision in the community followed by one year probation. October 13, 2006 accused aged sixteen years two months, charged with obstructing peace officer by providing false name and date of birth. Sentence one month probation. May 8, 2007 the accused was sixteen years, nine months. Charge assault with weapon on or about December 8, 2006. The pre-sentence report indicates that Gamble and the victim were drinking together and they got into an altercation with the victim receiving five stitches on the top of his head. Sentence twelve months custody followed by six months supervision in the community. Failure to comply with disposition s. 137 YCJA time served. July 24, 2007 the accused was sixteen years, eleven months of age. Charge failure to comply with conditions on November 23, 2006. He had possession of weapon. Sentence was two months custody and one month supervision in the community. March 31, 2008 Age- seventeen years, nine months. Charges assault with weapon (s. 267), mischief under $5000 (s. 430), unlawfully at large (s. 145). The offence occurred when Gamble was on Christmas reintegration leave from secure custody. He was under the influence of alcohol and present with others in the Pratt residence. The sentencing judge found that Gamble had less active role and he did not smash any windows or inflict any blows. He had acted in threatening manner and held in his possession bear spray. Sentence concurrent sentence of twenty-one months custody and supervision, twelve months secure custody followed by two months of open custody followed by seven month supervision in the community. December 4, 2008 the accused was eighteen years three months. Charge assault (s. 266) occurrence on October 15, 2008. Gamble was convicted of assaulting another resident in custodial facility. The victim required stitches. The sentence was sixty days consecutive as an adult sentence. November 9, 2010 Age was twenty years and two months. Convicted of aggravated assault (s. 328(1)), two counts of breach of conditions. This conviction is the predicate offence and the circumstances are set out in my judgment of November 9, 2010. March 31, 2011 age of the accused twenty years eight months. Possession of weapon dangerous to the public on January 13, 2010. Gamble was detained by police officer and when asked by the police officer if he was carrying knife or weapon, Gamble acknowledged having knife in his possession for his protection. Sentence ninety days. The Evidence from the Sentencing Hearing The Evidence of Dr. Roger Holden [25] Dr. Holden was qualified to give opinion evidence with regard to the assessment and treatment of violent offenders including the assessment of risk. Dr. Holden is forensic psychologist with over thirty years experience working with violent offenders. He has prepared in excess of sixty assessments for dangerous offender hearings for the Province of Saskatchewan. He, as well, made four professional presentations on gang members, their attitudes, and his approach on the matter of disengagement from gangs. Dr. Holden prepared forensic assessment of Mr. Gamble dated May 1, 2011, prepared pursuant to an order of this court. [26] Dr. Holden spent about four and one-half hours with Mr. Gamble. He obtained personal circumstances of Mr. Gamble’s relationship with his five siblings including the fact that his older brothers are currently serving prisoners and his sister, Kendra, had acted in the role of his mother. [27] Dr. Holden in preparing his report reviewed several pre-sentence reports and correctional facility reports on Mr. Gamble. Mr. Gamble acknowledged to Dr. Holden that his conviction on the predicate offence was his fault and he no longer blamed his co-accused, Lisa Bluebell. Dr. Holden administered the following psychological tests to Mr. Gamble: 1) Raven Standard Progressive Matrix intelligence 2) Personality Assessment Inventory personality 3) The Western Personality Inventory personality and alcoholism 4) Substance Abuse Subtle Screening Inventory substance abuse 5) The State Trait Anger Inventory STAXI-2 anger and hostility 6) The Hostility to Women Scale hostility toward women. [28] Dr. Holden made the following comments with regard to Mr. Gamble’s interest in treatment: The respondent’s interest in and motivation for treatment is typical of individuals being seen in treatment settings, and he appears more motivated for treatment than adults who are not being seen in therapeutic setting. His responses suggest an acknowledgment of important problems and the perception of need for help in dealing with these problems. He reports positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility. However the nature of some of these problems suggest the treatment would be fairly challenging, with difficult treatment process and the probability or reversals. [29] Dr. Holden also determined that the accused had 99% probability of an alcohol problem. On the matter of anger control, Dr. Holden’s determination was that Mr. Gamble had great deal of trouble preventing himself from expressing his anger outwardly. [30] Dr. Holden did risk assessment known as HCR-20 which is clinical instrument to predict the potential for future violent offending by individuals who have background in committing violent crimes. The tests consist of twenty items made up of ten historical factors, five present variables, and five future management variables. [31] On the historical factors, he found Gamble to be likely to re-offend violently in eight out of ten of the factors. In the current factors he found the likelihood to re-offend three out of the five questions and on the future risk management he found Gamble to be risk in all five questions. He further concluded the following: 1. That he had no doubt, unless measures were taken to manage Gamble’s risk, he will continue to perpetrate acts of physical violence; 2. That the severity of any future violence perpetrated by Mr. Gamble may well include injuries which are severe and possibly life threatening; 3. In the future some of Gamble’s assaults may be gang related and others may be directed at individuals who have offended him in some way. [32] Mr. Gamble’s release plan to reside with his sister, Kendra, in Dr. Holden’s opinion had little credibility and he said the following at page 52: find that Mr. Gamble’s release plan does not reflect the kinds of intensive programming he will, in my opinion, require if he is to live more pro-social life and on the basis of that factor, believe, he is high risk to re-offend violently in the future. Dr. Holden further determined that if Mr. Gamble continued to be involved in gang activities it would be highly destabilizing to him and he believes that Mr. Gamble would be high risk to re-offend violently in the future. [33] In his conclusion Dr. Holden made the following comments at page 61: In considering s. 753.1(1)(b) believe there are substantial risks that Mr. Gamble will re-offend violently. In considering s. 753.1(1)(c) have significant concerns that Mr. Gamble’s apparent inability at this time to control what appears to be pathological anger and hostility. He has amassed variety of convictions for violence and convictions for violence was part of the crime. He desperately needs to learn how to recognize his level of negative arousal and deal with it more pro-socially. He is not unintelligent and has shown some interest in doing so while incarcerated. Unfortunately in my opinion, up to this time he has shown little inclination to put in place whatever he has learned when release and has instead lead what appears to be criminal and anti-social lifestyle potentiated by untreated and chronic substance abuse. Two factors in my opinion appear to mitigate his situation: a) he is young and one would hope as he becomes more mature he will become more in control of his emotions and behaviour; b) he has not yet apparently been offered the kinds of high intensity programs mentioned above and in my opinion he may well benefit from attending such programs. As noted above he will in my opinion need an extended period of supervision in the community following his release, if indeed he is to be released. In reviewing Michael Gamble’s file conclude there is possibility of eventual control of his behavior in the community and believe he qualifies for the designation of long term offender at this time. As noted above he will, in my opinion, need extra period of supervision in the community following his release, if indeed he is to be released. THE EVIDENCE OF HUGO FOSS [34] He testified that he is registered psychologist employed by Correction Services Canada (“CSC”) for the past twenty-four years. His focus in the most recent years has been on gangs and gang members. He has prepared papers and given presentations on gangs and particularly on individuals disaffiliating from gangs. Foss was qualified as an expert to give opinion evidence in the area of intervention, risk assessment and risk management of federally sentenced offenders and to give opinion evidence as to gang intervention and gang disaffiliation prospects and strategies. [35] He testified that for person to disaffiliate from gang it is difficult struggle which can take upwards of ten years. The individual must build new life and if person leaves it is similar to leaving family. The person leaving needs support. It generally takes person two years before they are comfortable in new environment. There is high failure rate which usually occurs within the first three to six months. He is of the opinion that earlier intervention by professionals with the person wishing to disaffiliate is better. The person who attempts to disaffiliate from gang is person at risk, especially if he is in custodial facility. He has worked with approximately three hundred dangerous and long-term offenders. He estimates that about dozen have successfully disaffiliated from gangs. He said the intervention strategies work best with younger individuals. However the person must be motivated and be able to detail why they committed the offences. He finds there is greater incentive for person to change when they are in the penitentiary for the first time. He expressed the opinion that twenty-two year old, alcohol free with no mental illness or sexual offences is an ideal person for the programs offered by CSC. He was of the opinion that there were no significant programs in Provincial Institutions for individuals to disaffiliate given the shorter duration of their sentences. THE EVIDENCE OF DR. MARLY ZAHARIE [36] She was qualified to give opinion expert evidence as child psychologist dealing with high risk and violent offenders. She provided treatment to Michael Gamble from October of 2004 to December 2005, from February to March 2006, in July 2007 to November 2008. Her evidence was that Gamble has been part of the Indian Posse gang since he was approximately fourteen years old. Her observations were that while institutionalized he could manage. However when released into the community without significant structure he had difficulties. He generally fell apart within one to two months in the community. He had anger management that needed to be dealt with. In her opinion he needs to be motivated to change with plan and will to stick to the plan. She prepared report dated March 2, 2005 (exhibit PS-4, tab 10) on Michael Gamble after his sentencing on December 9, 2004. The report contains five recommendations which included thorough addiction assessment to determine the level of addiction services that the fourteen year old Gamble would need to be successful when he returns to the community. She determined that Gamble was entrenched with the Indian Posse gang. He expressed to her that the only thing he was good at was being gang member. Dr. Zaharie felt that Gamble had given up hope. In her view, he was not able to change as it was too hard for him. Her last contact with Gamble was in December, 2008. Dr. Zaharie’s opinion is that if Gamble was motivated to change, he would need to have consistent service provider for delivery of programs to him. His major issues are motivation, substance abuse, and anger management. CONSTABLE MICHAEL JOHNSON [37] He is Constable with the Saskatoon City Police on the gang unit for approximately one year. He would check on Gamble when he was released on conditions into the community. Gamble usually was home on the first couple of checks. If he was not home on check he would be charged. He found Gamble to be polite and proud of his gang colors. CAROLINE LAVIOLETTE [38] She has been youth worker from June of 2005 to March of 2011. Gamble was on her case load from November 2006. Her program was looked at as therapeutic rehabilitation. She said he showed good level of maturity compared to other youth. He would speak openly to her and in her opinion Gamble was influenced by his older bothers Preston and Jordan. She knew they were gang members and had introduced him to the Indian Posse. He told her that he needed to be loyal to the Indian Posse in respect of his brothers. He would do what they expected of him. She did talk to him about disaffiliation from the Indian Posse, but was not successful. Laviolette’s opinion is that by December 2009, when Gamble was nineteen, he understood the need to change and understood the consequences of his actions. He had the cognitive ability, but had no vision for his life other than loyalty to the family which included the Indian Posse. It was her view that he lacked motivation to change. He does however respond to treatment when he is engaged. However peer influences are very difficult to break when young people lack motivation. HOLLY RIORDAN [39] She is Saskatoon Correction worker who had Gamble on her case load in 2009. He had low security rating. His issues were alcohol, anger management, education and employment. In September 2009, he took the two-week violence prevention program, which seemed to help him with anger management. SHERYL OLSEN [40] She testified that she is program clerk at the Saskatoon Correctional Centre where Gamble was on remand. He had work position in the unit and was taking his GED which is uncommon on remand. She gave him book called, “Stop Anger Now” which he worked with her on three of the four chapters. She said he appeared to cognitively understand the chapters. She worked with him until she left on sick leave in June of 2011. BRANDY ROSIAK [41] She is Correction Worker at the Saskatoon Correctional Centre and has been for the past two and one half years. She was Michael Gamble’s case worker for eight months, commencing October 2011. She gave him medium security rating because of his charges and his gang relationship. While she was his worker she said that he worked on his GED and art. He applied to take creative writing class which was delivered by the University of Saskatchewan students. He wrote an article (PS-19) which focussed on discouraging youth from joining gang. While she was his worker he was charged with an attempt by his girlfriend, Ashley, to smuggle marihuana into him in the facility. He pled guilty and was sentenced to thirty days. In her report on Gamble dated December 23, 2011 she gave him positive review. JESSICA FORRESTER [42] She has been the security intelligence office at the Saskatoon Correctional Centre for the past year. She searched Gamble’s cell on one occasion for contraband and seized drawings with Indian Posse symbols which are not allowed. Her notes show as well that he was jumped by members of the Terror Squad. SARGENT LAVALLEE [43] He is member of the Saskatoon Police Service gang unit and was qualified to give opinion evidence in the area of street gangs. He testified that tattoos indicate the level of person in the Indian Posse. He reviewed pictures of Gamble which showed his level of association in the Indian Posse. He said that Preston Gamble is in the IP leadership but is not full patch member. However, Michael Gamble while in the Saskatoon Correctional Centre received his full patch. In Lavallee’s opinion Michael got his patch because he was soon going to the Pen. Although generally patch is only given when person is in the Pen. [44] The patch is tattoo on person’s back in the shoulder area which is in calligraphy type lettering has the wording “Indian Posse”. Lavallee’s last contact with Michael Gamble was in 2006. He is aware of three Indian Posse members who have had some success with disaffiliation or leaving the Indian Posse or becoming inactive. BRIAN MCDONALD [45] He is clinical psychologist and works with young offenders in the young offender program. He prepared psychological assessment of Michael Gamble dated September 10, 2004 (PS-4, Tab. 9). Michael was fourteen years of age at the time. McDonald’s view was that Gamble was not overly concerned about his behavior in the community. McDonald concluded that Gamble was cultural conformist. cultural conformist is defined as person that lives to be comfortable and satisfied and therefore tends to see little reason to change their way of life or seek change in themselves. McDonald in his report at page concluded that Gamble “demonstrated the ability to control his impulses, if he so desired, but it seemed more important at this time to be accepted as street wise youth”. He recommended that Gamble receive substance abuse treatment in secure facility. [46] McDonald did further assessment of Gamble in March of 2008, when Gamble was seventeen and one-half years old. This report focussed on Gamble’s cognitive abilities and was not complete psychological assessment or complete risk assessment. McDonald concluded in his report (PS-5, tab 38, page 5) that Gamble could improve his scoring if he was willing to apply himself to school and to apply himself more sincerely when completing the tests. McDonald recommended Gamble’s ongoing education focus on life skills and anger management while in custody to assist him adjusting better in the community. [47] McDonald testified that young offenders can leave life of crime as they mature into their early adult years from eighteen to twenty-five. He is of the opinion that people with similar psychological profile to Gamble are treatable. LEEANNA SKENE [48] She was program officer at the Saskatchewan Penitentiary from 2003 to April 2011. In that position she supervised all programs offered. The programs offered were substance abuse, general violence, family violence, sex offender, and there are two streams in the programs, moderate program which runs for six weeks, on half day basis, utilizing one staff member. The second stream is high intensity. This program runs full days from Monday to Friday for four to six months and is delivered by two staff members. She advised that all programs are voluntary and that inmates are required to pay for their participation. FATHER ANDRE POILIEVRE [49] Father Andre was called by Michael Gamble. He was qualified to give opinion evidence as to offender disaffiliation from gangs. Father Andre has interviewed hundred or more gang members. He co-ordinates for gang members program called “the Straight Up” organization. In his experience there are four phases for an individual to disaffiliate or leave gang. They are: 1) the desire to leave; 2) the vacuuming stage; 3) the rebuilding with school, and sobriety; 4) stability which takes about four years. [50] There are five conditions to entering into the “Straight Up Program”: 1) drop their colours; 2) deal with their addictions; 3) be honest; 4) change your attitude to become humble; 5) give back to the community. [51] He met with Michael Gamble at Gamble’s request in the Saskatoon Correctional Centre remand facility about three to five months ago. He talked to Gamble about the Straight Up Program but Gamble and he have had no further communication. In his discussions with Gamble, Gamble gave to him his article on the futility of gangs. This article ended up being published in book that Father Andre was completing for use by youth ages 11 to 15. Father Andre generally works with individuals from in the area of eighteen years of age to the mid twenties. He does not keep statistics however he believes he has assisted between sixty to hundred individuals to leave gangs. [52] As far as Gamble is concerned Father Andre said, he has only had one meeting with him and the next step is up to Gamble. It is his choice to take the next step for disaffiliation from the Indian Posse. MICHAEL GAMBLE [53] He testified that he has five siblings, three older and two younger. He never knew his father and his role models have been his brothers Preston and Jordan. Both of these brothers have been involved in street gangs. His twenty three year old sister, Kendra, took care of him as his mother was frequently absent from the family. His brother Preston is currently in the Penitentiary for manslaughter and robbery and his other brother Jordan is in the Saskatoon Correctional Centre for assault. [54] Michael got his IP colours when he was approximately fourteen years old. He acknowledged that to leave or disaffiliate from the Indian Posse is difficult. His role currently in the Indian Posse is not the top. He is in the middle. Lower Indian Posse members look to him for direction and he has to deal with quarrels among the members. IP members are not motivated by money. Their primary focus is loyalty to the gang. [55] He has taken programs at youth facilities and at Saskatchewan Corrections. However, he never thought he would be getting federal time and he never considered that there would be an application to designate him dangerous offender. He asked Sheryl Olsen while on remand to get him some materials on anger management. He has learned about anger management. He acknowledges that he has to think about what is going on, use your energy to walk away, get out, and do work out. On the article he wrote he did not know that it would be published. He had not connected with the Straight Up Program he just talked to Father Andre on one occasion. He just took his final GED examination. [56] He did the article because he did not want kids to get involved with gangs. His brothers’ kids know that their dad is in gang and is in jail. Gamble said this is not what he wants to happen to him. He acknowledged that he is at risk when he uses alcohol and marihuana and that he can be violent when he is drinking. [57] He also acknowledged that it is hard to leave gang. However, he said some members just become inactive members and fade away. He was told by Father Andre the five rules to join the Straight Up Program. He is concerned that if he dropped out now it would look like he was dropping out for court and his other concern was that if he goes to the Pen he might need his colours for couple of years for protection. He was not able at this time to commit to the five steps as required by Father Andre. He believes that he can be controlled in the community because he is motivated by not wanting to spend the rest of his life in jail. Is Michael Gamble Dangerous Offender Within the Meaning of s. 753(1) of the Criminal Code? [58] There is no doubt that Mr. Gamble has been convicted of serious personal offence as set out in s. 753.(1)(a). The Crown must establish pattern of repetitive behavior under s. 753.(1)(a)(i),(ii), (iii). Mr. Gamble’s record, which reviewed earlier, including the predicate offence indicates that he has been convicted of five additional violent offences between 2006 and 2010. [59] The similarities of the violent offences are as follows:1) He had been under the influence of alcohol or drugs at the time;2) He committed the violent offences while under supervision under court orders in the community;3) While carrying out the violent offences, he used or had in his possession a knife;4) Most of the violent offences were as a result with his affiliation with the Indian Posse. [60] On a review of the circumstances of each of the six violent offences, including a review of the trial decisions, I am satisfied that the Crown has proven a pattern of repetitive behavior within the meaning of s. 753(1)(a)(i). Risk Assessment [61] Dr. Holden in his report and in his evidence is of the opinion that Mr. Gamble is of high risk to re-offend violently. accept his opinion. Dr. Holden also identified that Mr. Gamble has alcohol, drug and anger management issues. An additional issue is his affiliation with the Indian Posse gang and his loyalty to that gang. When all of these issues are taken together it results in Mr. Gamble being unable to restrain himself which results in him having caused serious personal injury to his victims. I therefore find that the Crown has proven beyond a reasonable doubt that Mr. Gamble constitutes a threat to the life, safety, physical or mental well-being of other persons as set out in s. 753.(1)(a)(i) and I find him a dangerous offender. Is There Reasonable Expectation that Sentence Less Severe Will Adequately Protect the Public? [62] In R. v. Lyons, 1987 CanLII 25 (SCC), [1987] S.C.R. 309 LaForest J. commented on indeterminate sentence provisions said the following at para. 44 It seems to me that having concluded that the legislative objectives embodied in Part XXI are not only of substantial importance to society's well-being, but, at least in theory, sufficiently important to warrant limiting certain rights and freedoms, one must equally conclude that the legislative classification of the target group of offenders meets the highest standard of rationality (and use the word not as term of art) and proportionality that society could reasonably expect of Parliament. Not only has diligent attempt been made to carefully define very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration, but it would be difficult to imagine better tailored set of criteria that could effectively accomplish the purposes sought to be attained. [63] Parliament defined very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration. The issue to be determined is whether there is reasonable expectation that determinant sentence followed by lengthy period supervision will adequately protect the public. [64] Dr. Holden is of the opinion that determinate sentence with long term supervision is appropriate in the circumstances of Mr. Gamble. The evidence is that Mr. Gamble has not had any intensive programming that is available at a federal institution. Also of significance is his youthful age and Foss indicated that young individuals on their first admission to a penitentiary are more likely to leave a gang. [65] It is also necessary to review Mr. Gamble’s record in detail. It indicates that his acts of violence have generally resulted in less than severe injuries to the victims with the exception of the predicate offence. There is evidence as well as to the steps Mr. Gamble has taken while on remand, which include voluntarily taking an anger management program, obtaining his GED, and writing an article discouraging youth from joining gangs which has been published, along with his ability to work in the facility and with staff members. [66] Mr. Gamble’s evidence is that he wishes to make change in his life and not be like his older brothers with their children coming to visit them in jail. [67] I am satisfied, when one considers all the factors, that there is a reasonable expectation that a determinate sentence followed by a lengthy period of supervision will adequately protect the public. What is the Appropriate Determinate Sentence and Long Term Supervision Order? [68] Before establishing what determinate sentence should be, it is necessary that review the provisions of the Gladue factors and its application to Mr. Gamble. The Application of the Gladue Principles s. 718.2(b) of the Criminal Code 1. Is the offender an aboriginal? 2. What Band or Community does the offender come from? What alternatives exist to incarceration, are there any treatment facilities, and is there justice committee? [70] The pre-sentence report dated April 25, 2007 and tab 32 in exhibit PS-5 indicates that Michael is status Indian from Beardy’s Okemasis First Nation, where he resided the first few years of his life before relocating to Saskatoon. He has on couple of occasions resided at Beardy’s Okemasis Frist Nation for short periods of time with an aunt. However, his primary community for residence has been the City of Saskatoon in the Province of Saskatchewan. There are alternatives that exist to incarceration in the City of Saskatoon including drug and alcohol rehabilitation centres. There is no evidence before me as to the existence of justice committee within the City of Saskatoon. 3. What combination of systemic or background factors contributed to this offender coming before the court? Has the offender been affected by substance abuse and alcohol abuse in the community, or poverty, or overt racism or family or community breakdown? [71] The pre-sentence report indicates that Michael does not believe he has been affected by poverty. Although his family has limited funds and his mother has been reliant upon Saskatchewan Assistance Plan to meet her needs. [72] He does identify that there is much gang involvement due to community breakdown and the impact of not having his birth father has left him without positive role model. He does believe that by witnessing and being subject to others in the community using substances and committing crimes has impacted the path he has chosen for himself. He believes that if he lived on the reserve he would not commit crime as he would not want to commit break and enter on someone he knows or who may be relative of his. [73] On the issue of racism, Michael can recall times at school that he felt discriminated against and was not accepted and not allowed to play with other students due to his race. [74] His mother, Nancy, and her siblings have attended residential school. However, Michael does not know how that has impacted on her. 4. Would imprisonment effectively deter or denounce the crime in the community? [75] am satisfied given the nature of the crime it is one that requires both deterrence and denunciation within the community which can only be accomplished by imprisonment. 5. What sentencing options exist in the community at large and in the offender’s community? [76] The community at large and the offender’s community are one and the same. There are certain facilities within the City of Saskatoon for supervision. However, given the nature of the offence and the accused’s record, am satisfied that incarceration for minimum of two years is the only alternative. [77] The Crown’s position is that determinate sentence should be in the range of ten years less one for one credit on remand plus ten year supervision order. Mr. Gamble’s position is that determinate sentence should be in the range of four to five years less remand credit of one for one and long term supervision order in the upper range. [78] have considered the following decisions in coming to decision as to an appropriate determinate sentence: R. v. D.S.K., 2005 SKCA 18 (CanLII), 257 Sask. R. 161 Accused 19 year old gang member, stabbed and brutally beat the victim with the assistance of others. His record for mainly property offences with one conviction for assault causing bodily harm. Sentence four years. R. v. Durocher, 2002 SKCA 17 (CanLII), 217 Sask. R. 88 Accused 38 year old, stabbed the victim, had record of five different assaults, sentence eight years less three year credit for remand. R. v. Daniels, 1990 SKCA (SentDig) 108 Accused 42 year old, stabbed victim three times, lengthy record, three previous assaults, sentence four years. [79] I am satisfied given the accused’s record as an adult and as a young offender plus the circumstances of the unprovoked attack by Gamble on the victim in this instance that an appropriate sentence is six years or seventy-two months. He is entitled to a one for one credit for remand time for a credit of twenty-six months. I therefore sentence the accused as follows:a) To forty-six months in a federal penitentiary;b) To an order under s. 753.(4)(b) of the Criminal Code that Mr. Gamble be supervised in the community for a period of nine years from the date of his release; c) There will be an order under s. 47.051 authorizing the taking of bodily substances for the purpose of forensic DNA analysis; d) There will be an order under s. 109 for ten year firearm prohibition; e) There will be an order given the length of sentence that the victim surcharge be waived. J. R. D. MAHER

The accused was convicted of aggravated assault after stabbing another person several times in the mid-section. The Crown brought a dangerous offender application. The accused was 22 years old at the time of sentencing. His prior criminal record consisted of mostly youth convictions. The offender was a known member of an aboriginal gang. The evidence suggested he was somewhere in the middle of the gang hierarchy. The accused had professed some desire to leave the gang. He had written an article directed at other youth warning them of the pitfalls of gang affiliation. The article was published in a book distributed to at risk youth. The accused had looked into getting help to leave the gang, but admitted on the stand that he was not prepared to take steps to leave because he might need protection from the gang in the penitentiary. While incarcerated, he had gang drawings confiscated from him and he had been jumped by members of a rival gang while in custody. The accused had shown some initiative in taking anger management courses and had completed his GED while incarcerated. HELD: The offence was a serious personal injury offence within the meaning of s. 752 of the Criminal Code. The criminal record together with the evidence heard at the hearing establishes that when the accused has committed violent offences he has been under the influence of alcohol or drugs, under supervision by court orders in the community, has used a knife or had one in his possession and most of the offences were a result of the accused's affiliation with the Indian Posse gang. The Crown has established a pattern of repetitive behaviour within the meaning of s. 753(1)(a)(i). Dr. Holden assessed the accused and found him to be a high risk to re-offend violently. The Crown has also proven that the accused constitutes a threat to the life, safety, and physical or mental well-being of other persons as set out in s. 753(1)(a)(ii). The accused was declared a dangerous offender. However, the Court found that given the accused's youth, the fact that he had not had any of the intensive programming that is available in a federal institution and the fact that there was some chance the accused might leave the gang, a determinate sentence and long term supervision order would adequately protect the public. In imposing a determinate sentence, the Court also considered that the accused's acts of violence, with the exception of the predicate offence, had generally resulted in less than severe injuries to the victim and the accused had voluntarily taken some steps to address his issues while incarcerated. The accused was sentenced 6 years or 72 months in custody, less credit for remand, to be followed by a 9 year supervision order under s. 753.4(b).

8_2012skqb249.txt

nan Editor’s Note: Corrigendum released January 25, 2005. Original judgment has been corrected with text of corrigendum appended. 51 Q.B.G. A.D. 2001 No. 2564 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: MEHDI HASHEMIAN and JAMES WILDE, BLAINE LYNCH and ASTRID PURA DEFENDANTS E. Scott Hopley for the plaintiff Patricia J. Warwick and Blair P. Bleakney for the defendants JUDGMENT LAING J. January 24, 2005 [1] The plaintiff, Mehdi Hashemian, seeks damages for unlawful arrest and assault, including aggravated or punitive damages, arising out of events which resulted in his arrest and a charge of obstruction in the early morning of May 16, 2001 During the course of his arrest, Mr. Hashemian received cut to his scalp just inside the hairline above his left eye. He remained in custody until released at approximately 7:30 a.m. that morning. [2] The three named defendants are members of the Saskatoon Police Service. The City of Saskatoon is their employer. The position of the defendants is that Mr. Hashemian was lawfully arrested for obstruction, and that the cut he received on his head was by-product of his resistance during arrest and did not involve any more force than was reasonably necessary. Only one of the defendants, Constable Blaine Lynch, was responsible for the decision to arrest Mr. Hashemian and was solely involved in arresting him. [3] This was simplified procedure trial where the rules provide that each party submit their evidence-in-chief by affidavit. The opposing party then has the right to cross-examine on the contents of the affidavit. The evidence referred to in the following emerges from such affidavits together with the cross-examination that was conducted on each affiant. [4] The events surrounding Mr. Hashemian’s arrest involved the police officers arresting and removing patron of local lounge for being intoxicated in public place. The events leading up to the arrest and the activity of all participants while in the lounge are not largely in dispute and vary in minor detail only. The actions of Mr. Hashemian outside of the lounge are in dispute. [5] The parties have placed in issue: 1. Credibility; 2. Did Mr. Hashemian’s actions amount to obstruction? 3. Was it necessary to arrest Mr. Hashemian bearing in mind the provisions of s. 495(2) of the Criminal Code of Canada? 4. Was Mr. Hashemian assaulted? 5. If so, do any of the reasonable force provisions of the Criminal Code apply or does s. 10(3) of The Police Act, 1990, S.S. 1990-91, c. P-15.01 apply? 6. Compensatory damages; 7. Exemplary damages. THE EVIDENCE The events in the lounge [6] On May 15, 2001, Mr. Hashemian was post-graduate student in mechanical engineering at the University of Saskatchewan. He is of Iranian descent. His girlfriend, Ania Krupa, now his wife, was post-graduate student in geology. Their friend, Clarence Sampson, who is black, was in his first year at the Saskatchewan Indian Federated College. At approximately 10:00 p.m., the three of them attended at Crawdaddy’s Voodoo Lounge on 1st Avenue in the City of Saskatoon to celebrate Mr. Sampson’s successful exam results. This was Tuesday night. It is estimated there might have been twenty other people in the lounge. deejay was playing music, Mr. Sampson was in the mood to dance, and the evidence is that on occasion he danced by himself, he danced with Mr. Hashemian, and couple of times he danced with some of the patrons in the lounge. [7] At approximately 11:30 p.m., the server brought Mr. Hashemian his bill which totalled $37.40 and told Mr. Hashemian they wanted Mr. Sampson, who was then on the dance floor, to leave. Mr. Hashemian states he did not give the request much thought because they were about to leave in any event. Shortly after the server departed dental student friend of Mr. Hashemian and Ms. Krupa, Mr. Sobstel, entered the bar, ordered beer, and joined them at their table. Mr. Hashemian states at this point he asked Mr. Sobstel if he wished to play game of pool and they proceeded to do so. He states he left his credit card on the bill on the table. When they returned to the table the server had not processed the bill. At that point Mr. Hashemian went to the bar and paid the bill. As he was returning to the table he noticed the bartender speaking to Mr. Sampson at the edge of the dance floor. He joined them and heard the bartender ask Mr. Sampson to leave. Mr. Hashemian then asked the bartender why Clarence had to leave and was told it was because he was drunk. Mr. Hashemian then proceeded to argue with the bartender and state he did not think Mr. Sampson was drunk but was just having good time. The bartender replied, “No, that is it.” At this point Mr. Hashemian told the bartender that because he, Mr. Hashemian, did not believe Mr. Sampson was drunk, he drew the conclusion that Mr. Sampson was being asked to leave because he was black. At this point the bartender advised Mr. Hashemian that if Mr. Sampson did not leave he would call the police. Mr. Hashemian agrees he said to the bartender words to the effect that they were leaving anyway, but if he wanted to call the police, to go ahead. The bartender proceeded to do so, and the police officers arrived within 10 minutes. [8] Mr. Hashemian states he went back to the table and was prepared to leave. He states Mr. Sampson had put his jacket on and was over by mirror adjusting his attire, and he was informing Ms. Krupa and Mr. Sobstel of his conversation with the bartender, when the police officers arrived. [9] The police officers who arrived were Constables Pura and Wilde. They conversed with the manager of the bar, who identified Mr. Sampson to them. As they approached Mr. Sampson, he proceeded to walk back to the table to where Mr. Hashemian was located. Mr. Hashemian immediately proceeded to tell the police officers that the management of the bar was discriminating against Mr. Sampson. He was advised by Constable Pura that Mr. Sampson had to leave with them and they did not have to talk to him. He nevertheless persisted in attempting to provide Constable Pura with his view of the matter. She advised him it was not his business. In the meantime, Mr. Sampson was telling the police officers that he came with his friends and he wanted to leave with them. [10] Constable Pura was field training Constable Wilde on this night. When Mr. Sampson returned to the table, she states she advised Constable Wilde that they had to remove Mr. Sampson quickly because she did not want to cause scene. She stated it is police practice for officers’ safety to remove the problem person from licensed premise and then deal with them outside. Constable Pura states that she and Constable Wilde each took one of Mr. Sampson’s arms whereupon he sat down and said he was not leaving. At this point, they attempted to use hand controls to get Mr. Sampson into standing position, and Ms. Krupa hit Constable Pura’s arms in an attempt to release her grip of Mr. Sampson. At that point Constable Wilde put Mr. Sampson in headlock and dragged him towards the door. Constable Pura at this point radioed for backup help. [11] Ms. Krupa followed Constables Wilde and Pura towards the door and agreed at one point she grabbed Mr. Sampson’s arm, all the while protesting the police action. Mr. Hashemian was also protesting their action. After Constable Wilde took Mr. Sampson through the door, Constable Pura stood in the doorway to prevent Mr. Hashemian and Ms. Krupa from leaving. Both of them were extremely vocal. At one point Ms. Krupa attempted to push her way past Constable Pura and was pushed to the ground. Both of them were warned on more than one occasion that it was not their business and they should desist. Constable Pura stated while at the doorway, Mr. Hashemian was standing to one side “badgering me with questions”. At this point, one of the backup officers, Constable Rodgers, arrived. Constable Pura asked him to keep Ms. Krupa and Mr. Hashemian from leaving until she and Constable Wilde placed Mr. Sampson safely into the patrol car. [12] Constable Rodgers did as requested. He stated Ms. Krupa and Mr. Hashemian kept trying to push past him and were yelling various things. After Constable Rodgers decided enough time had elapsed, he allowed Mr. Hashemian and Ms. Krupa through the doorway. [13] The bartender, Mr. LaPlante, who was present throughout, states, “I remember the man asking questions of the Officers throughout. remember seeing the woman grabbing at the female Officer from time to time.” Constable Pura does state that when Mr. Sampson sat down, both Mr. Hashemian and Ms. Krupa tried to pull their friend away from us and were again instructed to back away. She further states, “Mr. Hashemian and Ms. Krupa tried to follow Constable Wilde and reiterated that they were obstructing us and to stay away.” The manager of the bar in her affidavit lumps Mr. Hashemian and Ms. Krupa together without distinguishing who did what. She states, “They were trying to grab their friend, Mr. Sampson, and pull him away from the police officers and they were yelling at the police officers. It appeared to me that they were attempting to stop the police officers from doing their job by trying to pull Mr. Sampson away from the police officers, by getting between the police officers and Mr. Sampson and by yelling at the police officers.” [Emphasis added] [14] Dr. Jarek Sobstel, then dental student who joined Mr. Hashemian and Ms. Krupa in the lounge, in his affidavit states: nan do recall Ania trying to pull the officer’s hands off of Clarence or perhaps Ania pulling on Clarence’s hand. was staying clear of the police officers and Clarence. actually stepped back as didn’t want to end up in the same situation as Clarence since as far as could tell Clarence hadn’t been doing anything differently than was doing. Further Medhi [Mr. Hashemian] was also keeping some distance between himself and the officers. [15] Both police officers, as well as the manager of the bar and the bartender, state that Mr. Sampson was inebriated at the time he was asked to leave. These persons all indicate that Mr. Sampson put up some minimal resistance to the police officers both before and after being placed in the headlock. The events outside of the lounge [16] When Constable Pura went upstairs and outside, she found Constable Blaine Lynch had also arrived as part of her call for backup. Constable Pura observed that both Constables Lynch and Wilde were struggling to handcuff Mr. Sampson who was bent over the hood of the patrol car. Constable Pura stated as she arrived beside them, Mr. Sampson was under control and she put the handcuffs on him. Her affidavit states: nan As he [Sampson] was about to be placed in the car, Mr. Hashemian and Ms. Krupa again showed up and demanded their friend be let go. Ms. Krupa was again pulling on Mr. Sampson to try to get him away from us. Mr. Hashemian continued to badger police with his questions, asking why his friend was being arrested, and that he wanted to go with him. They were both advised to go away, or they would be arrested for obstruction. Both had many opportunities to leave; however, chose to interfere. 12. That Ms. Krupa again grabbed Mr. Sampson, therefore, she was taken to the ground by Constable Rodgers and myself, handcuffed and placed in the back of Constable Rodgers’ patrol car. In cross-examination, Constable Pura agreed that Mr. Hashemian was few steps away from everyone else. She recalled him standing on the street (as opposed to the sidewalk where the officers were involved with Mr. Sampson), at the back of the police car and in front of civilian car that was parked behind. Constable Pura agreed that Mr. Hashemian was not physically involved with the arresting officers at any time prior to her and Constable Rodgers arresting Ms. Krupa, which was done after Mr. Sampson had been handcuffed. Constable Pura stated she did not see anything of Mr. Hashemian’s arrest until she saw him bent over the hood of the civilian car behind the patrol car, and being handcuffed by Constable Lynch. She states she did not observe any struggle at that point. [17] Ms. Krupa, like Mr. Hashemian, had persuaded herself that the police arresting Mr. Sampson was an act of discrimination and unnecessary, and she was very vocal about it. She agrees that she grabbed at Mr. Sampson or the police officers on couple of occasions including out on the sidewalk while Constable Pura was handcuffing Mr. Sampson. Ms. Krupa is not plaintiff and has not commenced an action with respect to her arrest. Ms. Krupa in her affidavit states: 7. did not see what happened to Mehdi [Mr. Hashemian] or how his injury occurred. However can say with certainty that he was never in the vicinity of Clarence [Mr. Sampson]. When everyone was outside Crawdaddy’s he was standing on the other side of the patrol car and did not come close to where Clarence and the officers and were standing. [18] Mr. Hashemian states that once he came up the stairs and went outside he saw Mr. Sampson bent over the hood of patrol car in the process of being handcuffed. He states he went around the patrol car to the street to see what was happening and continued to question the officers on why arresting Mr. Sampson was necessary. He agrees he was told by one or more of the officers words to the effect, “Shut up or you will be arrested too”. Mr. Hashemian states he observed Mr. Sampson being handcuffed by Constable Pura and he started to plead with the officers to let Mr. Sampson go. He agrees he was using an insistent tone asking questions such as, “what has Clarence done?”, “why are you doing this?”, etc. Mr. Hashemian states he finally said, “From where am standing you guys are behaving like the KKK. see an innocent black man being roughed up by you and you are not even telling me the reason he should be arrested”. In his affidavit Mr. Hashemian states: 25. That at this point Constable Lynch said “That’s it, we are going to take you with him now”. He came around the cruiser towards me. said “I don’t understand why you are arresting me but fine arrest me then”. The officer looked very angry. He put his hand on my left shoulder and walked me towards another cruiser. couple of meters before we reached the cruiser he pushed me towards it jerked forward but didn’t fall. didn’t know exactly what was supposed to be doing but was walking quietly and trying to be as cooperative as possible. didn’t say word. 26. That the officer positioned me facing the hood of the cruiser on the passenger side thus had my back to the sidewalk and restaurant. The officer was behind me and he held my hands behind my back. was standing motionless letting him do what he was doing. could feel the metal against my wrist and knew he was putting on handcuffs. Suddenly, without any warning, the officer put one hand behind the back of my head and slammed my head down towards the hood. had no idea such thing was about to happen. was offering no resistance to the handcuffing. None of my muscles were tensed and before even realized what was happening my head was slammed down onto the hood of the police cruiser and there was flash of white light in my head. 27. That after the slam raised my head. was slightly bent over the cruiser by Constable Lynch with my hands behind my back and he was still putting on or adjusting the handcuffs on my wrists. noticed some warm liquid was running down my face and looked down and realized that was bleeding onto the hood of the vehicle. This shocked me. At that point spoke to Constable Lynch saying “What did you do that for? That was really unnecessary”. He did not respond. He simply led me to the back of the police cruiser and put me into the vehicle. His evidence did not change during cross-examination. [19] Constable Rodgers states that when he got back up the stairs, Constable Pura was already dealing with Ms. Krupa and he assisted her in handcuffing Ms. Krupa. Constable Rodgers states he did not observe Mr. Hashemian’s arrest and has no knowledge of what transpired with respect to it. Ms. Krupa was placed in his car for transport to detention. [20] One of the police officers called an ambulance to the scene. An emergency medical technician looked at the cut on Mr. Hashemian’s head. He concluded Mr. Hashemian showed no signs of distress. He states that in his judgment, Mr. Hashemian did not require transportation to hospital, but he nevertheless asked him if he wished to go to the hospital, and Mr. Hashemian refused. [21] Constable Lynch has different version of events. Constable Lynch states when he arrived outside of the lounge, Constable Wilde was struggling with Mr. Sampson. He states he assisted Constable Wilde to restrain him and that Constable Pura subsequently handcuffed him. His affidavit goes on to say: 6. During the struggle with Mr. Sampson, another individual, later identified as Medhi Hashemian, kept trying to push past Constable Pura and Constable Roy Rodgers in order to help his friend. He continued screaming: “Let him go, let him go, you guys are like the KKK”. 7. and other police officers warned Mr. Hashemian to calm down and get out of our way otherwise he would be arrested for obstruction. He was warned at least three times. He refused to calm down and continued to obstruct us while we were engaged in the execution of our duties. 8. The confrontation with Mr. Hashemian continued and determined it was necessary to arrest him and take him into custody. His interference got to point where he was preventing us from doing our job. felt needed to diffuse the situation as it was escalating. As mentioned above, he had been warned several times and decided that needed to arrest him. 9. At the time arrested him, he was on the sidewalk. indicated he was being arrested for obstruction. approached him and turned him around in order to gain control of him and handcuff him. At that time he was not cooperating, he was still yelling and he was squirming. He continued to struggle, as tried to gain control of him, both of us had forward force and we ended up falling into the hood of private vehicle. The forward motion caused Mr. Hashemian to strike the hood of the car with his forehead. handcuffed him and led him to marked patrol car #65. 10. At that time, Mr. Hashemian was bleeding from his forehead so radioed to have an ambulance attend at the scene. The injury was checked by the ambulance attendants and Mr. Hashemian did not require stitches nor bandage. 11. did not purposely knock Mr. Hashemian’s head on the hood of the car. It was an accident which resulted from Mr. Hashemian’s struggling and the forward force from both of us onto the hood of the car. used no more force than was reasonably necessary to arrest Mr. Hashemian. [22] In cross-examination, Constable Lynch agreed he did not consult with any of the other officers before taking the action he did. In cross-examination Constable Lynch denied that he had placed his hand on the back of Mr. Hashemian’s head and propelled his head to the hood of the car. [23] Constable Wilde in his affidavit states: 17. At this point, Constables Pura and Rodgers had joined Constable Lynch and myself outside. We attempted to handcuff Mr. Sampson at which time Mr. Hashemian and Ms. Krupa, who had followed Constables Pura and Rodgers outside, attempted to free their friend Mr. Sampson from custody. They grabbed onto their friend and tried to pull him away from our custody. We warned Mr. Hashemian and Ms. Krupa to stay out of our way or they would be arrested for obstruction. They continued their behaviour while we arrested Mr. Sampson. 18. Constable Lynch and managed to place handcuffs on Mr. Sampson with the assistance of Constable Pura, and as soon as that was completed Mr. Hashemian again tried to push Constable Pura and myself. At this time, Constable Lynch released his hold on Mr. Sampson and arrested Mr. Hashemian. He pushed him against the hood of the car and told him that he would be under arrest for obstruction of police officer. 19. Constables Pura and Rodgers grabbed Ms. Krupa and pushed her to the ground informing her that she was also under arrest for obstructing police officer. All three individuals were handcuffed and each place in different marked patrol car that had attended the scene. With respect to para. 17 above, Constable Wilde was asked in cross-examination whether he was alleging that Mr. Hashemian was trying to pull the police officers away from Mr. Sampson or pull Mr. Sampson away from the police officers. He replied, “I don’t recall all remember is lot of hands being in the way.” With respect to para. 18, he was asked “What do you mean when you say Mr. Hashemian tried to push you.” He replied, “He did not push me hard enough to put me off balance.” He was asked where was Mr. Hashemian when he was pushing you. Constable Wilde replied, “My focus was on Mr. Sampson.” He stated he recalled Ms. Krupa being on his right and Mr. Hashemian being to the left of him. Constable Wilde agreed it was right after Mr. Hashemian made the KKK remark that Constable Lynch arrested Mr. Hashemian. Constable Wilde agreed that he wrote in report to the prosecutor, “Hashemian again tried to push Constables Wilde and Pura Constable Lynch released his hold on Mr. Sampson, grabbed Hashemian and threw him onto the hood of the car.” At this trial, Constable Wilde stated this was poor choice of words on his part and he should have used the word “pushed”. He denied that Mr. Hashemian was put against the car “roughly” and stated he was placed there. At this trial Constable Wilde denied seeing blood on the hood of the vehicle. It was pointed out to him that his notebook stated he did. He then agreed he must have seen it. Post arrest [24] Mr. Hashemian was held in the cells until approximately 7:30 a.m. the same morning, when he was released. The prosecution offered both Mr. Hashemian and Ms. Krupa the diversion program to dispose of their charges. Mr. Hashemian signed diversion contract dated July 23, 2001. This contract is form contract and he added to the statement, “I take responsibility for my actions”, the words, “As explained in the attached statement”. As part of the process, he agreed to make $70.00 charitable donation to the Family Healing Lodge. In the attached statement, he states as follows: This statement is to clarify one of the sections of my mediation contract, namely “taking responsibility for my actions”. Since cannot take responsibility for the things did not do, in the following identify what actions did wrong and am taking responsibility for. At the night in question (May 15th 2001), the whole ordeal with the police would have been avoided if we had left the establishment IMMEDIATELY after they warned they would call the police. believed the establishment was discriminating against Clarence, probably because he was black, since when asked them they did not provide any true reason why he should leave. But that does not matter, should have left with my friends immediately and then filed complaint with the Human Rights Commission against the management later. That would be the right procedure to follow. did not think they really would call the police, but was wrong. We should have left the place right away without waiting for even few minutes. But did not do so and as result, though did not even know it, put Clarence at risk. take responsibility for this mistake. [25] Mr. Sampson was convicted, after trial, of remaining in licensed premises after being required to leave contrary to s. 122(2)(a) of The Alcohol and Gaming Regulation Act, 1997, S.S. 1997, c. A-18.011. WAS THERE REASONABLE AND PROBABLE GROUNDS TO ARREST MR. HASHEMIAN FOR OBSTRUCTION? Credibility [26] accept Constable Pura’s evidence that Ms. Krupa was physically interfering with her and Constable Wilde’s attempts to arrest Mr. Sampson while inside the lounge, and her evidence that Ms. Krupa again physically interfered with the officers attempting to handcuff Mr. Sampson outside of the lounge. Indeed, Ms. Krupa does not deny it. accept Constable Pura’s evidence that while in the lounge, Mr. Hashemian positioned himself between the officers and Mr. Sampson at one point in time, but this ended when Constable Wilde put Mr. Sampson in headlock. accept Constable Pura’s evidence that Mr. Hashemian along with Ms. Krupa grabbed Mr. Sampson at the time Mr. Sampson sat down in the chair, and her evidence that they backed off when advised to do so. Apart from the foregoing, Constable Pura does not describe any act of physical interference by Mr. Hashemian with the officers inside the lounge. Constable Pura’s evidence largely corresponds with the evidence of Mr. Hashemian, Ms. Krupa, and Mr. Sobstel, as well as the bartender. [27] am not able to accept the evidence of the manager as it relates to Mr. Hashemian, because it is at odds with what the other witnesses say, and because her evidence does not distinguish between Ms. Krupa and Mr. Hashemian as to who did what. [28] With respect to what transpired outside of the lounge on the sidewalk, Constable Pura notes Mr. Sampson was about to be placed in the police car, from which infer he was already handcuffed, when Mr. Hashemian and Ms. Krupa again showed up. This corresponds with Constable Rodger’s evidence that he prevented Ms. Krupa and Mr. Hashemian from leaving the lounge for period of time he judged sufficient to have Mr. Sampson placed in police car. Outside of the lounge, Constable Pura refers to Mr. Hashemian continuing to badger the officers with questions and comments but states he was few steps away from anyone else. Constable Pura gives no evidence of Mr. Hashemian personally physically interfering outside of the lounge. This evidence largely supports the evidence of Ms. Krupa and Mr. Hashemian. Constable Rodgers, who assisted Constable Pura to “take down” Ms. Krupa right beside Mr. Sampson, also had no knowledge of physical interference by Mr. Hashemian. [29] Constable Lynch in his affidavit inferentially admits he had to walk to Mr. Hashemian in order to arrest him. At para. above, Constable Lynch states, “I approached him and turned him around .”. This evidence is not consistent with Mr. Hashemian physically interfering with the officers and their dealing with Mr. Sampson at the time of his arrest, and is consistent with the other evidence referred to above that he was not physically interfering. accept Mr. Hashemian’s evidence that Constable Lynch walked to him on the street where he was positioned in order to arrest him. [30] Constable Wilde, who was new recruit being field supervised by Constable Pura, was busy controlling Mr. Sampson up until the point he was handcuffed. Constable Wilde’s evidence causes me to conclude that he does not have specific recall of Mr. Hashemian physically interfering with the arrest of Mr. Sampson. As noted above, conclude that Mr. Sampson was already handcuffed before Mr. Hashemian emerged on the street from the downstairs lounge. Constable Wilde’s affidavit at paras. 17 and 18, supra, suggests the officers were still attempting to handcuff Mr. Sampson when Mr. Hashemian physically interfered. In cross-examination, Constable Wilde, when pressed to provide details of Mr. Hashemian’s personal activity, provided evasive answers with statements such as, “I don’t recall all remember is lot of hands being in the way”; “My focus was on Mr. Sampson”; “He did not push me hard enough to put me off balance”. do not accept Constable Wilde’s evidence that Mr. Hashemian was physically interfering with himself and Constable Lynch immediately prior to his arrest. [31] accept Mr. Hashemian’s evidence that he had not physically interfered with police officers outside of the lounge. [32] Because Mr. Hashemian and Ms. Krupa’s protests related to police officers removing Mr. Sampson from the lounge, it is perhaps worth noting the relevant provisions of The Alcohol and Gaming Regulation Act, 1997 (“the Act”). Section 122(2)(a) states: (2) No person shall: (a) remain in permitted premises after he or she is requested to leave the permitted premises by the permittee or an employee of the permittee. nan Section 149 of the Act states: 149 Any officer may arrest, without warrant, any person whom he or she finds committing an offence against this Act or the regulations. [33] In R. v. Skwark (1987), 1987 CanLII 4705 (SK QB), 63 Sask. R. 272 (Q.B.), this Court had occasion to consider the question, “[a]re the police entitled, when called to licensed premises, to act entirely on the assumption that management has acted correctly in asking patron to leave?” Armstrong J. answered, “yes”. At p. 274 in para. 10 he noted: [10] When patron is asked to leave an outlet, the patron must leave. nan If the patron thinks he has civil claim against the proprietor for requiring him to leave, that is another matter, but leave he must, and leave the complaining until later. There is no room for the patron to respond to policeman called because the patron refused to leave when asked by the proprietor to do so “there’s no reason, I’ve done nothing wrong”. The patron may be right, but it is not for the constable to decide or to be concerned. nan In my view, the police are not only within their right, but are under an obligation in carrying out their duties as policemen to arrest patron, who having been asked to leave the premises by management, and then by them, refused to do so. And at para. [12] If person feels aggrieved by reason by being asked to leave licensed premises the person’s recourse must be against the management of the premises in question in the proper forum and not to resist the request to leave or to resist the police. [34] Indeed, as noted in para. 24 above, Mr. Hashemian belatedly came to the realization that the police were within their rights in performing their duty and removing Mr. Sampson from the premises as reflected in his statement he attached to his diversion contract dated July 23, 2001. [35] Section 129(a) of the Criminal Code states: 129. Every one who (a) resists or wilfully obstructs public officer or peace officer in the execution of his duty or any person lawfully acting in aid of such an officer, nan is guilty of (d) an indictable offence and liable to imprisonment for term not exceeding two years, or (e) an offence punishable on summary conviction. [36] In R. v. Gunn (1997), 1997 ABCA 35 (CanLII), 113 C.C.C. (3d) 174 (Alta. C.A.), the Court again confirmed the three elements of the offence set out in s. 129(a): 1. there was an obstruction; 2. of police officer who is in the execution of his or her duty; and 3. the person obstructing did so wilfully. [37] There is no issue in this matter with respect to element Nos. and above. The Saskatoon Police Officers who attended the lounge and became involved in the arrest of Mr. Sampson were in the execution of their duty. Mr. Hashemian does not dispute that he possessed the general intent to make the comments he did throughout the proceedings and as such, he did so wilfully. The issue with respect to Mr. Hashemian’s allegation of wrongful arrest, is whether or not his actions obstructed the peace officers who were in the execution of their duty. [38] good summary of the law of obstruction which adopt, is that of Fradsham P.C.J. in R. v. Whalen (1993), 143 A.R. 234 (Alta. P.C. Crim. Div.), where he stated at p. 237: [18] am satisfied that in order for an accused to be guilty of obstruction, he or she, without lawful excuse, must have done something that affected the work of the police officer. It must have caused the officer to expend more than trifling additional effort. It need not have completely thwarted the work of the officer, but it must result in more than fleeting or momentary diversion or expenditure of effort. Each case will be decided on its own facts. [39] Physical interference by third party with police officer’s attempt to arrest person (as opposed to the person who might be entitled on the facts to resist his or her arrest) seldom causes the courts much problem. Vide: R. v. Saunders (1977), 1977 CanLII 2025 (NS CA), 34 C.C.C. (2d) 243 at 249 (N.S.S.C. App. Div.). When the alleged interference by third party is verbal and not physical, as noted per Picard J.A. in R. v. Gunn, supra, at p. 181: nan Furthermore, any interpretation of “obstructs” must respect the fact that there is in this country, right to question police officer. The cases demonstrate that courts have had difficulties measuring the interaction between individuals and peace officers and drawing the line between innocent and culpable conduct.... [40] When the words used by third party are directed at inciting crowd or others to interfere with police officer’s attempt to arrest, the extra vigilance or action required by the officers of result of the words uttered, are sufficient interference with the execution of their duty. As noted in The King v. McDonald (1911), 1911 CanLII 225 (BC SC), 18 C.C.C. 251 at 252 (B.C.S.C.), per Clement J. at p. 252: Physical interference, take it, is not an essential ingredient. menacing attitude on the part of the mob, entailing on the officer or officers vigilance and care beyond the normal, is an obstruction and this menacing attitude the accused and others with him assumed and persisted in maintaining for some time with the result that the journey to the police station was to the police one of anxiety, calling, as have said, for extra vigilance and care. In my opinion, therefore, there was evidence which, if believed by the learned magistrate, established obstruction. [41] Another example of where words did amount to the requisite culpable interference with police officers in the execution of their duty is R. v. J.L.R., 2002 ABPC 48 (CanLII), (2002), 310 A.R. 213 (Alta. P.C.). In this case the accused was extremely belligerent towards the police officers who were arresting his friend, although he did not make any threats against them or attempt to physically interfere. His yelling and swearing at the police officers caused another group of individuals who were nearby to move towards the location to see what was going on. Out of concern for their own safety, the officers quickly placed the person arrested in the van and drove approximately one kilometre up the road before they stopped in order to charter and caution the person. Lipton P.C.J. concluded at para. 28 In my opinion, the actions of the Accused went beyond inconsiderate and rude behaviour. His actions were not merely momentary lapse. am also of the opinion that the Accused’s actions caused officer Baker to expend more than trifling additional effort. The commotion caused by the Accused led officer Baker and Campbell to conclude their own safety was in jeopardy, consequence that would not likely have occurred had the Accused not continued with his behaviour. [42] Verbal criticism of police officers in the execution of their duty which does not otherwise interfere with them performing their duty has generally been held not to amount to obstruction. As noted per Saunders J. in Titus v. Kinch (1934-35), M.P.R. 359 at 362 (P.E.I.S.C.): nan Police officers frequently become targets of criticism but it seems to me that reputable citizen, as the appellant undoubtedly is, has every right to express his opinion, or even to criticize the conduct of an officer. The evidence shows clearly that there was no assault committed, nor threat made, and that the appellant did not in any way attempt to prevent the officer from performing his duty or to induce anyone else to do so. am at loss to see that an expression of opinion constitutes an obstruction, or amounts to resisting or interfering with an officer. [43] The British Columbia Court of Appeal in R. v. Long (1969-70), C.R.N.S. 298 (B.C.C.A.), addressed the rights of third parties to question the arresting police officers on the reason for the person’s arrest where police officers had not verbalized the same. At p. 302, Davey C.J.B.C. stated: that prisoner or someone speaking for him is entitled to know the reason for his arrest and to make such statement in answer to it, and that an exercise of that right cannot be converted into obstruction unless it be intemperate, unduly persistent, irrelevant or be made in an unreasonable manner. There is nothing in the evidence to show that the argument about the arrest exceeded the occasion so as to justify McLachlan’s refusal to listen. Davey C.J.B.C. went on to state at p. 305: add that nothing have said is intended to apply to officious interference by friends of prisoner or bystanders while the police are making an arrest, or to verbal abuse, excessive or intemperate criticism of or comments on the police, or to undue pertinacity in discussion or argument by those entitled to inquire or give explanations. agree that those things may constitute obstruction. nan The foregoing statements by Davey C.J.B.C. have been quoted in number of subsequent cases. Vide: Sandison v. Rybiak (1973), 1973 CanLII 623 (ON SC), 39 D.L.R. (3d) 366 at 375 (Ont. H.C.); Carr v. Gauthier (1992), 1992 CanLII 6189 (AB QB), 97 D.L.R. (4th) 651 at 659 (Alta. Q.B.). [44] As noted in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.R. 241, an officer arresting without warrant must subjectively have reasonable and probable grounds on which to base the arrest, and in addition, those grounds must be justifiable from an objective point of view. This means that reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the person’s arrest. This test does not go so far as to require the police officer to establish prima facie case for conviction before making the arrest. [45] At the outset, it should be said, that counsel for Mr. Hashemian approached the case on the basis that Mr. Hashemian’s involvement should be treated in isolation apart from the involvement of Ms. Krupa. His position is that Mr. Hashemian did not physically interfere with the officers and he should be judged on his personal interaction with the police officers. am not able to agree. From the moment the police officers entered the lounge, Mr. Hashemian and Ms. Krupa became involved in joint enterprise, meaning common enterprise with common purpose; namely, to dissuade the police officers from removing Mr. Sampson from the lounge, to dissuade them from arresting Mr. Sampson, and to be critical of their actions throughout. As noted above in the resume of evidence, number of the witnesses had difficulty distinguishing between Mr. Hashemian and Ms. Krupa as to who did what and when. It would be pure speculation to try and assess what the course of events might have been had either one of them been acting alone. [46] What was clear to Constable Pura, was that Mr. Hashemian and Ms. Krupa’s combined actions were creating a scene that caused her to become concerned for police officers’ safety to the point she called for backup. Constable Pura had enough experience to know that two hostile persons criticizing police officers in the process of arresting person who was non-compliant, in an establishment where alcohol was consumed and other persons were present, had the potential to escalate. For this reason, Constable Pura instructed Constable Wilde to remove Mr. Sampson from the lounge as quickly as possible. [47] Once Constable Wilde removed Mr. Sampson from the lounge, Constable Pura positioned herself at the inside doorway to prevent Mr. Hashemian and Ms. Krupa from following Constable Wilde until she was relieved by Constable Rodgers who continued to do the same. Mr. Hashemian then, and at trial, was quite critical of both officers for restraining his right to exit the premises. Mr. Hashemian then, and now, does not appreciate that police officers also have sworn duty to preserve the peace and prevent crime, which will sometimes involve restricting the movement of members of the public. Section 36(2)(a) of The Police Act, 1990, states: 36(2) Unless otherwise indicated in his or her appointment, member has the power and the responsibility to: (a) perform all duties that are assigned to constables or peace officers in relation to: (i) the preservation of peace; (ii) the prevention of crime and offences against the laws in force in the municipality; and (iii) the apprehension of criminals, offenders and others who may lawfully be taken into custody. [48] In Knowlton v. The Queen (1973), 21 C.R.N.S. 344 (S.C.C.), the appellant was arrested and charged with obstruction for breaking police cordon set up as security measure to protect Premier Kosygin of the U.S.S.R. The issue was whether the police officers were in the execution of their duty in taking such preventative measure. Fauteux C.J.C. on behalf of the Court at p. 348 concluded: nan In this respect, they had specific and binding obligation to take proper and reasonable steps. The restriction of the right of free access of the public to public streets, at the strategic point mentioned above, was one of the steps not an unusual one which police authorities considered and adopted as necessary for the attainment of the purpose aforesaid. In my opinion, such conduct of the police was clearly falling within the general scope of the duties imposed upon them. [49] It was perfectly obvious to Constable Pura that the reason Mr. Hashemian and Ms. Krupa wished to leave the premises was to follow Constable Wilde and Mr. Sampson. Constable Pura could not know what exactly either of them had in mind to do if allowed to leave. Constable Pura had responsibility to protect her partner and to minimize the possibility of further or escalated action on the part of Mr. Hashemian or Ms. Krupa. Constable Pura, and subsequently Constable Rodgers, had valid police purpose for restricting the movement of Mr. Hashemian and Ms. Krupa in the manner they did. When Constable Rodgers decided the police purpose had been accomplished, he ceased the restriction; prematurely, as it turned out. The subsequent actions of Mr. Hashemian and Ms. Krupa point out the validity of the reasons for imposing the restriction in the first place. [50] Once Mr. Hashemian and Ms. Krupa reached the street, their opposition to the police officers’ action continued and indeed escalated. Ms. Krupa chose to physically interfere by grabbing at Mr. Sampson. Mr. Hashemian chose to increase his rhetoric and criticism to more strident level. Whether Mr. Hashemian’s more strident approach was prompted by his knowledge that he and Ms. Krupa were at least partly responsible for the fact Mr. Sampson did not voluntarily leave the premises when requested to do so, and thereafter, their actions prompted the police officers to remove Mr. Sampson from the lounge in manner that might not otherwise have been necessary, or some other reason, the fact is that both individually and in combination their actions escalated. [51] It is worth noting that from the outset, Mr. Hashemian knew why Mr. Sampson was being requested to leave the lounge, and he knew Mr. Sampson was arrested because he declined to voluntarily do so. The case law which states third person may, in certain circumstances, question police officers as to why they are effecting an arrest, has no application on the facts in this matter. [52] The combined actions of Mr. Hashemian and Ms. Krupa clearly interfered with Constable Pura’s and Constable Wilde’s dealings with Mr. Sampson to the point Constable Pura called for backup help. Once the backup officers arrived, one of them was required to expend time and effort restricting the movements of Mr. Hashemian and Ms. Krupa from exiting the lounge. Once on the street, the police officers were again confronted by each of them. Their combined actions clearly affected the work of the police officers in the execution of their duty and caused them to expend more than additional trifling effort to deal with them. The actions and participation of Mr. Hashemian as described above provided reasonable and probable grounds to believe Mr. Hashemian was obstructing the police officers in the course of their duty. [53] On the facts in this matter, the same conclusion is arrived at based solely on Mr. Hashemian’s individual actions. In the words of Davey C.J.B.C. quoted above, his officious interference consisting of verbal abuse, excessive and intemperate criticism, and his undo pertinacity in discussion and questioning provided the reasonable and probable grounds. Mr. Hashemian’s verbal onslaught went well beyond an expression of opinion or legitimate questioning. [54] Counsel for Mr. Hashemian raised the question of whether Constable Lynch, who effected the arrest of Mr. Hashemian without consulting with other officers present, personally had reasonable and probable grounds. What if any conversations took place between Constable Pura and Constables Lynch and Wilde when she joined them at street level, or what conversation had taken place between Constable Lynch and Constable Wilde prior to Constable Pura’s appearance, was not the subject of evidence. What Constable Lynch did know is that he and Constable Rodgers had been called in as backup to assist, not in the arrest of Mr. Sampson, but to assist in dealing with two other individuals as necessary. The two individuals appeared shortly after he arrived, and behaved in the manner earlier described, which would suggest to anyone rather persistent effort on their part over period of time. Constable Lynch had the opportunity to observe the actions of Ms. Krupa and heard Mr. Hashemian’s remarks. He testified he subjectively believed Mr. Hashemian was interfering with the police officers in the execution of their duty, and based on his knowledge, as set out above, his subjective conclusion was objectively reasonable. [55] Mr. Hashemian’s actions provided reasonable and probable grounds to believe he was obstructing police officers in the execution of their duty. Section 495(2) and (3) of the Criminal Code of Canada [56] Section 495(2) of the Criminal Code of Canada states: (2) peace officer shall not arrest person without warrant for (a) an indictable offence mentioned in section 553, (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or (c) an offence punishable on summary conviction, in any case where (d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law. [57] Constable Lynch testified he arrested Mr. Hashemian to prevent the continuation of the offence he had reasonable and probable grounds to believe Mr. Hashemian was committing. The other police officers who testified agreed this action was appropriate. Mr. Hashemian had already been warned several times to cease his activity and had declined to do so. At the point of his arrest Mr. Hashemian’s identity had not been established and the police officers had no information on which they could assess whether he would in due course attend court when required to do so. Mr. Hashemian’s arrest was reasonable to prevent the continuation of the offence. [58] The suggestion was made by counsel for Mr. Hashemian that he should have been released pursuant to s. 498 of the Criminal Code upon arrival at the police station and not been processed through detention and incarcerated. Mr. Hashemian did have identification, and accept that there was no reason at this point to believe he would not appear in court if released on promise to appear. The police officers who testified indicated that once person under arrest is brought to detention, the decision on whether or not the person shall be released is made by the officer in charge of detention. That person is not named defendant and this ground was not specifically pleaded. In the absence of any evidence from the officer in charge of detention it is not appropriate to consider this ground any further. This Court is in position to assess whether the belief of the officer in charge is reasonable, but is not in position to guess what that belief was. [59] The action for wrongful arrest and/or detention is dismissed. WAS MR. HASHEMIAN ASSAULTED? [60] am not able to accept Constable Lynch’s evidence on how Mr. Hashemian received the cut in his hairline over the left eye. Mr. Hashemian presents as non-athletic person who states he weighs 140 pounds. Constable Lynch agreed with counsel for Mr. Hashemian that he weighs 200 pounds or more. Constable Lynch’s version that Mr. Hashemian was resisting to the extent he was required to initiate forward momentum that drove Mr. Hashemian into the hood of the car, strikes me as being inconsistent with Mr. Hashemian’s non-physical involvement up to that point in time, and what perceive would be Constable Lynch’s ability to control him if he did resist. Constable Wilde’s observation in his report to the prosecutor that Constable Lynch “threw him onto (not into) the hood of the car” [emphasis added] accords with Mr. Hashemian’s version of what happened, and is inconsistent with Constable Lynch’s version. Perhaps, most conclusively, the cut received by Mr. Hashemian up in his hairline over the left eye is not explained by Constable Lynch’s version of what happened. The cut is simply too high on the head to have been the result of face plant on the hood of the car solely as result of forward momentum into the car. The cut is consistent with Mr. Hashemian’s evidence on how he received the cut. [61] The result is accept Mr. Hashemian’s evidence that Constable Lynch placed his hand behind his head and drove it down onto the hood of the vehicle. also accept Mr. Hashemian’s evidence that he did nothing that would justify this action on the part of Constable Lynch. It follows that also reject Constable Lynch’s evidence that he used no more force than was necessary to effect the arrest. I find Constable Lynch assaulted Mr. Hashemian. DAMAGES Compensatory damages (i) General Damages [62] The cut received by Mr. Hashemian was a minor one, not requiring stitches or immediate medical attention. accept Mr. Hashemian’s evidence that his head struck the hood of the vehicle with significant force, and that he experienced headaches for several weeks thereafter, before they resolved. He also experienced stiff neck and sleep disturbance for several weeks. He experiences no long term effects from the blow to his head. This was minor assault on the relative scale of assaults, and resulted in minor physical damage. Considering the awards for similar type damage in similar type assaults, appropriate compensation for the injury conclude is $2,500.00. Mr. Hashemian is entitled to pre-judgment interest on this amount. (ii) Special Damages [63] Mr. Hashemian claims he lost his watch worth $600.00 sometime after the police officers entered the lounge. The booking form completed at detention recorded number of Mr. Hashemian’s personal items but there is no reference to watch. Mr. Hashemian admits he is not certain when he lost his watch. In the circumstances he has failed to prove that any one of the defendants is responsible for the loss of the watch. [64] Mr. Hashemian did not prove any other special damage. Exemplary damages [65] Any discussion on an award of punitive or exemplary damages at this point begins with the Supreme Court of Canada decision in Whiten v. Pilot Insurance Co. (2002), 2002 SCC 18 (CanLII), 209 D.L.R. (4th) 257. At pp. 296-97, Binnie J. emphasized that punitive damages should only be awarded where the misconduct of the defendant is so outrageous that punitive damages are rationally required to act as deterrence in the future. He went on to note “[t]he ‘rationality’ test applies both to the question of whether an award of punitive damages should be made at all, as well as to the question of its quantum.” In conducting comparative survey from other countries on their approach to punitive damages Binnie J. concluded at p. 288: Third, there is recognition that the primary vehicle of punishment is the criminal law (and regulatory offences) and that punitive damages should be resorted to only in exceptional cases and with restraint. [66] On the facts in this matter three members of the Saskatoon Police Service behaved professionally, and with restraint, in their dealings with Mr. Hashemian and Ms. Krupa. One member, Constable Lynch, did not. On the facts the assault on Mr. Hashemian was not the result of systemic problem in the Saskatoon Police Service that requires an award of punitive damages to deter such conduct on the part of other police officers in the future. The assault on Mr. Hashemian by Constable Lynch was spontaneous and consisted of single act. It was unacceptable conduct, but there is no reason to believe that this finding will not be sufficient to deter him from such conduct in the future. There is also discipline process in place to address such conduct. In the end do not consider there is rational need for the making of an award of punitive damages in this matter. COSTS [67] While I have concluded it is not an appropriate case to award punitive damages, I am of the view the plaintiff should not be penalized in legal costs for having brought the case forward. Counsel for Mr. Hashemian estimated his solicitor-client costs in the matter at $6,000.00. I award Mr. Hashemian legal costs in the amount of $6,000.00 plus taxable disbursements. [68] The action against Constables Pura and Wilde is dismissed. [69] The action against Constable Lynch for unlawful arrest and detention is dismissed. [70] The action against Constable Lynch for assaulting Mr. Hashemian is proven. [71] Compensatory damages for the assault are allowed in the amount of $2,500.00 plus pre-judgment interest. [72] The action for exemplary damages is dismissed. [73] Costs are awarded in the amount of $6,000.00 plus taxable disbursements. [74] Judgment accordingly. J. 2005 SKQB 51 Q.B.G. A.D. 2001 No. 2564 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: MEHDI HASHEMIAN and JAMES WILDE, BLAINE LYNCH, ASTRID PURA and THE CITY OF SASKATOON DEFENDANTS E. Scott Hopley for the plaintiff Patricia J. Warwick and Blair P. Bleakney for the defendants CORRIGENDUM to Judgment dated January 24, 2005 LAING J. January 25, 2005 [1] Subsequent to the judgment of January 24, 2005, it was brought to my attention by counsel, that the plaintiff discontinued his action against the City of Saskatoon on May 14, 2002. The references to the City of Saskatoon in the judgment including the style of cause are, therefore, in error. [2] The City of Saskatoon is deleted as defendant. [3] Paragraph 74 of the judgment assigning vicarious liability to the City of Saskatoon is deleted.

The plaintiff seeks damages for unlawful arrest and assault, including aggravated or punitive damages arising out of events which resulted in his arrest and a charge of obstruction. During the course of his arrest, the plaintiff received cut to his scalp. He remained in custody until released at approximately 7:30 a.m. that morning. The three named defendants are members of the Saskatoon Police Service. The City of Saskatoon is their employer. HELD: The action for wrongful arrest is dismissed. The plaintiff was assaulted when his head was driven onto the hood of the vehicle. The plaintiff is awarded $2,500 in general damages and pre-judgment interest on that amount. It is not an appropriate case to award punitive damages, but the Court awarded solicitor client costs to the plaintiff in the amount of $6,000 plus taxable disbursements. 1) The Court accepted the plaintiff's evidence that he did not physically interfere with the police officers outside of the lounge. The police officers that attended at the lounge and became involved in the arrest of Mr. Sampson were in the execution of their duty. The plaintiff does not dispute that he possessed the general intent to make the comments that he did throughout the proceedings and that he did so wilfully. The issue is whether or not his actions obstructed the police officers, who were in the execution of their duty. 2) The combined actions of the plaintiff and Ms. Krupa clearly interfered with the police officers' arrest of Mr. Sampson, to the point that Constable Pura called for back-up help. Once the back-up officers arrived, one of them was required to expend time and effort restricting the movements of the plaintiff and Ms. Krupa. Once on the street, they again confronted the police officers. Their combined actions clearly affected the work of the police officers in the execution of their duty. There were reasonable and probable grounds to believe the plaintiff was obstructing the police officers in the course of their duty. 3) On the facts in this matter, the same conclusion is arrived at based solely on the plaintiff's individual actions. The plaintiff's officious interference consisted of verbal abuse, excessive criticism and undue pertinacity in his discussion and questioning and provided reasonable and probable grounds to believe he was obstructing police officers in the execution of their duty. The action for wrongful arrest is dismissed. 4) The cut to the plaintiff's head is a minor one, not requiring stitches or immediate medical attention. The plaintiff experienced headaches for several weeks. He also had stiff neck and sleep disturbance. There were no long term effects. Corrigendum received January 25, 2005 and added to fulltext.

e_2005skqb51.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 301 Date: 2008 07 29 Docket: Q.B.G. No. 375/2007 Judicial Centre: Saskatoon BETWEEN: 101055204 SASKATCHEWAN LTD., and 101055205 SASKATCHEWAN LTD., carrying on business as “DT Consulting” and “FRP Consulting Group”, Plaintiffs (Defendants by Counterclaim) and MARK WOLFF, CLAYTON SPARKS and ADVANCE‑TEK CONSULTING INC., Defendants (Plaintiffs by Counterclaim) and DANIEL BEAULAC and TREVOR HEWISON, Defendants by Counterclaim Counsel: L.P. Barrett for the plaintiffs and defendants by counterclaim J.M. Howe for the defendants (plaintiffs by counterclaim) FIAT ROTHERY J. July 29, 2008 [1] The parties to this action have reached an impasse on the required disclosure and seek various orders. The defendants (plaintiffs by counterclaim) (referred to as the “defendants”) ask that the Court exercise its discretion and sever the plaintiffs’ claim between liability and damages. The defendants also seek an order that certain paragraphs of the plaintiffs’ claim be struck. [2] The plaintiffs and defendants by counterclaim, which includes the two principal individuals of the plaintiff corporations, shall be collectively referred to as the “plaintiffs”. The claims and counterclaims arose as result of one of the defendants, Mark Wolff, leaving the employ of the plaintiffs’ consulting partnership. The statement of claim alleges that Wolff, along with Clayton Sparks, set up competing business through their corporation, Advance‑Tek Consulting Inc. The plaintiffs are consultants to businesses applying for scientific research and experimental development (“SR&ED”) grants from the Canada Revenue Agency. The plaintiffs allege that they have developed unique application process for the SR&ED grants. [3] The plaintiffs state that Wolff is bound by confidentiality and non‑competition agreement with DT Consulting. By sharing this information with the other defendants, Wolff has breached that agreement and his contract of employment. Furthermore, the plaintiffs state Wolff owes the plaintiffs fiduciary duty, and by competing with the plaintiffs, he has breached that duty. The plaintiffs seek injunctions against the defendants, return of property taken by the defendants, and damages for breach of contract and disgorgement of all profits gained through the breaches of fiduciary obligations. [4] Along with issuance of the statement of claim on March 29, 2007, the plaintiffs applied ex parte for an Anton Piller order against the defendants to seize computers, emails and files. The plaintiffs alleged that Wolff removed the plaintiffs’ confidential business information during his employ and was using it in conjunction with Sparks and their corporation, to compete against the plaintiffs in the business of SR&ED consulting. [5] granted the Anton Piller order on March 29, 2007, and the supervising solicitor conducted the search. After execution of the order, counsel for the defendants applied to vary the order. The parties directed draft consent order to the court on June 13, 2007. The consent order provides that the supervising solicitor would retain all documents, materials, computer discs and data until mutually agreed by the parties or further order. The plaintiffs would not, on an interim basis, seek any further order to restrain the defendants from competing with them. The defendants would not solicit any of the plaintiffs’ clients or employees, other than few specified clients. The defendants would not use or disclose any of the plaintiffs’ information or material. [6] The defendants deny that the plaintiffs have unique SR&ED application process and deny that the plaintiffs have proprietary right in that SR&ED application process. Wolff alleges the confidentiality and non‑competition agreement is void, and that there is no contract of employment. The defendants deny that Wolff owes fiduciary duty to the plaintiffs, and deny that the plaintiffs have suffered damages. The defendants launched counterclaim alleging unlawful interference with their business and certain unpaid salaries and commissions owed to Wolff. [7] The parties have been unable to proceed to discoveries because respective counsel have not provided disclosure to the other. The defendants’ counsel have not provided disclosure pertaining to the medical records which would tend to show mental anguish, nervous upset and depression as alleged by the individual defendants. Disclosure of the defendants’ loss of income has not been made. [8] The plaintiffs’ counsel states that it requires disclosure of the defendants’ financial information, and all documents pertaining to its consulting business with its present clients in preparing SR&ED applications. The plaintiffs state they are entitled to the defendants’ business records and financial information because they are entitled to the disgorgement of profits resulting from Wolff’s breach of fiduciary duty to the plaintiffs. The plaintiffs allege proprietary right to its SR&ED application process and require disclosure to determine if the defendants continue to wrongfully use their property since the execution of the Anton Piller order. The plaintiffs require disclosure of the names of the defendants’ clients to ensure that the defendants are not soliciting the plaintiffs’ own clients. The Application to Sever [9] Counsel for the defendants applies pursuant to Rule 41(1) and Rule 215(1) of The Queen’s Bench Rules and the Court’s inherent jurisdiction for an order severing the issues of liability and assessment of damages in the plaintiffs’ claim. That is, disclosure, discoveries and the trial ought to proceed to determine whether the defendants are liable to the plaintiffs and to what extent. Then, if liability is found, disclosure, discoveries and the trial should proceed to assess damages. Counsel for the defendants argue that, unless the lawsuit is bifurcated between liability and damages, the disclosure required by the defendants of its present business records and names of clients would seriously prejudice it. [10] In Saskatchewan, authority to sever the issues at trial is founded on the Court of Queen’s Bench inherent jurisdiction. While other provinces, such as Ontario, have specific rules addressing the withholding of disclosure until after an issue has been determined, our The Queen’s Bench Rules are silent on the matter. The case of Prairie Irrigation Development Ltd. v. Derdall (1984), 1984 CanLII 2267 (SK QB), 35 Sask. R. (Q.B.), makes reference to the repealed Kings’ Bench Rule 261 which allowed similar relief as Ontario’s present Rules 30.04(8) and 31.06(5) considered in L.C.D.H. Audio Visual Ltd. v. I.S.T.S. Verbatim Ltd. (1986), 1986 CanLII 2758 (ON SC), 54 O.R. (2d) 425 (Ont. H.C.). Case law has confirmed that such authority now rests with our inherent jurisdiction. [11] The Saskatchewan Court of Appeal in Potash Corp. of Saskatchewan Mining Ltd. v. Allendale Mutual Insurance Co. (1988), 1989 CanLII 5140 (SK CA), 80 Sask. R. 184 (C.A.), clarified that, although there is no specific rule in The Queen’s Bench Rules, such authority lies with the Court to sever an action. Bayda C.J.S. stated at paragraph 26: [26] That is not to say that plaintiff is never entitled to divided discovery and production of documents and never to divided examinations-for-discovery. Other common law provinces have specific rules governing those divided procedures. refer to Ontario’s Rules 31.06(5) and 30.04(8) and to Alberta’s Rule 223, British Columbia’s Rule 26(15), Manitoba’s Rule 316, Newfoundland’s Rule 32.02(c), Nova Scotia’s Rule 20.02(c) and Prince Edward Island’s Rule 20.02(c). Only Saskatchewan and New Brunswick have no similar rules. Despite the absence of specific rule in Saskatchewan, have no doubt that the court is empowered to order divided discovery and production of documents and divided examinations‑for‑discovery, that is to say, the court has the power to order severance for purposes preliminary to trial as well as trial. [12] The principles articulated in Potash Corp., supra, have been applied in such cases as Chieftain Industrial Contractors and Consultants Ltd. v. Man‑Ore Industrial Contractors Ltd. (1990), 1990 CanLII 7438 (SK QB), 81 Sask. R. 223 (Q.B.). At paragraph 24, Wright J. stated: .. The first, and most important issue, has to do with R's application to sever the issue of damages and to postpone it until liability has been determined. Both counsel conceded that the Court has the inherent jurisdiction to sever and postpone. This view has been expressed number of times and some of those expressions have emanated from the Saskatchewan Court of Appeal. The most helpful decision however is perhaps the most recent of the same Court, Potash Corporation of Saskatchewan v. Allendale Mutual Insurance Company (judgment rendered October 15, 1989). In that decision, the Chief Justice reviews, with care, the principles that are applicable to applications of this sort. What he had to say there is, in my respectful view, particularly apt to this application and for the reasons there expressed, would not grant the application for severance and postponement. [13] More recently, Laing C.J.Q.B. reviewed the discretion available to the Court in such situations in the case of Chaban v. Kramer Ltd., 2008 SKQB 27 (CanLII), [2008] S.J. No. 133 (Q.B.) (QL). At paragraphs and 6, Laing C.J.Q.B. outlined the factors to be considered in determining whether severance should be granted: [5] The decision to postpone disclosure or discovery with respect to matter that is admittedly relevant to the pleadings is discretion that is available to the Court, but is one which has been judicially circumscribed. In Potash Corporation of Saskatchewan Mining Ltd. v. Allendale Mutual Insurance Co. (1989), 1989 CanLII 5140 (SK CA), 80 Sask. R. 184, (C.A.), Bayda C.J.S., on behalf of the Court, in paragraph 28, noted as follows: [28] In the first place, divided discovery and production of documents and divided examinations‑for‑discovery should be resorted to in only the clearest of cases. The order should be made only in case that is clearly destined to be severed for the purposes of the trial. It should be made in an exceptional case where the plaintiff has established that the failure to make the order would be oppressive to him or her or cause him or her serious prejudice. Ordinary prejudice and inconvenience may or may not be deterrent to the making of an order (for discussion of the difference between the two degrees of prejudice see: L.C.D.H. Audio Visual Ltd. v. I.S.T.S. Verbatim Ltd. (1986), 1986 CanLII 2758 (ON SC), 54 O.R. (2d) 425 (O.H.C.J.) at 436 per Henry J.). [6] In L.C.D.H. Audio Visual Ltd. v. L.S.T.S. Verbatim Ltd. (1986), 1986 CanLII 2758 (ON SC), 54 O.R. (2d) 425 (O.H.C.J.), referred to by Bayda C.J.S. in the foregoing, Henry J. in that decision made the following points: (a)The discretion to postpone discovery or disclosure of documents may only be exercised when there is clear severability between the threshold issue and the consequential issue (damages). (b)In the normal course, the discretion should only be exercised if there is severe prejudice to the moving party as opposed to ordinary prejudice. (c) If severe prejudice is established, there still remains discretion in the court. (d) One of the factors to take into account in exercising the discretion should be that resolution of litigation by settlement is now generally endorsed, and consideration should be given to whether disclosure of the information is desirable for this reason. [14] Upon considering the factors summarized in Chaban, supra, it must be concluded that the defendants’ application has merit. First, there is clear severability between the threshold issue of liability and the consequential issue of damages in the plaintiffs’ action. The entitlement to sue for the disgorgement of profits hinges on whether Wolff, as its former employee, was in position of fiduciary. This is not the case of alleging one of the traditional classes of fiduciary, such as trustee and cestui que trust or solicitor and client. The fiduciary relationship must be found on the specific facts proven in the case. Disclosure pertaining to the defendants’ ongoing business, financial affairs and clientele become relevant only upon finding of liability. [15] Secondly, the Court may exercise its discretion only if the Court can make finding that the defendants will suffer severe prejudice if the issues of liability and damages are not bifurcated. In this application, the defendants assert that they have developed their own SR&ED application process by cultivating relationships with accounting firms, industry associations, post‑secondary learning institutions and various business organizations. Much of the defendants’ client base results from a joint venture with a major accounting firm. This joint venture requires confidentiality. Disclosure of these relationships would jeopardize the defendants’ obligation to maintain this confidence. The defendants could be liable to the accounting firm should it breach that confidence. [16] The defendants’ situation is not unlike that of the defendants in Reichmann v. Vered, [1995] O.J. No. 1662 (Ont. Ct. Gen. Div.) (QL), where Chilcott J. applied the factors articulated in L.C.H.D. Audio Visual, supra, and concluded that immediate disclosure pertaining to an accounting would seriously prejudice the defendants. At paragraphs 15 and 16, the Court states: [15] The Court must also determine that there will be serious prejudice by immediate disclosure. There are two other actions in which the same or related parties are involved. have read the affidavit of Gilad Vered and he has indicated in the affidavit the market for engineering and consulting work in which Ron International and other Vered family corporations are involved is highly competitive. He indicates that to reveal financial statements, operating costs, engineering methods, terms of leases and of financing to Reichmann and his companies would harm Ron International and other Vered family corporation’s competitive position. [16] am persuaded that to have to answer these questions and provide these documents would severely prejudice the defendants. [17] The presiding judge in Reichmann, supra, in exercising his discretion, considered the great expense and resources required to assemble the information. The Court also considered that the disclosure sought by the plaintiff would reveal information about other of the defendants’ family corporations who were strangers to the litigation. The Court ruled that production and discovery on the consequential issue of damages and profits be withheld until determination of the defendants’ liability. [18] Serious prejudice to the defendants in the instant case has been established. It is appropriate to exercise my discretion in their favour and grant the order to sever the plaintiffs’ claim against them. In exercising my discretion, have considered the effect of disclosure on promoting settlement between the parties. The issues in this litigation are such that delay in full disclosure of material pertaining to damages makes little difference. Both parties know the profitability of the SR&ED consulting business. The risks that must be weighed in considering settlement pertain to liability. Those risks have not changed by granting the defendants their application. [19] Counsel for the plaintiff submits that the case of Anderson Preece Associates Inc. v. Dominion Appraisal Group Inc., 2000 ABQB 254 (CanLII), 264 A.R. 177, is on point. The plaintiffs in that action sought further disclosure of documents taken by the defendants from the plaintiffs’ appraisal company. The defendants in that case argued that they should not disclose the plaintiffs’ documents the defendants later modified. The Court found the modified documents must be disclosed. [20] The Anderson Preece case is not helpful in this application because it does not ask the Court to determine whether the action should be severed. The Alberta Court considered the application under its Alberta Rules of Court pertaining to the contents of the defendants’ affidavit of documents. [21] Counsel for the plaintiffs argues that bifurcation of the liability and damages issues will lead to further motions if the parties cannot agree on the characterization of the documents or the questions in discovery. agree that some debate may occur between counsel on this point. However, that does not outweigh the severe prejudice the defendants would suffer without the order for bifurcation. If objections arise pertaining to what ought to be produced or discovered, either counsel has leave to bring the matter back to court. [22] Counsel for the plaintiffs submits that, without the defendants providing full disclosure at this stage, the plaintiffs have no assurance that the defendants are not pursuing their clients. That is not valid concern because the plaintiffs already have an immediate remedy should the defendants poach their clients. The defendants would be liable for breach of the consent order of June 13, 2007. The plaintiffs can easily discern if the defendants are breaching that order. At this stage, no breach has been alleged. [23] Counsel for the plaintiffs further submits that, without disclosure of the defendants’ work product, it is unable to prove that the defendants are continuing to utilize the SR&ED application process to which the plaintiffs claim proprietary right. However, the documents seized under the Anton Piller order have provided full disclosure to the plaintiffs of the defendants’ work product. Those documents will support the plaintiffs’ claim, if successful, on the threshold issue of liability. The defendants’ ongoing work product becomes relevant to the issue of damages and must be disclosed to the plaintiffs if the litigation reaches that second stage. The plaintiffs are not disadvantaged in their claim by allowing the defendants to withhold their work product at this stage. [24] The application to sever the threshold issue of liability from damages only pertains to the plaintiffs’ claim. The defendants’ counterclaim against the plaintiffs and their two principals shall continue in the normal course. It follows that the defendants must disclose documents relevant to their counterclaim alleging damages suffered as result of the plaintiffs’ tortious actions. In turn, the plaintiffs are required to disclose documents pertaining to Wolff’s salary and commissions. [25] The plaintiffs have specifically sought an order for disclosure of “documents relating to the incorporation and corporate ownership of Advance‑Tek Consulting Inc. and any and all of its predecessors and/or affiliates”. Because these documents are relevant to liability, the defendants are ordered to disclose them. The Application to Strike Portion of the Pleadings [26] The defendants seek an order pursuant to Rule 173 of The Queen’s Bench Rules striking paragraphs 10, 11 and 23 of the plaintiffs’ claim. These paragraphs refer to Wolff being an applied science technologist and holding himself out as person with strong sense of ethics, which was important to the plaintiffs as Wolff would be privy to sensitive information. The plaintiffs plead that the code of ethics for an applied science technologists provides that person with such designation “will not use directly or indirectly an employer’s or client’s confidential information in any way which is competitive, adverse or detrimental to the interests of the client.” The plaintiffs further allege that Wolff has breached the code of ethics. [27] The defendants’ application to strike these portions of the claim is dismissed. While Wolff may be subject to discipline by his governing body, that does not constitute multiplicity of proceedings as defined by s. 29 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q‑1.01. Paragraphs 10, 11 and 23 are material facts, relevant to the plaintiffs’ claim of Wolff’s breach of fiduciary duty and breach of contract. They are properly pled. [28] The defendants are granted their application to have the plaintiffs’ claim severed so that the threshold issue of liability shall be tried prior to requiring the defendants to disclose and be discovered on the issue of damages. [29] The defendants’ application to strike portions of the plaintiffs’ claim is dismissed. [30] Because success has been divided, there will be no order as to costs. [31] Any further applications pertaining to this litigation are to be directed to my attention in the first instance. J. A.R. Rothery

FIAT: The defendant applies pursuant to Rule 41(1) and Rule 215(1) of the Queen's Bench Rules and the inherent jurisdiction of the Court for an order severing the issues of liability and assessment of damages in the plaintiff's claim. They ask that disclosure, discoveries and the trial ought to proceed to determine whether the defendants are liable to the plaintiffs and to what extent. Then, if liability is found, disclosure, discoveries and the trial should proceed to assess damages. The defendant also seeks an order pursuant to Rule 173 of the Queen's Bench Rules striking a paragraph of the plaintiff's claim. HELD: 1) Authority to sever trials in Saskatchewan is founded on the Court's inherent jurisdiction. Laing C.J.Q.B. reviewed the discretion available to the Court in Chaban v. Kramer Ltd., 2008 SKQB 27. Upon considering the factors in Chaban, it must be concluded that the defendants' application has merit. There is clear severability between the threshold issue of liability and the consequential issue of damages in the plaintiffs' action. The entitlement to sue for disgorgement of profits hinges on whether the defendant, as the plaintiff's former employee, was in a position of a fiduciary. Disclosure pertaining to the defendants' ongoing business, financial affairs and clientele become relevant only upon a finding of liability. The Court may exercise its discretion only if the court can make a finding that the defendants will suffer severe prejudice if the issues of liability and damages are not bifurcated. Much of the defendants' client base results from a joint venture with a major accounting firm. This joint venture requires confidentiality. Disclosure of these relationships would jeopardize the defendants' obligation to maintain this confidence. Serious prejudice to the defendants in the instant case has been established. It is appropriate to exercise the Court's discretion in the defendants favour and grant the order severing the plaintiffs' claim against them. The application to sever the threshold issue of liability from damages only pertains to the plaintiffs' claim. The defendants' counterclaim against the plaintiffs and their two principals shall continue in the normal course. 2) The defendants' application to strike portions of the plaintiffs' statement of claim is dismissed. The paragraphs refer to Wolff being an applied science technologist and holding himself out as a person with a strong sense of ethics. The plaintiffs plead that the code of ethics for an applied science technologist provides that a person with such a designation will not 'use directly or indirectly an employer's or client's confidential information' in competition with the client and alleges that Wolff has breached the code of ethics. While Wolff may be subject to discipline by his governing body, that does not constitute a multiplicity of proceedings as defined by s. 29 of The Queen's Bench Act. The facts pled are material facts relevant to the plaintiff's claim of Wolff's breach of fiduciary duty and breach of contract.

9_2008skqb301.txt

ACJ S.C.C. 02253 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hallett and Matthews, JJ.A. BETWEEN: HER MAJESTY THE QUEEN, and MICHAEL WAYNE MUISE, Respondent Mr. A.C. Reid and Mr. Peter MacKay, A/C, for the appellant Mr. P.B. Scovil, for the respondent Appeal Heard: October 16, 1990 Judgment Delivered: October 16, 1990 BY THE COURT: Appeal allowed and sentence varied to six months imprisonment for Criminal Code s. 221 offence, per oral reasons for judgment of Clarke, C.J.N.S., Hallett and Matthews, JJ.A. concurring. The reasons for judgment of the court were delivered orally by CLARKE, C.J.N.S.: This is Crown appeal against the sentence imposed on the respondent, Michael Wayne Muise, on February 13, 1990. Mr. Muise pled guilty that on July 29, 1989 he was criminally negligent in the operation of a motor vehicle on Forest Street in Yarmouth and thereby caused bodily harm to Robert Hubbard, contrary to s. 221 of the Criminal Code. He was sentenced to serve 90 days on an intermittent basis, placed on probation for two years, with conditions, required to perform 100 hours of community service and prohibited from operating a motor vehicle for three years. Mr. Muise drove his car at an excessive speed through four‑way stop intersection, without stopping. He collided with car operated by Mr. Hubbard who was making lawful left turn. Mr. Hubbard was injured. Both cars were demolished. At the time of the accident Mr. Muise was disqualified from driving a motor vehicle. In addition, he was intoxicated, he was operating a car that was mechanically defective and he was not wearing a seat belt. That portion of his prior criminal record which is relevant to this offence includes the following:1981 ‑ dangerous driving, for which he was sentenced to serve 21 days1987 ‑ refusal of a Breathalyzer demand1988 ‑ Breathalyzer offence ‑ over 80Mr. Muise\'s prior motor vehicle violations include:August 1985 ‑ driving while disqualifiedDecember 1985 ‑ driving while disqualifiedApril 1987 ‑ driving while disqualified The pre‑sentence report is generally unfavourable. While indicating good work record, it reflects longstanding addiction to alcohol and general disrespect for the law. The effect of the trial judge's remarks at sentencing is that while he recognized the respondent was charged with serious offence from which the general public needs protection, he was not prepared to incarcerate the respondent and thereby take him out of the work force. In short, he decided to give Mr. Muise one more chance. After reviewing the entire record and considering the submissions of counsel made to the court this morning, with respect, we are unable to agree that the trial judge imposed sentence which is fit for the serious circumstances provoked solely by the imprudent, unlawful and exceedingly dangerous acts of the respondent. This court has emphasized, time and again, the need to stress general deterrence in an effort to protect the public against actions such as those committed by Mr. Muise. Similar observations have been made by the Supreme Court of Canada (see R. v. Hufsky (1988) 1988 CanLII 72 (SCC), 84 N.R. 365 at 381). Specific deterrence must also be emphasized. Somehow Mr. Muise must be made to realize that he cannot mix drinking and driving. His prior record is anything but promising. We recognize the need to consider the potential for the reform and rehabilitation of the respondent and in that respect, we have carefully considered what the trial judge said. Having regard for all of the circumstances, it is our unanimous opinion that the sentence is inadequate and fails to reflect the serious nature of the offence and the emphasis that must be placed upon both general and specific deterrence as they relate to the public in general, and the respondent in particular. (See R. v. McVeigh (1985) 1985 CanLII 115 (ON CA), 22 C.C.C. (3d) 145.) Leave to appeal is granted and the appeal is allowed. We order that the sentence be varied to six months imprisonment, with credit being given the respondent for time already served since February 13, 1990. We further order that the probation order be varied by deleting therefrom the provision that the respondent perform 100 hours of community service. In all other respects the probation order and the prohibition order as issued by the trial judge will continue. C.J. N. S. Concurred in: Hallett, J.A. Matthews, J.A. IN THE COUNTY COURT FOR DISTRICT NUMBER THREE ON APPEAL FROM PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN, APPELLANT VERSUS MICHAEL WAYNE MUISE, RESPONDENT HEARD BEFORE: His Honour Judge James D. Reardon, J.P.C. PLACE HEARD: Yarmouth, Nova Scotia DATE HEARD: February 13th, 1990 CHARGES: That at or near Yarmouth, in the County of Yarmouth, Nova Scotia, on or about the 29th. day of July, 1989 did operate motor vehicle while disqualified from doing so by reason of an order pursuant to Section 259 (1) of the Criminal Code, contrary to Section 259 (4) of the Criminal Code. AND FURTHER CHARGED: That at or near Yarmouth in the County of Yarmouth, Nova Scotia on or about the 29th. day of July, 1989 did without reasonable excuse refuse to comply with demand made to him by Cst. Bourassa‑Muise peace of­ficer, to provide then or as soon thereafter as is practicable, samples of his blood as in the opinion of qualified technician or qualified medical practioner 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 (3) of the Criminal Code. COUNSEL: Robert Prince, Esq., for Prosecution Paul Scovil, Esq., for Defence CASE ON APPEAL S.C.C. 02253 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: HER MAJESTY THE QUEEN, and MICHAEL WAYNE MUISE, Respondent REASONS FOR JUDGMENT OF CLARKE, C.J.N.S.

Respondent male was convicted of criminal negligence in the operation of a motor vehicle - the offence occurred when he was disqualified from driving and he was intoxicated - six previous motor vehicle offences, 3 of which were criminal matters. 90 days intermittent, 2 years probation with conditions, 100 hours of community service and a 3 year prohibition from driving varied to 6 months plus the probation and driving prohibition having regard to the principles of deterrence - the trial judge put too much emphasis on rehabilitation.

3_1990canlii2516.txt

R. Green, QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 162 Date: 2016 05 05 Docket: QBG 94 of 2015 Judicial Centre: Moose Jaw BETWEEN: SASKATCHEWAN GOVERNMENT INSURANCE APPELLANT (DEFENDANT) and BRYAN SCOTT YOUNG RESPONDENT (PLAINTIFF) Appearing: Donald J. Harmon for the appellant (defendant) Talon Regent, Student-at-law for the respondent (plaintiff) JUDGMENT MEGAW J. MAY 5, 2016 INTRODUCTION [1] mystery has occurred on this file. The transcript from the small claims trial was not filed within the six month period set forth in ss. 39(5) of The Small Claims Act, 1997, SS 1997, S-50.11 [Act]. Why the transcript was not filed is unknown. What is known is the failure did not occur through the fault of the appellant. [2] Because of this non-filing, the respondent argues the appeal must be dismissed based on ss. 39(5) of the Act. The appellant, however, says it did nothing wrong here and it would be an affront to the administration of justice to simply determine the appeal to be dismissed. [3] small claims trial was conducted before Judge Kovatch. decision was rendered on April 30, 2015 and certified judgment on May 28, 2015. The appellant, Saskatchewan Government Insurance [SGI], then served and filed notice of appeal on June 26, 2015. Accompanying that notice of appeal was copy of the request for transcript which the solicitor for the appellant had forwarded to the Provincial Court of Saskatchewan. [4] On the same date as the notice of appeal was filed with the Local Registrar, June 26, 2015, the Local Registrar’s office forwarded correspondence to the Provincial Court advising of the notice of appeal and requesting the material on the trial be forwarded to the Court of Queen’s Bench and that the “tapes” be sent to Transcript Services. copy of that letter was sent to Transcript Services. Presumably the reference to tapes means the recording of the trial proceedings in whatever form they exist. [5] By letter dated August 17, 2015, Transcript Services provided letter to the Local Registrar enclosing the transcript of evidence in the small claims trial. The letter advised Transcript Services was also forwarding two copies of the transcript to the appellant for their use and for forwarding to the respondent. That letter is not copied to either the appellant or the respondent. There is no indication the appellant or the respondent received copy of this correspondence. [6] On February 11, 2016, counsel for the respondent reviewed the file in the Local Registrar’s office and discovered no transcript had been filed. He advised the solicitor for the appellant of the lack of transcript and took the position the appeal was deemed dismissed pursuant to the provisions of ss. 39(5) of the Act. [7] This advice caused flurry of activity. The solicitor for the appellant contacted the Local Registrar’s office to inquire what had gone wrong with the filing of the transcript. In addition, he arranged for the transcript to be actually filed on March 4, 2016. [8] The manager for Transcript Services deposed the August 17, 2015 letter and transcript was sent to the Local Registrar’s office via interoffice mail. She has reviewed the initial letter and saw it contained an incorrect postal code. However, she says that would not have mattered because interoffice mail was being utilized. Further, her office did not receive any notification or return mail to suggest the August 17 letter and transcript had not been delivered. It is understood “interoffice mail” is mail delivery service utilized exclusively by the provincial government. It does not involve Canada Post. [9] The Local Registrar, when advised of the dispute between the parties, directed the matter should be set down for appeal. It was determined, correctly, the resolution of the dispute regarding the filing of the transcript would need to be resolved by the court. The respondent has brought this application to have the appeal dismissed due to the failure to have the transcript placed on the court file in accordance with ss. 39(5) of the Act. [10] The Small Claims Act provides as follows: 39(1) party may appeal judgment made pursuant to this Act to the Court of Queen’s Bench within 30 days after the date of judgment, or within any further time, not exceeding 150 days, that the Court of Queen’s Bench may allow. (2) An appeal is commenced by filing with the local registrar of the Court of Queen’s Bench at the judicial centre nearest to the place where the trial was held: (a) notice of appeal; (b) proof of service of the notice of appeal on the opposite party or the party’s lawyer; (c) copy of the certificate of judgment; and (d) copy of the request for transcript of the proceedings. (3) notice of appeal must set out the grounds of the appeal, and: (a) where the appeal is by defendant who did not serve and file notice of counterclaim before trial, must set out briefly the details of the defendant’s defence and of any counterclaim; and (b) where the appeal is by third party, must set out briefly the details of the third party’s defence. (4) Subject to subsection (9), the appellant shall file with the local registrar at the judicial centre mentioned in subsection (2) transcript of the evidence heard by the judge. (5) Where the transcript mentioned in subsection (4) is not filed within six months after the day on which the notice of appeal is filed, the appeal is deemed to be dismissed unless an order extending the time for filing the transcript is made before the expiration of the six-month period by judge of the Court of Queen’s Bench on an application by the appellant (6) If judge of the Court of Queen’s Bench extends the time for filing the transcript pursuant to subsection (5) and the transcript is not filed before the expiration of that extended period, the appeal is deemed to be dismissed. (7) On receipt of the transcript, the local registrar of the Court of Queen’s Bench shall enter the appeal for hearing at the judicial centre where the appeal is filed. (8) When an appeal is filed pursuant to this section, execution of the judgment and all other proceedings in the action are stayed until the appeal is determined unless judge or judge of the Court of Queen’s Bench orders otherwise. (9) Where judge of the Court of Queen’s Bench is satisfied that transcript cannot be provided for the appeal, the judge, on application by the appellant, may: (a) order that the matter be returned to the court for new trial; or (b) make any other order that the judge considers appropriate. 47 No proceedings pursuant to this Act are to be considered invalid for informality if there has been substantial compliance with this Act. [11] The respondent rests his argument on the provisions of ss. 39(5) combined with the direction of this court in Saskatchewan Kodokan Black Belt Association Inc. Bergey, 1999 CanLII 12695 (CanLII) (QB) [Saskatchewan Kodokan] and Polar Air Auto Ltd. Kevin Tarabawka, QB 153/02 (August 27, 2002, unreported). [12] The appellant argues it made no error here and should not be denied its right of appeal by virtue of problem, quite beyond its control. It argues the letter of August 17, 2015 should determine the transcript to have been filed, or, alternatively that s. 47 provides the authority to now allow the transcript to be filed. [13] I have determined to allow the transcript to be filed and to allow the appeal to proceed. The starting point is to attempt to interpret the statutory provision set forth in ss. 39(5). The Court of Appeal in Ballantyne Saskatchewan Government Insurance, 2015 SKCA 38 (CanLII), 457 Sask 254 has recently provided guidance with respect to proper statutory interpretation: 19 The leading case with respect to statutory interpretation is the Supreme Court of Canada's decision in Re Rizzo Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] SCR 27 [Rizzo Shoes]. number of principles set out in that case are applicable to the case at hand, namely: 1. The words of an Act are to be read in their context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, its objects, and the intention of the legislature (See: Rizzo Shoes at para. 87). (See also: Saskatchewan Government Insurance Speir, 2009 SKCA 73 (CanLII) at para 20, 331 Sask 250; and Acton Rural Municipality of Britannia, No. 502, 2012 SKCA 127 (CanLII) at paras 16-17, [2013] WWR 213 [Acton]). 2. The legislature does not intend to produce absurd consequences. An interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent or if it is incompatible with other provisions or with the object of the legislative enactment (See: Rizzo Shoes at para. 27). 3. Any statute characterized as conferring benefits must be interpreted in broad and generous manner (See: Rizzo Shoes at para. 21). This principle is enshrined in s. 10 of The Interpretation Act, 1995, SS 1995, c. I-11.2 (See: Acton at paras. 16-18). 4. Any doubt arising from difficulties of language should be resolved in favour of the claimant (See: Rizzo Shoes at para. 36). 20 In Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) at 28-29, Ruth Sullivan sets out three propositions that apply when interpreting the plain meaning of statutory provision: 1. It is presumed that the ordinary meaning of legislative text is the meaning intended by the legislature. In the absence of reason to reject it, the ordinary meaning prevails. 2. Even if the ordinary meaning is plain, courts must take into account the full range of relevant contextual considerations including purpose, related provisions in the same and other Acts, legislative drafting conventions, presumptions of legislative intent, absurdities to be avoided and the like. 3. In light of these considerations, the court may adopt an interpretation that modifies or departs from the ordinary meaning, provided the interpretation adopted is plausible and the reasons for adopting it are sufficient to justify the departure from ordinary meaning. 21 In sum, in interpreting s. 123(1) of the Act, the ordinary meaning of the words of that provision must be read in the context of the Act as whole and in the context of Part VIII in particular. It is also important to keep in mind the purpose of the Act and the legislature's intention in enacting the provision. The provision is benefit conferring and accordingly must be given broad and purposive interpretation. It must also be interpreted in manner that will not lead to absurdities. With this background in mind, turn to the Commission's decision in this case. [14] The purpose of the small claims court is to provide litigants with cost effective, efficient mechanism by which disputes, limited in dollar value, may be resolved. In many respects, the Small Claims Court, and the decisions it renders, may be viewed as being on the front lines of the public’s access to justice. As part of that ongoing mandate to ensure justice is delivered effectively and efficiently, the process of appeal must also be effective and efficient. This ensures neither party is prejudiced or benefited by delay in the processing of the appeal. [15] The provisions of s. 39 of the Act are designed to cause the appellant to perfect its appeal. It provides for the manner in which an appeal is commenced; what must be set forth in the notice of appeal; and, how to perfect the appeal by the filing of transcript of the evidence from the trial. Subsection mandates the filing of the transcript but is made specifically subject to subsection 9. Subsection imposes the sanction for the failure to file but, it is referring to the transcript from ss. 4. [16] It appears for an appellant to “file the transcript” there is no action required beyond the request to Transcript Services. That agency then prepares the transcript and files it with the court. Accordingly, and practically speaking, the appellant plays no role in the physical filing of the transcript. Rather, the appellant must ensure the notice of appeal is properly served and filed and requisition is made for the transcript to be prepared and filed. [17] In the Saskatchewan Kodokan decision, the facts presented to MacLeod J. need to be carefully reviewed. There, the appellant had failed to both file the notice of appeal with the Local Registrar and, further, had failed to provide requisition for the transcript: [3] The respondent, Saskatchewan Kodokan Black Belt Association Inc. (the "Association") appealed the judgment but neglected to requisition the transcript of evidence presented at the trial. That transcript is to be filed with the local registrar within six months after the day on which the notice of appeal was filed (ss. 39(4) and 39(5)). [6] letter dated September 15, 1998, from the office of the transcript co-ordinator is as follows: Local Registrar Court of Queen's Bench 2425 Victoria Avenue Court House REGINA, SK S4P 3V7 Dear Sir: Re: Sask. Kodokan Black Belt Assoc. versus Kimberly Bergey Small Claims Hearing APPEALED Our File: 98.1011 Volumes and II Further to your request dated August 04, 1998, enclosed please find the transcript of the above matter, along with our invoice, #11046. Please forward your payment directly to the address listed on the invoice. In addition, we have not received any notification from the Local Registrar that you have filed Notice of Appeal. Once our office receives such notification, the transcripts will be distributed and you will be billed for such service. [18] The letter referred to in para. appeared to MacLeod J. to have been misaddressed and was actually sent to the solicitor for the appellant. At least, it appears this was the logical conclusion to draw from the material before him. [19] In the case before me, the appellant has done everything required of it pursuant to the Act. The respondent is not suggesting anything more could or should have been done by the appellant. Indeed, the respondent fairly recognizes the end result of his submission is an unfortunate result because neither party could be said to be “at fault” for what took place. [20] Should the appellant have done things differently? For example, should the appellant have been expected to follow up with the Local Registrar’s office to see if the transcript had, in fact, been filed? This would require conclusion the appellant must go behind both the practice of Transcript Services and the correspondence from Transcript Services. Alternatively, should there be requirement the appellant check, as matter of course, to ensure Transcript Services has not only done that which they obligated to do and that the interoffice mail system has not malfunctioned? answer both of these queries in the negative. [21] While the appellant did not see the letter from Transcript Services dated August 17, 2015, do not conclude it is required of party to follow up on the actions of the public service. The clear intent of the provisions of s. 39 is to compel the appellant to do all that it is required to do to advance the appeal. This necessarily means it cannot sit on its hands and allow delay to build without any consequence. Rather, by putting the onus on the appellant to do what it is required to do, the Legislature is assured of speedy small claims process. This achieves one of the principle goals of the entire small claims system of administering justice. [22] However, in those cases where flaw occurs through no fault of the appellant, the legislation provides this Court with the ability to exercise discretionary remedy to fix that flaw and ensure justice is done as between the parties. This discretionary remedy is set forth in ss. 39(9). That subsection provides for remedy in the event transcript cannot be provided for the appeal. This is part of s. 39 and therefore must refer both to the absence of transcript and the failure to file within the six month provision, through no fault of the appellant. In that case, the court may make “any other order that the judge considers appropriate.” [23] To allow an appeal to be struck without the appellant having done anything incorrectly leads to an absurd result. Were it to be allowed, the appellant would lose right of appeal, and judicial determination of the claim, without fault. In my view, the administration of justice cannot allow such an absurd result. [24] Interpreting the legislation in manner which requires the appellant to take all required steps and then allowing for court intervention when matters arise beyond the control of the parties is consistent with intention of the Act and is an interpretation allowed by the wording used in the section. Furthermore, it avoids an absurd and unintended consequence. [25] The Act in ss. 39(9) provides wide discretion to justice, always acting judicially, to do that which is required to be done to ensure justice is achieved between the parties. am satisfied the transcript could not be provided within the six month period. However, this occurred through no fault of the appellant and accordingly the right of appeal should be preserved to allow the matter to be heard on its merits. In the result, I therefore determine that pursuant to ss. 39(9) of the Act, the transcript may now be filed and this appeal shall proceed to be argued and determined on its merits. The setting of the appeal date is confirmed. [26] There will be no order as to costs in the circumstances. J. M. T. MEGAW

HELD: The application was dismissed. The court held that pursuant to s. 39(9), it ordered that the transcript should be allowed to be filed and the appeal to proceed. The appellant had done everything required of it pursuant to the Act. The provisions of s. 39 did not require the appellant to follow up with the local registrar’s office to see if the transcript had been filed. In a case such as this, s. 39(9) of the Act provides the court with the ability to exercise its discretion to remedy the problem and ensure that justice is achieved where a transcript could not be filed within the six-month period.

b_2016skqb162.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 481 Date: 2008 11 28 Docket: Q.B.G. No. 108 of 2008 Judicial Centre: Melfort BETWEEN: BARRY STRANGE, operating under the trade name of MIDDLE LAKE HOTEL 2002 and SASKATCHEWAN MINISTRY OF ADVANCED EDUCATION EMPLOYMENT AND LABOUR, LABOUR STANDARDS BRANCH Counsel: R. Gregory Wilson for the applicant Shannon A.C. Carson for the respondent FIAT POPESCUL J. November 28, 2008 INTRODUCTION [1] The applicant, Barry Strange, operating under the trade name of Middle Lake Hotel 2002 (“the applicant”), brings an application seeking an order setting aside a wage assessment certificate issued by the Director of the Labour Standards Branch (“the Director”) and filed with this Court. The applicant disputes liability for the amount set out in the wage assessment and claims that he inadvertently and innocently missed the time within which to file an appeal. He seeks to set aside the certificate, which has been registered as judgment of this Court, on the same basis that the Court would open up noting for default or set aside default judgment. The Director, on the other hand, takes the position that this Court is without jurisdiction to do what the applicant seeks and, in any event, submits that the applicant has not met the criteria necessary to trigger the exercise of the Court’s discretion. ISSUES [2] The issues raised in this application are:(1) Does this Court have jurisdiction to set aside the Director’s certificate filed with the Court of Queen’s Bench?(2) If so, what criteria ought to be applied in determining whether the Court should exercise its discretion in favour of setting aside the wage assessment certificate?(3) Has the applicant satisfied the criteria? [3] complaint was filed by an employee with the Labour Standards Branch against her employer, the applicant. An assessment was done by Labour Standards officer and copy was forwarded to the applicant. meeting was set up for the Labour Standards officer and the applicant to discuss the wage assessment. The meeting was arranged for March 6, 2008 at the applicant’s place of business. [4] On March 4, 2008 the applicant contacted the Labour Standards officer and told her that he wanted to deal with the matter through his lawyer and did not wish to proceed with the meeting scheduled for March 6, 2008. [5] On April 9, 2008, the Labour Standards officer completed her review. By letter dated April 9, 2008 she sent letter to the applicant, enclosing copy of the assessment showing wages due in the amount of $3,383.35, and requesting his input. The letter, reads in part, as follows: As you can see there is an assessment owing. Please review this as soon as possible. would like to be able to prepare Wage Assessment on April 16, 2008 so that hearing can be scheduled upon my return in August, 2008. Please call me at prior to that date; otherwise will prepare Wage Assessment on that date. [6] The applicant contacted the Labour Standards officer on April 16, 2008 and advised her that he did not agree with the assessment and that he wished to dispute the employee’s claim. The Labour Standards officer and the applicant discussed the possibility of hearing taking place in August of 2008. The Labour Standards officer was going on leave and would not be back until August of 2008. [7] On April 16, 2008, the Labour Standards officer sent an inspection report to the applicant indicating that she had determined that the employee was entitled to further wages and assessed the amount at $3,383.35. The relevant portion of that letter reads as follows: If you have any questions about the assessment or wish to submit additional information, please contact me before April 23, 2008 at Otherwise, please make out cheque or money order to the employee and deliver it before April 23, 2008 [8] On April 24, 2008, the Labour Standards officer received letter from the respondent dated April 21, 2008. The body of this handwritten letter reads, in its entirety, as follows: This letter is to confirm that we wish this matter to go to hearing, please advise us to the time and place. [9] On May 27, 2008, the manager of the Labour Standards Branch sent letter to the applicant demanding payment of $3,383.35 failing which the Branch would take action that included, but would not necessarily be limited to, the issuance of wage assessment. [10] On June 3, 2008, the applicant telephoned the Labour Standards Branch and spoke with Maureen Ooms, one of the Labour Standards officers. He told her, during the course of that conversation, that he wanted to appeal the matter. According to the affidavit of Ms. Ooms, she explained to the applicant that wage assessment would soon be sent to him by registered mail, after which he would need to contact the office of the registrar of appeals within the appeal period in order to trigger hearing. Ms. Ooms also informed the applicant that information on how to launch an appeal would be included in the material sent with the wage assessment. She also deposed in her affidavit that she told the applicant to contact her should he have any questions. [11] On June 24, 2008, formal wage assessment was processed and sent by registered mail to the applicant. The wage assessment document clearly states the amount owing was determined to be $3,383.35, and then goes on to state: You are hereby directed to pay the total amount claimed within 21 days after the date of service of this Wage Assessment or commence an appeal pursuant to Section 62 of The Labour Standards Act. If you do not appeal this Wage Assessment to the Registrar of Appeals within 21 days and if you do not remit the required deposit with your appeal (see Section 29 of The Labour Standards Act Regulation 1995), the Wage Assessment will become judgement against you. Relevant sections of The Labour Standards Act and regulations are quoted for your information on the enclosed page. [emphasis added] [12] That same document contains clear information as to where to serve the notice of appeal and also alerts the applicant to the requirement of remitting either the assessed amount or $500 deposit to the registrar of appeals. It also includes direct reproductions of several pertinent sections of The Labour Standards Act, R.S.S. 1978, c. L-1, including s. 60(2) and ss. 62, 63 and 68.1. [13] Notwithstanding the above, the applicant did not file an appeal nor deposit the required funds within 21 days after the date of service of the wage assessment, or at all. [14] Despite the information provided to the applicant by Ms. Ooms and despite the clear wording contained on the face of the “Wage Assessment” signed by the Director and forwarded to the applicant by registered mail, the applicant claims that he did not file the required appeal and submit the deposit because he believed that his April 21, 2008 letter confirming that he wanted the matter to go to hearing caused him to understand “the matter would be set for hearing in August”. In the affidavit filed in support of his application, the applicant attempts to explain away his failure to act as follows: On June 24, 2008 Mr. Mcrorie sent another letter indicating that wage assessment had been made against me. understood this to be part of the normal procedure. That letter stated that must appeal within 21 days. thought that my letter of April 21, 2008 would be sufficient and hearing would be set in August. did not realize that had to take any further action. [15] Further on in his affidavit the applicant deposes: believed at all times the matter would be set for hearing in August. was never informed by the Respondent that any further action was required of me to have the matter set for hearing. [16] On August 12, 2008, the Director, not having received notice of appeal, proceeded to issue certificate, pursuant to s. 60 of the Act, declaring that the applicant owed the employee $3,383.35. [17] That certificate was subsequently filed with the Court of Queen’s Bench on August 26, 2008. [18] On September 2, 2008 letter was sent by the Director to the applicant notifying him that judgment had been obtained and that collection proceedings on the judgment had been initiated. [19] It was at this point that the applicant took steps to set aside the Director’s certificate. LEGISLATIVE SCHEME [20] Section 60(2)(a) of The Labour Standards Act provides that the Director can issue wage assessment against an employer where he has reason to believe or suspect that an employer has failed to pay wages. In this case, the Director formed that belief and on June 24, 2008 issued wage assessment pursuant to s. 60(3) that was subsequently served upon the applicant on June 27, 2008. [21] If the employer disputes liability for the amount set out in the wage assessment, the employer has 21 days to initiate an appeal by serving notice of appeal on the registrar of appeals (see: s. 62(1)). If no appeal is received within 21 days, the Director may issue Director’s certificate (see: s. 62.4(1)(a)). [22] If an appeal is filed within 21 days, the registrar of appeals selects an adjudicator to conduct hearing and rule on the dispute. The adjudicator is given authority by the enabling statute to dismiss the appeal or allow the appeal (either by varying the amount of the wage assessment or by revoking it). The adjudicator must provide written reasons for her decision. If either party is not satisfied with the decision of the adjudicator, an appeal “on question of law or of jurisdiction”, may be initiated to judge of the Court of Queen’s Bench, provided it is launched within 21 days after the date of the adjudicator’s decision (see: s. 62.3(1)). [23] Therefore, the process provides for two appeals, both of which require action within 21 days. The first is an appeal to an adjudicator from decision of Director (“a director appeal”). The second is an appeal from an adjudicator to Queen’s Bench judge (“an adjudicator appeal”). [24] Where no appeal is initiated within either 21-day appeal period, the Director may issue Director’s certificate that specifies the amount of wages declared to be owing by the employer to the employee. [25] In this case no appeal of the Director’s wage assessment was launched and therefore the matter did not proceed to adjudication. Accordingly, Director’s certificate was properly issued as permitted by s. 62.4(1)(a). [26] Once Director’s certificate is issued, s. 62.4(3) provides that it may be filed with the registrar of the Court of Queen’s Bench. This was done on August 26, 2008. Where certificate is so filed, that certificate, “has the same force and effect as if it were judgment obtained in the Court of Queen’s Bench for the recovery of debt”, (see: s. 62.4(4)). (1) Does this Court have jurisdiction to set aside the Director’s certificate filed with the Court of Queen’s Bench? [27] The Director submits that this Court is without jurisdiction to provide the relief requested by the applicant. This is because s. 62 of the Act requires that any appeal must be launched within 21 days. Limitation periods pertaining to appeals must be strictly followed. There is no provision in the Act allowing for an extension of time in which to bring an appeal and, consequently, the Court is without jurisdiction to grant the relief. The Director relies upon the decision of Allbright J. in Farmers of North America Inc. v. Langridge, 2004 SKQB 375 (CanLII), 260 Sask. R. 37. [28] In that case wage assessment was issued by the Director and served on the employer. The employer disputed the wage assessment and filed “director appeal” within the 21-day appeal period. An adjudicator was selected and hearing was held. The adjudicator confirmed the wage assessment. [29] The employer in Farmers of North America was not satisfied with the decision of the adjudicator. He wished to launch an appeal pursuant to s. 62.3(1) which permits an appeal of an adjudicator’s decision, on question of law or jurisdiction, to judge of the Court of Queen’s Bench. However, in that case the 21-day “adjudicator appeal” period was missed. Allbright J. arrived at the following conclusion: 12 In this instance, s. 62.3 provides what conclude to be mandatory time limitation which is to be strictly followed. There is no attendant provision for allowing an extension of time in which to bring an appeal. 13 Accordingly am left with no discretion other than to dismiss the appeal which has been brought to this Court outside of the mandatory time limitation for the bringing of an appeal. [30] Allbright J. relied upon the reasoning of Krueger J. in Beauval Trucking and Construction Ltd. v. Laprise, 1997 CanLII 10922 (SK QB), [1997] W.W.R. 52 (Sask. Q.B.). similar conclusion was also reached by Gerein J. in Parr v. IPSCO Saskatchewan Inc. (1999), 1999 CanLII 12850 (SK QB), 183 Sask. R. 124 (Q.B.). [31] The decision in Farmers of North America is clearly distinguishable from the current case because its focus was on an “adjudicator appeal” as opposed to “director appeal”, as is the case here. [32] In the case of an “adjudicator appeal” there has already been an adjudicative process. An independent and arm’s length adjudicator is mandated to conduct hearing on de novo basis. The adjudicator is required to listen to the evidence and submissions of the parties and, at the conclusion of the process, has the authority to either dismiss the appeal or allow it. If the appeal is allowed, the adjudicator may vary the amount claimed in the wage assessment or revoke it in its entirety. The decision rendered by the adjudicator must be supported by written reasons, which are to be rendered within 30 days from the hearing. The adjudicator’s decision is final and appeals are allowed only on the basis of jurisdictional or legal error. An appeal from an adjudicator’s decision has all the earmarks of true appeal. [33] Conversely, “director appeal”, although labelled an “appeal” by statute, does not share the signature characteristics of true appeal and is more aptly categorized as request for an automatic de novo hearing before an adjudicator. The wage assessment of the Director cannot be considered an unbiased arm’s length “decision”. There is no requirement that there be any representation by, or consultation with, the employer before the assessment is made. Although this may often happen as matter of course, it is not required and therefore the issuance of Director’s certificate cannot properly be viewed as the end result of some type of unbiased arm’s length adjudicative process. [34] Accordingly, even though an appeal from a wage assessment to the appeals board and an appeal from an adjudicator to the Court of Queen’s Bench both require “appeals” within “21 days” an appeal to the Court of Queen’s Bench is a true appeal while an “appeal” to the appeals board is essentially a request for a de novo hearing. Consequently, I conclude that the consequences of missing the time limitation are not necessarily the same. [35] In the case of adjudicator appeals, accept and adopt the conclusions and reasoning reached by Allbright J. Specifically, the law is well settled in the areas of the extension of time to serve statutory appeals. Time limits must be strictly enforced. If there is no provision to extend the time within which to appeal, court is without jurisdiction to grant an extension. One of the underlying reasons for this conclusion is that appeals are statutorily based and if there is no foundation in statute, there is no basis for an appeal. [36] Conversely, the principles and considerations that apply to “director appeals” are much different. There has been no independent evidentiary based finding. After an allegation is made, it becomes an enforceable judgment if the proper steps to dispute it are not taken within the specified period of time. The consequences for inaction parallel those of defendant who is noted for default as result of his failure to file statement of defence within the prescribed time frame. [37] I conclude that this Court does have jurisdiction to deal with an applicant’s request, on a director appeal, because it is not a “true appeal” that questions a decision made by an independent adjudicator after a hearing. Accordingly, the reasoning of this Court in Farmers of North America is not applicable to these circumstances. A finding that this Court is without jurisdiction to set aside a judgment, obtained without any independent adjudicative process, regardless of the basis upon which that judgment was obtained, is inequitable and at odds with existing practices and procedures. There are, in my view, at least two bases upon which it can be found that this Court is clothed with jurisdiction to exercise its discretion and provide remedy in appropriate circumstances. [38] The first basis is found in the statute. Section 62.4(4) of The Labour Standards Act states that certificate filed pursuant to ss. (3) has the same force and effect as if it were judgment obtained in the Court of Queen’s Bench for the recovery of debt. If the employee had sued the employer for the wages, which it would be her right to do, and if a statement of claim had been served, but not defended, and the matter was noted for default, this Court certainly would have jurisdiction to determine whether or not the defendant/employer’s application to open up of a noting for default should be granted. The Queen’s Bench Rules provide for the opening up of a noting for default. See: Rule 114(3); Rule 271; Rule 346. It logically follows, therefore, that where a judgment is filed in this Court that this Court would be able to look behind the filing and examine the circumstances under which that judgment was entered. If the judgment, for all intents and purposes, is to be treated as judgment of this Court, it ought to be able to be set aside on the same basis as judgment of this Court. [39] The second basis is the inherent jurisdiction of the Court. The Court of Queen’s Bench is superior court, charged generally with the administration of justice and enjoys inherent as well as statutory jurisdiction. See: Royal Bank of Canada v. Sordsdahl, 1991 CanLII 8020 (SK CA), [1991] W.W.R. 730 (Sask. C.A.). In MacMillan Bloedel Limited v. Simpson, 1995 CanLII 57 (SCC), [1995] S.C.R. 725, the Supreme Court of Canada held that the superior courts have an inherent jurisdiction which is integral to its operations, and which cannot be removed by either level of government without constitutional amendment. The power of superior courts to fully control its own process is essential to the maintenance of the rule of law itself. [40] To be without jurisdiction, as argued by the Director, means that regardless of how the Director’s certificate came to be filed with the Court, this Court cannot go behind that process because it is “without jurisdiction” to do so. This would mean, according to the logical extension of the Director’s argument, that an individual who does not object to Director’s wage assessment within the required time can never set aside the resulting registration of judgment regardless of the reason. What if, after being served with Director’s certificate, the potential appellant is on his way to his lawyer’s office to provide instructions to launch an appeal when he is involved in serious car accident that totally incapacitates him until after the expiration of the time limitation? What if there was an error made in the service of the wage assessment document and it is indisputable that the potential appellant had never received it? This Court must have jurisdiction to grant equitable relief in circumstances such as those raised in the above referenced hypotheticals; accordingly, conclude that this Court, by logical extension of this reasoning, must have jurisdiction to grant the equitable relief requested in this case. [41] Therefore, for the reasons cited above, conclude that this Court does have jurisdiction to set aside Director’s certificate that was filed in this Court. 2. If so, what criteria ought to be applied in determining whether the Court should exercise its discretion in favour of setting aside the wage assessment certificate? [42] There is significant body of case law that deals with the circumstances under which the Court ought to open up noting for default and set aside default judgment. These cases attempt to strike balance between certainty and the orderly administration of the justice system, and equity. If one is served with documents and does not respond, normally that party bears the consequences for his own inaction. To have it any other way would seriously undermine the efficacy of our system of law. Rules and time lines must be adhered to and respected. However, there are circumstances where it is simply inequitable to hold party to an arbitrary deadline, especially where there are compelling legitimate reasons not to do so and the other party has suffered no prejudice. The balancing of these competing principles has lead to body of law pertaining to when this Court ought to permit judgment or noting for default to be set aside where the defendant did not file defence in the required time frame. [43] The principles and competing interests underpinning director appeals are analogous to those involved in cases where plaintiff obtains default judgment and seeks to set aside the noting for default and the default judgment. Essentially, an unsworn allegation is made and the employer has 21 days to file dispute, failing which the allegation is considered to be admitted. Accordingly, see no reason why the principles and the rules that flow from them and which have developed in relation to the opening up of noting for default and in setting aside default judgments ought not be applied to situations where judgment of this Court was obtained as result of the failure of an employer (or for that matter an employee) who has missed the 21-day limitation period imposed by s. 62(1) of the Act. The developed case law has identified these four criteria: (1) the application is to be made as soon as possible after the judgment sought to be set aside comes to the attention of the applicant in the event of any delay, the applicant must justify and satisfactorily explain the reasons for the delay; (2) the applicant must provide satisfactory explanation for his failure in responding to the claim; (3) the applicant must disclose the defence that raises arguable issues; and (4) the applicant must satisfy the court that an order setting aside the judgment will not seriously prejudice the party who has obtained the judgment. See: Royal Bank v. Jenson (1988), 1988 CanLII 4958 (SK QB), 71 Sask. R. 277 (Q.B.); Klein v. Schile (1921), 1921 CanLII 107 (SK CA), 59 D.L.R. 102, [1921] W.W.R. 78 (Sask. C.A.); Bank of Montreal v. Pauls (1984), 1984 CanLII 2419 (SK CA), 35 Sask. R. 204 (C.A.). [44] Accordingly, I find that it is fair and equitable to apply, by analogy, the principles and resulting rules formulated relating to opening up a default judgment to the applicant’s request to set aside the judgment registered in circumstances where he has failed to file an appeal disputing a wage assessment to the registrar of appeals. (3) Has the applicant satisfied the criteria? [45] The applicant has satisfied me that upon learning that the Director’s certificate had been filed with this Court he took steps to set it aside. He has also satisfied me that he has potential defence on the merits and that the respondent would not suffer any prejudice by having the certificate set aside and for the matter to proceed to adjudication. The only aspect requiring further scrutiny relates to the third criterion, namely whether or not the applicant has provided satisfactory explanation for his failure to respond to the wage assessment notice within the required time. [46] Upon careful review, have determined that it is not appropriate to exercise my discretion to open up the judgment because the applicant has not satisfactorily explained why it was that he did not file the appeal within 21 days after receiving formal notice. [47] There is no evidence before me that would suggest or from which it could be reasonably inferred that the applicant cannot read or has any limitations that might effect his ability to understand the documentation served upon him. Furthermore, no satisfactory explanation has been provided as to why relatively simple step to file his notice of appeal and remit the deposit was not done as required. [48] Rather, what has been tendered as the basis for the exercise of this Court’s discretion is an explanation that he thought that the handwritten letter to the Labour Standards officer (and not the registrar of appeals) was sufficient compliance, even though at that time the Director’s wage assessment had not yet even been completed. have difficulty in understanding how the applicant could possibly have arrived at such conclusion. Obviously, the applicant disagreed with what was being asserted by the Labour Standards officer. The Labour Standards officer indicated that he could follow the process and that hearing could likely be scheduled in August when she returned from leave. However, no firm date was set and am satisfied that the discussion occurred as stated in the affidavits of the Labour Standards officers. Moreover, there is no dispute as to whether the applicant was served with the documentation by registered mail. The registered letter clearly stipulates that should the applicant wish to appeal he must take certain steps within 21 days. [49] The applicant either declined to read, or chose to ignore, the plain language on the document. This, at the very least, amounts to wilful blindness. In numerous cases wilful blindness has been held to not constitute sufficient reason for setting aside noting for default. See: Whittingham v. Métis Society of Saskatchewan (1985), 1985 CanLII 2692 (SK QB), 41 Sask. R. 213 (Q.B.); and Boychuk Hotels Ltd. (1983) v. Berge, [1984] Sask. D. 3650-01. [50] Litigants must take some responsibility to ensure that they act properly upon receiving documentation, especially formal documentation. The fact that the wage assessment was served upon the applicant by registered mail ought to have underscored the importance of the document. The document appeared to be formal in nature and upon receipt the applicant most certainly ought to have taken measures to determine what it was that he needed do as result of being served with that document. Furthermore, the document itself contained all the information the applicant would have needed to process the appeal. [51] If was to conclude that, under these circumstances, ought to exercise my discretion in favour of setting aside the judgment, virtually any judgment could be set aside with merely bald assertion by an applicant that he did not appreciate the seriousness or impact of the documentation served upon him. Simply stating that, “I thought my letter of April 21, 2008 would be sufficient ...” and “I did not realize that had to take further action” is, under these circumstances, not satisfactory explanation for his inaction. Furthermore, his assertion that “I believed at all times the matter would be set for August” and “I was never informed by [the Labour Standards Branch] that any further action was required ...”, flies in the face of the documentation served upon him and is contrary to the affidavit evidence of the Labour Standards officers, which accept. [52] The evidence is that the applicant is businessman running commercial enterprise in Foam Lake. It is expected that somebody in his position would have the savvy to read, review and understand the document or, if uncertain, at least seek assistance from someone who could help him. [53] The applicant has failed to satisfy me that the third prong of the four-pronged test has been met and, accordingly, I am not prepared to exercise my discretion in favour of setting aside the Director’s certificate filed as a judgment of this Court. [54] The respondent has been successful in the end result. However, the applicant has been able to convince me that this Court does have jurisdiction to grant the relief that he had requested should all of the criteria have been met. Accordingly, there is mixed success. As result, no costs of this application will be awarded to either party. J. M.D. POPESCUL

FIAT: The applicant seeks an order setting aside a wage assessment certificate issued by the Director of the Labour Standards Branch (the Director) and filed with this Court. The applicant disputes liability for the amount set out in the wage assessment and claim that he inadvertently and innocently missed the time within which to file an appeal. The issues are whether this Court has jurisdiction to set aside the Director's certificate filed with the Court of Queen's Bench, if so what criteria ought to be applied in determining whether the Court should exercise its discretion and whether the applicant has satisfied the criteria. HELD: 1) Even though an appeal from a wage assessment to the appeals board and an appeal from an adjudicator to the Court of Queen's Bench both require 'appeals' within '21 days', an appeal to the Court of Queen's Bench is a true appeal while an 'appeal' to the appeals board is essentially a request for a de novo hearing. Consequently, this Court concludes that the consequences of missing the time limitation are not necessarily the same. 2) This Court does have jurisdiction to deal with an applicant's request, on a director appeal, because it is not a 'true appeal' that questions a decision made by an independent adjudicator after a hearing. Accordingly, the reasoning of this Court in Farmers of North America Inc. v. Langridge, 2004 SKQB 375, is not applicable. A finding that this Court is without jurisdiction to set aside a judgment, obtained without any independent adjudicative process, regardless of the basis upon which that judgment was obtained, is inequitable and at odds with existing practices and procedures. Section 62.4(4) of The Labour Standards Act states that a certificate filed pursuant to s. 62.4(3) has the same force and effect as if it were a judgment obtained in the Court of Queen's Bench for the recovery of a debt. This Court certainly would have jurisdiction to determine whether or not the applicant's application to open up a noting for default should be granted pursuant to Rule 114(3), Rule 271 and Rule 346. It follows that this Court is able to look behind the filing and examine the circumstances under which that judgment was entered. The Court of Queen's Bench is a superior Court charged with the administration of justice and enjoys inherent as well as statutory jurisdiction. This inherent jurisdiction cannot be removed by either level of government without constitutional amendment. 3) It is fair and equitable to apply, by analogy, the principles and resulting rules formulated relating to opening up a default judgment to the applicant's request to set aside the judgment registered in circumstances where he has failed to file an appeal disputing a wage assessment to the registrar of appeals. 4) The evidence is that the applicant is a businessman running a commercial enterprise in Foam Lake. It is expected that somebody in his position would have the savvy to read, review and understand the document, or at least seek assistance from someone who could help him. The applicant either failed or declined to read, or chose to ignore, the plain language of the documents served on him by registered mail. This amounts to wilful blindness at the very least. Numerous cases hold that wilful blindness is not sufficient reason to set aside a noting for default. In these circumstances the Court is not prepared to exercise its discretion in favour of setting aside the Director's certificate filed as a judgment of this Court.

8_2008skqb481.txt

Q.B. A.D. 1994 No. 2593 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: THE CITY OF SASKATOON and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL NO. 319, STEVE SAUNDERS and PAT HYDE, personally and as representatives of all the members of the International Brotherhood of Electrical Workers, Local No. 319, and on behalf of all other members of the said Union Amalgamated Transit Union, Local No. 615, Dan Bichel and Peter Perera, personally and as representatives of all the members of the Amalgamated Transit Union, Local No. 615, and on behalf of all other members of the said Union Canadian Union of Public Employees, Local No. 59, Dave Taylor and Lois Lamon, personally and as representatives of all the members of Canadian Union of Public Employees, Local No. 59, and on behalf of all other members of the said Union Canadian Union of Public Employees, Local No. 859, Paul Michie and Sterling Sklapsky, personally and as representatives of all the members of Canadian Union of Public Employees, Local No. 859, and on behalf of all other members of the said Union Canadian Union of Public Employees, Local No. 47, Les Mills and Ken Johnston, personally and as representatives of all the members of Canadian Union of Public Employees, Local No. 47, and on behalf of all other members of the said Union DEFENDANTS RESPONDENTS B.H. Rossmann and L. Bellegarde for the applicant plaintiff N.R. McLeod for all the respondent defendants JUDGMENT GROTSKY J. August 25, 1994 At the conclusion of the hearing of thisapplication on August 23, 1994, I granted the applicant'sapplication for an interim injunction until trial, or untilfurther order, on certain terms and conditions and indicatedthat reasons for my decision would follow. These are those reasons. NATURE OF PRESENT APPLICATION The applicant plaintiff seeks orders as follows:An interim Order directed against theDefendants and each of them and any personacting under their instruction or behest orany other person having knowledge of thisOrder and any member of the said Unions on thefollowing terms:(a) restraining such persons from picketingexcept in an orderly manner with an intervalof at least 25 feet between persons picketing,which persons must remain in motion (this"interval" request was abandoned during thehearing of this application); (b) restraining such persons from obstructing or blocking the places of entrance to and egress from the Plaintiff's various premises; (c) restraining such persons from obstructing or blocking places of entrance to or egress from various sites or places of operation of the Plaintiff away from the Plaintiff's various primary premises; (d) restraining such persons from performing acts of intimidation with respect to the Plaintiff's employees and/or other persons seeking to do business with the Plaintiff or receive various services from the Plaintiff; (e) restraining such persons from trespassing on the Plaintiff's various property or places of operation or work sites; and (f) restraining such persons from watching and besetting the Plaintiff's various property or places of operation or work sites. THE GROUNDS The grounds upon which this application is founded, as stated and set forth in the applicant's notice of motion are: the Defendants and each of them and various persons acting under their instruction or behest and members of the Defendant Unions have been engaging in unlawful mass picketing at various of the Plaintiff's premises, places of operation and work sites, and, inter alia, have been creating nuisance, unlawfully watching and besetting the Plaintiff's various premises, places of operation and work sites, and have been intimidating and coercing other employees of the Plaintiff and others, all for the purpose of interfering with and preventing the Plaintiff from carrying out its operations and supplying the public with essential services and prevents the Plaintiff from enjoyment of its various premises, places of operation and work sites. THE MATERIALS FILED IN SUPPORT OF THIS APPLICATION INCLUDE 1. The Statement of Claim issued on August 17, 2. The application to abridge the time for the service and return of the Notice of Motion presently before me on this application and all of the materials filed in support of the said ex parte application; 3. The required Undertaking given by the applicant plaintiff with respect to damages; 4. The Order granted by me on August 18, 1994 with the requisite proofs of service thereof; 5. The subject Notice of Motion with the requisite proofs of service thereof; 6. The affidavits of Richard Ferguson, Gaston Joseph Gourdeau, Rod Neufeld, Kathie Jeffrey, Stewart Uzelman, Kim Anderson, D. Lynn Shyluk, James H. Dasiuk, Richard Josef Prankev, Gregory Dale Balderston, Michael Gordon Mikytyshyn, Randy Munch, Garth Rygh, Shelley Chirpilo and Glen David Hilton (with proofs of service thereof) each of whom (with the exception of said Kim Anderson) is presently in the employ of the applicant and respectively hold the following positions with the applicant: FERGUSON: Maintenance Manager at the Saskatoon Transit Department; GOURDEAU: General Foreman Street and Sidewalk Maintenance; NEUFELD: Electrical Engineer at the applicant's Electrical Distribution Department; JEFFREY: Personnel Officer in the applicant's Personnel Services Department; UZELMAN: The Applicant's City Engineer ANDERSON: private investigator employed by private investigating firm which was specifically retained by the applicant to monitor the strike activity of the applicant's striking employees; SHYLUK: Communications Officer; DASIUK: Operations and Construction Manager of the applicant's Electrical Distribution Department; PRANKEV: The applicant's Solid Waste Management Engineer and as such responsible for supervising the collection, disposal, and management of garbage for the applicant; BALDERSTON: personnel Officer in the applicant's Personnel Services Department, Employment and Compensation Branch; MIKYTYSHYN: Manager of the applicant's Electrical Distribution Department; MUNCH: Manager of the applicant's Water and Pollution Control Department; RYGH: Superintendent at the applicant's Water Treatment Plant; CHIRPILO: Director of Personnel Services; HILTON: Manager of Labour Relations. THE MATERIALS FILED IN OPPOSITION TO THIS APPLICATION INCLUDES: None of the respondents have filed any materials in response to this application. None of the respondents has put in issue any of the allegations deposed to by said Richard Ferguson, Gaston Joseph Gourdeau, Rod Neufeld, Kathie Jeffrey, Stewart Uzelman, Kim Anderson, D. Lynn Shyluk, James H. Dasiuk, Richard Josef Prankev, Gregory Dale Balderston, Michael Gordon Mikytyshyn, Randy Munch, Garth Rygh, Shelley Chirpilo and Glen David Hilton. THE LAW There are plethora of authorities including Saskatchewan Construction Labour Relations Council Inc. v. United Brotherhood of Carpenters and Joiners of America, Local 1021 (1983), 1982 CanLII 2434 (SK QB), 21 Sask. R. 36 (Sask. Q.B.); Waddell et al v. Neill et al (1983), 1983 CanLII 2258 (SK QB), 26 Sask. R. 14 (Sask. Q.B.); Westfair Foods Ltd. v. Stewart et al (1983), 1982 CanLII 2715 (SK QB), 22 Sask. R. 203 (Sask. Q.B.); Standard Water Treatment (1981) Ltd. v. Standard Holdings Ltd. et al (1983), 1983 CanLII 2612 (SK QB), 24 Sask. R. 234 (Sask. Q.B.); Lightfoot v. Gerecke et al (1984), 1983 CanLII 2358 (SK QB), 27 Sask. R. 305 (Sask. Q.B.) and Neufeld et al v. UFCW (1984), 1984 CanLII 2630 (SK QB), 32 Sask. R. 241 (Sask. Q.B.) which hold that, in this jurisdiction, before an applicant is entitled to obtain an interlocutory injunction he must first establish certain basic criteria. Shortly stated, these criteria are: 1. An interlocutory injunction will only be granted where the right to relief is clear; 2. The plaintiff in asserting right to an interlocutory injunction must show strong prima facie case in support of the right which he asserts and strong possibility that he will succeed at trial; 3. The plaintiff must be able to show that an injunction until the hearing is necessary to protect him against irreparable damage and loss, mere inconvenience is not enough; 4. Where any doubt exists as to the plaintiff's right, or his right is not disputed, but if violation is denied, the court should determine on the balance of convenience to the parties the nature of the injury which the defendant on the one hand would suffer if the injunction is granted and he should turn out to be right and that the plaintiff on the other hand might sustain if the injunction is refused and he should ultimately turn out to be right. It is trite law that the burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the defendant will suffer lies on the plaintiff. Vide: Halsbury's Laws of England (3d), Vol. 21, p. 264 and Saskatchewan Construction Labour Relations Council Inc. v. United Brotherhood of Carpenters, supra, at p. 49. It is also trite law that on an application for an interlocutory injunction it is not necessary for the plaintiff to make out case which will entitle it in all events to relief at trial. Vide: Kerr on Injunctions (6th Ed.) p. where the learned author indicates: The interlocutory injunction is merely provisional in its nature, and does not conclude right. The effect and object of the interlocutory injunction is merely to keep matters in statu quo until the hearing or further order. In interfering by interlocutory injunction, the court does not in general profess to anticipate the determination of the right, but merely gives it as its opinion that there is substantial question to be tried, and that till the question is ripe for trial, case has been made out for the preservation of the property in the meantime in statu quo. The above observations from Kerr on Injunctions were referred to with approval by Culliton C.J.S. in Wishart v. Knox et al (1967), 1967 CanLII 461 (SK CA), 65 D.L.R. (2d) 216 (Sask. C.A.) at p. 217 and by Cameron J. (as he then was) in Provincial Distributing Co. Ltd. v. Carey Ad Specialties Ltd. et al (1981), 11 Sask. R. 112 (Sask. Q.B.) at p. 115. On the whole of the evidence am satisfied that: 1. The applicant, through its municipal electrical utility, supplies essential electrical services to approximately 70% of its present geographical area and to its residential, commercial, industrial and institutional citizens and customers residing and/or carrying on business within said geographical area including, inter alia, hospitals, nursing homes, fire halls, the Saskatoon City Police Service Station, the Saskatoon Detachment of The Royal Canadian Mounted Police, the Saskatoon Water Treatment Plant, Ambulance Stations and the Regional Psychiatric Centre; 2. The applicant, through its said electrical utility, services all of the traffic signals within its noted geographical area; 3. The applicant, through its Solid Waste Management Branch, picks up the majority of the residential garbage, and, as well, some commercial and institutional garbage within its corporate limits. 4. The applicant, through its Water Treatment Plant, provides potable water to all residences and businesses within its corporate limits, and, as well, to number of smaller municipalities surrounding the City of Saskatoon including Allan, Clavet, Elstow, Bradwell, Dalmeny, Martensville and Osler all in the Province of Saskatchewan. As well, number of small commercial and rural residential developments located outside of the applicant's geographical area depend upon the applicant for their potable water; 5. The applicant, in addition to supplying potable water to those municipalities and developments specifically identified in para. hereof immediately preceding, provides all water for all fire‑fighting services for both the City of Saskatoon Fire Department as well as for the fire‑fighting departments of the said above noted surrounding smaller communities; 6. The applicant has established that the defendants and various persons acting upon and/or under their instructions or behest and that members of the defendant Unions have been engaged in unlawful mass picketing at various of the applicant's premises, places of operation and work sites, and, without limiting the generality of the foregoing at the applicant's work site situated on 21st Street East between 4th Avenue and Spadina Crescent in the City of Saskatoon; at the applicant's Northern Landfill; at the applicant's Electrical Distribution Department yard at 322 Brand Road in said City of Saskatoon; at the applicant's work site of the proposed St. Joseph's High School in the Erindale district of said City of Saskatoon; at the intersection of Clarence Avenue and Brand Road in the vicinity of said Electrical Distribution Department Yard; at the applicant's Solid Waste Management Branch yard main gate and area on Ontario Avenue in said City of Saskatoon; and, inter alia, said defendant Unions, and various of its members, including, at times, some of the specifically named defendants, have been creating nuisance and have been unlawfully watching and besetting the applicant's said and various other of the applicant's premises, places of operation and work sites, and have been intimidating and coercing other employees of the applicant and others, including employees of suppliers to the applicant of essential materials for its Water and Pollution Control Plant, all for, inter alia, the purpose of interfering with and preventing the applicant from carrying out its statutory and contractual obligations and operations and thereby, inter alia, preventing the applicant from supplying its noted citizens and other customers with essential services, and, as well, for the purpose of preventing the applicant from enjoying its various premises, places of operation and work sites; 7. The applicant has established that the defendants and various persons acting upon and/or under their instructions or behest have, and continue, to engage in conduct which creates danger to the health and safety of those persons to whom the applicant has either statutory and/or contractual duty and responsibility to provide the above‑noted essential services. CONCLUSION On the whole of the evidence I am satisfied thatthe applicant has raised a substantial question to be tried;it has established a prima facie case of the violation by thedefendants of a right or rights that the applicant might have. The applicant has shown more than the mere prospect orapprehension of injury; it has shown that the defendants indoing that which the applicant alleges is in violation of itsrights and that the applicant is suffering in consequencethereof and that such suffering cannot be adequatelycompensated for by the award of damages in money. Further,that the balance of convenience in the matter favours theapplicant. There will, therefore, be an order granting tothe applicant an interim injunction until trial, or untilfurther order, the terms of which are as follows: TERMS OF INTERIM INJUNCTION The Defendants and each of them and any person acting under their instruction or behest and any member of the said Unions, or any other person having knowledge of this Order be and are, until the trial of this action, or until further order, hereby: (a) restrained from picketing except in an orderly manner at the various premises of the Plaintiff and particularly and without limiting the generality of the foregoing, at the Electrical Distribution Department, the Water and Pollution Control Department, the Engineering Department and the Transit Department owned and operated by the Plaintiff; (b) permitted to picket in an orderly manner, provided that such picketers must at all times remain in motion; (c) restrained from obstructing or blocking all places of entrance to or egress from each of the Plaintiff's noted Departments and related premises; (d) restrained from obstructing or blocking places of entrance to or egress from various work sites or places of operation of the Plaintiff away from the Plaintiff's various primary premises; (e) restrained from intimidating in any way the Plaintiff's employees and/or other persons seeking to do business with the Plaintiff and/or persons who receive various services performed by the Plaintiff; (f) restrained from trespassing on the Plaintiff's various premises or places of operation or work sites and without limiting the generality of the foregoing, are restrained from trespassing on the property occupied by the Plaintiff's noted Departments; and (g) restrained from watching and besetting the Plaintiff's various premises or places of operation or work sites and specifically, and without limiting the generality of the foregoing, the Plaintiff's noted Departments. COSTS The costs of and incidental to this application will, as agreed upon by counsel, be costs in the cause.

The City applied for an interlocutory injunction restraining the Defendant Unions from engaging in unlawful picketing. The City alleged that the members of the Defendant Unions obstructed and/or blocked entrances to and/or exits from various premises of the plaintiff including, inter alia, its Electrical Distribution Department, its Water and Pollution Control Department and its Water Treatment Plant thereby interfering with the plaintiff's statutory and contractual obligations to provide essential services to its citizens and others, and, as well, created a danger to the health and safety of its said citizens and others. The Defendant Unions did not file any materials. HELD: Application allowed. On the whole of the evidence the court was satisfied that the applicant had raised a substantial question to be tried, had established a prima facie case, was in danger of suffering injury which could not adequately be compensated for by the award of damages in money, and that the balance of convenience in the matter favoured the applicant.

b_1994canlii5130.txt

17 PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #1835715 HER MAJESTY THE QUEEN and Andre Detillieux T.B. Bekolay, P.C.J J. Kulyk, Q.C., CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. L. Balicki, Q.C., SANDERSON, BALICKI, POPESCUL LAW OFFICE, Prince Albert, SK. FOR THE DEFENCE. [1] Andre Detillieux stands charged that on or about the 11th day of November, 2001 at Paddockwood District in the Province of Saskatchewan did without reasonable excuse, fail to comply with a demand made to him by Cst. Rozario, a peace officer pursuant to Section 254(2)(a) of the Criminal Code, to provide forthwith a sample of his breath as in the opinion of Cst. Rozario was necessary to enable proper analysis of his breath to be made by means of an approved screening device contrary to Section 254(5) of the Criminal Code. [2] Cst. Rozario testified that he was on patrol in the Paddockwood District, Saskatchewan, on the date in question with “ride along”. He testified that the “ride along” had no duties and was simply with him. He chose not to disclose in his disclosure information the name of the “ride along” nor even that there was ride along. [3] He testified that at about 2:00 a.m., he noted the accused’s vehicle and decided to stop it to check out the driver’s license and registration. He testified that the accused’s vehicle swerved to the right-hand side of the highway more than necessary as he approached it. The accused stopped his vehicle once the officer engaged his emergency lights. The officer approached the driver’s side window. He noted the odour of alcohol coming from the accused’s vehicle. In response to question by the officer, the accused informed the officer that he had three beer the whole night. The last one having been consumed about two hours prior. The officer asked the accused to accompany him to the police vehicle where he placed him in the rear seat. He read to the accused the demand for sample of the accused’s breath for the road-side screening device. He turned on the instrument. He waited for the ready light to come on. He explained to the accused that he needed steady breath and that his lips had to be sealed over the mouthpiece. [4] The officer testified that when the accused began to blow he noted air escaping out of the side of the accused’s mouth. He ceased the test. ran another set of tests for the machine. The officer testified that when the ready light came on again, he explained that it was not proper sample; that the accused must take deep breath and blow until the officer told him to stop. note that the accused testified that he was only told once how to give proper sample although he did remember the officer telling him it was like blowing up balloon. For reasons which I will discuss later in this decision, where there is discrepancy between the testimony of the officer and that of the accused, I accept the evidence of the accused. [5] The officer said that he stopped the second test as the accused was blowing outside the mouthpiece again. The officer said he again explained to the accused what was required and that it was his last chance. waited for the ready light, then had the accused do the third try. He got an imbalance signal from the machine. The officer said he decided there was no change in how the accused was blowing. note that the officer made no mention of phoning another officer while administering the tests and informing that officer that he could not understand why things were not working as the accused appeared to be fully co-operative with him. accept the accused’s testimony that he did make such call and that indeed he did tell the other officer that he could not understand why he was not getting proper sample. [6] This was the officer’s first impaired case. He had only requested road-side test on one or two previous occasions. After the third test of the accused was not successfully completed, the officer read the accused the demand for sample of his breath for the breathalyser. He read the accused his Charter Rights. He began driving to the detachment in Prince Albert, some 30 miles away. [7] The officer testified that during this drive he spoke by telephone with his corporal who informed him that he should charge the accused with refusal on the alco-test. He did not inform the accused of this until he was back in the detachment in Prince Albert. He said the accused had confused look on his face when he told him there would be no breath test and he was being charged with refusal to provide breath sample. [8] The officer initially testified that he drove at speeds of 100 110 kilometres per hour on his way into town. After extensive cross-examination, he admitted that it was possible he had driven the 30 miles in about 15 minutes. He admitted to travelling at an excessive speed. The officer’s lack of cander in giving his testimony in this regard has raised doubts in my mind as to his forthrightness in respect to other important details in this matter. It is for this reason and as result of my observations of the accused while he was testifying that prefer the testimony of the accused over that of the officer where there is discrepancy. [9] The accused testified on his own behalf. As indicated, concluded that he gave his evidence in forthright manner and accept it without reservation. He testified that when the police vehicle approached his vehicle from the rear, its lights were very bright. He reached over and “flipped” the rear view mirror of his vehicle and pulled over to the right as he did not want this vehicle to continue to follow him. Then, the officer engaged the emergency lights on the police vehicle and he stopped. He said, and the officer admitted, that the officer was wearing white sunglasses placed on top of his head. This made the accused feel strange. He recalled being read “something”. He was told to blow into the machine. He blew. He testified that he did what the officer told him to do. He blew three times in all. During the blowing, he recalled the officer being on the telephone and saying “he seems to be fully co-operative. don’t know what’s going on.” He said, and fully accept his testimony, that he understood that he was being taken to Prince Albert to provide sample of his breath for breathalyser and he was happy to be doing that. [10] The accused testified that he was intimidated by the speed at which the officer drove back towards Prince Albert. He could not count the dotted lines in the highway because they were travelling so fast. There were three or four phone calls during that short trip. The last call came when they were at the pines just north of Prince Albert. After that the officer slowed down. He did not seem to be in rush anymore. He did not inform the accused of anything. Eventually at the detachment the accused said he was surprised when he was informed that he would be charged with refusal. The accused wrote on the Promise to Appeal served on him: “I did not refuse breathalyser”. [11] Although the accused had not told the young, inexperienced officer of why he thought he may have been having difficulty blowing sufficient sample for the officer, he did tell the court he is asthmatic. His asthma is worse when exposed to animal hair. The evening before he had helped his son skin deer which his son had just shot. He had to use his prescribed inhaler then and again at the party where he had had his two or three beer. do not conclude in any manner that this was indeed the reason why there was difficulties for the accused to blow into the machine. It is his attempt, think, to explain to himself why things did not work on the night in question. do not place any emphasis on this as being the reason for his failure to provide an adequate sample as more evidence would have to have been called in this regard for me to draw such conclusion. The Law and Analysis [12] The mental element of the offence of refusal created by Section 254(5) of the Criminal Code consists of intentional non-compliance. am satisfied on the evidence of the accused that he was not intentionally trying to avoid providing an adequate sample. He was attempting to supply sample as directed by the officer. The officer, in his conversation with another officer, during the tests said he could not understand what was going on. He could not understand why he was not getting proper sample. At minimum, I have a reasonable doubt that the officer did understand why he was not getting a proper sample. If the officer did not understand the reason why he was not getting an adequate sample, he could not provide the accused with adequate instructions for what he must do to provide an adequate sample. Hence, it is reasonably possible that the reason there was no adequate sample was that there was no adequate instruction as to how to provide the sample. [13] Therefore, I find the accused not guilty of the charge. DATED this 30th day of January, A.D., 2003, at the City of Prince Albert, in the Province of Saskatchewan. T.B. Bekolay, Provincial Court Judge

The accused was charged with failure to provide forthwith a breath sample contrary to Criminal Code s.254(5). HELD: The accused was found not guilty. The court accepted the evidence of the accused where there was a discrepancy between the testimony of the officer and the accused. The mental element of the offence of refusal consists of intentional non-compliance. The officer in his conversation with another officer said he could not understand why he was not getting a proper sample. There was a reasonable doubt that the officer did understand why he was not getting a proper sample and could not provide the accused with adequate instructions.

c_2003skpc17.txt

J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE LABOUR STANDARDS ACT, BEING CHAPTER L-1 OF THE REVISED STATUTES OF SASKATCHEWAN, 1978 AND IN THE MATTER OF THE CLAIM OF THE LABOUR STANDARDS BRANCH OF THE DEPARTMENT OF LABOUR FOR UNPAID WAGES BETWEEN: THE CITY OF REGINA and MINISTER OF LABOUR, LABOUR STANDARDS BRANCH and ALBERT MORGAN RESPONDENTS J.R. McLellan for the applicant G.J. Moran for the director of Labour Standards JUDGMENT LAWTON J. March 23, 1994 The Director of the Labour Standards Branch of theDepartment of Labour issued a certificate pursuant to s. 60 ofThe Labour Standards Act, R.S.S. 1978, c. L-1 (the "Act"),stating that the City of Regina (the "City") owed its transitemployee, Albert Morgan, $511.08 in wages. At the hearing,the Director filed a March 8, 1994, letter reducing theassessment to $318.41 (including annual holiday pay). The City brings this application to review theassessment. By ss. 10(1) and 6(2) of the Act, an employer isrequired to pay an employee at the rate of time and one-halffor every hour worked in excess of 32 hours in any weekcontaining a public holiday ("holiday"). The Director contends that from April, 1990, to January, 1994, there were five such weeks in which Morgan worked 40 hours but was not paid overtime for the eight excess hours. The hours in question were worked on April 12 and November 17, 1990, July 6, 1991, and January and December 31, 1992. It is noted that none of these days is holiday, but is the day in the week containing holiday when Morgan worked the eight excess hours. The Director says it is not holiday issue, but whether the City is obliged to pay overtime as required by the Act for hours worked over 32 in week which has holiday in it. The City says it is holiday issue, because the overtime arises only because there is holiday in the week in question. agree with the City. The existence of the holiday is an essential part of the issue. No holiday means no issue. The City filed various documents, including copies of the collective bargaining agreement (the "agreement") it has with the Amalgamated Transit Union, Local #588, which covers Morgan's employment with the City, and asked me to compare the agreement's holiday pay with the Act's holiday pay. Thematerials satisfy me that pursuant to the terms of theagreement: 1. during the period December 31, 1989, to January 2, 1993, the City paid Morgan 87 hours of pay in excess of the Act's requirements for hours worked in week containing holiday; and 2. for each of the specific weeks questioned by the Directorit paid Morgan 4 hours pay in excess of the Act\'srequirements. Both parties referred to s. 72 of the Act. 72(1) Nothing in this Act or in any order or regulation made under this Act affects any provision in any Act, agreement or contract of service or any custom insofar as it ensures to any employee more favourable conditions, more favourable hours of work or more favourable rate of wages than the conditions, the hours of work or the rate of wages provided for by this Act or by any other order or regulation. (2) Where any provision in this Act or in any order or regulation made under this Act requires the payment of wages at the rate of time and one-half, no provision in any Act, agreement or contract of service, and no custom, shall be deemed to be more favourable than the provision in this Act or in the order or regulation if it provides for the payment of wages at rate less than the rate of time and one- (3) Any provision in any Act, agreement or contract of service or any custom that is less favourable to an employee than the provision of this Act or any order or regulation made under this Act is superseded by this Act or any order or regulation made under this Act insofar as it affects that employee. The leading authority in interpreting ss. 72(1) and (2), formerly ss. 62(1), is Regina v. Caxton Printing Ltd. and Central Press (1953) Ltd., 1977 CanLII 1452 (SK CA), [1977] W.W.R. 410, decision of the Saskatchewan Court of Appeal. Caxton, found guilty at trial of failing to pay overtime wages as required by the Act, appealed and won in the Court of Appeal on the ground that the collective bargaining agreement was more favourable to Caxton's employees than the Act. The Court held that "deemed" in ss. 71(2) meant "deemed until the contrary is proved", and the Court was satisfied by the material before it that the collective bargaining agreement was more favourable to the employees than the terms of the Act. Bayda J.A. (as he then was) stated at pp. 419 and 421: In determining whether any provision in an agreement prescribing rate of pay is more favourable than its counterpart contained in the Act, should that provision be isolated from the rest of the agreement and be treated as unaffected by the other provisions of the agreement dealt with in vacuo so to speak and the comparison between it and its counterpart in the Act then made, or should that provision and its effect be first evaluated in the light of the other provisions of the agreement then, only after such evaluation has take place, should the comparison be made. [M]y conclusion is that the legislature intended the rate-of-pay provision in any agreement to be read and evaluated in the light of the other provisions of the agreement before comparison is made with its counterpart in the Act. That the legislature contemplated that it should be left open to demonstrate that provision (in an agreement) on its face less favourable than its counterpart in the Act is, in fact, more favourable than the latter is evident not only from the wording of the section but from the decision itself to include the second branch of S62(1) in the section. note that in Justice Bayda's view the "manifest", "avowed" purpose of the Act is "to provide employees with working conditions and standards as favourable to them as possible." Unlike the Caxton, supra, case, do not have great deal of evidence before me to show just how much more favourable the agreement is than the Act. There is some, but not much. do have, however, the admission of the Director that such is the case. He admits that over all the agreement is more favourable to the employee than the minimum standards set out in the Act. He further admits that the agreement's provisions governing pay for holidays are more favourable than the comparable provisions in the Act. have no difficulty therefore in concluding that in the circumstances of this case the provisions of the agreement are more favourable to Morgan than the terms of the Act. That being the case, in light of the Caxton, supra, decision, the provisions of the agreement should govern, and not those of the Act. The City\'s application is allowed, and thecertificate is amended to show that there are no wages due orowing to Albert Morgan. There will be no order as to costs.

The Director of Labour Standards issued a certificate against the City of Regina certifying that it owed a transit employee $318.41 in wages for hours worked in weeks containing a statutory holiday in excess of 32 hours as provided in the Labour Standards Act. The City applied for a review. HELD: The City's application was allowed. Under the terms of the collective agreement in force, the employee was actually paid 4 hours pay in excess of the Act's requirements for each of the weeks in question. Pursuant to section 72 of the Act, therefore, these particular terms of the collective agreement applied since they were, when considered in light of the balance of the agreement, more favorable to the employee than the requirements of the Act.

1994canlii5095.txt

J. DIV A.D. 1997 236 J.C.Y. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: STELLA HLYNSKI and MICHAEL HLYNSKI B. Banilevic for the petitioner S. Stradecki for the respondent FIAT PRITCHARD J. July 8, 1998 [1] On May 12, 1998 delivered judgment under which exclusive possession and ownership of the matrimonial home was granted to the petitioner, Stella Hlynski ("Stella"). At trial, both Stella and her husband Michael Hlynski ("Mike") had been seeking an order for exclusive possession of the matrimonial home. At the time of the trial, they were leading separate lives but under one roof as neither of them would vacate the home. [2] Stella is 71 years of age and Mike is 77 years of age. Given Mike's age, the court did not want to specify date that he had to move from the matrimonial home. It was hoped that satisfactory alternate arrangements could be made within reasonable time to avoid the potential of Mike having to make interim move to satisfy the time limit in court order when his preferred accommodations might be available shortly thereafter. Because of this concern, the final paragraph of the judgment reads: "[18] The parties have been married for over 25 years and are now senior citizens. Although this Court has ordered that Stella is entitled to exclusive possession of the matrimonial home, it is expected that counsel will assist the parties in determining reasonable time period for Mike to move from the matrimonial home. If necessary, the court is prepared to provide directions in that regard." [3] By letter dated June 9, 1998, Stella's counsel advised the court that Mike would not leave the matrimonial home and that further directions from the court would be required. The matter was then scheduled to be heard on June 19, 1998. In the meantime, notice of appeal of the judgment was filed on behalf of Mike. [4] On June 19, 1998, counsel for Mike took the position that with the filing the notice of appeal, this court became functus. Counsel for Stella did not agree and argued that notwithstanding the filing of the notice of appeal, this court could still proceed to provide the requested directions. [5] The issue resolves around the interpretation ofsubclauses (1) and (4) of Rule 15 of the Court of AppealRules which provide: "15(1) Unless otherwise ordered by the judge appealed from or by judge, the service and filing of notice of appeal does not stay the execution of judgment or an order awarding mandamus, an injunction, alimony, or maintenance for spouse, child or dependant adult. Unless otherwise ordered by judge, the service and filing of notice of appeal stays the execution of any other judgment or order pending the disposition of the appeal. (Forms 5a and 5b) 15(4) Where judgment or order is stayed pending an appeal, all further proceedings in the action, other than the issue of the judgment and the taxation of costs under the judgment, are stayed, unless otherwise ordered." [6] Stella argues that the order for exclusive possession is an injunction and therefore it is not stayed by the notice of appeal. Alternatively, she argues that the giving of directions by this court as contemplated by the judgment itself would not constitute the taking of any "execution of the judgment" or the taking of any "further proceedings in the action" and therefore, would not contravene Rule 15. [7] No caselaw in support of the position of eitherparty could be found. The issue as to whether Rule 15 operates to stay an order of exclusive possession was raised in Young v. Young, 1986 CanLII 3216 (SK CA), R.F.L. (3d) 314, but not decided. also find it unnecessary to decide the issue. Although it may be arguable that in the circumstances of this case the giving of the requested directions would not contravene Rule 15, am no longer prepared to do so. The matter is nowbefore the Court of Appeal and unless directed by it to thecontrary, all applications herein should be made to thatCourt. J.L.G PRITCHARD, J.

FIAT. Exclusive possesson and ownership of the matrimonial home was granted to the petitioner in May 1998. At the time of the trial they were leading separate lives but under one roof as neither would vacate the home. Given the respondent's age (77) the court did not want to specify a date that he had to move from the home. He had not left the home and the matter was scheduled to be heard June19/98. In the meantime a notice of appeal of the judgment was filed on behalf of the respondent. At issue was the interpretation of ss(1) and (4) of s15 of the Court of Appeal Rules. The respondent's counsel took the position that with the filing of the notice of appeal this court became functus. The petitioner argued the order for exclusive possession is an injunction and therefore is not stayed by the notice of appeal. Alternatively that the giving of directions as contemplated by the judgment itself would not constitute the taking of any 'execution of the judgment' or the taking of any 'further proceedings in the action' and therefore would not contravene Rule 15. HELD: All applications should be made to the Court of Appeal as the matter was now before that court. No case law could be found in support of either party. It was unnecessary to decide the issue as to whether Rule 15 operates to stay an order of exclusive possession.

1998canlii13585.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 322 Date: 20060718 Docket: Q.B. 1287/2005 Judicial Centre: Saskatoon BETWEEN: IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON WINSTON McKAY and MAY HENDERSON DEFENDANT J.S. Abrametz for the plaintiff (respondent) D.A. Racine for the defendant (applicant) FIAT GEREIN, J. July 18, 2006 [1] This is an application for an order striking out the plaintiff’s claim in defamation. I decline to grant the order. THE APPLICATION [2] The application is brought pursuant to Queen’s Bench Rule 173 which provides: 173. The Court may at any stage of an action order any pleading or any part thereof to be struck out, with or without leave to amend, on the ground that: (a) it discloses no reasonable cause of action or defence, as the case may be: (c) it is scandalous, frivolous or vexatious; (e) it is otherwise an abuse of the process of the Court; and may order the action to be stayed or dismissed or judgment to be entered accordingly or may grant such order as may be just. Unless otherwise directed, the offending party shall pay double the costs to which the other party would otherwise be entitled. The grounds in support of the application, as set out in the notice of motion, are these: 1. The Plaintiff’s Statement of Claim discloses no reasonable cause of action. The Statement of Claim does not provide any details of the incidents such as time, place, and audience relating to the alleged defamatory statements. The Statement of Claim does not allege that any of the statements were published by the Defendant. The facts as pleaded would not constitute defamation in law even if proven to be true. 2. The claim is scandalous, frivolous and vexatious. The Plaintiff fails to plead the means by which the statements were made or the dates when, and locations where, such statements were made thus depriving the Defendant of the ability to identify the acts or omissions or the incidents that are alleged to constitute cause of action. The Plaintiff fails to plead any facts as to the dates on which these statements were supposed to have been made, and deprives the Plaintiff of the ability to address the applicable limitation period. 3. As the Plaintiff fails to address the most basic elements of cause of action in defamation, the claim lacks substance and merely serves to scandalize and annoy the Defendant. As such, the Statement of Claim in its entirety is scandalous, frivolous and vexatious and otherwise an abuse of the process of this Honourable Court. While the grounds are set out in three paragraphs, the first two largely say the same thing: that the statement of claim discloses no reasonable cause of action. The last speaks of the claim being scandalous, frivolous and vexatious and an abuse of process. [3] The affidavits of several individuals, including the defendant, have been filed in support of the application. In each of them certain conduct of the defendant is described in some detail. However, they make no reference to the alleged defamatory remarks. THE STATEMENT OF CLAIM [4] This statement of claim alleges malicious defamation on the part of the defendant. The important paragraphs are these. 5. The Defendant, May Henderson, has verbally stated the following and thereby did so publish with respect to the Plaintiff, Winston McKay, to the Saskatoon Indian Metis Friendship Centre board members including Lorraine Hessdorfer, Pat Caron, Shauna Trotchie, Kelly Pruden, Julia M. Durocher, F. Maurice and Rick Daniels on or about the first week of June, 2005; (a) “Winston McKay has been verbally abusive to me for over year”; (b) “Winston McKay’s verbal abuse against me has escalated to physical abuse”; (c) “Winston McKay has harassed employees of the Saskatoon Indian Metis Friendship Centre” and particularly that “he has harassed me”. (d) “Winston McKay has guns and is violent and am afraid he will shoot me”. (e) “Winston McKay should be committed” (meaning to psychiatric treatment). 6. The foregoing statements made by the Defendant, May Henderson, with regard to the Plaintiff, Winston McKay, are untrue and are meant and understood to mean that the Plaintiff, Winston McKay, is untrustworthy, dishonourable, violent, brutish, misogynist and dangerous. 7. The Plaintiff states that, May Henderson’s actions constitute repeated attempts at character assassination of Winston McKay have led to his unjust and wrongful dismissal from the Board of the Saskatoon Indian Metis Friendship Centre. The Plaintiff states the Defendant has breached her duty of care to refrain from defaming the Plaintiff. Alternatively, the Plaintiff states the Defendant was negligent in that regard. 8. The statements made by the Defendant have alleged criminal misconduct, and he has suffered damages thereby. 9. The statements made by the Defendant, May Henderson, were malicious, highhanded and calculated to disparage the Plaintiff in his profession, calling and trade carried on by him at the time they were made. The statements have brought the Plaintiff, Winston McKay’s reputation into disrepute in the Indian and Metis community in Saskatoon, and have undermined his intention to seek an elected position as member of the Saskatchewan Legislative Assembly. The plaintiff then goes on to claim damages in excess of $25,000.00. [5] In Sagon v. Royal Bank of Canada et al. (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 (C.A.), at p. 139, the test to be applied on applications such as this was set out as follows. In determining whether claim should be struck as disclosing no reasonable cause of action, the test is whether, assuming the plaintiff proves everything alleged in his claim, there is nevertheless no reasonable chance of success, or to put it another way, no arguable case. The court should exercise its jurisdiction to strike on this ground only in plain and obvious cases and where the court is satisfied that the case is beyond doubt: Contrary to the submissions of counsel for the defendant, all the essential elements of a claim in defamation are set out. That being so, a reasonable cause of action is disclosed and the quoted test has not been met. [6] At the hearing of the application counsel for the defendant argued that the claim should be dismissed because the defendant can claim qualified privilege. description of that privilege is found in The Law of Defamation In Canada by Raymond E. Brown; 2nd ed., 1994, Thomson Canada Limited, vol. pg. 673. The defendant must establish that the words spoken or written were published on lawful occasion, that is one “fairly warranted by some reasonable occasion or exigency”. There must be some mutuality of interest or duty between the publisher and recipient. Reciprocity of interest is essential. It must be shown that the publisher had some duty or interest in making the communication, and those to whom it was made had some interest in receiving it, or at least he or she was acting on behalf of someone who had such an interest. However, it must not involve the satisfaction of some duty or interest which is unlawful or contrary to the public interest. See also Haight-Smith v. Neden (2002), 2002 BCCA 132 (CanLII), 211 D.L.R. (4th) 370 and McLoughlin v. Kutasy, 1979 CanLII 39 (SCC), [1979] S.C.R. 311. [7] There may be merit to the defendant’s claim, but it cannot be dealt with in this application. While several affidavits were filed, none of them speak to the circumstances wherein the impugned remarks were made. Most importantly, there is no assertion by the defendant that the remarks were made in the course of her duties or were received by persons with a corresponding duty. [8] recognize that the statement of claim speaks of the remarks being made to board members. However, that phrase may only be descriptive of the persons. In any event, it does not establish that the persons were carrying out some board function at the relevant time. [9] Furthermore, the statement of claim alleges malice. The plaintiff must be afforded an opportunity to establish that. Counsel for the defendant submits that the affidavits filed serve to negative malice. do not agree. Accordingly, cannot say the claim is vexatious or frivolous. [10] further and final submission was made by counsel for the defendant purportedly based on the decision in Mitchell v. Gilpin (2004), 2004 SKQB 311 (CanLII), 250 Sask. R. 246 (Q.B.). The circumstances of that case were markedly different than in this case before me. The plaintiff, Mitchell, was teacher about whom complaints had been made. In the end, Mitchell’s contract of employment was terminated for reasons other than the complaints. She sought redress in respect of the termination and when she was unsuccessful she commenced an action for defamation. [11] On an application to strike the claim, it was decided that the complaints of the defendant related to the workplace and were dealt with in accordance with the regime established for the purpose of dealing with workplace problems. That being so, it was held that it would be an abuse of process to permit the plaintiff to pursue the same matter in this forum. Therefore, the claim was struck. [12] In the instant case, there is no evidence before me about the circumstances surrounding the several remarks. do not even know that the defendant made the remarks, let alone any reason for doing so. Accordingly, it cannot be said that she fits within situation like that in the Mitchell case. It follows that this submission must be rejected. [13] In the result, the application is dismissed. The plaintiff will have his costs which are fixed at $400.00 in any event of the cause.

FIAT: This is an application for an order striking out the plaintiff's claim in defamation pursuant to rule 173 of the Queen's Bench Rules. HELD: The court declined to strike the claim. 1) Contrary to the submissions of counsel for the defendant, all essential elements of a claim in defamation are set out. A reasonable cause of action is disclosed. 2) None of the affidavits filed speak to the circumstance wherein the impugned remarks were made. Most importantly, there is no assertion by the defendant that the remarks were made in the course of her duties or were received by persons with a corresponding duty.

7_2006skqb322.txt

J. Court No. 2402 IN THE QUEEN'S BENCH PROVINCE OF SASKATCHEWAN IN BANKRUPTCY IN THE MATTER OF THE BANKRUPTCY OF BRENT ASHTON BETWEEN: THOMAS BURKE MOODY, PATRICK MOODY and DARREL MOODY PETITIONERS and BRENT ASHTON RESPONDENT J.M. Lee for the petitioners R.J. Dumonceaux for the respondent JUDGMENT BARCLAY J. February 12, 1997 This is an application by the petitioners, ThomasBurke Moody, Patrick Moody and Darrel Moody (the Petitioners),for a receiving order against the respondent, Brent Ashton(Ashton). FACTS The Petitioners are three brothers from the Districtof Perdue, Saskatchewan who carry on a family farm operationand who operate a family-owned farm implement dealershipbusiness. In 1985, the accountant for the Petitioners was Lorne Broten of the Saskatoon accounting firm of Chamberlain, Broten McKenzie. Mr. Broten recommended to the Petitioners that they become involved in certain real estate partnerships, in order to derive certain tax advantages. Relying upon Mr. Broten's advice, the Petitioners invested in these partnerships. The two real estate partnerships in which thePetitioners invested were known as "Key West Carleton" and "KWProperties" ("the Partnerships"). The Partnerships are currently comprised of seven individuals, including the Petitioners and four other individuals, namely: (a) Mr. Broten, who now resides in Surrey, British Columbia; (b) Jack Picketts of Asquith, Saskatchewan; (c) Lionel Labelle of Saskatoon, Saskatchewan; and (d) Ashton, of Saskatoon, Saskatchewan. The Partnerships own various apartment buildings in Saskatoon, Saskatchewan, as well as various other commercial real estate holdings ("the Properties"). The acquisition and operation of the Properties by the Partnerships have been financed by various lenders ("the Lenders"), including Royal Bank of Canada and Federal Business Development Bank. The Lenders hold various mortgages on the properties ("the Mortgages"). In order to obtain waivers of The Limitation of Civil Rights Act, R.S.S. 1978, c. L-16, in respect of the Mortgages, the Lenders have required that title to the Properties be held in the name of various nominee corporations controlled by the Partnership. The individual members of the Partnerships have then personally guaranteed repayment of the Mortgages to the Lenders. Over the years between 1985 and the present date, the Partnerships have been operated through various nominee corporations and trust arrangements and have operated under various business names. Further, the membership of the Partnerships has changed from time to time, as new member Ashton joined the Partnerships and former member (Del Peters) left the Partnerships. Changes in the membership of the Partnerships have occurred by unanimous agreement between the existing members of the Partnerships. By means of "Partnership Agreement" dated May 1, 1985 ("the 1985 Partnership Agreement"), the "K.W. Properties" partnership was formed, comprising the Petitioners, Mr. Broten, Mr. Labelle, Mr. Picketts and Del Peters of Saskatoon, Saskatchewan. The members of the K.W. Properties partnership each became shareholders of nominee corporation known as Key West Developments Ltd. ("Developments"). Relations between these seven shareholders were governed by "Shareholder's Agreement" dated May 1, 1985 ("the 1985 Shareholders Agreement"). By his signature to the January 23, 1986 Addendum to the 1985 Partnership Agreement, Ashton agreed to become member of the K.W. Properties partnership and agreed to be bound by the 1985 Partnership Agreement, including paragraphs and 15 of the 1985 Partnership Agreement, which read as 7. All expenses incurred in the course of the business and any losses arising therefrom shall be borne out of the earnings of the business, or in the case of deficiency, the losses shall be paid by the parties hereto in accordance with their shares as shown in attached Schedule 15. If the partnership requires additional money for the bona fide operation of its business, then each of the partners agrees that he will within ten days of the mailing of the notice to this effect by the board to all the partners, lend to the partnership his proportionate share of additional funds as may be required. The proportionate share shall be in accordance with the respective partnership interests. If any partner fails to lend to the partnership his proportionate share as provided within the time limit, then any other partner may advance this money to the partnership and shall immediately be entitled to recover from the defaulting partner the amount of such advance plus interest at the rate of the Royal Bank of Canada's prime commercial lending rate of interest plus 3% per annum to the date of payment. All interest of the partnership owned or controlled by such defaulting partner, and all loans payable by the partnership to such defaulting partner, shall thereafter be deemed to be charged (for all purposes) with the amount of such advance plus interest at the same rate until paid, provided; however, that any decision to invest additional funds for any new project shall require the unanimous consent of the partners. added). By January 1, 1989, the K.W. Properties partnership had acquired ownership of several apartment buildings in Saskatoon, as well as additional commercial real estate properties in Saskatoon and in the Province of Ontario. It was decided by the members of the K.W. Properties Partnership to create new real estate partnership to be known as the "Key West/Carleton" Partnership ("Key West/Carleton"), to be comprised of the same eight individuals who had comprised the K.W. Properties Partnership. It was also decided that equitable title to the properties previously owned by Developments would be transferred to Key West/Carleton, and that Developments would thereafter hold title to these properties as mere trustee for Key West/Carleton. No formal partnership agreement has ever been prepared in respect of Key West/Carleton. However, from 1989 to the present date, the members of the Key/West Carleton partnership have continued to conduct themselves as equal members of real estate partnership who are each entitled to their respective share of the profits of that partnership and who are each liable for their respective share of the loses of that partnership. Over the years between 1989 and the present date, the Partnerships have sustained heavy ongoing losses, which have resulted in the need for significant injections of capital contributions to the Partnerships. For the most part, these capital contributions have been funded largely (if not entirely) by the Petitioners. The remaining partners have not paid their respective shares of capital contributions to the Partnerships. The Petitioners have continually been required to advance additional capital contributions to the Partnerships (over and above their respective proportionate shares) on behalf of the defaulting partners, in order to prevent the Partnerships from defaulting on the Mortgages. Notwithstanding that the ongoing operations of the Partnerships have been funded primarily by the Petitioners, the business losses of the Partnerships have always been allocated equally among the partners and claimed by each of the partners as personal business losses on an equal basis. As result, the defaulting partners have obtained the benefits of business losses from the Partnerships, which business losses they have been able to use to offset their other sources of income and to decrease their personal income tax liability by very significant amounts. In the result, the defaulting partners (including Ashton) have been obtaining the benefits of the Partnerships (in the form of reduced income taxes resulting from business losses) without paying for them. This situation has been ongoing since at least 1989. Procedural History of This Bankruptcy Petition The petition was issued by the Registrar in Bankruptcy on July 25, 1996. On that same date, the Registrar in Bankruptcy granted an ex parte order ("the Preservation Order") directed against each of Ashton, his wife, Susan Ashton and his holding company, Ashton Holdings Ltd., requiring each of them to preserve and retain intact and in specie various market securities ("the Securities") previously owned by Ashton Holdings Ltd. and purportedly "seized" by Susan Ashton pursuant to an alleged security interest granted in her favour by Ashton Holdings Ltd. In response to the petition, Ashton filed notice of disputing petition. The petition came on for hearing in Bankruptcy Court in Saskatoon on August 22, 1996. The Court granted to the Petitioners an order requiring Ashton to submit to cross-examination on his affidavit and his notice disputing petition. The cross-examination of Ashton on his affidavit and his notice disputing petition took place on September 19, 1996. Acts of Bankruptcy Relied Upon by the Petitioners Paragraph 4 of the petition alleges that Ashton hascommitted three acts of bankruptcy within the six months priorto the filing of the petition, namely:(a) he has ceased to meet his liabilities generally as theybecome due, having ceased to make payments to the threePetitioners in February and March of 1996, and continuing tofail the Petitioners to the present date;(b) he has made or caused to be made a fraudulent conveyance,gift, delivery or transfer of his property, by causing orpermitting his interest in the Securities, comprising theprincipal asset of his wholly owned holding company, AshtonHoldings Ltd., to be "seized" or realized upon by his wife,Susan Ashton, pursuant to an alleged security interest in theSecurities granted to her by Ashton Holdings Ltd., for thepurpose of sheltering those assets and putting them beyond thereach of Ashton\'s creditors; and(c) he has assigned, removed, secreted or disposed of hisproperty with intent to defraud, defeat or delay hiscreditors, by causing or permitting his interest in theSecurities to be purportedly "seized" by his wife, SusanAshton, in the manner described above in paragraph 8(b)hereof. At the hearing the Petitioners relied solely on the first act of bankruptcy alleged against Ashton, namely: that he has ceased to meet his liabilities generally as they become due, by having ceased to pay the Petitioners. The two real estate partnerships that are the subject of these proceedings are the "KW Properties" partnership and the "Key West Carleton" partnership. Ashton has admitted that he is member of the KW Properties partnership and has been member of that partnership continuously from January of 1986 to the present date. He admits that the other six members of the KW Properties partnership are the Petitioners, Lorne Broten and Jack Picketts. Ashton admits that the relationship between the seven partners in KW Properties are governed by the 1985 Partnership Agreement, supra, pp. and 4. Ashton admits that he has also been member of the "Key West Carleton" partnership continuously from 1989 to the present. He also admits that, notwithstanding that he was not originally involved in the decision to create the Key West Carleton partnership, he subsequently agreed to become member of that second partnership. Ashton acknowledges that "Key West Carleton" is partnership comprising himself, the Petitioners, Jack Picketts, Lionel Labelle and Lorne Broten (i.e. the same seven persons comprising the KW Properties partnership). He acknowledges that there was no written partnership agreement in place for Key West Carleton. Ashton admitted that he knew that the two partnerships owned real estate properties in Saskatoon, and that various lenders had mortgages on these properties. He knew that he had personal liability to these lenders through his involvement in the two partnerships. Ashton admitted that it was not uncommon for the partnerships to run short of monies required to pay their mortgage debts. When that occurred, the partnerships would make calls on individual partners to contribute more money to the partnerships. "Statement of Partners' Equity" for each of KW Properties and Key West Carleton for the year ended December 31, 1994 show the total relative financial contributions to the two partnerships made by each of the seven partners. Ashton admits that he knew that, if the partnerships failed to meet their obligations to the lenders on the mortgages, the banks would have called the loans and the partners would have faced liability to the banks. He quite candidly admits that he was called upon to make additional capital contributions to the partnerships (including throughout 1994 and 1995), but that he did not do so. Ashton knew that, if he did not pay his share of the monies necessary to fund the mortgage debts of the partnerships, somebody else would have to pay on his behalf, or else the bank would call the mortgage. Notwithstanding this knowledge Ashton frequently refused to make these contributions to the partnerships when asked to do so. He was told repeatedly over the last five years that the Petitioners were paying more into the two partnerships than he was. Ashton admitted that he expected to derive tax advantages from being involved in these two partnerships. He further admitted that, as result of his involvement in the two partnerships, he claimed business losses (to deduct against his income, in order to reduce the amount of tax paid by him) in the following amounts for the following tax years: Business Losses Claimed Tax Year By Brent Ashton 1989 86,013 1990 83,637 1991 70,050 1992 26,931 1993 24,426 1994 6,990 1995 17,261 Total $315,308 1. Have the Petitioners proven to the satisfaction of the Bankruptcy Court that the respondent is indebted to them in an amount exceeding One Thousand ($1,000.00) Dollars? 2. Have the Petitioners proven to the satisfaction of the Bankruptcy Court that the respondent has committed an act of bankruptcy within the six months preceding the filing of the 3. In any event, is it appropriate for the Bankruptcy Court to grant the receiving order requested? 4. If the Bankruptcy Court is satisfied that the receiving order should be granted, is it appropriate to extend the Preservation Order? The Petitioners Have Proven That the Respondent is Indebted to Them in An Amount Exceeding One Thousand ($1,000) Dollars Section 43(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 ("the BIA") requires that petitioning creditor must allege in its petition: (a) that the indebtedness owing to it by the respondent debtor amounts to at least one thousand dollars; and (b) that the debtor has committed an act of bankruptcy within six months next preceding the filing of the petition. Section 43(6) of the BIA provides that the Bankruptcy Court shall require proof of the facts alleged in the petition. The section also provides that, if the Bankruptcy Court is satisfied with the proof of such facts, it may make receiving order against the respondent debtor. Paragraph of the petition alleges that Ashton was justly and truly indebted to the three Petitioners in the following amounts as at May 31, 1996: (a) Debt owed by Ashton to Thomas Burke Moody: $117,716.92 (b) Debt owed by Ashton to Patrick Moody: 50,286.77 (c) Debt owed by Ashton to Darrel Moody: $110,753.66 These debts are verified by affidavits filed by the Petitioners. The facts relied upon by the Petitioners to prove the indebtedness owed to them by Ashton comprise the uncontroverted evidence as to the facts described above. Ashton admits all of these facts. Very briefly, the Petitioners allege (and Ashtonadmits): (a) that the three Petitioners, Ashton, and three other individuals were equal members of two real estate partnerships; (b) that the KW Properties partnership was governed by written partnership agreement, while the Key West Carleton partnership had no written partnership agreement; (c) that the two real estate partnerships owned real estate properties and owed money to various lenders on mortgages registered against these properties; (d) that the partnerships very frequently ran short of funds to meet their mortgage payments and subsequently called upon the seven partners to contribute additional monies to the partnerships for that purpose; (e) that Ashton frequently did not contribute the additional monies required of him by the partnerships. In particular, he has made no financial contributions to the partnerships since 1993; (f) that when Ashton failed to contribute his share of additional monies to the partnerships, the other six partners had to contribute additional monies to the partnerships on his behalf and in his place and stead; (g) that the three Petitioners contributed the vast majority of the additional monies required by the partnerships over the last four years; (h) that as result of Ashton's failure to make his share of contributions to the partnerships, as at May 31, 1996, Thomas Burke Moody had contributed an additional $117,716.92 to the partnerships on behalf of Ashton and in the place and stead of Ashton; (i) that as result of Ashton's failure to make his share of contributions to the partnerships, as at May 31, 1996, Patrick Moody had contributed an additional $50,286.77 to the partnerships on behalf of Ashton and in the place and stead of Ashton; (j) that as result of Ashton�s failure to make his share of contributions to the partnerships, as at May 31, 1996, Darrel Moody had contributed an additional $110,753.66 to the partnerships on behalf of Ashton and in the place and stead of Ashton; (k) that Ashton has received substantial tax advantages as aresult of his involvement in the two partnerships. Further, and in particular, as result of his involvement in the two partnerships, Ashton has claimed business losses totalling $315,308.00 on his personal income tax returns and has thereby saved total of $108,625.65 in personal tax liability; and (l) that Ashton has claimed share of the business losses of the two partnerships equal to those shares of his six fellow partners, notwithstanding that he has only made fraction of the additional contributions to the partnerships that have been made by his fellow partners. In my view the Petitioners have established that Ashton is very clearly indebted to them in the amounts claimed. With respect to the KW Properties partnership, that conclusion is clear by reason of para. 15 of the 1985 Partnership Agreement, whereby partners called upon to make advances on behalf of their defaulting partners are entitled to recover those amounts as debts owing to them by the defaulting partners. With respect to the Key West Carleton partnership, that result is clear from consideration of The Partnership Act, R.S.S. 1978, c. P-3 and the common law of partnership. Sections 26(1) and 26(2) of The Partnership Act read as follows: 26. The interests of partners in the partnership property and their rights and duties in relation to the partnership shall be determined, subject to any agreement express or implied between the partners, by the following rules: 1. All the partners are entitled to share equally in the capital and profits of the business and must contribute equally towards the losses whether of capital or otherwise sustained by the 2. The firm must indemnify every partner in respect of payments made and personal liabilities incurred by him: (a) in the ordinary and proper conduct of the business of the firm; or (b) in or about anything necessarily done for the preservation of the business or property of the firm. These statutory provisions appear largely to be codification of the common law. In Lindley on Partnership, 11th Edition (London: Sweet Maxwell, 1950), the learned author states (at 470): In the absence of any agreement to the contrary, partners are liable to share losses equally, but if it has been agreed that profits shall be divided in certain proportion, the inference in the absence of any agreement to the contrary is that losses are to be shared in the same proportion. As general rule, therefore, if one partner has been compelled to pay more than his share of partnership debt, or if, in properly conducting the affairs of the firm, he has personally incurred liability, he is entitled to be indemnified by his co-partners so far as may be necessary to place all on footing of equality. The Petitioners Have Proven That the Respondent Has Committed An Act of Bankruptcy Within Six Months Prior to the Filing of the Petition The Petitioners demanded from Ashton full payment of the amounts owed to them on July 6, 1996. similar demand had previously been made on Ashton on February 23, 1996. Notwithstanding these demands, Ashton has failed or refused to pay the Petitioners. As I am satisfied that Ashton is indebted to thePetitioners in the amounts claimed, then it is clear that hehas ceased to meet his liabilities generally as they becomedue. It is common ground that Ashton has paid nothing towardhis partnership obligations since 1993. The Petitioners have repeatedly demanded that he pay the indebtedness owing to them. No adequate explanation has been offered by Ashtonfor his failure to pay his partnership obligations. In the circumstances, this act of bankruptcy has been proven. It is Appropriate for the Bankruptcy Court to Grant this Receiving Order In my view there is evidence of no extenuatingcircumstances which would warrant the Court refusing to granta receiving order. The material discloses the very substantial financial hardships visited upon the Petitioners as result of Ashton's refusal to pay the indebtedness owed by him. Further, the evidence establishes that Ashton is awealthy individual who is quite capable of paying his debts,but has simply chosen not to do so. He earned over $1.4 million dollars in his last four years as professional hockey player in the NHL. He has the means to pay his debts and should be required to do so. Therefore a receiving order shall issue. The Extension of the Preservation Order Evidence obtained at the cross-examination of Ashton establishes that the majority of his wealth is contained in the Securities purportedly "seized" by his wife, Susan Ashton, in the spring of 1996. therefore continue the preservation order for 30 days, in order to permit the Trustee in Bankruptcy to assess the situation, consult with the inspectors and determine whether or not the bankruptcy estate wishes to take action to challenge these transactions pertaining to the Securities. Costs may be spoken to.

Three brothers who carried on a family farm operation and family farm implement dealership applied for a receiving order against the respondent who had been in two real estate partnerships with them. The Partnerships sustained heavy operating losses since 1989 and the petitioners had made large capital contributions on behalf of the defaulting partners in order to prevent the Partnerships from defaulting on the mortgages. The defaulting partners obtained the benefits of business losses which they used to offset their other sources of income and to decrease their personal income tax liability by significant amounts, obtaining benefits without paying for them. The petitioners alleged that Ashton had committed three acts of bankruptcy within the six months prior to filing the petition including ceasing to pay liabilities as they became due in failing to make payments to the petitioners, making a fraudulent conveyance to his wife and disposing of his property with intent to defraud or defeat his creditors by permitting his interest in the Securities to be purportedly seized by his wife. HELD: A receiving order was granted. 1)No adequate explanation was offered by Ashton who was a wealthy individual for his failure to pay his partnership obligations. It was common ground that Ashton had paid nothing toward his partnership obligations since 1993. The defendant admitted that he was indebted to the petitioners in the amount of approximately $278,758 and that he had received substantial tax advantages as a result of his involvement in the two partnerships. 2)The majority of the respondent's wealth consisted of the Securities purportedly seized by his wife in 1996. The preservation order was continued for 30 days to permit the Trustee in Bankruptcy to determine whether the bankruptcy estate wished to challenge these transactions.

3_1997canlii11217.txt

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Foster-Jacques Jacques, 2011 NSSC 290 Date: 20110713 Docket: 1201-64463, SHFD-069582 Registry: Halifax Between: Sharon Foster-Jacques v. Hector Jacques Respondent LIBRARY HEADING Judge: The Honourable Justice Beryl A. MacDonald Heard: June 28, 2011 in Halifax, Nova Scotia Written Decision: July 13, 2011 Key Words: Family, Application to seal contents of court file Legislation: Civil Procedure Rules 59.60, 85.04(1) Summary: In response to media request to view the contents of the parties’ court file, both parties applied to have their file sealed. Result: The applications to seal the file were granted. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Foster-Jacques Jacques, 2011 NSSC 290 Date: 20110713 Docket: 1201-064463 Registry: Halifax Between: Sharon Foster-Jacques v. Hector Jacques Respondent Judge: The Honourable Justice Beryl A. MacDonald Heard: June 28, 2011, in Halifax, Nova Scotia Counsel: Gordon Kelly Adrienne Bowers, Counsel for the applicant William L. Ryan, Q.C. Sarah Scott, Counsel for the respondent Alan V. Parish, Q.C., Counsel for Coltsfoot Publishing Limited By the Court: [1] The Petitioner and the Respondent in this Divorce proceeding have both requested an order to seal the contents of their divorce file. They have done so after receiving a request from the media to examine that file. The media request was made according to the provisions of Civil Procedure Rule 59.60. The relevant provisions of that rule are: (4) person, other than party or counsel for party, who requests access to court file must give written notice to the parties no less than 20 days before obtaining access. (5) party may make motion for an order sealing all or part of the court file after delivery of written notice of the request for access. (6) The person requesting access to the court file must be granted access, subject to any terms or conditions the judge specifies, unless party makes motion within the required time. [2] Civil Procedure Rule 59:60 gives the court discretion to seal file: (3) judge may order that court file or any part of the file or any document contained in the file be sealed, treated as confidential, and not made available to the public. [3] Justice Dixon in MacIntyre v. The Attorney General of Nova Scotia, 1982 CanLII 14 (SCC), [1982] S.C.R. 175 said: 70 Undoubtedly every court has supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right. [4] Neither of the parties to this divorce proceeding is requesting exclusion of the public on the date of the hearing, nor are they seeking publication ban. Their request is to keep the documents contained in the court file private. However, they recognize that some or all of the contents of the documents in this file may be disclosed if they are entered as evidence during hearing or referenced in the decision of this court. [5] Civil Procedure Rule 59.60 does not provide any factors that are to be considered in the exercise of the discretion provided. [6] Civil Procedure Rule 85.04 (1) provides some direction: judge may order that court record be kept confidential only if the judge is satisfied that it is in accordance with law to do so, including the freedom of the press and other media under section of the Canadian Charter of Rights and Freedoms and the open courts principle. [7] take this direction as requirement for judge to consider the principles expressed in Dagenais v. Canadian Broadcasting Corp., [1994] S.C.R. 835, Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] S.C.R .480, R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] S.C.R. 442, Sierra Club of Canada v. Canada (Minister of Finance ), 2002 SCC 41 (CanLII), [2002] S.C.R. 522, and Re Vancouver Sun, 2004 SCC 43 (CanLII), [2004] S.C.R, 332. [8] Dagenais, Canadian Broadcasting, and Mentuck, involved publication bans in criminal proceedings. Vancouver Sun involved an in camera hearing during which the courtroom was closed to the press and the public. Sierra Club of Canada discussed the protection to be afforded to “confidential documents”. [9] The decision in Sierra Club of Canada does require the court, in civil proceeding, when asked to issue confidentiality order, to consider the underlying principles set out in Dagenais and Canadian Broadcasting. [10] These cases suggest confidentiality order should only be granted when (a) the order is necessary to prevent serious risk to an important interest in the context of litigation because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the confidentiality order, including the effects on the interest being protected, outweigh its deleterious effects, including the effect on rights of free expression and accessibility to open court proceedings. [11] The “interest” to be protected must be one in which the public in general has an interest or has stake. As described in Sierra Club of Canada: 55....The interest in question cannot merely be specific to the party requesting the order; the interest must be one which can be expressed in terms of public interest in confidentiality. For example, private company could not argue simply that the existence of particular contract should not be made public because to do so would cause the company to lose business, thus harming its commercial interests. However, if, as in this case, exposure of information would cause breach of confidentiality agreement, then the commercial interest affected can be categorized more broadly as the general commercial interest of preserving confidential information. Simply put, if there is no general principle at stake, there can be no “important commercial interest” for the purposes of this test. [12] The “necessity” branch of these requirements set out in Dagenais and Canadian Broadcasting, and confirmed in Sierra Club of Canada requires consideration of three elements. 1. The serious risk in question must be real and substantial risk well grounded in evidence. 2. References to the “proper administration of justice” must be carefully interpreted so as not to allow the concealment of an excessive amount of information. 3. Whether reasonable alternatives are available must be carefully explored and any order granted must be restrict only what is necessary to prevent the risk. [13] Freedom of the press is fundamental to the open court principle. The press provides an important function by informing the public about court proceedings. Family law proceedings are of great interest to the public. The public should be informed about the substance of those proceedings. In Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] S. C.R. 1326, case involving section 30 (1) and (2) of the Alberta Judicature Act, R.S.A. 1980, J-1 that prohibited publication of most details of matrimonial proceedings ), Justice Cory said: 13. The sweeping effect of the prohibition can be readily seen. The term “or in relation to marriage” is broad one. It encompasses matters pertaining to custody of children, access to children, division of property and the payment of maintenance. All are matters of public interest yet the evidence given on any of these issues cannot be published. The dangers of this type of restriction or obvious. Members of the public are prevented from learning what evidence is likely to be called in matrimonial cause, what might be expected by way of division of property and how that evidence is to be put forward. Neither would they be aware of what questioning might be expected. These are matters of great importance to those concerned with the application family law. It is information people might wish to have before they even consider consulting lawyer. The very people who would seem to have the greatest need to know of Family Court proceedings are prevented from attaining important information by the provisions of s. 30 ............ 27..... Any need for the protection of privacy of witnesses or children could be readily accomplished by far less sweeping measures. For example, it could be accomplished by the exercise of discretion by the trial judge to prohibit publication or to hold in camera hearings [page 1347] in those few circumstances where is would be necessary to do so in order to protect the privacy interest of the parties, their children or witnesses. [14] Section 30 (1) and (2) of the Alberta Judicature Act were struck down by the Supreme Court of Canada because they were too sweeping in effect. [15] Personal embarrassment or general expectation that personal, health or financial privacy will be maintained when accessing the courts is not, in itself, reason to issue sealing order or publication ban. (John Doe v. Smith 2001 ABQB 277 (CanLII)) [16] The privacy of witnesses, victims and innocent parties may be, in certain situations, an important public interest deserving of protection. [17] In W. (C.) v. M. (L.G.) 2004 BCSC 1499 (CanLII), civil action for damages for sexual assault, the applicant requested that her name appear only by initial in all court documents, that the court limit the persons who could search the court file and place prohibition against the use or publication of any information that might disclose her identity. Justice Joyce after reviewing number of decisions said: The application requires consideration of two different public interests: maintaining open judicial proceedings and protecting victims of sexual abuse. ...................... am satisfied, however, that this important principle of the openness of the court process is subject to an overarching principle: the fundamental object of the court is to see that justice is done between the parties. There are circumstances where the principle of the open court must give way in order to achieve justice. The question is what those circumstances are and, if they exist, how far the principle of an open court must yield in order to ensure that justice may be done ....................... 25 think the following principles can be distilled from the cases have referred to: 1. The principle that the court’s process must be open to public scrutiny must give way when it is necessary to ensure that justice is done. 2. There must be some social value or public interest of superordinate importance in order to curtail public accessibility. 3. The onus is on the person seeking to restrict public accessibility to demonstrate that the order is necessary in order to achieve justice. The test is not one of convenience but of necessity. 4. The mayor private interest of litigant to avoid embarrassment is not sufficient to displace the public interest in an open court process. 5. The categories of circumstances that may be viewed as constituting social value of super ordinance importance should not be considered closed. They include: (a) where disclosure of the litigant’s name or identity would effectively destroy the right of confidentiality, which is the very relief sought in the proceeding; (b) where persons entitled to justice would be reasonably deterred from seeking it in the court if their names were disclosed; (c) where the administration of justice would be rendered impracticable if the public were not excluded; (d) where anonymity is necessary in order to ensure fair trial; (e) where anonymity is necessary to protect innocent persons and little public benefit would be served by disclosure of the names of the innocent; (f) where disclosure of the identity of the plaintiff would cause that person to suffer damages in addition to those already suffered as result of the wrong for which the plaintiff is seeking compensation. [18] My first task is to determine whether, in this case, there is social value or public interest of superordinate importance. If there is not then these applications must be dismissed. [19] In order to understand many of the arguments advanced by the Applicant and the Respondent knowledge about what typically is in file processed by the Supreme Court (Family Division) is imperative. It is also important to know that much of the information in the court file contains what, in our electronic age, are called personal identifiers. This is information that can identify an individual and can permit another person to “assume” that individual’s identity without their knowledge or consent (identity theft) and then use this information to gain access to bank accounts, insurance information and so on. This can happen when an identifier is used alone, when it is combined with that person’s name, or when it is combined with another identifier. Common identifiers are the person’s name, birth date, address, parent’s names and birth dates, children’s names and birth dates, employers names, social insurance numbers, and bank account and investment numbers. [20] The rules pertaining to divorce in the Supreme Court (Family Division) require Petition for Divorce, and an Application and Intake Form to be completed in order to commence the proceeding. The Petition provides place and date of birth, marriage and separation dates, dates of birth for all children, and current residential addresses. The Application contains the same information and in addition it contains cell phone numbers, e-mail addresses, employer’s name, address, telephone number and e-mail address. The file will contain the marriage certificate which details the parties parents’ names and other identifiers. If claims for division of property or spousal support are made, complete list of property with identifying numbers, including insurance policy information, must be filed. If financial support is requested, Statement of Income must be completed to which the last three years income tax returns and notices of assessment from the Canadian Revenue Agency must be attached as well as two recent pay statements from all income sources. These documents disclose social insurance numbers. If party owns business or is controlling shareholder in corporation, business records, income tax returns etc. must be provided. If children are involved, Parenting Statement must be filed detailing the names and addresses of schools and daycare facilities any associated educational or child care costs, details about extracurricular activities and so on. If required documents are not placed in the file for delivery to the other party the Divorce Petition may not be issued. The parties have no choice in this matter. This is because the purpose of proceedings in the Family Division is not to “find fault” or to “right wrong”. It is to solve the problem, (in case such as this where there are no children), of how to divide property and provide support to an entitled party after relationship has ended. This work is conducted in an environment that must recognize and assist significant number of petitioners and respondents who are self represented. Disclosure of all relevant, or potentially relevant, information at the beginning of the process is therefore essential. Some of this information may never become “evidence” at hearing. For example, it may become outdated or the parties may not need the information to place his or her request before the court or they may have settled as result of meetings with conciliators or at judicial settlement conference where the disclosure in the file is used to assist the parties in settlement discussions. [21] Another purpose for the collection of so much information is to permit the Maintenance Enforcement Program to find payor of spousal or child support, or to issue garnishment against wages or income tax refunds, or to suspend driving privileges etc. [22] The Applicant and the Respondent have raised one proposition that have decided does not constitute social value or public interest of superordinate importance in the context of these proceedings. They have argued the file should be sealed to protect their reputation, and in particular the Respondent’s reputation against unproven allegations that may be contained in material filed in this proceeding. [23] Every proceeding initially may consist of “unproven” allegations whether these appear in statements of claim, or affidavits. Those who have been changed with criminal offence, and later found to be “not guilty” often must suffer, because of publicity, ruined reputation that in some cases cannot be rehabilitated. Protection of one’s reputation has not been considered to be social value or public interest of superordinate importance justifying diminishment of the open courts principle. As have noted, personal embarrassment or general expectation that personal, health or financial privacy will be maintained when accessing the courts is not, in itself, reason to seal file. [24] The Applicant and the Respondent have argued that the public has an interest in and expects personal identifier information contained in court documents to be protected in order to prevent identity theft. have decided this is public interest of superordinate importance. It is privacy interest. In addition society values prevention of identity theft [25] The solicitors for the applicants have argued their clients and the public expect personal identifier information to remain private and confidential. Support for this argument can be found in the way government itself treats some of this information. For example, not every government department has ready access to income tax returns and person is not, in every case, compelled to provide social insurance number. [26] Forbidding the publication or use of personal identifier information by those who would examine court file does not properly address the private and confidential nature of this information, nor the concern about its potential misuse. Little that is filed in the Family Division is filed voluntarily. Most of the material in the file must be filed by the rules of court and, on occasion, court order. The court cannot police the later use of personal identifiers by member of the public including the media, who has viewed material containing this information. Identify theft is known risk and person should not be exposed to this risk when he or she accesses the justice system as he or she must in order to obtain divorce. This is not to say the risk of misuse by court staff who have access is not recognized. However, staff are under different regulatory systems than those to which the public may be subject and there are important reasons why they require access to the file that reasonably suggest an access requirement. [27] The media argues cannot make any decision about the expectations of the public or the potential risk of identity theft without evidence provided by, for example, polling company and police officer. In addition the parties themselves have not provided an “affidavit” with facts supporting the proposition that they have an expectation of privacy in respect to their personal identifiers. [28] have accepted the submissions of counsel in respect to their client’s expectations. Expectations are not facts. Affidavits are to provide facts. However, in this situation perhaps an expectation is fact, and if so accept those expectations without the necessity of proof by way of affidavit because it flows naturally from the applications made by the parties. If this was not their expectation why make the applications to seal the court file? These are facts that should have been admitted by the media if the purpose of the Nova Scotia Civil Procedure Rules are to be properly applied that purpose is: 1.01 These Rules are for the just, speedy, and inexpensive determination of every proceeding. [29] Failure to recognize the obvious and to require “strict proof” may have its place in some proceedings. However, in this court in particular, where parties financial capacities are so often very limited, blind adherence to an adversarial process may work an unnecessary injustice. believe am permitted to recognize the obvious. [30] have before me no polling information about the public’s expectation that personal identifier information will be kept private and confidential by those who gather it. If the court could only determine public interest or recognize social value after receiving information from an organization providing polling information, or from learned researchers or other “experts”, the legal process might come to halt or become completely redundant because most people could not afford the financial burdens placed upon them to bring forth this evidence. [31] am satisfied in determining this issue do not have to be blank slate. There is information available to me that is available to every person in this province. Of particular significance is the fact that the Province of Nova Scotia and the Government of Canada have enacted legislation to protect personal identifiers, for example, the Freedom of Information and Protection of Privacy Act, S.N.S. 1993 c.5 the Personal Information International Disclosure Protection Act, S.N.S. 2003 c.3. and the Personal Information Protection and Electronic Documents Act, S.C. 2000 c.5. accept this as evidence about the public’s expectation and the public and social interest in this issue. [32] The risk of identity theft is real. should not have to wait until it occurs to recognize that risk. do not need police officer to inform me about this risk. The concern about identity theft is frequently the topic of discussion in newspapers, in government departments, and in judicial committees (for example the Canadian Judicial Council approved document “Use of Personal Information in Judgments and Recommended Protocol” in March 2005 ). Considering the devastating consequences that can result to an individual whose identity is stolen, identity theft constitutes substantial risk though at present it may infrequently occur. It is important that it remain an infrequent event and that all efforts be made to protect those who must provide information from losing control over their personal identifiers. [33] If am required to place my analysis into an evidentiary context to justify my finding that there is public interest and social value imbedded in the expectation of privacy and confidentiality for personal identifiers, and the risk of identity theft is real, do so by taking judicial notice of the facts have used to support my analysis based upon the principles expressed in R. v. Find 2001 SCC 32 (CanLII), [2001] S.C.R. 863 and R. v. Spence 2005 SCC 71 (CanLII), [2005] S.C.R. 458. [34] Having decided there is social value to protect and public interest to advance that is of superordinate importance must next decide whether it is necessary to completely seal the court file to protect that interest or whether there are other means to achieve this purpose. have already commented on why orders forbidding wrongful use of this information offer little protection. [35] Other than removing the personal identifier information from documents required to be filed in this court, can think of no means by which to protect this information except to issue an order sealing this file. Any attempt to collect the required disclosure, while removing identifiers so that they would be provided when necessary but remain undisclosed to the public, would be cumbersome and costly to the parties and to the court’s administration. It would necessitate filing two sets of these documents, one with all personal identifiers removed, accessible to the public, and one with the identifiers in separate file, not accessible to the public, essentially two files for every proceeding. [36] I have decided the salutary effects of a sealing order do outweigh its deleterious effects in these circumstances particularly because the public interest in an open court is not completely circumscribed by this order. There is no publication ban of these proceedings. The public may attend the hearing, should there be one, and it may attend to hear any oral decision rendered or read the written decision. In this way the public will learn what facts were accepted as proven by the court. It will understand how the court conducted the process of dividing property between the parties and how it reached its conclusions about entitlement to spousal support and the quantum to be paid by the Respondent, if any. [37] The open court principles were crafted at a time when the internet was not a public source of information nor of manipulation. Initially these principles were developed in criminal cases where scrutiny to ensure the state was not abusing it’s powers of arrest and imprisonment was paramount. This case involves the court as provider of dispute resolution process. The state has passed laws that create framework for that dispute resolution but the potential for state abuse of the parties is limited if nonexistent. The public interest in the process, and in the performance of the judges, remains to be served by the opportunity for the public to attend the hearings and read or listen to decisions rendered. The media can attend and publish what it wishes about that hearing and those decisions. [38] grant the applications requested. This divorce file shall be sealed in its entirety.

Rule 85.04 – Order for confidentiality The parties moved under Rule 59.60 to have the court seal their file after media asked to view it. They didn't ask to exclude the public from the hearing, nor did they seek a publication ban. , the file will be sealed. While Rule 59.60 doesn't provide guidance on when it would be appropriate to seal a file, Rule 85.04(1) does. The SCC decision of Dagenais (and related cases) applies. A confidentiality order should only be granted when: necessary to prevent a serious risk to an important interest; there are no less intrusive measures available; and the benefits outweigh the costs. Personal embarrassment or damage to a party's reputation isn't enough. Here, the important public interest is the protection of personal identifiers (e.g. SIN's, addresses, bank account numbers and other personal information required on court documents). Having these identifiers accessible to members of the public can result in identity theft, which is a real and serious concern. The court is able to take judicial notice of the fact society values the prevention of identity theft (and that it exists in the first place). There are no less intrusive measures to prevent access to this personal information that aren't cumbersome and costly for the parties and court administration staff. The salutary effects of a sealing order outweigh its deleterious effects, especially since the public will still be permitted to access the court hearing and any decision that is rendered. The open court principle was crafted at a time when the internet wasn't a public source of information and manipulation.

2_2011nssc290.txt

D.P. Ball QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 418 Date: 2007 11 08 Docket: Q.B.S. 110/07 Judicial Centre: Moose Jaw IN THE MATTER OF THE ESTATE OF ROLAND LINKERT, LATE OF CENTRAL BUTTE, IN THE PROVINCE OF SASKATCHEWAN, DECEASED BETWEEN: MARLENE YVONNE TYLER and BARRY DOUGLAS SHADE, IN HIS CAPACITY AS EXECUTOR OF THE ESTATE OF ROLAND LINKERT; THE CANADIAN NATIONAL INSTITUTE FOR THE BLIND (CNIB), SASKATCHEWAN DIVISION; CENTRAL BUTTE REGENCY MANOR; IVER MAIN PLACE; SASKATCHEWAN PARKINSON’S DISEASE FOUNDATION; ALZHEIMER SOCIETY OF SASKATCHEWAN INC., SASKATCHEWAN BRANCH; HEART STROKE FOUNDATION OF CANADA, REGINA BRANCH OFFICE; CANADIAN RED CROSS RESPONDENTS Counsel: Paul H. Harasen for the applicant Kenneth M. Cornea for the respondent, Barry Douglas Shade Terence G. Graf, Q.C. for The Canadian National Institute for the Blind (CNIB), Saskatchewan Division Central Butte Regency Manor Saskatchewan Parkinson’s Disease Foundation Heart Stroke Foundation of Canada, Regina Branch Office Canadian Red Cross FIAT DAWSON J. November 8, 2007 [1] The applicant Marlene Yvonne Tyler, (“Yvonne Tyler”) the sister of the deceased testator Roland Linkert, asks that hearing be ordered to prove the deceased testator’s last will and testament, of November 3, 2005, in solemn form, for the purpose of determining whether the will was brought about by the exertion of undue influence on Roland Linkert by Barry Douglas Shade. [2] Yvonne Tyler also asks for an order prohibiting the administration or disbursement of the estate of Roland Linkert without leave of the court, until the issues referred to above are resolved by order of the court or agreement of the parties. [3] Yvonne Tyler also asks for an order permitting the viva voce evidence of one Violet Beaudry to be used as part of the evidence in this application. [4] In support of the application Yvonne Tyler her own affidavit and the affidavit of Brenda Walper-Bossence, the lawyer who prepared the testator’s will. [5] In response to this application, Barry Douglas Shade, the executor of the November 3, 2005 will filed his affidavit. BACKGROUND FACTS [6] The deceased testator, Roland Linkert died February 28, 2007 at the age of 86. He was bachelor. He had no children. [7] On October 26, 2000 the testator made will appointing his brother Bill Linkert as his executor and sole beneficiary. The will went on to indicate that in the event that Bill Linkert failed to outlive the testator, Yvonne Tyler, the testator’s sister, was to be the executrix of his estate and sole beneficiary. Brenda Walper-Bossence was the lawyer who prepared the October 26, 2006 will. [8] On August 9, 2005 the testator executed Power of Attorney appointing Yvonne Tyler as his Power of Attorney. Ms. Walper-Bossence prepared the Power of Attorney. [9] In October 2005 Barry Shade had made an appointment for the testator at Ms. Walper-Bossence’s office. On October 19, 2005 Barry Shade and the testator came to Ms. Walper-Bossence’s office for the scheduled appointment. Both Barry Shade and the testator met with Ms. Walper-Bossence and provided instructions for the testator’s new will. [10] On November 3, 2005 the testator executed the second will. This second will appointed Barry Shade as executor and divided his rather substantial estate between seven charities: The Canadian National Institute for the Blind; Central Butte Regency Manor; Iver Main Place; Parkinson Disease Foundation of Saskatchewan; Alzheimer Society of Saskatchewan Inc.; Heart and Stroke Foundation of Saskatchewan and the Canadian Red Cross. [11] The testator passed away on February 28, 2007. [12] At issue is the November 5, 2005 will. Yvonne Tyler suggests that Barry Shade had undue influence over the testator at the time of the making of the will. Yvonne Tyler asked that the matter be set down for trial. The issue surrounding the November 5, 2005 will is whether there was any undue influence on the part of Barry Shade with regard to that will. [13] Yvonne Tyler deposed that she had assisted the testator in his later years of life. She deposed that she was the testator’s Power of Attorney since August 2005. Yvonne Tyler deposed that when she discovered that the testator had changed his will she spoke to him about it. Her evidence, relevant to this application is as follows: 18. When next spoke with Roland briefly on the phone asked him why he changed his Will. His answer was “Because they wanted me to”. He said that the “they” that he was referring to were Barry Shade, Carol Fletcher and Carol Shade. 20. Roland never spoke to me about donating or leaving money to the charities listed in his November 3, 2005 Will. Barry Shade never told me that Roland had changed his Will and that was no longer Roland’s executor. 22. always knew Roland to be very shy, timid and anxious person. There was time when Roland was in Iver Main that he would get up at 4:00 a.m. because he was worried that he would miss 8:00 a.m. breakfast. Roland took anti-anxiety medication in the last few years of his life. 24. Roland informed me of and involved me in most aspects of his life from 1997 onward. was generally up to date on his day to day activities. After being granted his Power of Attorney in August, 2005, was up to date on his financial affairs. Based on the nature of my relationship with Roland and the involvement he chose to have me play in his life, from 1997 onward, believe it was out of character for him to make his November 3, 2005 Will. [14] Brenda Walper-Bossence, the lawyer who prepared both wills filed an affidavit. Brenda Walper-Bossence deposed that she had known the testator since about 2000. She also indicated that she knew Yvonne Tyler. Her first encounter with the testator and Yvonne Tyler was when they attended to her office as result of their sister’s death. Ms. Walper-Bossence deposed that between 2002 to 2003 the testator came to her office on his own and with his now deceased brother, Bill Linkert. Sometime around 2002-2003 the testator began to attend at Ms. Walper-Bossence’s office with his sister Yvonne Tyler, because of his failing health. It was Ms. Walper-Bossence’s observation that the relationship between Yvonne Tyler and the testator was very good. [15] Ms. Walper-Bossence deposed she prepared the August 9, 2005 Power of Attorney wherein the testator Roland Linkert appointed Yvonne Tyler as his personal and property Power of Attorney. She deposed that the testator assured her that he fully trusted Yvonne Tyler and wanted her appointed. [16] Ms. Walper-Bossence deposed that prior to October 2005, when she met with Barry Shade and the testator, she had never heard of Barry Shade. Ms. Walper-Bossence deposed that while in her office Barry Shade made number of negative comments about Yvonne Tyler, all in the testator’s presence. She deposed that Barry Shade said that the testator was “too much under Yvonne’s thumb” and that Yvonne was “overrunning” the testator. Ms. Walper-Bossence deposed that the testator then repeated what Barry Shade had said about Yvonne Tyler. [17] Ms. Walper-Bossence deposed that she was concerned that Barry Shade had influenced the testator to provide these new will instructions. On October 19, 2005 Ms. Walper-Bossence had the testator sign an authorization to allow Ms. Walper-Bossence to discuss with the testator’s doctors, the testator’s ability to sign documents, specifically will. Ms. Walper-Bossence deposed that her concern about the testator’s new instructions for the new will and the possible influence of Barry Shade led her to write letter to the testator’s doctors. On November 3rd she faxed letter to Central Butte Medical Clinic. The letter stated: act as solicitor for Roland Linkert. Attached is his release to allow you to advise me whether he is capable, mentally, of signing new will. Please advise by return. [18] Ms. Walper-Bossence indicated that her next appointment with the testator was on November 3, 2005, some 15 days after she had received the instructions for the new will. Ms. Walper-Bossence indicated that the testator was brought to her office by Barry Shade on that date. At this appointment Mr. Shade remained in the waiting room while the testator came into her office. The testator reviewed and signed the will in Ms. Walper-Bossence’s presence. [19] Ms. Walper-Bossence indicated that she never received response from the testator’s doctor to the request for medical information. [20] Ms. Walper-Bossence deposed that she remained concerned about the testator being influenced by Barry Shade. Her notes from her November 3, 2005 meeting with the testator include the following: Yvonne doesn’t know the value of stuff. Barry not pushing me my own choice. Barry would not take advantage of me, know that. few things in the past that have bothered me about Yvonne. She’s been good to me been nasty to me sometimes. [21] Ms. Walper-Bossence also wrote at the bottom of her notes the following: “but is it free will”? Ms. Walper-Bossence indicated that this notation reflected her concern as to whether the testator was being influenced. [22] Ms. Walper-Bossence indicated that while it is her normal practice to destroy any previous will when client signs new will, she was concerned about the issue of influence on the testator and as such she retained the testator’s October 26, 2000 will. [23] Barry Shade, in response to this application, deposed that in 2004 the testator first raised with him that he was considering changing his will. Mr. Shade deposed that the testator raised this again in the winter of 2004 and 2005. He deposed in May 2005 the testator spoke about charities and their need for money. Mr. Shade deposed that during telephone conversation with the testator on October 10, 2005, he asked the testator if he was still considering changing his will. Barry Shade deposed that the testator said that Mr. Shade could give some help with the will. Mr. Shade deposed he asked the testator if he needed help to get to Moose Jaw to see his lawyer and the testator said yes. Mr. Shade deposed that he then made the appointment at Ms. Walper-Bossence’s office for October 19, 2005. [24] Mr. Shade deposed the following about the meeting between the testator, himself and Ms. Walper-Bossence: 46 The matter of the Power of Attorney was obviously one that weighed heavily on Uncle Roland’s mind because when he met with Ms. Walper-Bossence, Q.C., on October 19, 2005, at the conclusion of the interview where he gave instructions for his new Will Ms. Walper-Bossence, Q.C., asked him if there “anything else Roland” and he replied “well about the Power of Attorney”. He also expressed concern that he was troubled that “Yvonne controls my money” which were his words. Ms. Walper-Bossence, Q.C., response was that Yvonne was doing “wonderful job” and she went on to remind Roland that Yvonne had helped him out in connection with debt that he was owed by Daryl Rushinko and that in her opinion things were going well. 53. drove my Uncle Roland to Moose Jaw so that he could meet with Ms. Walper-Bossence, Q.C., on October 19, in order to give her instructions for new Will and at Uncle Roland’s request sat in on his meeting while these instructions were provided. was flabbergasted when read paragraph 10 and 11 of Brenda Walper-Bossence’s Affidavit sworn the 8th day of September, 2007, and filed in this matter. Her recollection is seriously mistaken particularly when she states that Uncle Roland and said number of negative things about Yvonne in her presence. In particular the phrases she refers being “too much under Yvonne’s thumb” and that Yvonne was “overrunning Roland” are simply not the type of language ever use. 54. When we attended at her office after comfortably being seated introductions were made and at that time told her “I do not want to be perceived as influencing Uncle Roland, please caution me if you think that am”. During the whole meeting Ms. Walper-Bossence, Q.C., never once said anything to me in the nature of such caution. 55. As well, contrary to her current recollection that she was presented with names of charities that were to be beneficiaries that was not in fact the way that the meeting progressed. Uncle Roland appeared to be quite comfortable talking to her even though as has been observed he was very reserved man. He discussed with her some of the charities that he wanted to benefit. He also told her that he wanted to leave some of his money to relief organization and it was Ms. Walper-Bossence, Q.C., who suggested some possibilities in that regard and specifically recall that she was the one that mentioned the Red Cross and they spent some time discussing the work that they did and its history as good organization. In the whole course of providing these instructions the only time recall Uncle Roland looking to me to provide some input was when he was struggling to come up with the correct name for the “one about the eyes” and when he spoke about relief organization which eventually became the bequest to the Canadian Red Cross. 56. After the discussions about what charities Uncle Roland wanted to benefit was concluded Ms. Walper-Bossence, Q.C., had asked him if he appreciated that these were large and important changes that he was making and he said “yes”. The only other discussion about additional beneficiaries that occurred is when Ms. Walper-Bossence, Q.C., asked Roland “How about Bill? Do you want to leave any money to him?” and Roland’s reply was “Well, money is not going to help him”. Ms. Waler-Bossence’s response was “I see”. At this point there was no other discussion about beneficiaries and she did not ask Uncle Roland about his Sisters either collectively or individually. Nor did she ask about giving money to any other family members or individuals. 57. This point in time was when the first discussion entailing Yvonne occurred when Uncle Roland raised the question about the Power of Attorney. Even in this discussion neither myself nor Uncle Roland made any derogatory comments about Yvonne. The meeting concluded with Ms. Walper-Bossence, Q.C., asking Uncle Roland if it would be ok if she spoke to his doctor and Uncle Roland said that would be ok and believe that she may have even prepared handwritten authorization for him to sign before he left. [25] The conflict in the evidence between Ms. Walper-Bossence and Mr. Shade is apparent. ANALYSIS [26] Yvonne Tyler asks that the will be proven in solemn form, to determine whether there was undue influence on the testator, based on the application of the test as outlined in Dieno Estate v. Dieno Estate, 1996 CanLII 6762 (SK QB), [1996] 10 W.W.R. 375 (Sask. Q.B.); (1996), 147 Sask. R. 14 and more recently enumerated by our Court of Appeal in Royal Trust Corp. of Canada v. Ritchie 2007 SKCA 64 (CanLII); (2007), 293 Sask. R. 238. [27] In Re: Cosgrove Estate (1988), 1988 CanLII 4894 (SK SU), 73 Sask. R. 42 (Sask. Q.B.), this court recognized the difficulty of proving the coercion which is part of undue influence, and also recognized the legitimacy of drawing inferences of undue influence from suspicious circumstances. The court said at paras. .. It is unlikely that any deliberate and overt act of coercion will ever occur in the presence of eye witnesses. How then is undue influence to be proved? [39] There is general principle of probate law emanating from the case of Barry v. Butlin (1838), 12 E.R. 1089, which says this. If will is prepared in circumstances raising justifiable suspicion that it does not reflect the mind and wish of the testator, then it is for those who propound the will to overcome the suspicion. This is not to say the propounder need prove negative that the testator was not induced by undue influence to sign the will but the propounder must satisfy the conscience of the court that the testator knew and approved of the will’s contents when it was signed. In other words, the burden of proof is not shifted by suspicion, but the court must scrutinize the evidence closely in light of the suspicion to determine whether an inference of undue influence ought to be drawn. That is, as understand the law, to be from the following judgments of the Supreme Court of Canada: Hayward v. Thompson, (1961) 1960 CanLII 430 (SCC), 25 D.L.R. (2d) 545; Re Martin; MacGregor v. Ryan, 1965 CanLII 17 (SCC), [1965] S.C.R. 757; and Goldsworthy v. Thompson (1974), 1974 CanLII 1360 (SCC), 46 D.L.R. (3d) 237. [Emphasis in original] [28] In St. Cyr Estate v. St. Cyr, [1999 S.J. No. 54) (Sask. Q.B.) McLellan J. referred to the definition of undue influence as set out by the Saskatchewan Court of Appeal in Re Sample Estate (1955), 1955 CanLII 233 (SK CA), 15 W.W.R. 193 (Sask. C.A.) and then went on at para. 25: The affidavits filed by the respondents offer little evidence to support the allegation of undue influence. do not find that surprising. It is highly unlikely that overt acts of coercion will occur in front of eye witnesses. It would place difficult burden on the respondents to require them to provide such proof on chambers’ application. In St. Cyr, supra McLellan J. found, on the evidence before him, that it was necessary for trial to proceed on the issue of undue influence. [29] In this case, based on the evidence, the conflict in the evidence, and the law, I am of the view that the issue of undue influence cannot be resolved without a trial of the issue. It is necessary so that the matter can properly be assessed by the court. [30] There shall be an order directing a trial to prove the last will and testament of November 3, 2005 in solemn form. The question to be tried is whether the testator at the time of execution of the will was subjected to undue influence. [31] In the circumstances, it is not necessary to have the viva voce evidence of Violet Beaudry on this application. [32] The respondent Barry Shade shall be the plaintiff and shall bear the burden of establishing the deceased’s knowledge and approval of the contents of the will. The applicant shall be the defendant, but shall bear the burden of proof with respect to the alleged undue influence. [33] All the Queen’s Bench Rules shall apply to the trial of the foregoing issues including the Rules pertaining to disclosure, production of documents, examinations for discovery and pretrial conference. [34] There will be further order prohibiting the administration or disbursement of the estate of Roland Linkert without the consent of the applicant or without leave of the court, except that the executor may pay any funeral expenses, testamentary expenses, or any income tax owing, and any debts owing by the estate at the date of death. The intent with respect to this portion of the order is that any necessary debts of the estate would be paid. [35] ask counsel to determine whether they can agree on the wording of the order to reflect this fiat. [36] Costs will be costs in the cause. J. C.L. Dawson

The applicant asks that the Will be proven in solemn form to determine whether there was undue influence on the testator. HELD: The evidence from the lawyer who prepared the Testator's last Will was that she was concerned that the testator was being influenced. The evidence from the executor of the Estate raises no such concerns. Based on the evidence, the conflict in the evidence and the law, the issue of undue influence cannot be resolved without a trial of the issue. A trial is ordered.

d_2007skqb418.txt

1990 S.H. No. 71965 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: HUGH JONES and WILLIAM AHERN and TECHNICAL UNIVERSITY OF NOVA SCOTIA RESPONDENT HEARD: At Halifax, Nova Scotia, before the Honourable Mr. Justice D. Merlin Nunn, in Chambers, on June 28th, 1990 TRIAL BRIEFS FILED: August 2, 1990 DECISION: November 5, 1990 COUNSEL: Thomas Donovan, for the Applicants Eric Durnford, for the Respondent 1990 S.H. No. 71965 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: HUGH JONES and WILLIAM AHERN and TECHNICAL UNIVERSITY OF NOVA SCOTIA NUNN, J. This is an application under Sections 15(1), 24(1) and 52(1) of the Canadian Charter of Rights and Freedoms for:(a) an Order declaring that the mandatory retirement of the applicants by the respondent is invalid and infringes, denies and is .inconsistent with the rights of the applicants as guaranteed under Section 15(1) and (7) of the Canadian Charter of Rights and Freedoms and that the applicants be reinstated as full time members of the Faculty of the respondent immediately and that the respondent pay to the applicants all compensation due to them as employees since the date of their mandatory retirement plus interest, and(b) costs of this proceeding. At the outset of this hearing, was urged by counsel for the applicants to render decision as quickly as possible because of the time which had elapsed since their respective retirement and so that, if reinstated, they could commence work at the beginning of the September, 1990 university term. While that course of action may have well suited the applicants, it was not, in my opinion, the proper course to follow. The whole question of the application of the Canadian Charter of Rights and Freedoms to universities and perhaps other similar bodies is currently before the Supreme Court of Canada in three cases, namely, Harrison and Connell v. University of British Columbia (1988), 1988 CanLII 183 (BC CA), 49 D.L.R. (4th) 687; Stoffman et al v. Vancouver General Hospital et al (1988), 1988 CanLII 3076 (BC CA), 49 D.L.R. (4th) 727 and McKinney v. University of Guelph et al (1987), 1967 CanLII 47 (SCC), 63 D.L.R. (2d) 1. All three of these cases were heard in March of 1989 and decision could come at any time. had deliberately held off deciding this matter awaiting that decision which might be conclusive as to the questions in issue. However, in view of the fact that no decision has been filed by the Supreme Court of Canada and there is no indication that decision is imminent, think it appropriate to wait no longer. The facts as to each applicants claim is set forth in each of their affidavits on file herein. In summary, the applicant, Jones, states that he was employed by the respondent as full time member of faculty and as researcher in the Engineering Physics Department. His interest was in the field of acoustics. He attained the age of 65 on March 12, 1988. By letter dated February 17, 1988 from the respondent's Personnel Officer, he was advised that, in accordance with the Collective Agreement between the respondents and the Faculty Association, he would be retired on March 31, 1988, the end of the month in which he reached 65 years of age. Article 28.01 (a) of the Collective Agreement referred to states: "Consistent with the provisions of the Public Service Superannuation Act: (i) Normal retirement from the University for member shall be on the last day of the month in which the member reached the age of 65." Article 28.02 states: "The Board may employ member beyond the‑retirement date on terms and conditions to be agreed between the Board and the member." Jones states that he wrote the President of the respondent letter dated December 15, 1987 indicating he did not wish to retire when he reaches 65 and claims he indicated this on other occasions prior and subsequent to his retirement. This is disputed by the respondent. Jones did retire on March 31, 1988. Then on December 22, 1988 and January 9, 1989, he wrote to the President of the respondent requesting reinstatement, which was refused. On January 17, 1989, responding to the applicant's letter of January 2, both of which followed decision of the Nova Scotia Court of Appeal in the case of Snider et al v. Nova Scotia Attorney General et al (1988), N.S.R. (2d) 91, the Nova Scotia Human Rights Commission advised Jones that it would not accept complaint from him indicating that the Commission's position was that the Snider case did not apply retroactively to invalidate what was valid action at the time it was taken. Apparently Jones also wrote the President of the respondent on January 9, 1989 asking for full time faculty appointment "for period of at least one year." The President referred to this letter as well as Jones' letter of December 12, 1988 to the former president wherein he asked for "reinstatement as of the 1st of April, 1988" and refused to reinstate him also alleging that the Snider case was not retroactive in effect. Following this, on April 10, 1989, Jones' solicitor wrote to the Nova Scotia Human Rights Commission requesting their reconsideration of Jones' complaint which request was again rejected. By Originating Notice (Application Inter Partes), an action was commenced on June 13, 1989 to compel the Nova Scotia Human Rights Commission to process Jones' complaint. Before the application was to be heard on January 30, 1989, the Commission advised Jones' solicitor that they would accept the complaint and that resort to the Courts would not be necessary. As result formal complaint was filed in February 1990 which complaint is now being processed. There are two other facts relating to Jones to make the story complete. First, pursuant to Article 28.02 of the Collective Agreement, Jones and the Board agreed that Jones would be employed from April 1, 1988 to December 1, 1988 as an Adjunct Professor in the respondent's faculty at substantially lower salary than he had been receiving, though presume he was also receiving his pension. Secondly, prior to his retirement, he requested the Faculty Association to file grievance on his behalf. The executive of the Association decided to hold the grievance in abeyance pending the forthcoming decision in the Snider case and, following that decision, the executive declined to process the grievance. The co‑applicant, Ahern, was also employed by the respondent. He reached age 65 on the 4th day of October 1987 and by similar letter to that of Jones was advised that he would retire on October 31, 1987. At that time, Section 28 of the Collective Agreement provided: "28.01 Normal retirement date from the employ of the University for member shall be on June 30 of the year in which the member attains the age of 65. The Board may employ person beyond normal retirement age." On February 16, 1987, Ahern wrote to the University alleging his retirement date was incorrect and should have been June 30, 1988 according, in his view, to the Collective Agreement and that he would be filing grievance. He indicated two claims. The first related to his view of the normal retirement date and the second was asserting right to non‑discrimination on the basis of age referring to the Charter of Rights and Freedoms. The respondent offered work to Ahern to December 22nd of that year at specific salary, not at all comparable to his regular salary. Ahern refused and made counter‑offer which the respondent refused. He retired on October 31, 1987. On November 3, 1987 the Faculty Association advised the respondent that it would be supporting Ahern's grievance with regard to the claim that his normal retirement date should be June 30, 1988. This grievance was processed through Arbitration and an Award was made upholding Ahern's view of the Collective Agreement, that is, Ahern's proper normal retirement date was, indeed, June 30, 1988. It reserved on the matter of damages and was to hear the parties on that issue at later date. On December 28, 1988, following the publications of the Snider decision, Ahern wrote the respondent requesting reinstatement with back pay on the strength of the Snider decision which in his words "struck down forced retirement because of age". The respondent's President replied indicating that it was inappropriate to respond to his request at that time because of the pending grievance but also indicated that the Snider decision did not invalidate the University's retirement policy. Ahern again wrote several letters on this point to the respondent culminating in his letter of November 14, 1989, in which he indicated that the grievance had been decided in his favour and indicating that the age discrimination clause in the Nova Scotia Human Rights Act had been declared unconstitutional by virtue of the Snider decision. He claimed immediate reinstatement and full compensation for lost salary and other benefits retroactive to his date of retirement. On January 6, 1989, he requested the Nova Scotia Human Rights Commission to investigate his complaint but the Commission refused on the same grounds as it refused Jones. Nothing further was done by Ahern until he learned on February 1, 1990, from his solicitor, that the Human Rights Commission was accepting for investigation claims of this nature which arose before the Snider decision, whereupon he filed complaint with the Commission which is now being processed. He had also, in January, asked the Faculty Association to proceed, presumably by way of grievance, to obtain his reinstatement but the Association declined to do so. Essentially, the only differences between Jones and Ahern, setting aside the alleged letter of December 15, 1987 which was put into question by the Affidavit of Lorabeth Ritch, were that Jones accepted his retirement at the appropriate time as set forth in the agreement, agreed to continued term work and only requested reinstatement on the basis of the Snider case after he learned of it, that decision being handed down December 1, 1988. Ahern, on the other hand, raised the Charter of Rights and Freedoms prior to his mandatory retirement date, as well as the other issue as to the correct date. He grieved through to Arbitration, winning on the date issue, and, after the Snider decision, pressed his claim for reinstatement through to the present complaint to the Human Rights. Commission. The respondent filed several affidavits as well. The first, that of Donald Roy, Dean of Engineering, related particularly to the employment of Jones responding to items in Jones' affidavit concerning grants and equipment. need not set out these details here. The second affidavit was that of Dexter Kaulback, Vice‑President Administration of the respondent who described the administration of the respondent. He stated that the respondent is a wholly independent institution of post secondary education which manages, administers and controls its property, revenue, business and affairs through its Board of Governors and administration department. Academic governance of the University is vested in the senate subject to the Collective Agreement. Of 31 Board members, are appointed by the Governor‑in‑Council. According to Mr. Kaulback, the government of Nova Scotia exercises no control over the day to day affairs of the respondent, including personnel and labour relations. The only real relationship between the government of Nova Scotia and the respondent is that the former provides the respondent with certain funding, 95% of which is unrestricted as to use with the remaining 5% restricted to capital renovations, purchases and the like. In his affidavit, he refers to Section 34(1) of the Technical University of Nova Scotia Act which deems employees of the respondent to be employed in the public service for purposes of the Public Service Superannuation Act and states that "this provision is holdover from the former circumstances that prior to the independent establishment of the University under its own statute, employees of the University were part of the Civil Service of the Province of Nova Scotia". He continued to say that regardless of that provision the matter of pensions is negotiable by the respondent and the Association but that no change in such plan was made since significant number of faculty had been participating in the government plan. According to Mr. Kaulback, the respondent has been free of any influence of the government with regard to its pension and retirement policies. He concludes his affidavit stating that the respondent is not an arm of the government but rather is fully dependent institution of higher learning. The third affidavit filed by the respondent was that of Lorabeth Ritch, Director of Personnel of the respondent.. She disputes number of matters set forth in the Jones' affidavit indicating that Jones was not mandatorily retired on March 31, 1988 as he claims. The respondent discussed with Jones an early retirement option and by letter of August 21, 1986 to Jones the conditions of an early retirement offered to him. By letter dated August 21, 1986 Jones declined the offer concluding his letter with "I will retire on March 31, 1988 in the normal way." She also states that Jones' alleged letter of December 15, 1987 was never received by the respondent and his suggestions that he made it clear both before and after March 31, 1988 that he did not wish to retire were never made or reported to her and she administers all aspects of the retirement of the respondent's employees and faculty. She states that his actions were entirely consistent with an agreement by him to retire on March 31, 1988. As to Jones' complaint as to this adjunct professor being "less than satisfactory" as alleged in paragraph of the Jones affidavit, she states that its terms were in accordance with his request. The respondent had only accepted Jones' own arrangement and Jones never gave an indication of any dissatisfaction. She refers to letter from Jones to Dr. Heaps, Vice‑President Research dated December 2, 1988 which indicates that if he does not receive further contract of employment by December 15, he intends to activate certain pensions and will not return to the respondent on January 1, 1989 or at any subsequent date. She states very definitely that Jones retired on March 31, 1988 and that his subsequent term as adjunct professor could in no way be construed to extend that date. Her affidavit indicates that Jones received second appointment by agreement between he and the respondent for the period January 2, 1989 to April 19, 1989, this time as Special Lecturer in the Department of Engineering Physics. With regard to Ahern's affidavit, she has no substantial dispute and as to both Jones and Ahern she states that the claim through the Human Rights Commission is being actively pursued. She concludes her affidavit indicating that the Faculty Association's position is not to pursue the claims of retirees until the Supreme Court of Canada renders its decision in the cases previously referred to and stating that there are no faculty positions available for either Jones and Ahern. Jones' former position has become redundant and the Department he was in is closing May 31, 1991. Ahern's vacancy was filled by new employee. should add here that counsel for the applicants advised the Court that the required notice of constitutional issue being raised was given to the Attorney General of Nova Scotia though no one appeared at the hearing on the Attorney General's behalf. Just prior to hearing this application, heard and dismissed last minute application by the respondent to join the Faculty Association as party to these proceedings. This application was dismissed on the grounds that none of the matters of complaint in this action relate to the Faculty Association and the Faculty Association played no role, other than being party to the Collective Agreement, in the events complained of nor would any remedy granted here affect the Faculty Association. This application is an attempt to short‑circuit the anticipated lengthy process under the Nova Scotia Human Rights Act by calling the Charter of Rights and Freedoms into play both to declare the right and grant the specific remedy requested so that, if successful, the applicants could resume work at the beginning of the September 1990 term. At the hearing, there were number of issues presented including not only the existence of the right under the Charter of Rights and Freedoms, but also the retrospectivity of the right determined by the Snider decision, the power of the Court to fashion and award remedy and the particular remedy sought here. Since‑ the first and most essential question was whether or not the Charter applied to these parties, counsel was requested to file further briefs on this particular question, as well as whether the effect of the Snider decision applies retroactively to these particular applicants and, finally whether jurisdiction should be assumed in view of the Nova Scotia Human Rights Act and the complaints of the applicants currently before the Human Rights Commission. It was agreed by counsel that if the Charter were held not to apply that would be fatal to this application. The matters to which the Charter applies are set out in Section 32 of the Charter itself which reads: "32.(l) This Charter applies (a) to the Parliament and Government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province." The British Columbia Court of Appeal in Harrison v. University of British Columbia, supra, in considering this section, states at p. 691: "The institutions to which the Charter applies are specifically confined to the bodies which enact Canadian and provincial law and which govern pursuant to such law. Section 32 goes no further. The implication is that the activities of private persons and institutions are not governed by the Charter. Private conduct remains unfettered." The Supreme Court of Canada in Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. (1986), 1986 CanLII (SCC), 33 D.L.R. (4th) 174 has determined that the Charter does not apply to the private sector though it left open the question of the extent to which the Charter applies to actions of subordinate bodies created and supported by government. That open question was considered by the British Columbia Court of Appeal in Harrison (and Connell) v. University of British Columbia, supra, which decision is one of the three for which leave to appeal to the Supreme Court of Canada has been granted and, though already argued, is awaiting decision. The present application, is, in my opinion, on all fours with the Harrison case with regard to the application of the Charter to the respondent and, though that case is now awaiting decision by the Supreme Court of Canada, adopt its reasoning. In the Court of Appeal decision, at p. 692, the Court stated: In other words, where the act alleged to infringe the Charter is the act of branch of government as defined in Dolphin Delivery, 'the Charter applies. Where, on the other hand, the impugned act is the act of body other than Parliament, the legislatures or their executives, it will be subject to the Charter to the extent that it bears direct and definable connection to an act of Parliament, the legislatures or their executives, thereby establishing an exercise of governmental power. This result is in accordance with the purpose of the Charter of protecting individual rights against undue infringement by the more powerful state. To permit Parliament, the legislatures or the executive arms of government to avoid the Charter by delegating their functions to, or dictating the conduct of, subsidiary bodies, which are immune from Charter scrutiny, would run counter to that purpose. The state, acting through subsidiary agent, should be equally subject to the Charter as the state acting directly. Viewed thus, the question in this case is whether there is such 'direct and precisely 'defined connection' between the government and the acts of the university alleged to violate the Charter that those acts may be regarded as the exercise of governmental power. That connection might be established if it were found that the government exercises sufficient control over the university that the acts in question should be regarded as the government's acts. The requisite connection might also be found if the act in question was done pursuant to specific delegation of governmental power; in such case, government power would be exercised, and it is that government power which attracts Charter scrutiny. This list is not comprehensive. In other cases, other factors may be relevant to determine whether direct link with government is established." There is no indication in this case that the government is, in any way, delegating functions to avoid the Charter. Applying the control test as did the British Columbia Court, it is clear on the evidence before me, that the government of Nova Scotia does not control the core functions of the University, including its relations with staff. The respondent is creature of statute, not designated as an agency of the Crown. Pursuant to the statute, Technical University of N. S., R.S.N.S., Ch. 463, Ch. 214 as amended, the respondent is governed by Board of Governors. Of the 31 present members of the Board, only are appointed by the Governor‑in‑Council. The Board's duties are set forth in Section 8, which reads: "Duties of Board 8. The Board shall be the controlling body in all matters pertaining to the University, whether administrative or academic and, except as herein otherwise provided, the government, conduct, management and control of the University and of the property, revenue, business and affairs thereof shall be vested in the Board." Section enables the Board to deal with the hiring of all employees, including faculty, and deal with their terms and conditions of employment. Faculty Association has been certified to bargain on behalf of faculty and does so with the Board. Therefore, full control of the respondent is vested in the Board by the Statute. In fact, also, no such control of the respondent by the government is proven here. It was urged upon me that Section 33 of the enabling Act does indicate governmental control. That sections reads: "Public Service Superannuation Act 33.(l) Subject to Section 17, for all purposes of the Pulic Service Superannuation Act the President, the members of the teaching staff and every full‑time employee of the Board shall be deemed to be persons employed in the public service of the Province and such employment shall be deemed to be public service." (emphasis added) The applicants' contention that this creates the degree of governmental control to warrant the application of the Charter is untenable. That section by "deeming" is only bringing employees who are not in the public service within the definitions required to be under that pension plan and such "deeming" is only for the purposes of that Act. There can be no question that the matter of pensions is bargainable item between the respondent and the Faculty Association and the Public Service Superannuation Act is only one option. There could be others. Based upon the history of the faculty, it is understandable why they are tied to that plan as they formerly belonged to it. However, mandatory retirement for the applicants does not stem from that Act. Rather it stems from the Collective Agreement. The Collective Agreement in effect in 1987 provided in Article 28.01, supra, that the normal retirement date was to be on June 30 of the year in which the member attains the age of 65. That agreement changed, for the next agreement provided that the normal retirement date was to be the last day of the month in which faculty member reached 65. As well, it added the words "consistent with the provisions of the Public Service Superannuation Act", which, in my opinion, added nothing to the Article. As result, on any consideration of the evidence, there is no evidence of governmental control that could be regarded as an exercise of government power sufficient to bring the respondent within the application of the Charter. Certainly the private contract, here the Collective Agreement, is not subject to the Charter either. As the Harrison Court stated at p. 696: What is at issue in this case is not an. act directly mandated by government and calculated to affect the public, but the performance of private, consensual act between two parties who, independent of government action, have chosen to assume certain rights and obligations. It cannot be suggested that the greater power of the state is in conflict with the rights of the plaintiff; they entered into the contracts of which they complain of their own free will." In conclusion then, find that the Charter of Rights and Freedoms does not apply to the respondent and the application herein is denied. Even had decided otherwise, would have declined jurisdiction in this application between these parties. This is an action between two private parties and some guidance on this type of situation has been given by the Supreme Court of Canada in Dolphin Delivery, supra. At pp. 595‑597, Maclntyre, J., speaking for the majority, said: More recently, Dubin J.A., speaking for the majority of the Court of Appeal for Ontario (Dubin, Morden JJ.A., Finlayson, J.A. dissenting) in Re Blainey and Ontario Hockey Association (1986), 1986 CanLII 145 (ON CA), 26 D.L.R. (4th) 728, 54 O.R. (2d) 513, in case involving claim for discrimination on account of sex, said: 'In my opinion s. 15 of the Charter does not reach private activity within province.' He then expressed agreement with the words of Professor Tarnopolsky (as he then was) in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms Commentary (supra), at pp.422‑23, where he said: 'In our own case under the Charter, it is suggested that s. 15 is not likely to be applied in the courts except in cases where discriminatory act is committed by legislative action, and the jurisdiction concerned does not have an overriding clause in its Human Rights Act, as do Alberta, Quebec and Saskatchewan. This would be so for the following reasons: 1. By s. 32(1), of the Charter is specifically made applicable only to the Parliament and govenment of Canada and to the legislature and government of each province 'in respect of all matters within the authority' of the respective legislative body. Thus, although legislative and executive actions are covered by the Charter, it is not made applicable to private action. 2. Section 15 refers to equality before and under the law, as well as equal protection and benefit of the law. Thus, although an anti‑discrimination (human rights) law would itself have to conform to s. 15, it, and not s. 15, would be directly applicable to discriminatory actions by private persons. 3. Every jurisdiction in Canada has an anti‑discrimination statute which is explicitly made applicable to the Crown. It is unlikely, therefore, that complainant would resort to constitutional action in the courts, rather than the complaint process under the anti‑discrimination laws.' Dubin, J.A. then noted that McNair, J., of the Federal Court, Trial Division, in Cat Productions Ltd. v. Macedo, [1985] F.C. 269, had approved the words of Professor Swinton, at pp. 44‑45 in the Canadian Charter of Rights and Freedoms: Commentary, supra: The automatic response to suggestion that the Charter can apply to private activity, without connection to government, will be that Charter of Rights is designed to bind governments, not private actors. That is the nature of constitutional document: to establish the scope of governmental authority and to set out the terms of the relationship between the citizen and the state and those between the organs of government. The purpose of Charter of Rights is to regulate the relationship of an individual with the government by invalidating laws and governmental activity which infringe the rights guaranteed by the document, while relationships between individuals are left to the regulation of human rights codes, other statutes, and common law remedies, such as libel and slander laws.. Furthermore, s. 32(1) specifically states that the Charter applies to "the Parliament and government of Canada in respect of all matters within the authority of Parliament" (emphasis added). It is governmental action. which is caught, not private action.' Further support for the view that the Charter does not apply in litigation between private parties is to be found in helpful article in (1986), 24 Atla. L. Rev. 361, by Anne McLellan and Bruce P. Elman, entitled, 'To Whom Does the Charter Apply? Some recent cases on s. 32', which reviews the case law as it has developed, and says at p. 367: 'In conclusion it is suggested that the better view is that the Charter applies only to government action. To hold otherwise would be to increase the scope of the Charter immeasurably. In cases involving arrests, detentions, searches and the like, to apply the Charter to purely private action would be tantamount to setting up an alternative tort system. In the area of private discrimination, an entirely new system of civil liability in competition with the dispute resolution mechanisms fostered by human rights legislation would result.' Views to the contrary have been expressed in articles by Dale Gibson: 'The Charter of Rights and the Private Sector' (1982), 12 Man. L.J. 213; 'Distinguishing the Governors from the Governed: The Meaning of "Government" under Section 32(1) of the Charter' (1983), 13 Man. L.J. 505, as well as Morris Manning, Rights, Freedoms and the Courts (Toronto 1983). am in agreement with the view that the Charter does not apply to private litigation. It is evident from the authorities and articles cited above that that approach has been adopted by most judges and commentators who have dealt with this question. In my view, s. 32 of the Charter, specifically dealing with the question of Charter application, is conclusive on this issue. Maclntyre, J. continues at p. 598: It is my view that s. 32 of the Charter specifies the actors to whom the Charter will apply. They are the legislative, executive and administrative branches of government. It will apply to those branches of government whether or not their action is invoked in public or private litigation. It would seem that legisation is the only way in which legislature may infringe guarantee right or freedom. Action by the executive or administrative branches of government will generally depend upon legislation, that is, statutory authority. Such action may also depend, however, on the common law, as in the case of the prerogative. To the extent that it relies on statutory authority which constitutes or results in an infringement of guaranteed right or freedom, the Charter will apply and it will be unconstitutional. The action will also be unconstitutional to the extent that it relies for authority or justification on rule of the common law which constitutes or creates an infringement of Charter right or freedom. In this way the Charter will apply to the common law, whether in public or private litigation. It will apply to the common law, however, only in so far as the common law is the basis of some governmental action which, it is alleged, infringes guaranteed right or freedom." There is Human Rights Act in effect in Nova Scotia. It was in effect at the time of these events and remains so. That part of the Act which would call for constitutional ruling because of the Charter has already been ruled upon in the Snider case, supra, which declared unconstitutional those provisions of the Act which exempted people over 65 from the protection of the Act and struck down the sections of the Act concerned. Thus the constitutionality of the impediments to proceeding under the Human Rights Act by persons aged 65 or over are removed, and persons affected by any rules of mandatory retirement have forum and procedures to assert their claims. Where such exists, as it does in this case, that is the proper forum. Were it not so, there would be duplication of processes, forum shopping and, undoubtedly, lessening of the authority and effectiveness of the procedures under the Human Rights legislation. Human rights, only recently brought to the fore, in the legal sense, by the passage of legislation, is obviously an area which requires supervision to assure that the rights created by legislation are meaningful and attained. This is best accomplished by specialist board which is regularly available to anyone who has claim to assert. As with other administrative tribunals, such board is better able to deal, on daily basis, with the matters within its jurisdiction. It, however, is always subject to the general supervision of superior Court. The Nova Scotia Human Rights Commission is the proper forum for human rights disputes between private parties and therefore, is the proper forum for this dispute. The parties have already invoked its jurisdiction and should remain with it. As in any such case, if the Board is in error there are procedures to correct such error. Just because particular claimant may feel the Board's procedures are slow or cumbersome, or, because of one's particular interest to have decision before particular date, as here, that does not constitute grounds to bypass the body handling human rights complaints and invoke the application of the Charter in the Courts. Had not found the Charter inapplicable to this private dispute, would have declined jurisdiction for the foregoing reasons relating to the Charter and private persons disputes and the availability and propriety of an alternate forum. The third issue addressed was referred to as the retrospective effect of the Charter in the Snider's decision. In view of my findings so far it may be unnecessary to deal with this issue. However, think it appropriate, in view of the circumstances here, to express some views on this issue. There is very little authority on this particular point. It can be said that the general approach to legislation is that it is prospective in effect though, it can be made retrospective if clearly done in the legislation itself. It can also be said that the Charter of Rights and Freedoms is not retrospective or retroactive in its operation in the sense that it does not change the law that was in effect prior to its coming into force. The same can be said of Section 15 of the Charter which did not come into force until years later. The problem presented here is that with Section 15(1) of the Charter coming into force in 1985, discrimination based upon age was legislated to be unconstitutional yet the Nova Scotia Human Rights Act precluded anyone 65 or over from having the complaint process available. The Snider decision of the Nova Scotia Court of Appeal, filed December 16, 1988 declared the sections of the Human Rights Act to that effect were unconstitutional. The question then becomes is the effect of the Snider decision retroactive to the coming into effect of Section 15(1) of the Charter or, put another way, was mandatory retirement based upon age discriminatory practice in Nova Scotia since Section 15(1) of the Charter came into effect despite the fact that the Nova Scotia Human Rights Act provided no forum for complaints. There can only be one answer to this question and that is the age discrimination was unconstitutional from the time Section 15 of the Charter came into effect. The Snider decision was merely the first opportunity to declare it so. This is not to say that any law declared unconstitutional was unconstitutional back to the time the Charter came into effect or that anyone affected by declaration of unconstitutionality would have right to remedy for that period or that other rights, privileges or relationships lawful at the time would be altered. However, Section 15(1) is specifically declaratory section stating the status of every Canadian citizen before and under the law and guaranteeing certain rights both in general and specific manner. Those rights existed from the moment that Section came into force and exist despite any legislation to the contrary that may have been in effect. Obviously this creates problem in broad social sense particularly in the area of mandatory retirement. Presumably many were mandatorily retired between 1985 and the date of the Snider decision. Presumably many accepted their state and again, presumably, there were those who tried to complain to the Human Rights Commission who were told they had no complaint. Also, most employers involved would say they acted in good faith in accordance with the existing Nova Scotia Legislation. Should there be number of claimants now who were mandatorily retired solely on the basis of age, there could be an equal number of employers whose affairs might be quite upset if all were reinstated in their employment. The fact is that basic rights existed and some people were deprived of them and that deprivation, if asserted, would require remedy. That remedy would not and should not necessarily be the same for all claimants and, indeed, for the period prior to Snider in any event, should not necessarily be full reinstatement with back pay, subject of course to any set‑off, to the date of retirement. Each case would have to be considered on its own facts as to remedy. Reinstatement is only one, remedy. Damages is another. In determining an appropriate remedy, all the usual factors taken into account by court in constructing remedy, should be taken into account by the Human Rights Commission. Indeed, in the present case, there appears to be quite significant differences in the facts to be considered when constructing remedy between Jones and Ahern, the applicants herein. Considering each claim and constructing appropriate remedies are well within the capabilities of the Human Rights Commission and its current remedial procedures seem best suited to the manner of handling complaints regarding alleged violations of human rights legislation. That is further supportive reason for my earlier indication that the proper forum for human rights complaints is the Human Rights Commission. In conclusion, this Application is denied. However, in view of the fact that constitutional issues were raised here, in an area in which there is still uncertainty, until the Supreme Court of. Canada renders its decision regarding the application of the Charter to Universities, and considering that this is claim to rights which have been denied and to the fact that the effect of the Snider case required determination, do not feel it appropriate to make an award of costs against the applicants. Therefore, each party shall bear its own costs. Halifax, Nova Scotia November 2, 1990 1990 S.H. No. 71965 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: HUGH JONES and WILLIAM AHERN and TECHNICAL UNIVERSITY OF NOVA SCOTIA

This was an application under the Charter of Rights and Freedoms for an order declaring that the mandatory retirement of the two appellant university professors was invalid and denied the rights of the appellants as guaranteed under ss. 15(1) and (7) of the Charter, and an order for reinstatement and back pay. Dismissing the application, that (1) pursuant to s. 32 of the Charter, the Charter did not apply to these employees since the university was not a subordinate body of government, and was not being controlled by government, but was an independent institution; the fact that the university's governing statute provided that teaching staff were 'deemed to be persons employed in the public service of the Province' for the purposes of their pension plan did not constitute governmental control such as to warrant the application of the Charter; and (2) the proper forum for this application was the Human Rights Commission. The court also considered the retroactive effect of the Nova Scotia decision in Sniders v. Nova Scotia (Attorney General), which struck down the provision in the Nova Scotia Human Rights Act precluding anyone 65 years or over from making an age discrimination complaint. The court concluded that the Sniders decision did have a retroactive effect to the date when s. 15 of the Charter came into force.

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Q.B. A.D.1993 No. 205 J.C. Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: DENESCHUK HOMES LTD. and JOSEPH BATIUK and BEV BATIUK DEFENDANTS David K. Rusnak for the plaintiff Ian D. McKay for the defendants JUDGMENT McINTYRE J. November 29, 1996 The defendants entered into contract with the plaintiff, whereby the plaintiff was to build and supply to the defendants, ready to move home ("RTM"), placed on basement to be constructed by the plaintiff. The plaintiffalleges the contract price stipulated in the RTM agreement ofJune 26, 1992, and signed by both parties, was in error andseeks rectification of the contract. The plaintiff has been building RTMs in the City of Yorkton since 1979. An RTM as supplied by the plaintiff does not come with basement. It is the practice of the plaintiff to price an RTM and basement separately if prospective purchaser seeks to have the plaintiff provide basement as well as the RTM. Of the 40 RTMs built by the plaintiff in 1992, no more than half dozen involved supplying basement. The defendants dealings with the plaintiff were almost exclusively handled by Peter Skwerniuk who had been commissioned salesman for the plaintiff for about 15 years. In those 15 years, Mr. Skwerniuk had sold an average of 20 homes per year, most of which were RTMs. On May 9, 1992, the defendants met with Mr. Skwerniuk to inquire about having the plaintiff build an RTM for them. The defendants had set of blue prints and were wanting to have home built to their specifications. The defendants acknowledge being advised by Mr. Skwerniuk that an RTM does not come with basement and that an RTM and basement are priced separately. There were discussions about full basement versus half basement. The plaintiff's claim depends upon what the defendants knew or ought to have known at the time the contract was drawn up on June 26, 1992. It is necessary to review the salient facts as each side says they unfolded. The plaintiff says that on May 9, 1992, Mr. Skwerniuk gave the defendants an idea of the cost, indicating an RTM of the size proposed would be approximately $80,000.00 to $85,000.00 and basement approximately $14,000.00 to $15,000.00. The defendants acknowledge being provided with this information. The plans presented by the defendants on May 9, 1992, contained options or extras that were not part of standard RTM. Mr. Skwerniuk testified that after the initial meeting on May 9, he priced out an RTM with the specifications required by the defendants and telephoned Mrs. Batiuk on May 15, 1992, and quoted her an approximate price of $101,000.00 for the RTM and $19,000.00 for full basement. Mrs. Batiuk does not remember the May 15, call and does not recall Mr. Skwerniuk giving her the prices indicated. Mr. Batiuk was not part of the conversation and did not recall being told by his wife after the May 15 call that Mr. Skwerniuk had quoted the figures of $101,000.00 and $19,000.00. It was Mr. Skwerniuk's habit to keep notes of developments, by date, of his dealings with prospective customer. His entry for May 15, the date upon which he says he provided the approximate quote of $101,000.00 for an RTM and $19,000.00 for full basement reads: "said very serious of building". No reference is made to having provided an approximate quote. Indeed there was notation made by Mr. Skwerniuk under date of May 18, 1992, which reads: "Wanted approximate quote". Mr. Skwerniuk and the defendants met in person June 6, 1992. Mr. Skwerniuk testified that he had prepared pricing sheet for the purposes of that meeting which set out base price for an RTM of the size indicated and then listed all of the extras with price shown for each extra. The cost of the RTM came to $106,725.00. His notes for the meeting also indicated the cost of full basement would be $18,574.00. Mr. Skwerniuk testified in chief that in the June meeting he provided these prices to the defendants and, in particular, provided separate pricing for the RTM and the basement. Mr. Batiuk denies being provided these prices during the June meeting. Mrs. Batiuk did not recall Mr. Skwerniuk providing prices at the June meeting. While at the examination for discovery Mr. Skwerniuk (who was examined as the proper officer of the plaintiff and whose answers would bind the plaintiff) gave evidence that he did not communicate the prices which are listed on his June pricing sheet to the defendants at the June meeting, he was adamant at trial that he had, in fact, done so. Mr. Skwerniuk further testified that as result of their June meeting he did not think the defendants were interested in the plaintiff quoting price on basement. He says in that context he faxed to the defendants on June 18, 1992, firm price on 2,394 square foot RTM with various options as listed. The RTM was listed at $85,196.00. The options were listed and priced individually, coming to total of $106,928.00 plus GST. The document made no reference to basement. note that one of Mr. Skwerniuk's notations in his records under date of June 6, reads: "They both were in, want price on basement and RTM". The evidence of both defendants was that on June they asked for price for an RTM with basement and when they received the fax of June 18, 1992, they took the price quoted to include the basement. Mr. Skwerniuk went to the defendant's farm on June 26, 1992, to prepare written contract and obtain the defendants' signatures. His version of events is that he started out writing up the contract on the basis of his June 18 fax and his understanding the plaintiff was not supplying the basement. He was prepared to price the RTM at $106,000.00 plus GST if there was substantial down payment and he wrote this figure into the contract in paragraph where provision is made for the total price to be inserted. Paragraph of the contract provides for the terms of payment and in the final analysis read as follows: 4. The said price of $106,000.00 plus G.S.T., shall be paid the by [sic] Owner to the Contractor at the time and in the manner following, that is to say: a) On the execution of this agreement the sum of $5,000.00; "received as of this Date payment". b) Prior to commencement of construction the sum of $5,000.00; "received as of this Date payment". c) When the basement walls are poured and the foundation is ready for backfill the sum of $19,000.00. d) When the building is framed, the roof shingled, and the plumbing and electrical wiring are roughed in the sum of $50,000.00. e) When the building is ready to move the sum of $24,000.00; "when Basement floor is poured sum of $13,000.00." f) When the building is substantially complete and ready for occupancy OR when the Owner takes possession thereof, whichever is earlier the sum of "changes in options CR.'s will be adjusted final payment". Only subparagraphs a), b) and c) were completed during the meeting of June 26. The figures and notations in d) and e) were inserted later by Mr. Skwerniuk and initialled by Mrs. Batiuk. Mr. Skwerniuk testified that during the course of the June 26 meeting it became apparent that the defendants wanted the plaintiff to supply basement. He says he then quoted price of $19,000.00 for the basement. He then proceeded to complete separate document entitled "P.W.F. Basement Agreement". The basement agreement had line near the bottom where the price for the supplying of the basement is to be inserted. Mr. Skwerniuk wrote in "included in the agreement". Mr. Skwerniuk then wrote in the $19,000.00 figure in paragraph 4(c) of the RTM agreement and says he forgot at that point to amend the total price from $106,000.00 to $125,000.00. The defendants testified that having asked for price on June 6, 1992, on an RTM and basement and having received the fax of June 18, that when the contract was being drawn up on June 26 at $106,000.00, they simply asked for confirmation that the price was for the basement, the house everything included and received confirmation that this was so. The contract as drawn up June 26 and signed by the defendants at that time was subject to the plaintiff's approval. Joseph Deneschuk, president and general manager ofthe plaintiff, testified it was his practice to reviewagreements item by item. In this situation Mr. Deneschuk had before him the RTM agreement, an attached list of standard specifications, an options and specification sheet, the P.W.F. Basement Agreement, the June 17 pricing sheet as prepared by Mr. Skwerniuk and faxed to the defendants June 18, and floor plan. Mr. Deneschuk testified that the P.W.F. BasementAgreement is the company's standard agreement when supplying awood basement. He confirmed an RTM is priced separately from basement if the plaintiff is asked to price basement. Mr. Deneschuk testified that he reviewed the documentation carefully to ensure that the individual extras listed in the pricing sheet of June 17 (33 in number) were, in fact, transferred to the specification sheet and he, in fact, found three items which had not been transferred. Mr. Deneschuk testified there was no indication in the material he reviewed that basement was included. He said when he signed the RTM agreement he understood local contractor was building the basement. I cannot accept histestimony. He had the P.W.F. Basement Agreement in front ofhim and he signed the P.W.F. Basement Agreement whichindicated that the price of the basement was "included in theagreement". Indeed, in his testimony Mr. Deneschuk indicated that he worried over whether an item for framing of the stairwell to the basement had been priced into the quote, but missed the fact that the price of the basement was "included in the agreement". have difficulty in accepting that in his meticulous review to ensure that all extras, some of which were priced at few hundred dollars, were accounted for, he overlooked $19,000.00 item. However, this is not determinative of what the defendants knew or ought to have known on June 26, 1992. The plaintiff argues the Court should rectify the June 26 contract as there was mutual or common mistake in the written expression of the terms of an agreement reached by the parties. The plaintiff argues that the defendants knew or ought to have known that there was mistake in the preparation of the June 26 contract as they were aware that the price for the RTM was $106,000.00 and the cost of basement would be further $19,000.00. The plaintiff relies upon the following to fix the defendants' with this knowledge: 1. The defendants were aware that an RTM does not come with basement, which is priced separately. 2. May 9, 1992, the defendants were given ballpark figures of $80,000.00 to $85,000.00 for an RTM and $14,000.00 to $15,000.00 for basement. 3. May 15, the defendants were provided with an approximate quote of $101,000.00 for an RTM and $19,000.00 for basement. 4. June 6, the defendants were provided with price of $106,725.00 for the RTM and $18,574.00 for basement, but left Mr. Skwerniuk of the view they did not require price on basement from the plaintiff. 5. In that context the plaintiff faxed specific price on June 18 of $106,928.00 plus GST which did not include basement. 6. In the June 26 meeting when it became apparent that the defendants wanted the plaintiff to supply basement, they were quoted price of $19,000.00. The plaintiff argues there was mutual or common mistake in the written expression of an agreement and that rectification may be made upon satisfying the Court that there was an actual concluded agreement and that such agreement is inaccurately represented in the written instrument. The Saskatchewan Court of Appeal in Bercovici v. Palmer (1967), 1966 CanLII 333 (SK CA), 58 W.W.R. 111, adopted the following principles as applicable to claim for rectification. At p. 112 the court quotes from the judgment of the Supreme Court of Canada in Hart v. Boutilier (1916), 1916 CanLII 631 (SCC), 56 D.L.R. 620: "The power of rectification must be used with great caution; and only after the court has been satisfied by evidence which leaves no "fair and reasonable doubt" (Fowler v. Fowler [1859] DeG. J. 250, at 264, 45 E.R. 97), that the deed impeached does not embody the final intention of the parties." At p. 113 the court quoted from the English Court of Appeal in Rose (London) Ltd. v. Pim, Jr. Co., [1953] Q.B. 450: "Rectification is concerned with contracts and documents, not with intentions. In order to get rectification, it is necessary to show that the parties were in complete agreement on the terms of their contract, but by an error wrote them down wrongly." At pp. 113 and 114 the court quotes from the Supreme Court of Canada in Ship "M. F. Whalen" v. Pointe Anne Quarries Ltd. (1921-22), 1921 CanLII 57 (SCC), 63 S.C.R. 109: "Where one of the parties denies the alleged variation the parol evidence of the other party is not sufficient to entitle the court to act. Such parol evidence must be adequately supported by documentary evidence and by considerations arising from the conduct of the parties satisfying the court beyond reasonable doubt that the party resisting rectification did in truth enter into the agreement alleged. It is not sufficient that there should be mere preponderance of probability; the case must be proved to demonstration in the only sense in which in court of law an issue of fact can be established to demonstration, that is to say, the evidence must be so satisfactory as to leave no room for such ." The judgment of this Court in Building Design Ltd. v. Wascana Rehabilitation Centre (1992), 1992 CanLII 7962 (SK QB), 104 Sask. R. 49 contains thorough and useful review of various decisions in this jurisdiction on the issue of rectification. At p. 62 there appears the following quotation from United Grain Growers Ltd. v. Agri-Builders Regina Ltd. (1982), 18 Sask. R. 316, affd (1984), 1984 CanLII 2660 (SK CA), 33 Sask. R. 241 (C.A.): "In order to claim rectification it must be shown that there was mistake in putting down the party's intentions. There must be prior agreement which clearly shows the mistake. The evidence of mistake must be clear, unambiguous and established by convincing evidence. The mistake must be mutual in the absence of very exceptional circumstances which would amount to fraud or misrepresentation amounting to fraud." party seeking rectification must establish that the parties were of one mind. That is to say, that there was common intention or agreement as to the terms of the contract and that the written record does not properly record that common intention. While the burden of proof is still the civil burden, the nature of the evidence must be clear and convincing. In this regard I cannot accept the plaintiff'sversion of events. Mr. Skwerniuk's evidence that he providedan approximate price on May 15, contradicts his own notationsof May 15 and 18. If he provided an approximate quote May 15, the notation of May 18 makes no sense. His notation is, iffact, consistent with the evidence of the defendants. While Mr. Skwerniuk testified that he provided aprice to the defendants on June 6 for an RTM and a basementseparately, this contradicts the answers given by him at theexamination for discovery. It is also not consistent with hisown notation of June 6, which indicated that the defendantswanted a price for a basement and RTM. Why would the defendants leave the meeting wanting price if they had just been given price. It was also Mr. Skwerniuk's evidence that as result of the June meeting, he was of the view the defendants did not want price on basement. This is again contradicted by his own note of June 6. His note is, in fact, consistent with the defendants' testimony that they left the June meeting wanting price on an RTM and basement. In accepting the defendants' version of what transpired June 6, they asked for quote on an RTM and basement. They received fax on June 18 with price quoted of $106,928.00 plus GST. Given that cannot accept that they were provided with previous quotes on May 15 and June 6, this is the first firm quote they had received and one cannot conclude on the basis of the fact the document is silent on the matter of the basement that they knew or ought to have known that basement was not included in the price quoted. While the defendants acknowledge being told at the outset that an RTM does not come with basement and being given ballpark figures which totalled $95,000.00 to $100,000.00, the fact is that after number of discussions about the specifications they wanted in their home, they asked on June 6, for price for an RTM and basement. They received fax June 18 and price. There is no clear and convincing evidence that as of June 18 that the defendants knew or ought to have know that the price quoted did not include basement. It is in this context that then view the June 26 meeting. It may well be that in Mr. Skwerniuk's mind that in the course of that meeting he realized that $19,000.00 had to be added to the contract price in order to supply basement as well as an RTM. However, am not satisfied that this was communicated to the defendants such that can conclude the defendants, knowing that the total contract price was, in fact, supposed to be $125,000.00, signed the contract at $106,000.00 seeking to take advantage of the plaintiff's mistake. In the context of the defendants having asked for price June for an RTM and basement and receiving price of $106,928.00 on June 18, the contract being written up at $106,000.00 and receiving confirmation this included everything, including house and basement, there is no clear and compelling evidence that on June 26 there was common agreement or intention and mistake in recording that intention. The plaintiff's claim for rectification of thecontract is dismissed. The plaintiff also had claim for $1,716.28 for extras to the contract. The defendants in their statement of defence acknowledged that the sum of $1,716.28 was owing to the plaintiff. The plaintiff will have judgment against the defendants for the sum of $1,716.28. The plaintiff claims interest at the rate of 15% or, in the alternative pre-judgment interest. When the contract was prepared June 26 and signed by the defendants, no interest rate was stipulated. That portion of paragraph of the contract where it provided for an interest rate to be inserted was left blank. When further details on the terms of payment of the purchase price were inserted into paragraph 4(d) and (e) at later date and initialed by Mrs. Batiuk, an interest rate had still not been inserted into the contract. It was Mr. Batiuk's evidence that there was no interest called for as it was his understanding that the RTM would not be leaving the plaintiff's premises until it was paid for in full. Theevidence was not clear as to when an interest rate of 15% wasinserted into the document and I am not satisfied that therewas an agreement reached by the parties to pay interest. The plaintiff's claim for interest is dismissed. The plaintiff is entitled to interest pursuant to The Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2 on $1,716.28. With respect to costs, while the plaintiff has obtained judgment for the extras, this was never in dispute and was admitted by the defendants in their statement of defence. The real issue was the claim for rectification. On that basis, the defendants shall be entitled to costs of the

The plaintiff was to build and supply to the defendants a ready to move home (RTM). The plaintiff alleged the contract price was in error and sought rectification of the contract. The commissioned salesman who was examined as the proper officer of the plaintiff gave evidence at the examination for discovery that he did not communicate the prices listed on his pricing sheet to the defendants but was adamant at trial that he had. HELD: The claim for rectification was dismissed. 1)The testimony of the president and general manager was not accepted. He signed the company's standard agreement which indicated that the price of the basement was included in the agreement. The salesman's evidence that he provided an approximate price contradicted his own notations and the notation was consistent with the evidence of the defendants. 2)A party seeking rectification must establish that the parties were of one mind as to the terms of the contract and the written record does not properly record that common intention. 3)The evidence was not clear as to when an interest rate of 15% was inserted into the document and the court was not satisfied that there was an agreement to pay interest. The plaintiff was entitled to interest pursuant to the Pre-judgment Interest Act on the claim for extras to the contract. 4)The claim for the extras was never in dispute. The defendants were entitled to costs of the action.

d_1996canlii6756.txt

C.A.C. No. 121422 NOVA SCOTIA COURT OF APPEAL N.A.A. Applicant/Appellant and HER MAJESTY THE QUEEN Respondent M. Joseph Rizzetto for the appellant Robert C. Hagell for the respondent Application Heard: October 20, 1995 Decision Delivered: October 20, 1995 BEFORE THE HONOURABLE JUSTICE ELIZABETH A. ROSCOE, IN CHAMBERS ROSCOE, J.A.: (orally, in Chambers) This is an application for bail pending appeal pursuant to s. 679(3) of the Criminal Code. The hearing of the appeal from conviction is scheduled for March 20, 1996. The Crown opposes the application for release. The appellant was convicted by a jury of two counts of sexual assault against his teenaged nieces. The trial judge remanded the appellant until his sentencing which is scheduled for December 4, 1995. The grounds of appeal are: 1. That the learned trial judge erred in law in failing to permit the testimony of school teacher, who had been falsely accused of making sexual comments to the complainant [S.L.] by the complainant, [S.L.]. 2. That the learned trial judge erred in law in refusing to permit cross­- examination of the complainant, [A.L.], on an earlier contradictory statement on audio/video cassette, without even having heard the contradictory statement. 3. Such further and other grounds as may appear at trial. am advised that the appellant is married, has three children and is self-employed fisherman. He is the sole support of his family and has no previous criminal record. The appellant has the onus of satisfying the three conditions of s. 679(3). In my view, the grounds of appeal are not frivolous, nor does it seem that there is much risk that he would not appear in court when ordered. He abided by the terms of the pre-trial release and has strong economic and family ties to his community. The real issue is the question of the public interest. The cases have referred to where bail was sought prior to sentencing R. v. Smale (1980), 1979 CanLII 2925 (ON CA), 51 C.C.C. (2d) 126; R. v. Bencardino and De Carlo (1973), 1973 CanLII 1543 (ON CA), 11 C.C.C. (2d) 549; R. v. Morris (Ont. C.A.), QL [1985] O.J. No. 170; and R. v. Osolin (B.C.C.A.), QL [1989] B.C.J. No. 654 seem to place higher onus on the appellant at this point in the legal process than is the case after sentencing. For example in Smale, Associate Chief Justice MacKinnon said at p. 128: That jurisdiction should only, it appears to us, be exercised in unusual and limited circumstances but it does exist. In R. v. Morris, Morden J.A. said it is rare case where bail is granted pending sentence and in R. v. Osolin, MacFarlane J.A. said the jurisdiction should be granted in unusual and limited circumstances. It appears that in those cases the Appeal Court judges relied heavily on the trial judge's assessment of whether it was in the public interest to keep the convicted person in custody pending sentencing. In this case, the trial judge's reasons for the remand have been transcribed and provided to me. Although the Crown prosecutor at the trial was not opposed to continuing the interim release, the trial judge said: To put it bluntly, the issue on sentencing hearing following conviction for these offences is not whether Mr. N.A.A. will be going to jail but for how long. think it is important also from the public perception that the penalty or punishment for commission of these offences follow soon after finding of guilty. find myself persuaded by Mr. Rizzetto's argument that when the grounds of appeal do have some merit, the test for release should not be more strenuous at this stage of the proceeding. The other cases have referred to all involved more serious offences, and presumably more dangerous offenders. For example, Smale was conviction of manslaughter; Osolin was convicted of sexual assault and kidnapping, and had previous record; Morris was convicted of aggravated assault; and Bencardino and De Carlo were convicted of manslaughter. As well, those cases can be distinguished on the basis that the dates for sentencing appeared to be much closer than is the fact in this case: in Morris there were five days left before the sentencing; in Bencardino it was one month, and in Smale there were only two days between the date of the decision of Justice MacKinnon and the date for Mr. Smale's sentencing. I am, in the circumstances of this case, prepared to release Mr. N.A.A. from custody pending his sentencing because I am persuaded that his detention is not necessary in the public interest. will hear counsel respecting the terms of the release order. J.A. C.A.C. No. 121422 NOVA SCOTIA COURT OF APPEAL N.A.A. Applicant/Appellant and HER MAJESTY THE QUEEN Respondent BEFORE THE HONOURABLE JUSTICE ROSCOE (in Chambers)

This was an application for bail pending appeal pursuant to s. 679(3) of the Criminal Code. The appellant was convicted of sexual assault, and was remanded pending sentence. The Crown opposed release. An appeal of his conviction was not scheduled to be heard for several months; his sentencing hearing was slated for more than a month after the instant chambers application. Releasing the appellant pending sentence, that his detention was not necessary in the public interest. When the grounds of appeal do have some merit, the test for release should not be more strenuous at the early stage of the proceeding

d_1995canlii4219.txt

J. Date: 2002-05-30 Docket: 998806-998828 2002NSPC20 IN THE PROVINCIAL COURT HER MAJESTY THE QUEEN VERSUS PAUL HENNEBERRY DECISION HEARD BEFORE: The Honourable Associate Chief Judge R. Brian Gibson DATE HEARD: December 3, 2001 PLACE HEARD: Dartmouth, Nova Scotia CHARGES: 12 counts under S.238(1) of the Income Tax Act. COUNSEL: David Bright, for the Crown Kent Clarke, for the Defence [1] Mr. Paul Henneberry has pled guilty to 12 counts of failing to comply with the provisions of subsection 153(1) of the Income Tax Act by failing to remit to the Receiver General of Canada, money deducted and withheld from salaries, wages or other remuneration paid to the employees of Halifax Regional Protection Services Limited (herein referred to H.R.P.S.). The total sum deducted and unpaid amounted to $22,069.23. These offences occurred between the dates of February 16, 1999 and January 18, 2000. [2] imposed the minimum fine of $1000 for each of these offences pursuant to the provisions of subsection 238(1) of the Income Tax Act. As part of the sentence, the Crown also sought an order of compliance pursuant to the provisions of subsection 238(2) of the Income Tax Act, ordering Mr. Henneberry to make payment of the sum of $22,069.23 to the Receiver General. [3] At the time the 12 guilty pleas were tendered and the fines imposed, there was dispute between the Crown and Mr. Henneberry regarding the implication of outstanding bankruptcy proceedings in relation to the issuance of subsection 238(2) compliance order. The matter was adjourned to receive further submissions from counsel for both parties. [4] Sixteen days following the tender of guilty pleas and the imposition of the fines in relation to these 12 offences, Mr. Henneberry received a Certificate of Discharge pursuant to the provisions of S.168.1 of the Bankruptcy and Insolvency Act, discharging and releasing him from all debts except matters referred to in subsection 178(1) of that Act. Mr. Henneberry, when making the assignment for the benefit of creditors on December 20, 2000 pursuant to the Bankruptcy and Insolvency Act, listed Canada Customs and Revenue Agency as one of his creditors and included therein the above-mentioned amount of $22,069.23 as part of the indebtedness to Canada Customs and Revenue Agency. [5] The issue before me is whether have jurisdiction to issue an order pursuant to subsection 238(2) of the Income Tax Act ordering payment of the amount of $22,069.23 or some part thereof by Mr. Henneberry to the Receiver General and if do, whether such an order should be made. [6] Mr. Henneberry was an officer and director of H.R.P.S. at all times material to these offences. He operated the company with another unnamed investor. The submissions made by defence counsel suggest that Mr. Henneberry was relying upon the accountant and the other investor of H.R.P.S. to meet the requirements of the Income Tax Act including the remittance to the Receiver General of the money deducted and withheld from salaries, wages or other remuneration paid to the employees of H.R.P.S.. The implicit inference to be drawn from those submissions is that either of these two other individuals were at least equally, if not more responsible than Mr. Henneberry for these offences. The Crown did not contest this Defence submission relative to the facts and circumstances surrounding the offences. The evidence and submissions, however, did not reveal whether the accountant or investor were officers, directors or shareholders in H.R.P.S. [7] It is the Crown’s position that: 1) The authority of the Court to make subsection 238(2) Income Tax Act compliance order is unaffected by the bankruptcy proceedings because these offences are quasi-criminal matters and the order sought is part of sentence for these offences; 2) That the unremitted employee deductions represented money held in trust and thus were not an indebtedness as contemplated by the Bankruptcy and Insolvency Act; 3) That the ability of Mr. Henneberry to pay is irrelevant. [8] The Defence position is that: 1) The amount of $22,069.23 is an indebtedness to which the Bankruptcy and Insolvency Act proceedings were applicable; 2) That it is incumbent upon the Crown to establish that the amount sought by way of compliance order is an indebtedness as defined in subsection 178(1) of the Bankruptcy and Insolvency Act and thereby unaffected by an order of discharge; 3) That the Crown has failed to establish any one of the three conditions or circumstances set out in subsection 227.1(2) of the Income Tax Act which, it is submitted, must be established prior to issuing compliance order. [9] I conclude that a subsection 238(2) compliance order falls within the definition of “any fine, penalty, restitution order or other order similar in nature to a fine, penalty or restitution order imposed by a Court in respect of an offence...” as set out in subsection 178(1)(a) of the Bankruptcy and Insolvency Act. Such matters are unaffected by an order of discharge under that Act. Therefore, the court’s jurisdiction to make an order pursuant to subsection 238(2) of the Income Tax Act is unaffected by the bankruptcy proceedings and the certificate of discharge arising therefrom in respect of Mr. Henneberry. [10] am not persuaded that the unremitted deductions represented money held in trust by Mr. Henneberry. That money was held in trust by H.R.P.S. Mr. Henneberry’s liability for the failure or H.R.P.S. to remit that money, and thus become party to the offences as described in subsections 153(1) and 238(1) of the Income Tax Act, is found in Section 242 of the Income Tax Act. As an officer or director of H.R.P.S., and thus directing mind of that corporate entity, Mr. Henneberry had responsibility to ensure that the money deducted and held in trust by H.R.P.S. was remitted to the Receiver General. [11] The primary purpose of subsection 227.1(1) of the Income Tax Act is to specifically make the directors of corporation financially liable for the failure of the corporation to comply with Section 153 and other provisions of the Income Tax Act. Subsections 227.1(2) and (3) specify limitations upon and thereby by implication potential defences to such liability. conclude that the limitations and defences to the liability as director may also be raised by director or officer of corporation in relation to the offence liability provisions found in Section 242 of the Income Tax Act. However, the guilty pleas tendered by Mr. Henneberry to these 12 offences represent either waiver or an acceptance that these defences and limitations did not apply to his liability under Section 242 of the Income Tax Act as party to these offences nor to the sentence to be imposed pursuant to the provisions of Section 238. These limitations or defences found in subsection 227.1(2) and (3) cannot now be raised in relation to the sentence. Expressed in another fashion, the Crown, in light of Mr. Henneberry’s guilty pleas, need not establish the existence of the matters set out in subsection 227.1(2) of the Income Tax Act. [12] conclude that subsection 238(2) order is discretionary. The issue therefore is whether should exercise my discretion and direct subsection 238(2) compliance order. In the course of determining the manner in which should exercise that discretion, conclude that the ability to pay by Mr. Henneberry is relevant factor to consider. [13] It has been submitted that Mr. Henneberry is currently person of relatively limited financial means with limited employment prospects. However, in the submissions made by Defence counsel it was stated that Mr. Henneberry was relying upon an investor of H.R.P.S. and/or the accountant of that company to make the deductions and necessary remittances to the Receiver General. That suggests that Mr. Henneberry may have right to seek recovery or contribution from these two individuals. No submissions were made as to the identity of these individuals, the office, if any, that they held in H.R.P.S., their financial circumstances nor the prospect of recovery from them. [14] In the course of further assessing the ability of Mr. Henneberry to pay, have noted that he listed on the Assignment made to creditors in the bankruptcy proceedings, liabilities of $250,053 and $0 assets. The liability of $250,053 includes an indebtedness of $247,841 to the Canada Customs and Revenue Agency. No evidence or facts were presented as to how this amount of $247,841 was expended or utilized rather than being remitted to Canada Customs and Revenue Agency. Such large indebtedness to Canada Customs and Revenue Agency suggests that there was significant stream of income flowing, in large part to Mr. Henneberry, for some undefined period of time. More information as to how that stream of income was expended may have been of some assistance in the course of exercising my discretion to not impose subsection 238(2) compliance order. [15] note that the Information charging Mr. Henneberry with these 12 offences, lists his birth date as March 3, 1962. If that date of birth is correct, the accused would be 40 years of age and would infer in light of any evidence to the contrary that his future prospects for employment and to earn income are likely quite good. believe that require something more than submission that Mr. Henneberry’s current employment prospects are not good as the sole basis upon which to exercise my discretion to not grant the order sought by the Crown under subsection 238(2). [16] In conclusion order, pursuant to the provisions of subsection 238(2) of the Income Tax Act that Paul Henneberry comply with the provisions of Section 153 of the Income Tax Act and pay the sum of $22,069.23 to the Receiver General on or before September 5, 2002. That date was the due date set for the payment of the fines. am prepared to hear counsel, upon application, prior to that date to extend the due date of the foregoing payment. R. Brian Gibson Associate Chief Judge

The defendant plead guilty for failing to comply with s. 153(1) of the Income Tax Act for failing to remit to the Receiver General of Canada money deducted and withheld from salaries, wages, or other remuneration paid to its employees. A fine was imposed pursuant to s. 238(1) of the Act. The defendant had filed for bankruptcy and argued that under s.168.1 of the Bankruptcy and Insolvency Act, he is discharged from all debts except matters referred to in subsection 178(1) of that Act.S. 238(1) of the Income Tax Act, falls within the definition of any fines, penalties, and restitution order as set out in s. 178(1) of the Bankruptcy and Insolvency Act. The Court's jurisdiction to make an order pursuant to s. 238(1) of the Income Tax Act is unaffected by a bankruptcy proceeding.

2_2002nspc20.txt

E. J. GUNN IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 153 Date: November 12, 2010 Information: 24164524 Location: La Ronge Between: Her Majesty the Queen and Jason Paulsen Appearing: Inez Cardinal For the Crown Peter A. Abrametz For the Accused INTERIM RULING F.M. DAUNT, [1] Jason Paulsen stands charged with seven counts on a single information, including the following: Count 1. Between the dates of September 20, 2009 AD and September 25, 2009 AD at/near Waterbury Lake in the Province of Saskatchewan didWithout lawful authority, angle in Saskatchewan waters without a licence to wit: angle on Waterbury Lake, contrary to section 11(1) of The Fisheries Regulations F-16.1 Reg 1. Count 2. On or about June 14, 2009 AD at/near Prince Albert in the Province of Saskatchewan didWithout lawful authority apply for or obtain a licence while disqualified or prohibited, contrary to section 9 of The Fisheries Regulations F-16.1 Reg 1 Count 3. On or about September 25, 2009 AD at/near La Ronge in the Province of Saskatchewan didWithout lawful authority, possess fish except in accordance with any licence or any provision of The Fisheries Act (Saskatchewan), 1994 or the Fisheries Act (Canada), contrary to section 13 of The Fisheries Act (Saskatchewan), 1994. [2] At the close of the Crown’s case, defence brought Charter application challenging the constitutionality of section 35 of The Fisheries Act, 1994, alleging it breaches sections and 11(d) of the Canadian Charter of Rights and Freedoms. [3] Section 35 of The Fisheries Act, 1994 states: In any prosecution pursuant to this Act in which the validity or existence of licence is in question, the onus is on the person charged to prove the validity or existence of the licence. [4] Defence argues that section 35 is unconstitutional in that it creates reverse onus, infringing the right of the accused to be presumed innocent until proven guilty, and is not saved by section of the Charter. The Crown argues that section 35 is constitutionally valid, citing numerous decisions upholding the constitutionality of reverse onus provisions in regulatory context. [5] There is side issue, fully argued by both sides, which is mostly irrelevant to the Charter argument. Mr. Paulsen did possess fishing licence, valid on its face. The issue is whether person named Kevin Callele had the authority under The Fisheries Act to prohibit Mr. Paulsen from applying for or obtaining an angling licence. To put it another way, the issue is this: was there a valid ministerial order revoking Mr. Paulsen’s licence and prohibiting him from applying for or obtaining a licence at the relevant times? FACTUAL BACKGROUND [6] On December 3, 2008, letter was prepared from Saskatchewan Environment, 3211 Albert Street, Regina, Canada S4S 5W6 in the name of Kevin Callele, Acting Executive Director, Fish and Wildlife Branch. It was addressed to Mr. Jason Paulsen, RR#3 Site Comp 19, Prince Albert SK S6V 5R1. The letter was signed by some unknown person, “for” Kevin Callele. Entered as Exhibit P1 on the trial was photocopy of photocopy of the original letter. The text of the letter is as follows: Dear Mr. Paulsen: This is in response to your conviction under subsection 13(4) of The Fisheries Regulations (Saskatchewan) for the offence of exceeding the angling limit which occurred on September 25, 2007. The Ministry of Environment is mandated to manage, enhance and protect Saskatchewan’s natural and environmental resources for conservation, social, economic and recreation purposes, and to ensure they are sustained for future generations. The public expect that people appreciate, respect and comply with the policy and legislation governing the management of the provincial fish resource. Blatant abuse of this precious resource is viewed as very serious matter. Accordingly, due to your conviction, your current angling licence is revoked and you are prohibited from applying for, or obtaining an angling licence for the Province of Saskatchewan for period of five years from the date of your conviction. You will be eligible to purchase an angling licence on October 15, 2013. Please contact Lyle Galloway, Compliance Manager, La Ronge Compliance Area at telephone number (306) 425-4244 if you have any questions regarding the suspension imposed. [7] On December 9, 2008, William Zimmer, Conservation Officer for the Ministry of Environment in Prince Albert, Saskatchewan, tried to serve Mr. Paulsen personally with the original letter. There was no indication in the evidence why he was not served by registered mail, as is allowed in The Fisheries Act. [8] In any event, Officer Zimmer drove to what he “firmly believed” was the residence of Mr. Paulsen. This was west of Prince Albert. Mr. Paulsen’s mailing address was Rural Route number and did not identify his specific residence. Officer Zimmer drove into the yard. There was diesel truck parked and running. Officer Zimmer knocked on the door to the residence. There was no answer. Officer Zimmer then did registered licence check through their enforcement centre dispatch in Prince Albert. Although Officer Zimmer recalled that the truck was registered to Jason Paulsen, in reality it was registered to his business, Paulsen Son Excavating Ltd. [9] Officer Zimmer then called the “Jason Paulsen residence” on his cell phone. He could not recall where he got the number that he called, whether from the phone book or from calling information. Although he could recognize Jason Paulsen to see him, he did not know him well enough to recognize his voice. He testified: received an answer. talked to, at that point, an unknown male person. was asking indicated that wanted to meet with Jason Paulsen. The conversation led to why am there. indicated why was there, who was with. indicated was with the Ministry of Environment and had to speak with him, and the conversation didn’t really go much beyond that…. Mostly that was there and needed to serve him letter. needed to speak with him regarding an angling suspension. Those kind of things. The conversation was short, fairly abrupt. [10] He says the unknown male was belligerent with him, and said the case was under appeal. The male person did not identify himself on the telephone. [11] Officer Zimmer then went back to the yard site. He walked up to the front porch and knocked on the door. He heard somebody talking, but there was no invitation to enter. He opened the door crack. As man inside yelled profanities at him, Officer Zimmer said he had an “angling fishing licence suspension.” He put his arm through the crack in the door and set that letter on small stand or table inside the house. He did not see any of the occupants of the house at any time. Officer Zimmer could not be sure that the occupant heard him when he said anything about the licence suspension. He also could not say whether anyone in the house saw him place the envelope on stand inside the door. Officer Zimmer then left the house and yard. [12] The original letter signed on behalf of Kevin Callele was placed inside this doorway. Officer Zimmer kept photocopy for his records. Tendered in Court was photocopy of that photocopy. [13] The next happening of interest was on September 20, 2009, when Jason Paulsen went on fishing trip to Waterbury Lake, along with his sister, Nicole, and three small children. Mr. Paulsen had fishing licence which was dated June 14, 2009, issued by Vendor 36640, the Prince Albert Co-op gas station. Nicole also had fishing licence. The children did not require licences, and had none. Through an elaborate covert operation, Mr. Paulsen was observed “actively angling” numerous times between September 20th and September 25th. [14] On September 25th, Mr. Paulsen and his companions packed up for the long drive back to Prince Albert. Mr. Paulsen was driving the same truck observed by Officer Zimmer in the yard west of Prince Albert. Just before midnight, the vehicle approached La Ronge from the north. The group still had two and half hours to go before they got home. Rather than continue on home to bed, however, the group was stopped by local conservation officers, who were in possession of search warrant. The three little boys, Nicole and Mr. Paulsen were redirected to the Sask. Environment maintenance compound. [15] The search warrant was executed over the course of about two hours. From the vehicle were seized (among numerous other items, including boat and motor) stainless steel cooler with the name and address of the accused scratched into it, blue cooler, and plastic food cooler, all of which contained fish. In total, there were 20 fish: lake trout, pike and arctic grayling. Assuming their licences were valid, there is no suggestion that these amounts were over limit for any of the anglers, or that the manner of transportation was against any regulations. [16] It took about another hour before the group could rearrange the non-seized items and put them into the truck. They resumed their long journey shortly before 3:00 a.m. 1. Was there valid revocation and prohibition? [17] As previously stated, this is side issue and irrelevant to the constitutional issue. However, if defence is correct and Mr. Callele had no authority to prohibit Mr. Paulsen from applying for fishing licence, counts 1, and must fail and the burden of proof issue under section 35 becomes irrelevant. If there was no valid prohibition, Mr. Paulsen possessed valid licence and did not fish or possess fish except in accordance with that valid licence. [18] Section 27 of The Fisheries Act (Saskatchewan), 1994 states as follows: (1) The minister may revoke person’s licence or revoke person’s licence and prohibit that person from applying for or obtaining licence for not more than five years where the minister is satisfied that the person has contravened: (a) any provision of this Act; (b) any provision of the Fisheries Act (Canada) or any regulations made pursuant to that Act; or (c) any terms or conditions specified in the person’s licence. (2) Where the minister revokes person’s licence or revokes person’s licence and prohibits that person from applying for or obtaining licence, the minister shall serve the person with written notice of the revocation or revocation and prohibition by personal service or registered mail. (3) revocation or revocation and prohibition takes effect on the later of: (a) ... (b) the day on which it is served in the case of personal service[.] [19] prerequisite to the prohibition is that the minister must be satisfied that person has contravened any provision of “this Act,” i.e. The Fisheries Act (Saskatchewan), 1994. Section 27 does not give the minister the power to revoke when a person contravenes The Fisheries Regulations. Paragraph (b) allows revocation upon contravention of Regulations made pursuant to the federal Act. Had the legislature intended that power to be extended to violations of the provincial Regulations, certainly they would have specified such, as they did in paragraph (b). Section 27(1) of The Interpretation Act, 1995 defines “Act” as “an Act of the legislature and includes an Ordinance of the Northwest Territories in force in Saskatchewan.” The definition of Act does not include its Regulations. The letter addressed to Mr. Paulsen states specifically that the prohibition is in response to his conviction under subsection 13(4) of The Fisheries Regulations (Saskatchewan). Section 27 of The Fisheries Act (Saskatchewan), 1994 does not give the minister that power. For that reason alone, the prohibition is not valid on its face, as being without authority. [20] “Minister” is defined in section 2(1)(j) of the Act as “the member of the Executive Council to whom for the time being the administration of this Act is assigned.” The Crown has conceded that Kevin Callele is not a member of the Executive Council. Defence argues that, therefore, he had no authority to prohibit Mr. Paulsen from applying for or obtaining fishing licence. The Crown, however, points to sections 23 and 23.1 of The Interpretation Act. They read as follows: 23(2)Where an enactment directs or empowers minister of the Crown to do an act or thing, that act or thing may be done on the minister’s behalf by any person appointed to serve in the department over which the minister presides if: (a) (b) that person is appointed to serve in capacity appropriate to the doing of the act or thing whether or not he or she, or any other person, was authorized by the minister to do the act or thing. 23.1(1) Unless an enactment expressly provides otherwise, section 23 applies to every act or thing that minister may do pursuant to an enactment, whether it is administrative, legislative, judicial or otherwise and whether or not it involves the holding of an opinion or the reaching of conclusion by minister. [21] Section 23 applies, even if the act is judicial one, to allow the minister to delegate to others to act “on the minister’s behalf.” However, because the minister had no power to revoke, that power could not be delegated to Mr. Callele pursuant to section 23(2) of The Interpretation Act. If remember my law school maxims correctly, nemo dat quod non habet: no one can give what he does not have. [22] Exhibit P1 is letter from Kevin Callele, “A/Executive Director, Fish and Wildlife Branch”, on Saskatchewan Environment letterhead. It is not signed by him. It is signed by an unknown person “for” Kevin Callele. It would seem that there is no other record of this ministerial decision separate from the letter that provides notice of the decision. That is, there is no independent document recording the decision or the process required to reach the decision. Because Mr. Callele did not sign the letter, do not know if he wrote it himself, had someone write it for him, dictated it to someone else or if he typed it himself. If he was the author of the document, do not know if he read it before it left his office, to make sure it was correct and that it accurately reflected the decision he made. [23] find that the unknown person who signed on behalf of Mr. Callele had no authority to act on behalf of the minister. signature confirms that the document is correct and reflects the intention of the author. For most letters prepared in the ordinary course of business, it is common practice to have secretary or colleague sign on one’s behalf. If there are mistakes, they can be corrected later or they are not that important. For letter of this nature, however, which serves as notice of ministerial decision, nothing in The Interpretation Act allows this further level of delegation. [24] Furthermore, even if Mr. Callele or his delegate had the power to issue the revocation and prohibition, Mr. Paulsen was neither served personally nor by registered mail with notice of that revocation and prohibition. It was never explained why he was not served by registered mail, which would have been the simplest, least confrontational way, and easy to prove. However, no matter who has the burden of proof, shoving letter through crack in the door is not “personal service” by any definition. No further attempts were made to serve Mr. Paulsen, either personally or by registered mail. According to The Fisheries Act, the prohibition takes effect on the day on which it is served, in the case of personal service. Here, Mr. Paulsen was never properly served. Nor was he served by registered mail, in which case it would take effect on the delivery date or on the date the signed post office receipt is returned to the sender. [25] Exhibit P1 is not document valid on its face. It purports to revoke Mr. Paulsen’s licence and prohibit him from applying for licence because of specific conviction. That conviction does not give the minister or anyone else the power to revoke and prohibit. It is signed by an unknown, unidentified person. This is not collateral attack on ministerial order, valid on its face. It is void ab initio, having been made without authority. It is invalid on its face. [26] In conclusion, I find that there was no prohibition order in effect within the meaning of section 27 of The Fisheries Act. Counts 1, and all depend on the fact that Mr. Paulsen was prohibited from obtaining fishing licence at the relevant times. As result, they all must fail. This is so, no matter who has the burden of proof of the validity of Mr. Paulsen’s licence. If the Crown bears the onus, whether on reasonable doubt standard or on balance of probabilities, they have failed to meet it. If the accused bears the burden, he has met it through the Crown’s evidence. Mr. Paulsen had licence, valid on its face. He acted in compliance with that licence. There was no valid section 27 revocation or prohibition in place so as to invalidate his licence. Counts 1, 2 and 3 are dismissed. [27] Therefore, do not have to decide the constitutional question, as it is moot, and decline to do so. F.M. Daunt,

The accused was charged with angling without a license, applying for a license when prohibited and possessing fish without a license contrary to various sections of The Fisheries Act and The Fisheries Regulations. The accused raised a Charter defence arguing that section 35 of The Fisheries Act was unconstitutional. The issue for the trial judge was whether there was a valid ministerial order revoking the accused's license and prohibiting him from applying for or obtaining a fishing license. A conservation officer had attempted to serve the accused with a copy of letter signed by an unknown person on behalf of the Acting Executive Director, Fish and Wildlife Branch. The letter purported to advise the accused that due to a previous conviction his current fishing license was revoked and he was prohibited from obtaining another one. The letter referenced a prohibition under s. 13(4) of The Fisheries Regulations. The conversation officer testified that he opened the door of a house that he thought belonged to the accused and left the letter on a stand near the door. The conservation officer was unable to say if the occupant heard him say anything about a license suspension or whether anyone in the house saw him place the envelope on the stand inside the door. HELD: Section 27 of The Fisheries Act (Saskatchewan) does not give the minister the power to revoke the a license when a person contravenes the The Fisheries Regulations. Further, the Acting Executive Director, Fish and Wildlife Branch is not a member of Executive Council as required by the definition of 'Minister' in the Act. The letter was signed by an unknown person who clearly did not meet the definition of 'Minister.' Finally, the letter was not served on the accused personally or via registered mail. There was no prohibition order in effect within the meaning of section 27 of The Fisheries Act. The accused was acquitted of all three counts. It was unnecessary to decide the constitutional issue.

2010skpc153.txt

Dated: 20010810 2001 SKCA 85 Docket: 3091 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Tallis, Sherstobitoff and Jackson JJ.A. SCURRY-RAINBOW OIL (SASK) LTD. and TARRAGON OIL AND GAS LIMITED and HARRY ERNEST TAYLOR and MAXX PETROLEUM LTD. RESPONDENTS COUNSEL: Mr. Brian J. Scherman and Mr. David G. Gerecke for the Appellants Mr. James S. Ehmann and Mr. Keith D. Boyd for the Respondents DISPOSITION: On Appeal From: QB 2112/94, J.C. of Regina Appeal Heard: September 26, 2000 Appeal Allowed: August 10, 2001 Written Reasons: August 10, 2001 Reasons By: The Honourable Mr. Justice Tallis In Concurrence: The Honourable Mr. Justice Sherstobitoff In Dissent: The Honourable Madam Justice Jackson TALLIS J.A. [1] The principal question on this appeal is whether the appellants' oil and gas "top lease" with the late Harry Herbert Taylor should be rendered void by the rule against perpetuities. In reasons now reported [1998 CanLII 14009 (SK QB), 170 Sask. R. 222], the learned trial judge held that the lease was void because it breached that rule and allowed the respondents' action for declaration to that effect. He allowed the counterclaim by the appellant Tarragon against the respondent Maxx Petroleum Ltd. for breach of confidence with consequent directions for an accounting and assessment of damages.[1] [2] The background and essential facts with respect to this controversy are not in dispute. [3] On April 26, 1949, the late Harry Herbert Taylor (father of the respondent Harry Ernest Taylor) granted ten-year primary term lease to Imperial Oil Ltd. of "all the petroleum and natural gas and related hydrocarbons, except coal and valuable stone, within, upon or under" the land described as The East Half of Section Fifteen (15), in Township Four (4), Range Thirty-two (32), West of the Principal Meridian in the Province of Saskatchewan, in the Dominion of Canada, containing One Hundred and Sixty (160) acres, more or less, according to Dominion Government Survey thereof. Minerals Included. Under the habendum clause in this lease, the primary term was for ten years from April 26, 1949, and "for so long thereafter as leased substances were produced from the lands". There was no production and the lease expired at the end of the primary term April 25, 1959. [4] On August 7, 1950, Harry Herbert Taylor signed an agreement entitled "Assignment and Conveyance of Petroleum and Natural Gas Royalty and Lease of Minerals" in which he was the grantor and Freeholders Oil Company Limited was the grantee. Under the terms of this "top lease" Mr. Taylor granted petroleum rights in the same half section to Freeholders upon expiration of the Imperial Oil lease dated April 26, 1949.[2] [5] Since the threshold issue at trial was whether this agreement of August 7, 1950 was void by reason of the common law rule against perpetuities, we find it convenient to reproduce the relevant parts of it: AND WHEREAS by Petroleum and Natural Gas Lease dated the "26th" day of "April", A.D. 19"49", (hereinafter referred to as "the drilling lease"), made between the GRANTOR as lessor and "Imperial Oil Limited" (hereinafter called "the lessee"), the GRANTOR has demised and leased to the LESSEE the petroleum, natural gas and related hydro‑carbons within, upon or under the above described land subject to the payment to the GRANTOR of gross royalty of twelve and one‑half per cent. (12½%) of all of the production of the said petroleum, natural gas and related hydro‑carbons or any of them, produced, saved and marketed from the said lands during the currency of the said drilling lease; AND WHEREAS the said gross royalty represents an undivided twelve and one‑half per cent. (12½%) interest in the petroleum, natural gas and related hydro‑carbons within, upon or under the said land, and the GRANTOR has the right to assign the same; AND WHEREAS the parties hereto have agreed that the GRANTOR will assign, transfer and convey to the GRANTEE all of the GRANTOR`S right, title to, and interest in the said gross royalty, and that in consideration of such assignment the GRANTEE will allot and issue to the GRANTOR one fully paid‑up share in the capital stock of the GRANTEE for the GRANTOR`S gross royalty interest in every two (2) acres of the above described land; AND WHEREAS it has been further agreed by and between the parties hereto that should the said drilling lease between the GRANTOR and the LESSEE terminate from whatsoever cause, or be avoided, or become null and void, or become unenforceable by the LESSEE at any time within period of forty‑two (42) years from the day of the date hereof, then and in that event, all the mines, minerals and mineral rights within, upon or under the above described land shall be subject to the terms of the lease as hereinafter provided, and the GRANTEE will allot and issue to the GRANTOR additional fully paid‑up shares in the capital stock of the GRANTEE in such amount as shall increase the number of shares allotted and issued to the GRANTOR to one share for every acre of the above described land, which shares shall be allotted and issued to the GRANTOR upon receipt of actual notice from the GRANTOR that the said drilling lease has been terminated, cancelled, avoided, or has expired; NOW THEREFORE THIS INDENTURE WITNESSETH and it is agreed by and between the parties hereto as follows: 1. Assignment— The GRANTOR doth hereby assign, transfer and set over to the GRANTEE all that portion of the gross royalty reserved and payable to the GRANTOR under the terms of the said drilling lease between the GRANTOR and the LESSEE amounting to the full twelve and one‑half per cent. (12½%) of all of the production of petroleum, natural gas and related hydro‑carbons, or any of them, produced, saved and marketed from the above described land, to have and to hold the same unto the GRANTEE, its successors and assigns absolutely and forever, together with all such powers and remedies as are given or reserved to the GRANTOR under the said drilling lease between the GRANTOR and LESSEE in the observance or performance of any covenant contained therein, and in the event of default of payment or delivery of the said gross royalty, and for all purposes whatsoever the GRANTEE shall be subrogated to all the rights and remedies of, and shall stand in the position of, the GRANTOR. 2. Lease to Grantee— UPON AND IN THE EVENT OF the termination, cancellation, avoidance or expiration of the said drilling lease between the GRANTOR and the LESSEE, and in consideration of the covenants of the GRANTEE herein contained, the GRANTOR DOTH HEREBY GRANT AND LEASE UNTO THE GRANTEE all the mines, minerals and mineral rights, including the petroleum, natural gas and all related hydro‑carbons (hereinafter referred to as "the minerals") within, upon or under the above described lands and all the right, title, estate and interest of the GRANTOR in and to the minerals or any of them within, upon or under any lands excepted from, or roadways, lanes, or rights‑of‑way adjoining the lands aforesaid together with the exclusive right and privilege to explore, drill for, win, take, remove, store and dispose of, the minerals, and insofar as the GRANTOR has the right so to grant, and for the said purposes, the right of entering upon, using and occupying the said lands or so much thereof and to such extent as may be necessary or convenient, TO HAVE AND TO ENJOY the same for term of ninety‑nine (99) years from the date hereof, renewable at the option of the GRANTEE, and so long thereafter as the minerals or any of them are produced from the said lands. 3. Application for Shares— The GRANTOR hereby applies for membership in and subscribes for and agrees to take up "Three Hundred and Twenty (320)" shares with nominal or par value of One Dollar ($1.00) per share in the capital stock of the GRANTEE, and tenders the within assignment in full payment of one‑half (½) of the said shares, and the within lease in full payment of the balance of the said shares, and hereby requests that the said shares be allotted to the GRANTOR and that such shares be issued as fully paid and non‑assessable and that certificate or certificates for the said shares be issued in the name of the GRANTOR as herein set out, and acknowledges to have received copy of the prospectus of the GRANTEE. 4. Acceptance by Grantee— The GRANTEE covenants and agrees to accept the within assignment as payment in full for one‑half (½) of the said shares and to allot and issue to the GRANTOR one‑half (½) of the said shares as fully paid and non‑assessable; and the GRANTEE accepts the within lease as payment in full for the balance of the said shares and upon the effective date of the said lease agrees to allot and issue to the GRANTOR the balance of the said shares as fully paid and non‑assessable. 5. Payment to the Grantor— The GRANTEE shall have the full and absolute right to deal with, or dispose of the gross royalty hereby assigned or any part thereof, and/or the said minerals or any of them, as the case may be, PROVIDED that the GRANTEE shall pay to the GRANTOR twenty per cent. (20%) of the benefits received by the GRANTEE from any such disposition whether the same consist of cash consideration or royalty interest under drilling lease, or otherwise. [Emphasis supplied] [6] Although the issue is whether this 1950 Freeholders agreement is void under the common law rule against perpetuities, we find it convenient to outline the chronology of events after that date in rather brief terms. [7] On September 26, 1961, Harry Herbert Taylor and Freeholders entered into further agreement which changed the consideration payable under the original agreement from 20% of the net benefit to 3.5 of the gross oil royalties: See Exhibit A-7.[3] [8] In 1964 Freeholders merged with Scurry Oil and several other companies to become Scurry-Rainbow Oil. On June 1, 1993, Scurry Rainbow Oil sold the Freeholders lease with Harry Herbert Taylor to Tarragon Oil and Gas Limited. [9] Harry Herbert Taylor died in 1969. His son Harry Ernest Taylor became the owner of the land in question and on June 1, 1998 he recognized and signed the assignment of Scurry's interest to Tarragon: See Exhibit A-9.[4] [10] In March 1993, Maxx Petroleum Ltd. expressed an interest to Tarragon in obtaining lease or sublease for the Taylor land covered by its lease. When this proposal was rejected, Maxx proposed "seismic option" whereby they would have the option of conducting the drilling but would not be obligated to do so. This proposal was also rejected by Tarragon. [11] In October 1993, Maxx and Tarragon reached an agreement in principle for "farmout" arrangement whereby Maxx committed to drill the Taylor lands for Tarragon. Before finalizing this agreement Maxx was to conduct due diligence inquiries which included an investigation into the validity of Tarragon's lease. To further the finalization of the agreement, Tarragon allowed Maxx to use copy of the original 1950 Freeholders lease which Maxx had been unable to obtain on its own. [12] After making these inquiries Maxx concluded that the original Freeholders lease with Harry Herbert Taylor was void under the rule against perpetuities and on November 16, 1993, it entered into its own oil and gas lease with the respondent Harry Ernest Taylor in respect of the land involved in the original lease. [13] The background to this course of dealing can best be summed up by reference to the following passages of the trial judge's findings: [13] now turn to what transpired between the plaintiff, Maxx Petroleum Ltd., and the defendant, Tarragon Oil and Gas Limited. As to them, make the following findings of fact. [14] In 1993 the plaintiff, Maxx Petroleum Ltd., was active in south east Saskatchewan and was interested in leasing the mineral interests contained in the Taylor lands. letter to this effect was sent on March 19, 1993, to the defendant, Tarragon Oil and Gas Limited. After those interests were acquired by Tarragon on June 1, 1993, Tarragon informed Maxx that it was not interested in lease. [15] However, discussions continued and by letter dated October 8, 1993, Maxx proposed farmout agreement in respect to the Taylor lands. Mr. Michael Geldert, an employee of Tarragon, prepared farmout agreement and sent it to Maxx. The next thing he heard was that lawyer acting for Maxx would attend to examine the documentation. In fact, the title and lease document, being the Freeholders lease of August 7, 1950, were provided by Tarragon on November 5, 1993. Subsequently, on November and again on November 16, 1993, the lawyer attended at the offices of Tarragon and reviewed the three files which related to the Taylor lands. [16] In the meantime, on November 5, 1993, Maxx engaged Western Land Services Co. Ltd. to obtain petroleum and natural gas leases from Harry Ernest Taylor and this was done in respect to each of the two subject quarter sections of land on November 16, 1993. The two leases were assigned to Maxx on February 3, 1994. Earlier, on December 1, 1993, Maxx had obtained an assignment of the interest which United Rayore Gas Ltd. had in two well bores located on one of the Taylor quarter sections of land and surface lease in respect thereto. [17] In late November or early December, 1993, Geldert was advised by Mr. James Urquhart of Maxx Petroleum Ltd. that there was problem with Tarragon's title to the mineral interest in the Taylor lands. The source of the problem was stated to be the rule against perpetuities. On some later occasion, Urquhart told Geldert that Maxx would not be proceeding with the farmout agreement. Instead, on June 8, 1994, Maxx launched an application by originating notice to vacate the caveats relating to the Freeholders lease. In time trial was ordered. [18] It was always understood by Mr. Geldert on behalf of Tarragon and Mr. Urquhart on behalf of Maxx that there was farmout agreement in principle, but that there would be no binding agreement until "due diligence" was completed and Maxx was satisfied that Tarragon had good title and could convey such title. To this end the documents were sent to the lawyer so legal analysis could be done. If there were any problems with the title Tarragon anticipated that Maxx would join with Tarragon in seeking resolution. However, neither party had ever before experienced situation where it was suggested the lease creating the interest was void. [14] The concept of "top leases" is not unique or unusual in the Saskatchewan oil and gas industry. The evidence adduced at trial established that there are hundreds of such leases in this Province. Tarragon holds approximately 180 leases in the same form as the lease in question. These leases involve approximately 51,558 acres.[5] Other companies hold approximately 1,943 such leases which involve approximately 400,000 acres.[6] [15] In some jurisdictions "top leases" are considered accepted business practice in the oil and gas industry: See for example Roach: The Rule Against Perpetuities The Validity of the Oil and Gas Top Deed in Texas After Peveto Starkey (1983) 35 Baylor Law Review 399 particularly at 409. [16] Although these "top leases" have been attacked on other grounds, this is the first case before the Saskatchewan Courts in which the rule against perpetuities has been advanced to void such lease. The earlier litigation which was spawned by the discovery of oil in some of the areas covered by the "top leases" focussed essentially on the grantors' pleas of non est factum or breach of s. 17 of The Securities Act, R.S.S. 1940, c. 287, as amended. In Meyers v. Freeholders Oil, supra, Martland J., speaking for the Court, reviewed the background of the "top leasing" programme of Freeholders and went on to reject the grantor's claim for declaration that the lease to Freeholders was "not est factum, illegal and void". The Court also held that breach of s. 17(1) of The Securities Act did not void the lease.[7] [17] Given the fact that earlier litigation, even at the Supreme Court level, did not raise any issue over the rule against perpetuities, one can fairly assume that until recent times, practitioners in the field did not consider such "top leases" to be vulnerable.[8] Furthermore, in 1958 the solicitors for Freeholders obtained written opinion that the top lease in issue did not violate the rule.[9] [18] The learned trial judge held that the Freeholders lease of August 7, 1950 was void because it contravened the rule against perpetuities. We find it convenient to refer to the following passages from his reasons: [20] The plaintiffs [respondents on this appeal] argue that the Freeholders lease did not effect vesting of the mineral interest until after the expiration of the Imperial Oil lease of April 26, 1949. Such vesting would be too remote and would render the lease void. On the other hand, the defendants [appellants] argue that there was an immediate vesting of the mineral rights and it was only possession which was deferred. If this interpretation is correct, then the lease is valid. [21] The total law against perpetuities encompasses variety of situations, only one of which involves remoteness of vesting. However, it is this situation which has come to be known as the modern rule against perpetuities. full discussion of this subject is to be found in the work, Anger and Honsberger Real Property, by Oosterhoff and Rayner, 2nd ed. (Toronto: Canada Law Book, 1985) commencing at p. 435. The classic statement of the modern rule as stated by Professor J.C. Gray is this: No interest is good unless it must vest, if at all, not later than twenty‑one years after some life in being at the creation of the interest. See Morris and Leach, The Rule against Perpetuities, 2nd ed. (Toronto: Carswell, 1962), at p. and Anger and Honsberger Real Property, supra, at p. 441. [22] The rule is not concerned with the duration of an interest, but only an interest which vests too remotely. It invalidates only the latter. This is the result if there is any possibility that the interest may vest outside the perpetuity period. The possibility that vesting may occur within the perpetuity period will not save the transaction. The period generally commences on the date on which the instrument creating the interest takes effect. Where there is no life in being, which is the case herein, then the interest must vest within twenty‑one years of its creation, which in this instance would be August 7, 1950, being the date of the Freeholders lease. [23] In deciding whether there has been breach of the rule against perpetuities, the crucial determination is the time of vesting. To answer that question one interprets the contract by the ordinary rules of construction. The rule against perpetuities plays no role in that process. It is only after the time of vesting has been ascertained, that determination can be made about whether that time is too remote and therefore in contravention of the rule. The process is described in this way in Anger and Honsberger Real Property at p. 466: The validity of limitation in an instrument depends on the time of its vesting, which is determined by construing the language of the instrument by the ordinary rules of construction. The traditional English approach as regards interests which may be void under the rule against perpetuities is one of remorseless construction. Lord Selborne explained this approach as follows in Pearks v. Moseley: You do not import the law of remoteness into the construction of the instrument, by which you investigate the expressed intention of the testator. You take his words, and endeavour to arrive at their meaning, exactly in the same manner as if there had been no such law, and as if the whole intention expressed by the words could lawfully take effect. do not mean, that, in dealing with words which are obscure and ambiguous, weight, even in question of remoteness, may not sometimes be given to the consideration that it is better to effectuate than to destroy the intention; but do say, that, if the construction of the words is one about which Court would have no doubt, though there was no law of remoteness, that construction cannot be altered, or wrested to something different, for the purpose of escaping from the consequences of that law. Thus one begins by attempting to ascertain the intentions of the parties by giving to the words used their ordinary meaning. [37] In this case, the following words are essentially what govern the grant and indicate the intention of the parties: UPON AND IN THE EVENT OF the termination, cancellation, avoidance or expiration of the said drilling lease [i.e. with Imperial Oil Ltd.] the GRANTOR DOTH HEREBY GRANT AND LEASE UNTO THE GRANTEE all the mines, minerals and mineral rights TO HAVE AND TO ENJOY the same for term of ninety‑nine (99) years from the date hereof ." To my mind, in the context in which they are used, the usual and ordinary meaning of the word "upon" and the phrase "in the event", connote time and condition and not property or an interest in property. [40] From the foregoing, it is clear and unambiguous to me that the opening phraseology in the impugned clause speaks to contingency and to the future. To ascribe to those words definition equivalent to way of describing reversionary interest is to distort the words beyond recognition. Nowhere in my reading did come across any suggestion that such an interpretation could be justified. In my opinion, it could not and decline to attempt to do so. [48] As in para. of the Freeholders agreement, this recital speaks to the grant and lease becoming effective on the termination of the then existing lease. At this late date the parties were still using terminology which spoke to contingency and futurity. When weigh these various pieces individually and as whole am convinced that it was intended by the parties to have contingent relationship with future vesting as to the reversionary interest in the mines and minerals. As there was possibility that the interest would not vest within 21 years, the rule against perpetuities was breached and the agreement is void. [49] In coming to my conclusion have taken into account the observations of counsel for the defendants in respect to various aspects of the Freeholders agreement. These have been outlined above. However, have concluded that while the particular words and phrases can be read as suggesting present vesting, they are not necessarily inconsistent with future vesting. On the other hand, when read them in conjunction with the other clauses and as parts within the whole of the agreement, conclude that the correct interpretation is that it was intended that there be future vesting. [19] The learned trial judge rejected the appellants' contention that the "top lease" in question should be removed from the ambit of the rule against perpetuities. Although such leases do not offend the policy behind the rule, he held that any modification of the rule is best left to the legislature. This is made clear in the following passages: [53] In Scurry‑Rainbow Oil Ltd. v. Galloway Estate, 1993 CanLII 7025 (AB QB), [1993] W.W.R. 454 (Alta. Q.B.) Madam Justice Hunt discusses the rule against perpetuities in the context of oil and gas interests. She was specifically concerned with gross royalty trust agreements and concluded that they did not prevent ". the development and utilization of the lands. Therefore, the policy behind the Rule is not offended." See p. 510, para. 171. [54] In my opinion, like conclusion is probably correct in respect to top leases of mineral rights. They do not remove land from commercial development and activity, but rather encourage it. This being so, it would not be contrary to the public interest to remove such leases from the ambit of the rule against perpetuities. [56] In any event, the fact remains that the Legislature of this province did consider abolishing the rule against perpetuities. For whatever reason, it chose not to do so. For me to now abolish the rule or suspend its operation as to oil and gas leases, or even just in respect to the subject Freeholders lease, would be presumptuous and inappropriate. Accordingly, decline to do so. [20] With respect to Tarragon's counterclaim for breach of confidence, the learned trial judge found for Tarragon. His essential reasons are found in the following passages: Breach of Confidence [62] The leading authority on the topic of breach of confidence is Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] S.C.R. 574. Mr. Justice La Forest, at p. 635, set out what is required to establish breach of confidence: can deal quite briefly with the breach of confidence issue. have already indicated that Lac breached duty of confidence owed to Corona. The test for whether there has been breach of confidence is not seriously disputed by the parties. It consists in establishing three elements: that the information conveyed was confidential, that it was communicated in confidence, and that it was misused by the party to whom it was communicated. With those three elements in mind turn to the particular facts. [63] At all relevant times form of the Freeholders lease was on file with the Corporations Branch of Saskatchewan Justice. As well, the caveat based on the actual Freeholders lease with Taylor largely sets out what is contained in Clauses and of the lease. In consequence, it is argued on behalf of the plaintiffs that the Freeholders lease was in the public domain and cannot be the subject of breach of confidence. do not see it that way. [64] Maxx Petroleum Ltd. was very interested in developing or participating in the development of the mines and minerals within the Taylor land. Mr. James Urquhart acknowledged that attempts had been made to obtain copies of the Freeholders lease, but they had proved unsuccessful. Thus, while the documents in the Land Titles Office and the Corporations Branch could enable one to speculate about the contents of the Taylor lease and do so with some confidence as to accuracy, one could not be certain about the actual terms of the lease. That uncertainty precluded Maxx from simply proceeding on its own. [65] Rather Maxx chose to negotiate farmout agreement with Tarragon. This was tantamount to joint venture and the parties reached an agreement in principle. The only matter to be resolved was for Maxx to satisfy itself that Tarragon had good title. This involved due diligence examination and for that purpose Tarragon opened its files and disclosed to Maxx the only existing copy of the agreement between Freeholders and Taylor. The document was provided for only one reason, namely: to enable Maxx to ascertain whether Tarragon had good title and in consequence to decide whether or not to proceed with the venture. It was never intended to provide information to Maxx whereby it could undermine the interest of Tarragon. However, when Urquhart's suspicions about the lease were confirmed that very thing was done. [66] When relate the facts to the essential elements of breach of trust, my conclusions are these. First, the information was confidential. It was not available anywhere else and Tarragon considered it to be confidential. Secondly, the information was shared and communicated in confidence. The parties were in the process of finalizing commercial arrangement and both recognized that the document and information therein was provided for the singular purpose of doing the due diligence examination. Thirdly, the information was misused by Maxx. It went beyond the due diligence and used the information to obtain result which was to its exclusive benefit and to the detriment of Tarragon. It clearly precluded the possibility of Tarragon obtaining any benefit in respect to the mines and minerals within the Taylor lands. The whole process of confidentiality was designed and intended to prevent this very result. [67] Where there has been breach of confidence, there normally is an attempt to restore the injured party to its former state through the declaration of trust with an attendant accounting along with an award for damages. That basic approach is appropriate in this case. However, cannot at this time delineate the specifics of the trust or calculate the quantum of damages and therefore reserve same. [68] At trial it was agreed amongst counsel that the quantification of any accounting or damages should be left to another day and those matters should be reserved. In addition, will want to hear submissions as to what exactly is the interest of Tarragon which is held in trust. Is it entitled to the entire lease interest or should it be restricted to what was agreed upon in the proposed farmout agreement? Accordingly, reserve the stipulated matters and if counsel are unable to resolve them, they shall have the Local Registrar arrange date when further submissions may be presented. III The Rule Against Perpetuities [21] The learned trial judge adopted the classic statement of the modern rule as stated by Professor J.C. Gray:[10] No interest is good unless it must vest, if at all, not later than twenty‑one years after some life in being at the creation of the interest. [22] The learned author of Halsbury's Laws of England, (4th ed.), Volume 35, summarizes the rule in the following passage at p. 615: 1008. An executory devise or other future limitation to be valid must vest, if at all, within life or lives in being and 21 years and possible period for gestation after; it is not sufficient that it may vest within that period. It must be good in its creation, and, unless it is created in such terms that it cannot vest after the expiration of life or lives in being and 21 years and the period allowed for gestation, it is not valid, and subsequent events cannot make it valid. [Footnotes omitted.] [23] The exact period of 21 years is the full extent of the perpetuity period in all cases where no life is indicated for the purpose, or where every life indicated has predeceased the testator.[11] [24] The term "perpetuity" literally means something that lasts forever, but as used in this context it is generally used to refer to limitations of contingent future interests which may or will not vest beyond the period prescribed by the rule. In this context perpetuity is limitation upon the common law right of every person to dispose of his land to any other person at his or her discretion. This has led some writers to suggest that the rule against perpetuities is really rule against remoteness of vesting rather than rule against perpetuities.[12] [25] Before the enactment of the Statute of Wills, 32 Hen. VIII and the Statute of Uses, 27 Hen. VIII, c. 10 (1535) in England, it appears that no question of remoteness in the creation of estates and interests had come before the English Courts. [26] Executory limitations, like other classes of future interest, were ordinarily created and were common testamentary method of providing for the future disposition of testator's property. Such executory limitations created by will were, as to real property, called executory devises and were employed in creating future interests which the strict common law rules of conveyancing did not countenance. The common law did not allow remainder or other legal estate to be limited after fee. But under the Statute of Uses, and even before they were legalized by that statute, species of limitations known as "shifting or springing uses" was recognized, which permitted ulterior estates to be created to arise on the defeasance of prior estates in the same property, contrary to the strict rules of the common law. [27] The Statute of Uses provided that the legal title should follow the beneficial interest and vest in the cestuis que use "after such quality, manner, form and condition as they had before in or to the use confidence or trust that was in them". Prior to the statute, deeds of bargain and sale and of covenant to stand seised did not operate to convey the title, but only the right to beneficial use. As affecting the land itself, they were regarded as executory contracts. At law they were of no force as conveyances. In equity they were enforced by requiring the person in whom was the legal title to hold that title for the benefit of the person to whom the right of use had been transferred. The result of the Statute of Uses was the coming into use of several new modes of conveying legal estates that were wholly unknown to the common law. [28] After the passage of the Statute of Wills and following the analogies furnished by conveyances to uses and in support of the intention of the testator, Courts gradually came to recognize the validity of limitations not permitted in conveyances under the common law. [29] Executory devises came into use after the Statute of Wills and were allowed out of indulgence to testators, that they might, without the intervention of trustees to preserve remainders, establish future interests in strict settlement beyond the reach of those who had the prior estates. The original purpose of such devises was to carry into effect the will of the testator and give effect to limitations over which could not operate as contingent remainders by common law rules. Such stringent rules were derived from principle of English feudal law that an estate of freehold must be created to commence immediately.[13] In the period after passing of the Statute of Uses and Statute of Wills, the transfer of estates to take effect in the future began to encounter restrictions in various ways. Express covenants against alienation were introduced but English Courts of the day thwarted this means of preserving family estates by refusing, on grounds of public policy, to enforce such covenants. [30] Executory limitations were another method adopted to further the objects of the landowning class. Under the early law and the Statute of Users these limitations were created by deed as springing and shifting uses which had various aspects of perpetuity. [31] means of limiting their scope was found in the "rule against perpetuities" so that shifting or springing use, to be valid, must not by possibility be so limited that it will not take effect within the time allowed by this rule. [32] As matters developed, the rule's usual application and effect was to prohibit or invalidate attempts to create by limitation, whether executory or by way of remainder, future interests or estates, the vesting of which is postponed beyond the prescribed period. [33] We do not find it necessary to trace the historical development of this rule against perpetuities in connection with executory limitations but it is important to observe that the rule had its origin in reference to executory devises of chattels real, and may be traced to early English decisions that certain testamentary decisions were void as against public policy because the estates devised were inalienable or indestructible. The objection of remoteness was not at first suggested but over time it became the doctrine now embodied in the rule. [34] The origins of the rule must be passed upon and considered in light of the economic, social and political forces at work in seventeenth century England.[14] [35] The genesis of the rule that became known as the rule against perpetuities is the Duke of Norfolk's Case, 22 Eng. Rep. 931 (1682); Chan. Cas. (1681-1698). In this case Lord Nottingham held that the validity or invalidity of future interest depended on its remoteness, and not on the nature of the contingency, and that the contingency was required to occur within life or lives in being. [36] In this case the Earl of Arundel and Surrey created two trust indentures that were intended to provide for his family, and more particularly to guard against the consequences of the insanity of his eldest son Thomas. After reserving life estates to himself for life and then to his widow, the Earl gave to named trustees term of 200 years, which was followed by remainders to his younger children. [37] Under the trust, the income derived from the barony of Grostock was to go to the Earl's second son, Henry, and his issue during the life of the eldest son Thomas; but if Thomas should die without having issue in the lifetime of Henry, and if further, Henry should become the Earl by inheritance, Henry was to have no further rights to the rents and profits, which were then to go to the third son, Charles. In distilled form, these were the relevant limitations of the trust: an absolute equitable interest in the term in Henry, followed by springing executory interest in Charles, conditioned on the happening of two events which would have to occur within Charles' life if he we to take anything. [38] Henry succeeded to the Earldom and became Duke of Norfolk. He challenged the interest of his brother Charles. [39] With that turn of events Charles brought bill in Chancery to demand the benefit of the term because the specified conditions on his taking had been fulfilled. The Duke of Norfolk ("Henry") resisted the claim on the ground that the gift to Charles was in the nature of perpetuity and therefore void. [40] The issue presented to Lord Nottingham was whether the gift to Charles was perpetuity. If so, Henry would be lawfully entitled to the interest in the barony of Grostock given him by his father's trust because the gift to Charles would be void. [41] Although Charles' claim found support in the clear intention of his father, most of the lower court judges who first heard the case held that the interest was void. [42] When the case finally came before the Chancellor, the Earl of Nottingham in 1681, he called upon three judges of the common law courts to advise him. The clash between equity and the common was demonstrated in this case. [43] The common law judges were of the opinion that the impugned interest was in the nature of perpetuity and therefore void. Lord Nottingham accepted the argument that the contingency upon which the disposition of the property turned was certain to happen within short period of time so it would not be correct to characterize the gift as perpetuity. [44] In his judgment, Lord Nottingham did refer to certain types of conveyances that he would be unwilling to countenance because they tended in the direction of perpetuity.[15] But when pressed to respond to the fears of the other judges, he declined to tell them where he would draw the line:[16] Object. They will perhaps say, where will you stop, if not at Child and Bayly's [79 Eng. Rep. 393 (1618)]Case? Answ. Where? why everywhere, where there is not any Inconvenience, any Danger of Perpetuity; and whenever you stop at the Limitation of Fee upon Fee, there we will stop in the Limitation of Term of Years. No Man ever yet said, Devise to Man and his Heirs, and if he die without Issue, living B. then to B. is naughty Remainder, that is Pell's and Brown's [Cro. Jac. 592, 79 Eng. Rep. 504 (1620)]Case. Now the Ultimum quod sit, or the utmost Limitation of Fee upon Fee, is not yet plainly determined; but it will be soon found out, if Men shall set their Wits on Work to contrive by Contingencies to do that, which the Law has so long laboured against; the Thing will make it self evident, where it is inconvenient, and, God forbid, but that Mischief should be obviated and prevented. have done with the legal Reasons of the Case: It is fit for us here little to observe the equitable Reasons of it; and think this Deed is good both in Law and Equity; and the Equity in this Case is much stronger, and ought to sway Man very much to incline to the making good this Settlement, if he can. Certain aspects of this case and the early rule are summed up by Haskins in the following statements:[17] Nottingham did refer to certain types of conveyances that he would be unwilling to countenance because they tended in the direction of perpetuity. Nottingham noted with approval the decision in Pells v. Brown [supra], where the fee simple was cut short by an executory interest in the lifetime of living person: such "Fee upon Fee" was clearly permissible. Another case cited in Nottingham's opinion was Cotton v. Heath [1 Roll. Ab. 612, Pollex 26, Eng. Rep. 500 (1638)], which involved an 18-year term to followed by remainder to for life, remainder to the first issue of for life. The Chancellor stated that "this Contingent upon Contingent was allowed to be good, because it would wear out in short Time." [Id. at 35, 22 Eng. Rep. at 952]. Wood v. Sanders, [1 Ch. Cas. 131, 22 Eng. Rep. 728 (1669)], decided in 1669, was also cited with approval by Nottingham because the case involved contingency that would take effect within two lives in being. Nottingham applauded Wood v. Sanders, which was decided by Sir Orlando Bridgman himself and the Earl referred to Bridgman with "great Reverance and Veneration for his Learning and Integrity." [3 Ch. Cas. at 36, 22 Eng. Rep. at 953]. Lord Nottingham evidently wished to permit some typing up of land by the "dead hand" and was willing to concede that the ability to control the future ownership of land for at least one lifetime, and probably two, was something the law should allow. What evolved from his decision, however, was not rule for perpetuities, but rule of perpetuities. Admittedly, Charles' interest in the term for years was not destructible, but neither should it be void because Charles' interest would "wear itself out" in single lifetime. Lord Nottingham's resolution of the perpetuities problem was the kind of decision that would please Tory landowners of the 1680's. These landowners did not want complete destructibility, which could ruin the family estate in generation. They did want freedom to transfer land, but they also wanted some means of protecting the family from lunatics, wastrels, gamblers, and the like by maintaining some degree of control over the future disposition of the land. Lord Nottingham provided them with compromise between complete alienability and the power to tie up land for perpetuity. Nottingham's successors were to give even more power to the dead hand, so that in the end the conveyancers and their clients prevailed. What the Chancellor did was consistent with the thinking behind Manning's Case [8 Co. 94b (1609)], which validated certain future interests in terms for years and, more importantly, with the logic of Pells v. Brown, which had upheld the indestructibility of executory interests. The Chancellor's definition of perpetuity as an interest that might exceed the duration of some measuring life was but small step from the modern definition of perpetuity as an interest that will not necessarily take effect within life or lives in being and twenty-one years. The judges of succeeding decades were to formulate the rule in its modern form, but Lord Nottingham effectively took the first step in holding Charles' interest to be valid. [45] Although Lord Nottingham declined to draw the line in precise terms in the Duke of Norfolk's Case, supra, his definition of perpetuity as an interest that might exceed the duration of some measuring life ultimately led to the modern definition of perpetuity as an interest that will not necessarily take effect within life or lives in being and twenty one years. [46] Lloyd v. Carew (1697), Show. P. C. 137 established that for certain purposes the postponement of the time of vesting of future estate might be deemed reasonable beyond life or lives in being and could be allowed in the case of an infant. Thus, the conclusion was reached that the period of 21 years could be period in gross and one not dependant on the minority of any person. Finally, the rule was extended so as to cover the time necessary for the birth of posthumous children. It would appear that 21 years was introduced to provide for the minority of child born, and nine or ten months was allowed to let in posthumous child.[18] In recent times this approach has spawned the suggestion that the duration of male life in being should be defined as his reproductive capacity, including any post-mortem period during which his sperm remains fertile in sperm bank, in order to account for the possibility of child through modern medical techniques.[19] [47] In Cadell v. Palmer, [1833] VII Bligh N.S. 745, Eng. Rep. 745, the Court of Chancery essentially reaffirmed Lloyd v. Carew, supra, at p. 759: [240] The Lord Chancellor.—I propose to move the House to concur in giving judgment according to the unanimous opinion of the Judges now delivered. The two last questions were put with view to the arguments at the bar, and the origin of the rule against perpetuity, as applicable to executory devises. The rule originally introduced was limited to life, then to lives in being, and afterwards was extended, for convenience, to the end of the infancy of the children of the person to whom the life estates were limited. The rule might have been considered as established by decision of this House, in the case of Lloyd v. Carew [supra]. As to the doubt which has been expressed, whether the rule has been adopted in the practice or opinion of conveyancers, the passages cited from Fearne on Executory Devises, in the opinion just delivered, shew that it was the settled opinion of that great conveyancer and lawyer, that the term of twenty-one years after lives in being, might be added as term in gross. Mr. Butler, the able editor of Mr. Fearne's book, in his commentary upon this question, confirms the opinion of his author. The opinion of Lord Mansfield was the same; nor is the doctrine impeached by the dicta of Lord Kenyon in Long v. Blackall [7 T.R. 100]. The doctrine may now be considered as finally settled, and the judgment, in accordance with the opinion delivered, ought to be affirmed. Judgment affirmed. [48] In Canadian Long Island Petroleums Ltd. et al v. Irving Industries(Irving Wire Products Division) Ltd. et al, 1974 CanLII 190 (SCC), [1975] S.C.R. 715, the Court held that clause in an agreement between joint owners governing operation and development of certain oil properties did not engage the operation of the rule. Under this clause in the agreement each party was given the right of first refusal to acquire the other party's participating interest. Since each party argued that upon the occurrence of certain event, which was within its own control, the other party would have first right of purchase for 30 day period. Given the language of the governing clause, the Court held that the agreement was personal and did not create an interest in land to which the rule could be applicable. [49] In the course of his reasons, Martland J., speaking for the Court, distilled the history of the rule in the following passages at pp. 726-27: In considering the application of the rule against perpetuities in the circumstances of the present case it is useful to consider its background. The history of the rule is outlined in Cheshire's Modern Real Property, 10th ed., at pp. 234 and 235, as follows: The history of the rules whereby settlors have been prevented from limiting remote interests, is the history of conflict between two antagonistic ideas. On the one hand there is the desire of the man of means to regulate the future enjoyment of his property for as long period as possible. The right of making settlement or will is potent weapon in the hands of declining man, and unless human nature is transformed, the opportunity it offers of fixing the pecuniary destinies of the coming generations will not be neglected. landowner, unless he gives thought to the fiscal consequences, is not always content to leave large estate at the free disposal of son. Old age especially, satisfied with its own achievements and often irritated by the apparent follies of degenerate time, is inclined to restrain each generation of beneficiaries within close limits, and to provide for series of limited interest. landowner views the free power of alienation with complacency when it resides in his own hand, but he does not feel the same equanimity with regard to its transfer to others. "But the freedom of alienation and devise was not congenial to the spirit in which great landowners viewed their land. To preserve their family name and position, 'to keep the land in the family,' seemed to them desirable and even laudable object, to restrain any individual holder of the land from dealing with it so as to interfere with the interest of subsequent generations of the family in the family land was necessary means to this end. To contrive restraints on alienation and succession which the law would enforce, to ascertain the furthest limits up to which the law would allow the grasp of the dead hand to be kept on the hand of the living, was the task set by the great landowners before their legal advisers." (Scrutton, Land in Fetters, p. 108.) This aspiration, however, soon aroused the antagonism of the courts. The law is moved, and from the earliest times always has been moved, by deep-seated antipathy to this human love of power. It is one thing to permit the free power of alienation, another to allow it to be exercised to its own destruction. The view of the law is that no disposition should be allowed which tends to withdraw land from commerce, and in pursuance of this policy two rules have emerged which have successfully prevented the particular evil of "perpetuities," though they are essentially different from each other in nature. The first, directed against inalienable interests and often called the old rule against perpetuities, forbids the creation of any form of unbarrable entail; the second, the modern rule against perpetuities, invalidates an interest that may vest at too remote date in the future. [50] In Scurry-Rainbow Oil Ltd. v. Galloway Estate, 1993 CanLII 7025 (AB QB), [1993] W.W.R. 454 (Alta. Q.B.), Hunt J. (now J.A.) addressed the question whether certain gross royalty trust agreements were void under the rule against perpetuities. In the course of her reasons she referred to the policy behind the rule in the following passages at pp. 509-10: 169 It is also worth considering the purpose behind the Rule and its relationship to decisions as to when the Rule has been offended. Morris and Leach, The Rule Against Perpetuities, 2nd ed. (London: Stevens Sons, 1962), have observed at p. 26: The Rule against Perpetuities is one of those precepts of judge-made law which, in the interest of producing workable and satisfactory law fashioned in the public interest, declares that certain intentions of settlor or testator may not be carried out. In any system of private property prohibitory rule is not lightly to be invoked. The prohibition should be imposed only upon interests the creation of which would offer real threat to the public interest. The method by which or the words in which person seeks to create particular series of interests should be immaterial; if the series of interests ties up the property for too long, the offending interests should be held void, but if the series of interests is found not to violate sound policy, they should be held valid. There is no justification for declaring that given series of interests can be created by one method or one formula of language and not by others; the policies underlying the Rule against Perpetuities have no relation to types of instruments or forms of expression. (emphasis added) 171 There is nothing in the nature of these royalty arrangements that in any way prevents the development and utilization of the lands. Therefore, the policy behind the Rule is not offended. IV Object and Purpose of the Rule [51] Given the historical background of the rule and in light of the social, economic and political times in which it was formulated, the object and purpose of the rule is obvious. However, we find it convenient to restate the basis for the rule. [52] The underlying and fundamental purpose of the rule is founded in the public policy of preventing the fettering of the marketability of property over long periods of time by indirect restraints upon its alienation. The general purpose of the rule is to prevent the tying up of property to the detriment of society in general. [53] The exclusion of property from the stream of commercial development for extended periods of time was perceived by the law as public evil. Since alienability is the object, the destruction of future interests is the means employed to obtain this object. The rule against perpetuities was developed as device to cut out the limitations which, if they were allowed to take effect, would produce the consequences which were sought to be avoided. Since this approach was adopted particularly in relation to devolution of estates, the judge-made rule limited the extent to which the "dead hand" could control contingent devolution. [54] The basis for the rule is succinctly summed up in Halsbury's Laws of England, supra, in this way at p. 605 at para. 1001: 1001. Basis of the rules affecting perpetuities. The rules of law affecting perpetuities are based upon considerations of public policy. Although the principle of private ownership requires that an owner of property is to have power to dispose as he thinks fit, either during life or on death, of his whole interest in the property he owns, public policy requires that the power should not be abused. Accordingly, from early times, the law has discouraged dispositions of property which either impose restrictions on future alienations of that property, or fetter to an unreasonable extent its future devolution or enjoyment. [Footnote omitted] [55] In footnote 1, the learned author refers to these considerations of public policy articulated in early decisions: These considerations were stated in Stanley Leigh (1732) Wms 686 at 688 per Jekyll MR, to be 'the mischief that would arise to the public from estates remaining for ever or for long time inalienable or untransferable from one hand to another, being damp to industry and prejudice to trade, to which may be added the inconvenience and distress that would be brought on families whose estates are so fettered'. See also Fearne's Contingent Remainders (10th Edn) 562 et seq, Butler's notes; Lewis's Law of Perpetuity 3; Duke of Norfolk Howard (1683) Vern 163 at 164, HL; Taylor Atkyns Horde (1757) Burr 60 at 115, 116 per Lord Mansfield CJ; Duke of Marlborough Earl Godolphin (1759) Eden 404 at 416; Re Parry and Daggs (1885) 31 ChD 130 at 134, CA per Fry LJ; Re Ashforth, Sibley Ashforth [1905] Ch 535 at 542 per Farwell J; Re Earl of Stamford and Warrington, Payne Grey [1912] Ch 343 at 367, CA; Re Leek, Baron Darwen Leek [1969] Ch 563 at 585, [1968] All ER 793 at 800, 801, CA; Gray's Rule against Perpetuities (4th Edn) 268; Morris and Leach's Rule against Perpetuities (2nd Edn) 26-29. Rule Prevailing Over Intention [56] The common law rule against perpetuities prevails over intention because it is not rule of construction, but rule of property. Given the nature of the rule, and under strict mechanistic application of the rule, it is to be applied irrespective of the question of intention. This means that in the field of administration of estates, the intent of the testator, if it runs counter to the rule, is defeated. In some instances the cy pres doctrine had been invoked to ameliorate the harshness of the rule against perpetuities. [57] Accordingly, the orthodox rule against perpetuities is not to be tested by actualities, but by possibilities. Vesting within the period must be evident at that time without regard to subsequent events. One of the essential elements of the orthodox rule is that at the time the future interest is created, it must appear that the condition precedent to vesting must necessarily happen, if it happens at all, within the prescribed period. mere possibility, or even probability, that the estate or interest may vest within the time is not enough. [58] Given the historical object and purpose of this judge-made rule against perpetuities, the appellants argue that the principal justification for application of the rule does not exist in this case and accordingly the rule should not be applied to the "top lease" in question. [59] Although number of other grounds of appeal were raised and fully argued, this threshold issue proceeds on the assumption that rigid and mechanistic application of the rule would render the top lease void. Having raised this threshold issue in this way, the appellants stress the trial judge's finding that the policy behind the rule was not offended by this top lease.[20] [60] The respondents contend that this judge-made rule is of such extensive application and so firmly imbedded in our system of jurisprudence as not to be disturbed except by statute. [61] We now turn to consideration of this threshold issue. As earlier noted in our consideration of the object and purpose of this rule, it was designed to further alienability and to prevent the tying up of property within the family line for generation on generation. The exclusion of property from the channels of commercial development for extended periods of time was considered to be public evil. [62] Since the judge's finding that the policy behind the rule is not offended by the "top lease" in this case, we only need to refer to its commercial background in brief terms. In Meyers v. Freeholders Oil, supra, the Supreme Court of Canada outlined the nature of the Freeholders "top leasing" programme that dates back to the 1950s. As earlier noted, the evidence at trial indicated that there are hundreds of such leases in existence in Saskatchewan leases that might run afoul of the orthodox rule notwithstanding the fact that parties and their successors relied upon them for fifty years. [63] "Top leases" are an accepted business practice in the oil and gas industry. They increase actual drilling and competitiveness because oil companies whose leases have been "topped" have greater incentive to drill on leased lands. If they do not, they stand to lose the lease and make way for someone else to drill. [64] This top leasing programme is not limited to Saskatchewan. Such leases are considered accepted business practice in other jurisdictions and one can trace their origin to the American oil and gas industry which pre-dates the development of the industry in Western Canada. In Nantt v. Puckett Energy Co., 382 N.W. 2d 655 (N.D. 1986), the North Dakota Supreme Court described top leasing as "useful and widespread business practice in the oil and gas industry in North Dakota, as well as other regions". [65] In the case before this Court, the Freeholders "top lease" does not offend the policy behind the rule against perpetuities. The provisions in this "top lease" encourage commercial development and drilling activity on the land. In commercial sense, the provisions do not clog alienation. [66] Given the development of top leasing as useful and desirable type of transaction in the oil and gas industry, the application of the orthodox rule against perpetuities does not reflect modern realities. When the rule was formulated by judges in earlier times, top leases in the oil and gas industry were not contemplated. [67] It could not have been intended to apply to such transactions and no worthwhile social or economic purpose is served by applying it to this type of transaction in the oil and gas industry. When the rule is transposed from its original setting and is placed among interests unknown at the time, the appellants contend that it must be justified by new conditions before being permitted to strike down considered transactions of this nature. [68] The appellants argue that these factors militate against rigid mechanistic operation and application of the rule in the present case. Since the "top lease" encourages commercial development in the industry rather than offending the object and purpose of the rule, they argue that its application cannot be justified. In this case the "lease" which has existed since 1950, was entered into in good faith and acted upon by all the parties involved for many decades. [69] In many instances exceptions have been created to this rule. Speaking generally, some of these exceptions might well have the effect of allowing an interest to remain uncertain beyond the rule period. Nevertheless, several exceptions of this type are well established, such as gifts to charities, rights of entry, possibilities of reverter, resulting trusts, and covenants running with the land: Also see Halsbury's Laws of England, supra, p. 612, para. 1006, Unobjectionable perpetual interests. [70] Furthermore, application of the "wait and see" doctrine would validate the impugned top lease in this case because the interest actually vested within the perpetuity period. Dissatisfaction with the harshness of the "certainty of vesting" requirement under the orthodox rule of perpetuities spawned what has become known as the "wait and see" doctrine. In some jurisdictions this doctrine has been adopted by statute.[21] In other jurisdictions the dissatisfaction with the harshness of the "certainty of vesting" requirement led some courts, even in the absence of statute modifying the rule, to relieve against such severity by substituting for the "certainty of vesting" requirement, rule permitting consideration of events occurring after inception of the instrument which are relevant to the vesting of future instrument, so that if the contingency upon which the interest is limited actually occurs within the period of the rule, the interest is valid.[22] [71] We now consider whether it is open to this Court to consider the policy considerations that gave rise to the rule. Is the Court bound to apply the rule although the "top lease" in question does not offend the policy of the rule and in fact has the opposite effect by encouraging commercial development and activity on the land? [72] In Meyers v. Freeholders Oil, supra, the Supreme Court was not faced with challenge to the Freeholders top lease. The Court was required to pass on other issues that have been canvassed earlier in these reasons. [73] The Supreme Court of Canada has considered the Rule in at least 28 cases.[23] In each of these cases the Court merely applied the Rule or considered whether the impugned conveyance fell within the rule. It does not appear that the Supreme Court has considered the validity of the policy considerations that spawned the Rule which must be considered in light of modern commercial conditions. Since the socio-economic and political conditions which gave rise to the creation of the Rule no longer exist, we consider that it is open to this Court to consider the application of such rule in the context of a commercial instrument such as the top lease in question. [74] We find it convenient to consider several illustrations of judicial intervention to modify or do away with significant judge-made rules. [75] In Arthur Hall Co. (a firm) v. Simons et al, [2000] All E.R. 673 (H.L.), the House of Lords held that lawyers are no longer entitled to enjoy immunity from suit in their conduct as advocates in criminal and civil proceedings. This decision took English law in new direction, ending the ancient immunity of barristers or advocates, called "forensic immunity". This departure from the rule of "forensic immunity" was significant particularly in light of the decisions in Rondel v. Worsley, [1967] All E.R. 993 (H.L.) and Saif Ali v. Sydney Mitchell Co. et al, [1978] All E.R. 1033 (H.L.), which had reaffirmed the rule. [76] The Law Lords revisited the historical and public policy rationale for forensic immunity and then proceeded to deal with modern conditions that militated against continuation of the rule. In the circumstances we do not find it necessary to canvass the detailed reasons for abrogating the judge-made rule of "forensic immunity". It is significant that after looking to practices adopted in Australia, New Zealand, the European United and the United States, the Law Lords found the decision of Krever J. in Demarco v. Ungaro (1979), 1979 CanLII 1993 (ON SC), 95 D.L.R. (3rd) 385 (Ont. H. Ct. Jus.), to be persuasive. Speaking generally, that decision determined that there was no evidence that the work of the Canadian Courts required such immunity or would be hampered without it. After reviewing the background to the rule of forensic immunity and considering the various factors in the context of present day conditions, Krever J. concluded that the "forensic immunity" rule was inappropriate in Canadian law. [77] The House of Lords also looked to treatment of other professionals. Both Lord Steyn and Lord Hoffmann noted that there are many other professions where people have conflicting duties, and make difficult decisions in difficult circumstances.[24] There could be no justifiable exception for lawyers in light of the significant liabilities that doctors face. [78] After determining that continuation of the rule of "forensic immunity" could no longer be justified, the Law Lords turned to the question whether abolition of this judge-made immunities rule was better left for Parliament. In the opinion of Lord Steyn, it would be an abdication of responsibility to leave this matter to the Parliament. This made clear in the following passage:[25] The background to this provision is, of course, the judicially created immunity of barristers, which in 1967 was held by the House to be founded on public policy. And it will be recollected that Lord Reid observed that public policy is not immutable. Against this background the meaning of 62 is clear. It provides that solicitor advocates will have the same immunity as barristers have. In other words, the immunity of solicitors will follow the fortunes of the immunity of barristers, or track it. Section 62 did not either expressly or by implication give Parliamentary endorsement to the immunity of barristers. In these circumstances the argument that it is beyond the power of the House of Lords, which created the immunity spelt out in Rondel v. Worsley, to reverse that decision in changed circumstances involving different balance of policy considerations is not right. Should the House as matter of discretion leave it to Parliament? This issue is more finely balanced. It would certainly be the easy route for the House to say 'let us leave it to Parliament'. On balance my view is that it would be an abdication of our responsibilities with the unfortunate consequence of plunging both branches of the legal profession in England into state of uncertainty over prolonged period. That would be disservice to the public interest. [79] In Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] S.C.R. 1077, the question was whether recognition should be given by the Courts in one Canadian province to the judgment of Court in another Canadian province in personal action brought in the latter province at time when the defendant did not live there. [80] Canadian jurisprudence had long accepted the rule in Emanuel v. Symon, [1908] K.B. 302 (C.A.) which refused to enforce the judgment of an Australian Court in England. In Symon, the Court held that the defendant either had to be in the jurisdiction or have submitted to the English Courts to enforce judgment. In the course of his extensive reasons, La Forest J., speaking for the Court, pointed out that there are many cases throughout Canada where two persons have entered into contract in one province, frequently when both were resident there at that time, but the plaintiff found it impossible to enforce judgment given in that province because the defendant had moved to another province when the action was brought. [81] After reviewing all the relevant considerations in the context of modern commerce, La Forest J. concluded that the earlier rules with respect to reciprocal enforcement had to be adjusted in light of changing world order. This is made clear in the following passages at pp. 1097-98: The approach adopted by the English courts in the 19th century may well have seemed suitable to Great Britain’s situation at the time. However, this may not have been perceived as too serious difficulty by English courts at time when it was predominantly Englishmen who carried on enterprises in far away lands. As well, there was an exaggerated concern about the quality of justice that might be meted out to British residents abroad. The world has changed since the above rules were developed in 19th century England. Modern means of travel and communications have made many of these 19th century concerns appear parochial. The business community operates in world economy and we correctly speak of world community even in the face of decentralized political and legal power. Accommodating the flow of wealth, skills and people across state lines has now become imperative. Under these circumstances, our approach to the recognition and enforcement of foreign judgments would appear ripe for reappraisal. Certainly, other countries, notably the United States and members of the European Economic Community, have adopted more generous rules for the recognition and enforcement of foreign judgments to the general advantage of litigants. [82] Applying this approach, La Forest J., speaking for the Court, held that in modern times, and in Canadian context, the restrictive rule articulated in Emanuel v. Symon, supra, was no longer appropriate. The extreme inequities of having enforcement barred on the technicalities of jurisdiction could not be supported in the context of federal system of government. [83] The American experience with "on completion" leases is significant. This type of lease is entered into, but provides that its term is not to commence until after notice to the lessee that the construction of the building is complete or substantially complete and ready for occupancy. This condition leaves the lessor and lessee exposed to the bare possibility, at the time the lease is executed, that the estate thereby granted will not commence within the prescribed period of the Rule. This is the case even if the lease provides for construction of the building with due diligence.[26] [84] These on completion leases have received mixed treatment by American courts. Some courts have held that such "on completion" leases violate the Rule and others have upheld on completion leases.[27] In Wong v. DiGrazia, [1963] 386 P. 2d 817; 35 Cal. Rptr. 241, the Supreme Court of California was faced with an attack on such lease. It arose in this way. When dispute developed as to which party should pay for an expensive sprinkler system that was required by the San Francisco Building Code, the lessor relied on the rule against perpetuities to avoid the lease and invalidate the agreement. In rejecting this argument, the Court held that the nature of the circumstances showed that the contemplated building was to be completed within reasonable time and that such reasonable time was less than 21 years. Given this factual finding, the Court determined that the lessee's interest would either vest or fail during the statutory period and any breach of the leasing agreement would be remediable within such period. [85] Tobriner J., speaking for the Court, addressed the question how the Court should consider the rule in the modern context. The Court emphasized that the Rule must be considered and applied in light of its objectives and the commercial considerations of modern society. The following passages at p. 823 stress that the rule cannot be justified in modern commercial context by policy considerations behind its formulation and creation in the 17th century: The rule against perpetuities originated as rule of property law during the mercantilistic period of English history. Thus the "celebrated decision which marks the beginning of the modern rule against perpetuities," The Duke of Norfolk's Case, was decided in 1682. (3 Simes Smith, The Law of Future Interests (2d ed. 1956) 1211 at p. 91.) The social order of 1682 demanded as to its property transactions certainty in title and fixation of ownership; the idea of titles which had not vested or ownership which remained inchoate was necessarily anathema. Indeed, the basic purpose of the rule was to limit family dispositions, and in that context the period of lives in being plus 21 years served as proper measurement. Only later by an overextension of nineteenth century concepts did the courts apply the rule to commercial transactions. (See Leach, Perpetuities: New Absurdity, Judicial and Statutory Correctives (1960) 73 Harv. L. Rev. at p. 1322.) Rules which bear such birthmarks assume different aspect when they are applied to contracts or leases in modern society whose economic structure rests upon planning for the future and whose life blood is credit. Since the rule against perpetuities was born in society which extolled the tight ownership of inherited real property, it does not facilely operate as to commercial agreements in today's dynamic economy. "The period of lives in being and 21 years, which works admirably with regard to gift transactions for family purposes, has no significance in the world of commercial affairs," (Leach, Perpetuities in Nutshell (1938) 51 Harv. L. Rev. 638.) [1] Certainly our function is not to interpret the rule so as to create commercial anomalies. lease to commence upon completion of the leased building is common business arrangement. Such clause is standard provision of leases in shopping centers, which have been and are being constructed throughout the country; the parties to such transactions do not suspect that the rule will be extended to invalidate their agreements; even the attorneys who draw the leases may excusably not anticipate such application. Surely the courts do not seek to invalidate bona fide transactions by the imported application of esoteric legalisms. Our task is not to block the business pathway but to clear it, defining it by guideposts that are reasonably to be expected. As was pointed out in (1959) 47 Cal. L. Rev. 197, 200: "[A] strict and literal application of the Rule Against Perpetuities to lease of this nature can do little to serve the basic purpose behind the rule and can result only in placing an unnecessary commercial transaction." We therefore do not propose to apply the rule in the rigid or remorseless manner characterized by some past decision; instead we shall seek to interpret it reasonably, in the light of its objectives and the economic conditions of modern society. [Footnotes omitted.] In 1987 the Saskatchewan Law Reform Commission recommended abolition of the Rule. This is made clear in the letter of June 3, 1987 accompanying its Report to the Minister of Justice: The Rule Against Perpetuities and the related Rule against Accumulations constitute complex and technical body of law designed to meet the needs of bygone era. Today, the Rules are often source of "pitfalls for the unwary", and unpredictable in impact. On occasion, discovery of perpetuities problem has led to protracted and expensive litigation from which no one really benefits. The very complexity of the Rules may have served as disincentive to review them. Nevertheless, Alberta, British Columbia, and Ontario have attempted to reform the Rules, and Manitoba has abolished the. The Commission, after an examination of the Rules as they apply in Saskatchewan, has also concluded that they should be abolished. [86] The respondents vigorously argue that this judge-made rule against perpetuities is of such extensive application and so firmly imbedded in our legal system that it should not be modified or disturbed except by statute. They submit that it is the exclusive province of the legislature to abolish or limit the application of the rule. [87] The respondents further point to the fact that Bill No. 42 An Act to abolish the Rules Against Perpetuities and The Accumulation Act and to enact Consequential Amendments was introduced in 1995. When presented for second reading, the debate was adjourned on April 25, 1995 and apparently the matter died on the Order paper. The tone of the short debate indicated some concern with the complete abolition of the rules as recommended by the Law Reform Commission. There was also an expressed appreciation of the need to improve competitiveness in the oil and gas industry. [88] In support of their vigorous argument that matters of this nature are best left to the Legislature, the respondents point to the words of caution from the Supreme Court of Canada in R. v. Salituro, 1991 CanLII 17 (SCC), [1991] S.C.R. 654 at pp. 666 and 670 where Iacobucci J. stated:[28] (2) Limits on the Power of the Courts to Change the Common Law In keeping with these developments, this Court has signalled its willingness to adapt and develop common law rules to reflect changing circumstances in society at large. In four recent cases, Ares v. Venner, 1970 CanLII (SCC), [1970] S.C.R. 608, Watkins v. Olafson, supra, R. v. Khan, 1990 CanLII 77 (SCC), [1990] S.C.R. 531, and R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] S.C.R. 577, this Court has laid down guidelines for the exercise of the power to develop the common law. The common theme of these cases is that, while complex changes to the law with uncertain ramifications should be left to the legislature, the courts can and should make incremental changes to the common law to bring legal rules into step with changing society. However, brief review of these cases is warranted. Conclusion These cases reflect the flexible approach that this Court has taken to the development of the common law. Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. Nonetheless, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. [89] In Salituro, supra, the Supreme Court of Canada affirmed the decision of the Ontario Court of Appeal which refused to apply the common law rule of spousal incompetence in the case of spouses who are separated without reasonable hope of reconciliation. [90] The Supreme Court held that while there are changes to the common law that are best left to the legislature, the change made by the Ontario Court of Appeal in the case before it was not an example of such change. The Supreme Court rejected the argument that the various amendments which have been made to s. of the Canada Evidence Act, R.S.C., 1985, c. C-5, since 1906 indicate that Parliament had effectively turned its mind to the common law rule making spouse an incompetent witness and that the rule must therefore have been effectively adopted by Parliament. Put another way, the Court rejected the contentions that the pattern of legislation showed parliamentary intention to retain the common law rule making spouse an incompetent witness in the circumstances of the case. [91] In Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] S.C.R. 1022, the Court was faced with somewhat similar situation in civil action arising from an automobile collision that occurred in Saskatchewan. The plaintiff Tolofson was passenger in car owned and operated by his father. He was seriously injured in collision with vehicle driven by the defendant Jensen, who was resident of Saskatchewan and his vehicle was registered and insured in Saskatchewan. The Tolofsons were residents of British Columbia. [92] The plaintiff brought action for damages in British Columbia. The parties operated on the assumption that the action was barred under Saskatchewan law by virtue of the twelve-month limitation period in that province. [93] In the course of preliminary proceedings, the question arose whether the lex fori governed or whether you look to the lex loci delicti to determine whether an actionable wrong was established. The Court decided that the lex loci delicti must govern. In so doing, the Court declined to follow its earlier decision in McLean v. Pettigrew, 1944 CanLII 69 (SCC), [1945] S.C.R. 62, which held that the lex fori must govern even though the conduct complained of was not actionable under the law of the place of the wrong. In effectively overruling its earlier decision, the Court found that it rested on such an insecure foundation based on earlier English cases that it could not be justified. [94] Since the Court held that Saskatchewan law applied to the claim in tort, an important subsidiary issue arose whether the limitation period prescribed by Saskatchewan law should be characterized as substantive or procedural. The Court held that this provision was substantive. In so doing, it departed from the traditional common law view that statutes of limitation are general considered procedural. [95] After coming to the conclusion that such rule could not be justified in modern conditions, La Forest J. considered whether it was necessary to await legislation to deal with the problem. The following passages in the reasons address this concern at pp. 1071-72: The Court circumvented the distinction between the plaintiff's right and her remedy by holding that the termination of limitation period vests rights in the defendant. Chouinard J., at p. 49, quoted with approval Lord Brightman in Yew Bon Tew v. Kenderaan Bas Mara, [1983] A.C. 553 (P.C.), at p. 563: In their Lordships' view, an accrued right to plead time bar, which is acquired after the lapse of the statutory period, is in every sense right, even though it arises under an act which is procedural. It is right which is not to be taken away by conferring on the statute retrospective operation, unless such construction is unavoidable. [Emphasis added.] While correctly considering that statute of limitation vests right in the defendant, the Privy Council in Yew Bon Tew continued to cling to the old English view that statutes of limitation are procedural. Nonetheless the case seems to me to demonstrate the lack of substance in the approach. The British Parliament obviously thought so. The following year the rule was swept away by legislation; the Foreign Limitation Periods Act, 1984, (U.K.) 1984, c. 16, declared that foreign limitation periods are substantive. do not think it is necessary to await legislation to do away with the rule in conflict of laws cases. The principle justification for the rule, preferring the lex fori over the lex loci delicti, we saw, has been displaced by this case. So far as the technical distinction between right and remedy, Canadian courts have been chipping away at it for some time on the basis of relevant policy considerations. think this Court should continue the trend. It seems to be particularly appropriate to do so in the conflict of laws field where, as stated earlier, the purpose of substantive/procedural classification is to determine which rules will make the machinery of the forum court run smoothly as distinguished from those determinative of the rights of both parties. [96] Given the trial judge's conclusion and our concurring view that the object and purpose of the rule against perpetuities is not offended by the top lease in question, we are persuaded that this is an appropriate case for this Court to intervene and determine that the top lease in question is not rendered void. In arriving at this conclusion, we find the reasoning and approach of the Supreme Court of Canada in cases such as Salituro, Tolofson and Morguard to be persuasive. As well, the decision of the House of Lords in Arthur Hall demonstrates the need to reexamine archaic rules of common law which cannot be justified in modern society. [97] The genius of the common law lies in its adaptiveness to changing times. Its basic principles were not meant to become rigid formulae, inflexible and resistant to new developments or changing concepts in the commercial world. Since common law rules are judge-made rules, the Court can make exceptions to such rules when changing conditions so mandate. Common law rules may be tweaked to do justice between the parties when rigid and mechanistic application of rule would run counter to the object and purpose of the rule. [98] Given our conclusion on this threshold ground of the appeal we do not find it necessary to address the appellants' other grounds of appeal which primarily focussed on whether the learned trial judge erred in his interpretation of the top lease. However, these points are clearly preserved for future consideration on further appeal. As well, the cross appeal is rendered moot by our decision on the threshold question, but it too is preserved for future consideration. [99] In the result, the within appeal is allowed with costs in this Court on double Column V and the action for a declaration that the top lease is void is dismissed with costs in Queen's Bench on the applicable column. DATED at the City of Regina, in the Province of Saskatchewan, this 10th day of August, A.D. 2001. TALLIS J.A. concur SHERSTOBITOFF J.A JACKSON J.A. (in dissent) Introduction [100] This appeal requires the Court to test the limits of its authority to change an established principle of common law, notably, the application of the rule against perpetuities to a particular type of oil and gas lease. [101] Tarragon Oil and Gas Limited appeals decision declaring top lease void as offending the Rule against Perpetuities. top lease is an oil and gas lease granted by landowner with the intent of “topping” an already granted oil and gas lease or, as it is sometimes referred to "the head lease." top lease is intended to permit its holder to drill or mine after the head lease expires and may have the effect of compelling the holder of the head lease to proceed with production. [102] As part of its appeal, Tarragon asks this Court to declare the Rule against Perpetuities abolished as it relates to top leases. The ramifications of such declaration are largely unknown and may be significant. Hundreds of leases affecting thousands of oil and gas producing acres in southeastern Saskatchewan may be affected. Moreover, it is an area of the law where the legislature has already been asked to legislate, attempted to do so and then, in the face of opposition, let the bill die on the order paper. The Court is now asked to effect what that bill would have accomplished. [103] For my part, since have concluded that the Rule against Perpetuities applies to this top lease, the Court should not modify the Rule in the face of the significance of such modification, the efforts of the legislature to legislate and our inability to deal with such issues as the retrospective operation of our decision. [104] In the case at hand, Harry Herbert Taylor (“Taylor Senior”) owned certain parcel of land (the “Taylor land”). On April 26, 1949, he granted an interest in the mineral rights in this land to Imperial Oil (the “Imperial Lease”). The Imperial Lease had term of ten years and “for so long thereafter as the leased substances were produced from the lands.” On August 7, 1950, Taylor Senior and Freeholders Oil entered into top lease for the same rights in the Taylor lands (the “Top Lease”). The Top Lease purported to grant the mineral rights in the Taylor land to Freeholders Oil when the Imperial Lease expired, and it is this Top Lease which is at the centre of the controversy in this case. [105] Since Imperial Oil did not exercise its rights in relation to the Taylor land, the Imperial Lease expired on April 25, 1959. [106] In September of 1961, Taylor Senior and Freeholders entered into second agreement whereby Freeholders agreed to pay Taylor Senior 3.5% of the gross royalties from the oil taken under the Top Lease instead of the 20% of the net benefit to which the parties had previously agreed. Counsel on both sides referred to this 1961 Agreement in interpreting the Top Lease. [107] Freeholders Oil merged with Scurry Oil and number of other companies to become Scurry-Rainbow Oil in September 1964. On June 1, 1993, Scurry-Rainbow sold the Top Lease to Tarragon Oil and Gas Limited, the appellant on this appeal. [108] Taylor Senior died in 1969. descendant, Harry Ernest Taylor (“Taylor”), now owns the land. Taylor recognized the assignment of Scurry’s interest to Tarragon on June 1, 1993 by signing the assignment agreement. [109] In March of 1993, Maxx Petroleum Ltd., the respondent on this appeal, advised Tarragon of its wish to lease or sublease the Taylor lands, but Tarragon was not interested. In August of the same year, Maxx proposed “seismic option” whereby it would have the option of drilling the Taylor lands. Tarragon did not accept this proposal either. Then, around October 8, 1993, Maxx and Tarragon reached an agreement in principle for “farm out” arrangement, whereby Maxx agreed to drill the Taylor lands for Tarragon. [110] To complete the 1993 farm out arrangement, Maxx wished to investigate the strength of Tarragon’s lease. To do so, Tarragon gave Maxx copy of the original 1950 Top Lease which Maxx had been unable to obtain on its own. After reviewing the Top Lease, Maxx concluded that it offended the Rule against Perpetuities. As consequence, Maxx entered into its own lease with Taylor respecting the mineral rights in the Taylor lands on November 16, 1993. Subsequently, Maxx and Taylor commenced this litigation asking for declaration that the Top Lease was void, as being contrary to the Rule against Perpetuities, which would mean that Tarragon held no interest in the Taylor lands. Application of the Rule against Perpetuities [111] As will be seen, notwithstanding Tarragon's many arguments to the contrary, the perpetuities part of this appeal is really the simplest. At bottom, the Rule against Perpetuities is rule of construction of agreements. The issue in this case is: when under the Top Lease will the interest that Taylor Senior granted to Freeholders vest? With that question in mind, few rules of interpretation, as cited by Maxx's counsel, bear repeating. [112] First, there is the rule which favours early vesting (see Canada Permanent Trust Co. v. Lasby et al, 1984 CanLII 2449 (SK QB), [1985] W.W.R. 489 (Sask. Q.B.)). While the Rule against Perpetuities favours early vesting, this is only presumption and can be rebutted by clear language to the contrary (see B. Ziff, Principles of Property Law (Toronto: Carswell, 1993) at 174). To assist the Court to find clear language, one can look to the terms of the contract as whole, including the recitals, to eliminate any ambiguity in the operative clause (see G.H.L. Fridman, The Law of Contract in Canada, 3d ed., (Toronto: Carswell, 1994) at 469; Re British Columbia Hydro Power Authority v. Gregory Manufacturing Ltd. et al. (1979), 1978 CanLII 2013 (BC SC), 93 D.L.R. (3d) 503 at 507 (B.C.S.C.); Wells v. Blain et al., 1926 CanLII 134 (SK CA), [1927] D.L.R. 687 at 705 (Sask. C.A.); and Co-operative Trust Co. of Canada v. Receveur et al. (1985), 1985 CanLII 2376 (SK CA), 40 Sask. R. 315 (C.A.)). Subsequent conduct can also aid the interpretative exercise provided that there is genuine ambiguity between varying interpretations of contract (see Canadian National Railways v. Canadian Pacific Ltd., 1978 CanLII 1975 (BC CA), [1979] W.W.R. 358 at 372-73 (C.A.); Cadbury Schweppes Inc. v. FBI Foods Ltd. (1996), 1996 CanLII 3352 (BC CA), 23 B.C.L.R. (3d) 325 at 338 (C.A.) appeal to the S.C.C. allowed on other grounds 1999 CanLII 705 (SCC), [1999] S.C.R. 142; Erehwon Exploration Ltd. v. Northstar Engineer Corp. (1993), 1993 CanLII 7238 (AB QB), 15 Alta. L.R. (3d) 200 at 236 (Q.B.)). [113] The clause to be construed is section of the Top Lease: 2. Lease to Grantee UPON AND IN THE EVENT OF the termination, cancellation, avoidance or expiration of the said drilling lease between the GRANTOR and the LESSEE, and in consideration of the covenants of the GRANTEE herein contained, the GRANTOR DOTH HEREBY GRANT AND LEASE UNTO THE GRANTEE all the mines, minerals and mineral rights, including the petroleum, natural gas and all related hydro‑carbons (hereinafter referred to as “the minerals”) within, upon or under the above described lands and all the right, title, estate and interest of the GRANTOR in and to the minerals or any of them within, upon or under any lands excepted from, or roadways, lanes, or rights‑of‑way adjoining the lands aforesaid together with the exclusive right and privilege to explore, drill for, win, take, remove, store and dispose of, the minerals, and insofar as the GRANTOR has the right so to grant, and for the said purposes, the right of entering upon, using and occupying the said lands or so much thereof and to such extent as may be necessary or convenient, TO HAVE AND TO ENJOY the same for term of ninety‑nine (99) years from the date hereof, renewable at the option of the GRANTEE, and so long thereafter as the minerals or any of them are produced from the said lands. The key words are those which begin the section by saying “Upon and in the event” of the termination of the prior lease, the subsequent lease comes into effect. [114] To satisfy the Rule against Perpetuities, one must be able to conclude, as matter of interpretation that the interest in land will vest within 21 years of the date of the contract (see E.H. Burn, Cheshire's Modern Law of Real Property, 12th ed. at 320). The classic statement of the modern Rule against Perpetuities is that stated by Professor J.C. Gray in The Rule against Perpetuities, (4th ed.), s.201: No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. As there is no life in being in this case, the interest must vest within 21 years of its creation, which in this instance would have been August 6, 1971, being 21 years after the date of the Top Lease. The difference has been expressed as one between “this lease now, to enjoy when the old one expires” and “this lease when the old one expires.” On this appeal, in my opinion, the Court is confronted with grant of the latter form that does not inevitably become effective within 21 years. [115] It should be noted that the Rule against Perpetuities is not concerned with the duration of an interest, but only that an interest may vest at remote time in the future. The rule invalidates interests in land that vest too remotely. (See: J.H.C. Morris and W.B. Leach, The Rule against Perpetuities, 2nd ed., pp.1 2.) This will occur if there is any possibility that the interest may vest outside the perpetuity period. Neither the possibility nor the fact that vesting may occur within the perpetuity period will save the transaction (See: A.H. Oosterhoff and Rayner, p.447). Rather the document is construed as of the date of execution. (See: Megarry and Wade, Real Property, 3d., p.218). If it vests within the perpetuity period, that is considered to be matter of happenstance as far as the application of the Rule is concerned. [116] The trial judge concluded that the words “upon” and “in the event” do not indicate, as Tarragon suggests, some restriction on the timing of enjoyment alone. Using “plain language” approach, he read these words as saying “if and when” the Imperial Lease expires, the Top Lease comes into effect. As he succinctly put it, “in the context in which they are used, the usual and ordinary meaning of the word ‘upon’ and the phrase ‘in the event’, connote time and conditions and not property or an interest in property” (see para. 37 of the trial judgment). The trial judge’s interpretation of section is supportable one. [117] Tarragon argues that only enjoyment is postponed because section indicates that the lease is given “to have and to enjoy for term of ninety-nine (99) years from the date hereof.” Tarragon argues further that the time limit of 99 years from the date of signing, which is when all parties would have known the Imperial Lease was in effect, gives an immediate vested interest with only possession and enjoyment delayed. But this sentence ties the right to “enjoy” (in the present tense) to the 99-year limit. Enjoyment cannot be had in the present, from the “date hereof," but is postponed until the Imperial Lease expires which could occur at some indefinite point in the future. [118] The trial judge read the 99-year term as imposing limit upon how long the Top Lease might possibly endure rather than as providing an immediate vesting. In other words, the section grants right to have and enjoy with an upper limit of 99 years, but the right to enjoy only takes effect “upon and in the event” of the termination of the Imperial Lease. [119] To read the “99 years” sentence as Tarragon suggests requires this Court simultaneously to accept that there is an immediate granting of the right to have and to enjoy, but that Tarragon does not have the right to enjoy immediately. Present enjoyment in the terms of “enjoyment from the date hereof” is impossible. Contrary to the position taken by Tarragon, this is much more than postponement of enjoyment. Rather, it is an outright postponement of the granting of any interest at all. [120] The words “[I]n and upon the event of ...” contemplate the possibility that the Imperial Lease may not come to an end. The grant of the Top Lease contained in section was only to take effect upon and in the event of the termination, cancellation, avoidance or expiration of the Imperial Lease. The Imperial Lease was for term of ten years from its date and for such additional period thereafter as the leased substances or any of them were produced from the Taylor Land. Thus, this is case of “this lease when the old lease expires,” not “this lease now, to enjoy when the old one expires” which is the classic analysis associated with interpreting when an interest in land is to vest. Because the granting of the Top Lease was contingent upon the termination of the Imperial Lease, and because that termination was an uncertain event, the Rule against Perpetuities voids the Top Lease. [121] Since do not find the operative clause to be ambiguous, it is not strictly necessary to look beyond the operative clause of the agreement. Nonetheless, note in passing that the recitals contained in the Top Lease and subsequent conduct bear out the interpretation that the interest created by the Top Lease was not to come into effect until after the expiry of the Imperial Lease. The Top Lease’s fifth recital reads as follows: AND WHEREAS it has been further agreed by and between the parties hereto that should the said drilling lease between the GRANTOR and the LESSEE terminate from whatsoever cause, or be avoided, or become null and void, or become unenforceable by the LESSEE at any time within period of forty‑two (42) years from the day of the date hereof then and in that event, all the mines, minerals and mineral rights within, upon or under the above described land shall be subject to the terms of the lease as hereinafter provided, and the GRANTEE will allot and issue to the GRANTOR additional fully paid‑up shares in the capital stock of the GRANTEE in such amount as shall increase the number of shares allotted and issued to the GRANTOR to one share for every acre of the above described land, which shares shall be allotted and issued to the GRANTOR upon receipt of actual notice from the GRANTOR that the said drilling lease has been terminated, cancelled, avoided, or has expired; The Grantor is Taylor Senior, the Lessee is Imperial Oil and the Grantee is Freeholders. This clause contemplates that "should" the Imperial Lease expire in 42 years, the Top Lease will come into effect. From this, one may conclude that there had been no prior grant contemplated by the 1950 Top lease and thus no possible vesting until the Imperial Lease comes to an end which may occur after the perpetuity period. [122] Sections and of the Top Lease are also worth noting: 3. Application for Shares The GRANTOR hereby applies for membership in and subscribes for and agrees to take up “Three Hundred and Twenty (320)” shares with nominal or par value of One Dollar ($1.00) per share in the capital stock of the GRANTEE, and tenders the within assignment in full payment of one‑half (½) of the said shares, and the within lease in full payment of the balance of the said shares, and hereby requests that the said shares be allotted to the GRANTOR and that such shares be issued as fully paid and non‑assessable and that certificate or certificates for the said shares be issued in the name of the GRANTOR as herein set out, and acknowledges to have received copy of the prospectus of the GRANTEE. 4. Acceptance by Grantee The GRANTEE covenants and agrees to accept the within assignment as payment in full for one‑half (½) of the said shares and to allot and issue to the GRANTOR one‑half (½) of the said shares as fully paid and non‑assessable; and the GRANTEE accepts the within lease as payment in full for the balance of the said shares and upon the effective date of the said lease agrees to allot and issue to the GRANTOR the balance of the said shares as fully paid and nonassessable. [123] As can be seen, section of the Top Lease makes reference to the “effective date” of the Top Lease. Dictionary definitions provided by Maxx indicate that “effective” means “coming into operation,” “date on which contract takes effect,” “being in effect” and “operative.” [124] Thus, the lease, if not immediately effective makes no immediate grant. Further, sections and of the Top Lease provide that payment for the lease is not to occur immediately, but only upon the expiration of the Imperial Lease. In contrast, payment for the other portion of the agreement (an assignment of Taylor Senior’s interest in the Imperial Lease to Freeholder's Oil) occurred immediately. This, too, leads to conclusion against immediate vesting. [125] As to subsequent conduct, we need only look at the 1961 Agreement. This is the agreement whereby Freeholders changed the way in which Taylor Senior would be paid under the Top Lease. As the trial judge emphasized, the 1961 Agreement provides “said grant and lease [the Top Lease] to become effective on the termination, cancellation, avoidance or expiration of the then existing lease [the Imperial Lease].” These words confirm that the grant itself is to occur and to become effective when the original lease expires. [126] This interpretation of the Top Lease accords with the American authorities which have been cited to us. In each of Stoltz, Wagner Brown v. Duncan (1976), 417 F. Supp. 552 (United States District Court, W.D. Oklahoma); Peveto v. Starkey (1982), 645 S.W. 2d 770 (Supreme Court of Texas); Hammans v. Bright Company (1996), 924 S.W. 2d 168 (Texas Court of Appeals), the courts were concerned with wording strikingly similar to that contained in the Top Lease. In each case, the court concluded that words like "Upon and in the event" or “effective only upon” offended the Rule against Perpetuities. [127] As second argument, Tarragon argues that immediate vesting occurred because it was only the natural termination of prior, particular estate (the Imperial Lease) that prevented it from taking effect in possession. In Simes, Handbook of the Law of Future Interests (2d ed., 1966) at p. 186, this appears: SIGNIFICANCE OF VESTED OR CONTINGENT CONSTRUCTION 90. In general, future interest is vested when there is no condition precedent to its taking effect in possession other than the termination of prior estates, however and whenever that may occur; but if there is such condition precedent, then the interest is contingent. Sometimes the terms contingent and vested refer to the question whether or not there is condition of survivorship; but that terminology is not employed here. In determining whether an interest is vested or contingent, it is necessary to ascertain what language creates condition precedent, and what does not. That is the subject of this chapter. [bolding in original] Doubtless the concept of vested interest goes back to feudal notions of the vested remainder in land. This interest was subject to no condition precedent other than the termination of prior estates. On the other hand, if remainder in land was subject to any condition precedent, other than the termination of prior estates, however and whenever that might occur, then it was said to be contingent. Eventually these concepts were extended to future interests generally, both in land and in things other than land. Thus, in general, we can say that, if future interest is subject to no condition precedent, other than the termination of prior estates, however and whenever that may occur, it is vested; otherwise it is contingent. [emphasis added and footnotes omitted] This statement of the law is confirmed in Ziff Principles of Property Law (1993) at p. 174: Property interests are either vested or contingent. An interest is vested when no condition or limitation (including the ascertainment of the identity of the recipient) stands in the way of enjoyment, other than the natural termination of the prior particular estate. [emphasis added] So, in transfer “to for life, remainder to B”, the interests of both recipients are vested. The life estate is vested in possession, and is currently entitled to possession. B’s interest is also vested since the right to possession is not delayed by any condition other than the natural determination of the prior particular estate (of A). This remainder is vested in interest, but not in possession. [emphasis in original] In my opinion, if there is bar to the granting itself, including the termination of prior estate, the rule cited would not seem to apply. There still must be present grant. [128] Tarragon argues that notwithstanding this view, the rule pertaining to “prior, particular estates” saves the Top Lease. Their counsel cited two cases to us: Lundy v. Maloney (1861), 11 U.C.C.P. 143 and Mann, Crossman Paulin Ltd. v. The Registrar of the Land Registry, [1918] Ch. 202. Lundy involved grant to widow for life or until remarriage and Mann involved fixed term lease. Either the subsequent grants did not involve language as exists here or the grants were inevitable. Even if the termination of the Imperial Lease is inevitable, which the trial judge did not find it to be, the actual granting under the Top Lease is not inevitable within the 21-year window thereby violating the Rule. The Top Lease did not effect vesting of the mineral rights until after the Imperial Lease might expire. [129] As support for this view of the nature of the prior interest, one may look to “Top Leases and the Rule against Perpetuities”, 10 Pepperdine Law Review 773 (May, 1983) at 779-81, where the author writes that “[s]ince the vesting of the top lease is contingent upon the occurrence of ‘an uncertain future event’ (the cessation of production in paying quantities), it is subject to the Rule against Perpetuities.” The author was referring to top leases generally speaking, which by their very nature, offend the Rule unless carefully drafted wording is chosen. [130] For all these reasons, conclude that the Top Lease offends the Rule against Perpetuities and is therefore void. Ratification and Novation [131] Tarragon argued that when Taylor Senior executed the 1961 Agreement, he either ratified the Top Lease or effected novation of it. The trial judge rejected these submissions saying “[s]ince the Freeholders agreement [the Top Lease] was void, it follows that there is nothing which is capable of being ratified, renewed or enforced.” [132] While Tarragon accepts that there are numerous authorities which hold that void agreement is incapable of ratification (as cited in Cheshire Fifoot Furmston's Law of Conflict, 12th Edition, 1991 at p.477 and G.H.L. Fridman in The Law of Contract in Canada, 2nd Edition, 1986 at p.138), their counsel argues for principled review of this hypothesis. He asserts that in each of the cases cited by the learned authors the void agreement could not be ratified because the ratification was “tainted” by the continuation of the circumstances that made the agreement void in the first place. As the argument proceeds, if the Top Lease were void when executed, nonetheless, by the time the 1961 Agreement was executed, the interest held by Freeholders had vested, and therefore, the Top Lease was no longer tainted for having offended the Rule against Perpetuities. But this would be variation on the "wait and see" doctrine which is not part of the law of perpetuities. It would also mean that there would be time when the Top Lease was not in force, i.e., from 1950 until 1961 and then was made effective without the parties consciously turning their minds to the issue. Tarragon argues that we should presume that Taylor Senior knew his lease was void and, thus, the 1961 Agreement was his attempt to revive the agreement. In support of this proposition, Tarragon cites two cases: Murdoch v. Canadian Superior Oil Ltd. et al. (1968), 1969 CanLII 767 (AB CA), 68 W.W.R. 390 (Alta. C.A.) affirmed (1969), 1969 CanLII 925 (SCC), 70 W.W.R. 768 (S.C.C.), [1969] S.C.R. vi (note) and Canadian Superior Oil Ltd. et al. v. Paddon-Hughes Development Co. Ltd. and Hambly, 1970 CanLII (SCC), [1970] S.C.R. 932. These authorities address the question of the ratification of expired leases which were once valid. An expired lease does not have the same legal nature as void agreement. One is capable of ratification, but the other is not. [133] Even if were to give effect to this argument and hold that Taylor Senior ratified the Top Lease by his execution of the 1961 Agreement, it would still lead to conclusion that the Top Lease as ratified was void because the circumstance that makes it so is the wording of the agreement itself. Interpretation of the agreement to determine whether it contravenes the Rule against Perpetuities must be made as the date of execution. If this agreement were permitted to be ratified, the text of the agreement itself, that very thing which made the agreement void, would still carry on and form the relationship between the parties. The “taint,” as it were, would continue. [134] At bottom, the same principles govern “novation.” Black's Law Dictionary defines "novation" as the substitution of new contract between the same or different parties. Tarragon argues that Taylor Senior by his conduct must be taken to have agreed to new, and independent contract with Freeholders. As authority for the proposition that parties to contract may by their conduct enter into new contract in substitution for prior, void contract, Tarragon referred the Court to Dorsch v. Freeholders Oil Co. Ltd. (1964), 1964 CanLII 401 (SK CA), 48 W.W.R. 257 (Sask. C.A.). [135] In Dorsch, this Court held that the parties, by their subsequent conduct, adopted an independent, new agreement for one that the Court had found to be void. The Court said this (at p. 271): To establish an independent contract, the shareholder must be aware of his position and in view of such knowledge must conduct himself in such way that new contract to retain the shares can be presumed. In the present case the respondent was aware that no prospectus had been delivered to him. He is presumed to know the law. In light of this knowledge the respondent: (1) Accepted and retained (for about four years) the share certificates mailed to him; (2) Allowed the appellant to treat him as shareholder by mailing notices of meetings, director's reports and other company communications to him; (3) Attended and voted at two annual general meetings of the shareholders of the company; (4) made no protest of his being treated as shareholder until his solicitor sent the notice of repudiation to the appellant on May 22, 1956. .. These are all matters which can be considered and am of the opinion that from them new independent contract to accept the shares can be presumed. Using this reasoning Tarragon argues that Taylor Senior must be taken to have known the law and, therefore, is presumed to know that the Top Lease was void as violating the Rule against Perpetuities. Impressed with this knowledge, Tarragon argues that Taylor Senior received and accepted shares in Freeholders pursuant to the Top Lease and executed the 1961 Agreement whereby he chose to receive gross royalty in exchange for the mines and minerals—all of which are said to create new independent contract. [136] To find in Tarragon's favour on this point, the Court would have to be satisfied that the parties created new contract and did so in circumstances where they knew or ought to have known that the original one was invalid. In my opinion, this test cannot be met. In Dorsch the original contract for the sale of shares was rendered void because the company had failed to provide the prospective shareholder with copy of the company's prospectus. Following the share purchase, the land owner conducted himself as shareholder including participating in annual meetings. To apply the presumption to Taylor Senior that he must be taken to know that the Top Lease was void for having offended the Rule against Perpetuities stretches the presumption. Moreover, the 1961 Agreement merely modifies the terms of another agreement, made with full, albeit misplaced, confidence that the original agreement was valid, and in force. To find the intention for new, independent contract on the basis of what is essentially modification of Taylor Senior’s consideration under the 1961 Agreement is not the foundation of new and independent contract. Thus, this ground of appeal must too fail. Abolishing the Rule as it relates to Top Leases [137] That then brings us to consideration of whether this Court should abolish the Rule, as matter of policy, as it relates to this top lease, and by extension to all top leases in similar form. Tarragon invites this Court to use the reasoning contained in R. v. Salituro, 1991 CanLII 17 (SCC), [1991] S.C.R. 654 at 670 and Porto Seguro Companhia De Seguros Gerais v. Belcan S.A. et al., 1997 CanLII 308 (SCC), [1997] S.C.R. 1278 at 1292 to do so. [138] While both Salituro and Porto Seguro speak of the courts' power to strike down or modify the common law, it is not limitless power. If one examines these two decisions, and the authorities to which they refer, the changes which they bring about are not changes of this nature, ie., the interpretation of standard agreement involving real property which could affect the contractual rights of many parties not before the courts. The courts in this province have always exercised caution in dealing with real property matters, for fear of affecting rights of which we cannot be aware. While numerous examples abound, an example of such caution can be seen in the very same sitting of the legislature which generated this appeal. See Developments Inc. v. Norac Systems International Inc., William Philip Strelioff, et als., 2000 SKCA 109 (CanLII). [139] The matter is best put by Iacobucci J. in Salituro where he writes (at p. 670): [I]n constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. On this point, one should also look at such decisions as Watkins v. Olafson et al. 1989 CanLII 36 (SCC), [1989], S.C.R. 750 and Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.) 1997 CanLII 336 (SCC), [1997], S.C.R. 925. [140] In Winnipeg Child and Family Services, child welfare agency sought an order requiring that pregnant woman who was addicted to glue-sniffing be committed so as to prevent her from using intoxicants during her pregnancy. McLachlin J. (as she then was) referred to Watkins and Salituro. Having reviewed the principles contained in these decisions, she stated (at p.940): ...As general rule, judicial change is confined to incremental change “based largely on the mechanism of extending an existing principle to new circumstances”; courts will not extend the common law “where the revision is major and its ramifications complex”. She expanded on this (at p.941): The proposed changes to the law of tort are major, affecting the rights and remedies available in many other areas of tort law. They involve moral choices and would create conflicts between fundamental interests and rights. They would have an immediate and drastic impact on the lives of women as well as men who might find themselves incarcerated and treated against their will for conduct alleged to harm others. And, they possess complex ramifications impossible for this Court to fully assess, giving rise to the danger that the proposed order might impede the goal of healthy infants more than it would promote it. In short, these are not the sort of changes which common law courts can or should make. These are the sort of changes which should be left to the legislature. [141] Counsel for Maxx also drew the Court's attention to the House of Lords decision in Ward et al. v. Van De Loeff et als. (1924), A.C. 653 which specifically addresses the possibility of the Court making changes to the Rule against Perpetuities (at p.679): All the same in these cases the rule is fatal even to gifts so innocuous, and cannot doubt that such result is both mischievous and unfortunate, in many directions, in this notably, that it brings sound principle into entirely gratuitous discredit. Nevertheless most fully agree that the rule is not to be whittled away by the Courts even for such reason as that. It is too well authenticated in all its recognized incidents to be any longer under the control of any Court. It is the Legislature alone, which, maintaining the salutary purpose of the rule in its proper application, can, if it pleases, remove from it those incidents or excrescences which, without assisting to achieve its legitimate object, have done much mischief in other directions. [emphasis added] [142] As noted by both parties, there are “hundreds” of similar leases to the one held by Tarragon leaving the implications of decision not to apply the Rule to this Top Lease largely unknown. For example, if one changes the facts so as to have this be an action between Taylor and Maxx only, it becomes less clear that upholding the Top Lease is the appropriate judicial response. Such change to the facts drives one to consider the history of oil exploration in Saskatchewan and the interaction of oil companies and farmers. [143] When oil was first discovered in Leduc, Alberta in 1947, oil companies rushed to sign up farmers in the southern parts of Saskatchewan and Alberta. The farmers, and indeed the oil companies, knew little of the significance of this discovery and the potential wealth to be derived therefrom. These agreements tied up the land, prevented the farmer from seeking better agreements elsewhere and, given the speed of the sign up process, often left the farmer with small compensation for the nonrenewable resource. review of the litigation coming from this jurisdiction over the last forty years demonstrates the farmers' desire to obtain relief from bad bargains struck in haste. By “topping” the head lease, top lease had the capacity to alleviate the situation somewhat, but only if the holder of the top lease moved to generate production from the land. If the lease holder failed to so move, the farmer was still left with recalcitrant oil company and the possibility that when drilling ultimately commenced, changed circumstances might mean that the farmer would see little profit. [144] Admittedly, these are very much policy considerations, but the arguments on the other side are no less so. My point is that the Courts are not equipped to weigh the legitimacy of these concerns whereas the Legislature is. [145] Furthermore, through the vehicle of statute law, the Legislature can accomplish many things that the Courts through pronouncement cannot. The Legislature can abolish the Rule against Perpetuities as it relates to future leases, or only those where reliance on the Rule cannot be proven or, still yet, can declare that an equitable “wait and see” or “cy pres” approach should be adopted to save top leases in circumstances such as occurred here. Legislatures in other jurisdictions have enacted laws which address these issues: see the Perpetuities Act, R.S.A. 1980, c. P-4 and the Perpetuities Act, R.S.O. 1990, c. P-9, and in particular, s. 14 (added following further report by the Law Reform Commission to address the special issues pertaining to profits prendre). The Legislature can also exempt those lands involved in cases which have found their way to the Courts. The Courts cannot perform this fine surgery. We can only abolish the law as it relates to top leases or declare it to be inapplicable to this Top Lease which may amount to the same thing. [146] Particular mention must be made of the question of restrospectivity. Canadian courts have not taken unto themselves the power to declare their decisions to be prospective only. Canadian common law continues to recognize the principle that judicial decision is declaratory of the law as it was, is and always will be until future court interprets the law differently. There is merit to this approach. Nonetheless, the possibility that someone has relied on the law being interpreted in particular way or has rights taken away retroactively is, nonetheless, troubling and has been extensively treated by the American courts. [147] In Linkletter v. Walker, 381 U.S. 618 (1965) the Supreme Court of the United States rejected earlier jurisprudence, for example, Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), which applied new law to transactions that took place before the date of the law-changing decision. Linkletter held that the parties should be governed by the law in effect at the time the court renders new decision. The United States Supreme Court’s approach to retroactivity has been much criticized (Kermit Roosevelt III, “A Little Theory is Dangerous Thing: The Myth of Adjudicative Retroactivity” (1999) 31 Conn. L. Rev. 1075, online: Information Society Project http://infosociety.law.yale.edu/papers/dangerous.html. Notwithstanding this criticism, if Linkletter were the law in Canada, Maxx would not suffer the penalty of change in the law which will be the consequence of failing to apply the common law as it existed prior to this decision. [148] It is not as if this is the first time that the Rule has been applied in modern context. See, for example, Canadian Export Gas Oil Ltd. v. Flegal and Flegal, 1977 CanLII 670 (AB QB), [1978] W.W.R. 185 (Alta.S.C. T.D.) and Harris v. Minister of National Revenue (1966), 1966 CanLII 58 (SCC), 57 D.L.R. (2d) 403. In both of these cases, the facts evoke sympathy for the abolition of the Rule, but the Rule was not abolished. [149] The force of these arguments increases when one considers not only that the Law Reform Commission of Saskatchewan recommended that the Legislature abolish the Rule and that the Legislature decided to act on the Commission's recommendation, but for some reason, decided not to proceed with draft legislation. Debate on Bill No. 69 being “An act to abolish the Rules Against Perpetuities and The Accumulations Act and to enact Consequential Amendments” was adjourned on April 21, 1995 after these comments were made by the justice critic of the day: However, Mr. Speaker, we’ve also found that as we’ve reviewed the matter and reviewed the Bill, we’ve had the opportunity to discuss this matter with some lawyers, and we are not so sure that the Bill is as inconsequential as the former Justice minter suggested. In spite of what the former minister said, the rule regarding perpetuities affects more than the land holdings of British aristocrats. And believe we had couple of individuals from Saskatoon join us yesterday afternoon, and they came to our office and indicated that they have some grave concerns based on some of the comments that we had made previous. It is far-reaching, well-established principle of law around the world with deep implications for contract law and the implementation of wills. In light of this, Mr. Speaker, it seems that our ... and our caucus believes that to simply abolish the rule regarding perpetuities is rash and should be reconsidered more carefully. The rule regarding perpetuities, Mr. Speaker, exists in most British common law and American jurisdictions in one form or another. Mr. Speaker, doubt that the minster could name many jurisdictions where it does not exist. The one example that does immediately spring to mind is Quebec, but that province does not follow British common law so it perhaps is not the best example to cite. Mr. Speaker, many jurisdictions have substantially altered the perpetuities rule and have dispensed with the legal reference to the rule in Whitby v. Mitchell and The Accumulations Act of 1800. Certainly if the government wanted to bring forward some reforms to the rule rather than offhandedly abolishing it, we would feel much more comfortable with the situation. Mr. Speaker, we realize that this matter has been considered by the Law Reform Commission and therefore is probably not something that the government has lot of ideological stake in. However it is our advised opinion that this legislation could cause considerable upset and confusion in the business community. Contracts and wills going back generations have been formulated on the existence of the rule regarding perpetuities in this province. Since this legislation is retroactive back to the formation of the province, every single one of these contracts could well be thrown into confusion. Mr. Speaker, before we could support this Bill, we would have to be convinced by the government that they have studied these potential effects and have plan to manage any legal problems that may arise from this Bill. Mr. Speaker, the former minister of Justice mentioned that this Bill was prompted by complaints brought forward by the oil and gas industry. Certainly our caucus understands how much this industry contributes to this province and we would not want to stand in the way of any measures that would improve the competitiveness of it. However, we have been advised that the province of Alberta retains modified perpetuities rule. Now, Mr. Speaker, would find it hard to believe that the province of Alberta would retain anything that would not favour the oil and gas industry. So again, Mr. Speaker, our caucus is not entirely comfortable with the drasticness [sic] of this Bill; we would rather see the rule modified rather than abolished. However we will, for the moment, bow to the expertise of the Law Reform Commission. None the less, think we should take bit more time and spend few more days reviewing this piece of legislation before we would proceed to Committee of the Whole, where I’m sure we will have number of questions. And indeed, Mr. Speaker, we want to make sure we’ve taken the time to have given everyone who has some concerns regarding the Bill and the problems that it may affix to them, the opportunity to speak to us. And therefore, Mr. Speaker, would move adjournment of debate at this time. Debate adjourned. That we are immune from whatever pressure may have been brought to bear on the Legislature should not embolden us to take the step it drew back from making. [150] That leads us to the question whether the policy behind the Rule Against Perpetuities is so destructive of commercial interests as to compel this Court's intervention. As counsel for Maxx points out, the policy behind the Rule against Perpetuities is to prevent interference with the alienation of property beyond certain period of time. The policy has been more particularly explained by the various authorities he cited to us. For example, in Halsbury's Laws of England, 4th ed., vol. 35 at p.483, it is said: The rules of law affecting perpetuities are based upon considerations of public policy. Although the principle of private ownership requires that an owner of property is to have power to dispose as he thinks fit, either during life or on death, of his whole interest in the property he owns, public policy requires that the power should not be abused. Accordingly, from early times, the law has discouraged dispositions of property which either impose restrictions on future alienations of that property, or fetter to an unreasonable extent its future devolution or enjoyment. [151] In Anger and Honsberger Law of Real Property, 2nd ed., the authors state at p.443: ... the modern rule against perpetuities was rendered necessary in order that future interests arising under the Statute of Uses and the Statute of Wills, which were indestructible under the common law remainder rules and the rules against unbarrable entails, might be controlled. The control was exercised by requiring that such interests must vest within specified time. Although not itself concerned with inalienability, the rule was born out of the same concern for free alienability of land that produced the rules against unbarrable entails. Inalienability was considered harmful because it stagnated land the primary source of economic wealth in earlier times. This arose because the various devices which tended to perpetuity created only limited interests in land, interests which either might be defeated or which might not arise until some future time. The owners of such interests had difficulty selling them and at the same time were loath to expend moneys to improve the land. This was thought to be inappropriate since it impoverished the nation's resources and diminished its wealth. The rule against perpetuities did not, of course, prohibit the creation of limited interest, but did have the effect of reducing the consequences of such interests by requiring that they must become vested within life in being plus twenty-one years from the creation of the interest. [152] Brian A. Yaworski in an article entitled “Perpetuities Problems in Farming Arrangements and Other Earning Arrangements” in Oil and Gas Title Opinions Are They Necessary? How Are They Prepared? (Insight Press, 1990) observed at p.2 of the article: The answer to these and similar questions is within the rules of law affecting perpetuities. These rules of law are based upon considerations of public policy. Although the principles of private ownership dictate that the owner of property shall have the power to dispose of it as he thinks fit, public policy discourages dispositions of property which either impose restrictions on future alienations of that property or fetter to an unreasonable extent the future enjoyment or use of that property. The rules are not intended to stimulate development per se, but do attempt to avoid the sterilizing effect which results when future contingent interests can vest so remotely that it is virtually impossible to identify ownership of land for such purposes as conveyancing, taxation and settlement of estates. [emphasis added] [153] In Canadian Export Gas Oil Ltd. v. Flegal and Flegal, 1977 CanLII 670 (AB QB), [1978] W.W.R. 185 (Alta.S.C. T.D.), Stevenson J. stated the rationale behind the Rule against Perpetuities as follows at pp.190-91: What is the rationale behind the rule? confess to having suggested to counsel that we were considering conflict between technical rules rather than principles. However, am in agreement with the statement in the American Law of Property, vol.6, p.146, that the policy behind the rule is to favour free alienation and full use of property. It is designed to achieve balance between freedom of disposition and stagnation (Morris and Leach, p.15). That was the policy of the common law, and the modern adoption of perpetuities legislation confirms that this is not an archaic common law technicality, the reasons for which have now ceased to exist. [154] Finally, in Canadian Long Island Petroleums Ltd. and Sadim Oil Gas Co. Ltd. v. Irving Industries (Irving Wire Products Division) Ltd. and Irving Industries (Foothills Steel Foundry Division) Ltd. 1974 CanLII 190 (SCC), [1975] S.C.R. 715, Martland J. stated the policy behind the Rule against Perpetuities (at p.399): am in agreement with the views expressed in judgment of the Circuit Court of Appeal, Fifth Circuit, by Strum, District Judge, in the case of Weber v. Texas Co. (1936), 83 F. 2d 807 at 808: The rule against perpetuities springs from considerations of public policy. The underlying reason for and purpose of the rule is to avoid fettering real property with future interests dependent upon contingencies unduly remote which isolate the property and exclude it from commerce and development for long periods of time, thus working an indirect restraint upon alienation, which is regarded at common law as public evil. [155] The long history of the rule and these recent expressions of support for its continued existence compel one to reconsider the words of Lord Blanesburgh in Ward et al. v. Van De Loeff et al. supra. After decrying the result which the Rule demanded he had to reach in that case, he wrote "...the rule is not to be whittled away by the Courts even for such reason as that. It is too well authenticated in all its recognized incidents to be any longer under the control of any Court. It is the Legislature alone, which, maintaining the salutary purpose of the rule in its proper application, can, if it pleases, remove from it those incidents or excrescences which, without assisting to achieve its legitimate object, have done much mischief in other directions." [156] In short, the Rule against Perpetuities applies to this Top Lease and, in those parts of North America most like us with respect to oil and gas production, the southern and western States, the Rule has been applied to the very same type of lease. If modification is required, the courts should follow the lead of the other provinces and leave the Legislature to enact whatever legislation it deems appropriate. Cross-appeal [157] now turn to the cross-appeal. After having entered into its own lease with Taylor Junior, Maxx Petroleum commenced an action against Tarragon, in its own name and in that of Taylor Junior, for declaration that the Top Lease was void as being contrary to the Rule against Perpetuities. Tarragon counterclaimed for (i) an injunction restraining Maxx and Taylor (the two defendants by counterclaim) from asserting any claim based on the confidential information; (ii) an injunction restraining them from making any use of this information; (iii) an accounting of any profits; (iv) declaration that they are constructive trustees of any property acquired by their wrongful use of the confidential information; and (v) damages. [158] In support of its counterclaim, Tarragon alleged that Maxx could only obtain access to the Top Lease by virtue of their negotiations which were intended to lead to farm-out agreement. Tarragon asserted that the lease was highly confidential and contained confidential information and that Maxx owed it duty of confidentiality not to use the information in any way and, in particular, not to Tarragon's detriment. [159] The trial judge reviewed Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] S.C.R. 574. He noted that the test for breach of confidence has three parts (at p. 636 in Lac Minerals): 1. the information used must be confidential; 2. the information used must have been communicated in confidence; and 3. the information must have been misused by the party to whom it was communicated. [160] The trial judge found that form of the Top Lease was on file with the Corporations Branch of Saskatchewan Justice. In addition, the caveat based on the actual Top Lease with Taylor set out largely what is contained in sections and of the lease. Nonetheless, the trial judge concluded that Maxx could not be certain about the actual terms of the lease and chose instead to negotiate formal agreement with Tarragon. As result of these negotiations, Tarragon provided copy of the Top Lease to Maxx for the purposes of due diligence searches and not to provide information to Maxx whereby it could undermine Tarragon’s interest. [161] The trial judge analysed the principles in Lac Minerals, applied them to the facts of the case and concluded that there had been breach of confidence. [66] When relate the facts to the essential elements of breach of trust, my conclusions are these. First, the information was confidential. It was not available anywhere else and Tarragon considered it to be confidential. Secondly, the information was shared and communicated in confidence. The parties were in the process of finalizing commercial arrangement and both recognized that the document and information therein was provided for the singular purpose of doing the due diligence examination. Thirdly, the information was misused by Maxx. It went beyond the due diligence and used the information to obtain result which was to its exclusive benefit and to the detriment of Tarragon. It clearly precluded the possibility of Tarragon obtaining any benefit in respect to the mines and minerals within the Taylor lands. The whole process of confidentiality was designed and intended to prevent this very result. [162] However, he also absolved Taylor Junior from any wrongdoing with these words: ¶69 Finally, it is noted that the plaintiff, Harry Ernest Taylor, had at best peripheral interest in the action. There is nothing to suggest that he was involved with what transpired between the corporate parties or that he breached any confidence and no liability can flow to him. In reality, he is party simply because he owns the land. [163] The trial judge went on to consider how to compensate Tarragon. These are his conclusions: 67 Where there has been breach of confidence, there normally is an attempt to restore the injured party to its former state through the declaration of trust with an attendant accounting along with an award for damages. That basic approach is appropriate in this case. However, cannot at this time delineate the specifics of the trust or calculate the quantum of damages and therefore reserve same. 68 At trial it was agreed amongst counsel that the quantification of any accounting or damages should be left to another day and those matters should be reserved. In addition, will want to hear submissions as to what exactly is the interest of Tarragon which is held in trust. Is it entitled to the entire lease interest or should it be restricted to what was agreed upon in the proposed farmout agreement? Accordingly, reserve the stipulated matters and if counsel are unable to resolve them, they shall have the Local Registrar arrange date when further submissions may be presented. He ordered that judgment should include these terms: 70 (3) declaration that the plaintiff, Maxx Petroleum Ltd., holds as trustee for the defendant, Tarragon Oil and Gas Limited, an interest in the mines and minerals within, upon or under the lands described in para. (1) above and the said defendant is entitled to an accounting in respect thereof; (4) an order that the defendant, Tarragon Oil and Gas Limited is entitled to damages from the plaintiff, Maxx Petroleum Ltd.; (5) that the calculation of the value of the interest of the defendant, Tarragon Oil and Gas Limited, in the aforesaid mines and minerals and the accounting in respect thereof and the assessment of the quantum of damages is reserved and hearing in respect to those matters is adjourned to date to be fixed by the Local Registrar in consultation with counsel. Thus, while the trial judge did not order an injunction restraining Maxx from future use, he nonetheless declared Maxx to be trustee of the mineral rights for Tarragon and ordered not only an accounting but an award of damages. He reserved the calculation of the value of the interest, the accounting of the profits and the damages award until another day. Maxx appeals the finding of breach of confidence and also the remedies imposed on it by the trial judge for the breach of confidence. [164] The trial judge's findings that: (a) the Top Lease was confidential; (b) the Top Lease was communicated in confidence; and (c) the Top Lease was used for purpose other than that for which it was given, are all findings of fact for which evidence exists. These findings, as matters of fact, are unassailable upon application of the usual standards of appellate review. However, his implied finding of loss and his decision to impose the remedies of constructive trust, an accounting of profits and damages raise number of issues. [165] The principal thrust of Maxx's argument is that Tarragon did not prove loss which is compensable, or if it did, it did not prove that Maxx caused such loss. Since Tarragon's agreement with Taylor is void ab initio, as the argument goes, Taylor is left in the same position before, as after, the breach of confidence. Tarragon still has void agreement. As consequence, Tarragon suffered either no loss, the loss would have occurred in any event (when the agreement would have been challenged by someone else) or the void nature of the agreement means that Maxx did not cause the loss. [166] agree with Maxx that the remedy of damages is not available to Tarragon. Causation, at least with respect to damages, remains part of the law of breach of confidence (see: Cadbury Schweppes Inc. F.B.I. Foods Ltd. 1999 CanLII 705 (SCC), [1999] S.C.R. 142) and was not proven in this case. Binnie J. speaking for the Court in Cadbury referred at several points to the need to restore the confider to the position he or she would have been in “but for” the breach of confidence (see, for example, para. [61]). In this case, the “but for” approach does not result in damages as the agreement would still be void. Maxx did not cause Tarragon's loss. Whether Maxx used Tarragon's copy of the Top Lease to sign its own lease with Taylor or not, the result is the same: Tarragon would still have void agreement with Taylor. [167] With respect to the other remedies of constructive trust and accounting, the Supreme Court of Canada has not yet spoken on whether causation plays role. In Cadbury Schweppes, the plaintiff had waived any claim for an accounting such that the Court did not have to address the issue of whether causal link must exist before court can impose remedy such as constructive trust or an accounting for profits. (See: Professor Leonard Rotman “Juice Formulation is not Rocket Science” and other Observations: Cadbury Schweppes Inc. v. FBI Foods Ltd., 31 Ottawa Law Review 243 at pp. 248 and 264). Professor John McCamus in his article “Equitable Compensation and Restitutionary Remedies: Recent Developments” Special Lectures of the Law Society of Upper Canada 1995: Law of Remedies: Principles and Proofs at pp. 326 to 328 speculates that there is the potential for different principles to apply to equitable compensation. [168] If one reasons by analogy from such cases as Attorney General v. Observer [1988] W.LR. 776 (H.L.), cited by Professor McCamus (at p. 337), it would seem that plaintiff need not prove that the profits would have flowed to him or her when the defendant has breached confidence. (See also: Rotman, supra at p. 264.) Similar considerations should prevail with respect to the remedy of the constructive trust. In my opinion, once the plaintiff has proven breach of confidence and the defendant has derived benefit from it, the plaintiff is entitled to remedy. [169] While Maxx did not cause Tarragon's loss, it nonetheless has committed an actionable wrong in breaching Tarragon's confidence, derived benefit from it and equity now demands remedy. The issue is the form that remedy should take. As Professors McCamus and Maddaugh state in The Law of Restitution (1990) at 676, once the plaintiff has proven all matters necessary for its case, the plaintiff may compel the defendant to disgorge his or her unjust enrichment either through an accounting of profits, or, possibly quantum meruit claim for the reasonable value of information provided may be made. The authors then discuss the expansion to the list of disgorgement remedies effected by Lac Minerals to include constructive trust. [170] As the Supreme Court of Canada affirmed in Cadbury Schweppes, the Court's task in selecting the appropriate remedy is to meet the needs of equity demanded by the particular facts having regard for variety of factors including the value of the information disclosed. On the question of the value of the information, the Court in Cadbury referred to Lord Denning's analysis in Seager v. Copydex, Ltd. (No. 2), [1969] All E.R. 718 where for the purposes of assessing equitable compensation, he divided confidential information into three categories: “nothing very special,” “something special” and “very special indeed,” as follows (at pp. 719‑20): The difficulty is to assess the value of the information taken by the defendant company. The value of the confidential information depends on the nature of it. [1] If there was nothing very special about it, that is, if it involved no particular inventive step but was the sort of information which could be obtained by employing any competent consultant, then the value of it was the fee which consultant would charge for it; because in that case the defendant company, by taking the information, would only have saved themselves the time and trouble of employing consultant. But, on the other hand, [2] if the information was something special, as, for instance, if it involved an inventive step or something so unusual that it could not be obtained by just going to consultant, then the value of it is much higher. It is not merely consultant's fee, but the price which willing buyer ‑‑ desirous of obtaining it ‑‑ would pay for it. It is the value as between willing seller and willing buyer. [3] ... if the plaintiff is right in saying that the confidential information was very special indeed, then it may well be right for the value to be assessed on the footing that, in the usual way, it would be remunerated by royalty. The court, of course, cannot give royalty by way of damages; but it could give an equivalent by calculation based on capitalisation of royalty. Thus it could arrive at lump sum. Once lump sum is assessed and paid, then the confidential information would belong to the defendant company in the same way as if they had bought and paid for it by an agreement of sale. [171] From the trial judge's findings, we must conclude that, notwithstanding the somewhat public nature of the information disclosed, Maxx had decided that the only way to obtain the necessary information was through Tarragon. This places the information more in the second category than the first and, might at first instance, compel this Court to impose more stringent remedy than might be imposed for information of lesser significance. [172] However, in this case, other considerations come into play. In addition to considering the value of the information to Maxx, the Court must give weight to the trial judge's decision to absolve one of the defendants on the counterclaim, Taylor, from any wrongdoing. As regards Taylor, the Top Lease has always been void and he would have been free to contract with whomsoever he wished. Because of this, minerals gained from the Taylor lands must compensate him in accordance with his new agreement with Maxx. From Taylor's perspective, he would not want to maintain the status quo being the 1961 rental with Tarragon. In crafting any remedy, one must also keep in mind that Tarragon had not been drilling the land and was prepared to enter into farm out arrangement with Maxx whereby Maxx would assume certain amount of risk in exchange for share of profits. [173] While recognize that constructive trust of the mineral interest would be available for breach of confidence (see Lac Minerals and, in particular, the comments of Wilson J. at p. 632), practically speaking the dynamics of the relationship in this case do not permit this remedy. speak specifically of Taylor's presence and the need to maintain the contract between Maxx and Taylor. Taylor has now chosen to contract with Maxx not Tarragon. Taylor cannot be compelled to contract with Tarragon and Maxx could not be expected to continue to drill, pay Taylor his increased profit and continue to account to Tarragon by means of constructive trust. The remedy here cannot penalize Maxx to the extent that it refuses to drill and leaves Taylor without an effective contracting partner. [174] Nor is this particularly valuable property such that changes in value or future profits must accrue to Tarragon through the vehicle of proprietary remedy like constructive trust (on this point see Lac Minerals at pp. 678 679). On the evidence before us, Maxx opened well on the Taylor lands for six months in 1994 and then closed it. The profits to Maxx do not exceed $20,000. [175] On the other hand, an accounting of profits to the date of trial permits the Court to give effect to the need to denounce the breach of confidence without overly penalizing the wrongdoer. It is not complete answer to Tarragon's claim, but, in many respects, the remedies of constructive trust and an accounting would overlap. The only potential loss for which Tarragon has not received remedy is with respect to future profits. But any concern in this regard is tempered by the other considerations previously mentioned including the limited value of the interest, the need to compensate Taylor Junior in accordance with the new agreement and the fact that at bottom all Tarragon had was void agreement. It would seem to be the type of broadly equitable result contemplated by the Supreme Court in Cadbury Schweppes (see para. [176] The cross-appeal is allowed to this extent: the trial judge's declaration of constructive trust and damages is set aside. The only remedy available to Tarragon is an accounting for profits to determine the net amount of profit derived from the drilling to the date of trial which amount is to be paid to Tarragon. Disposition and Costs [177] With that, would dismiss the appeal and allow the cross-appeal to the extent indicated. Maxx shall have its costs on the appeal in the usual way. With respect to the cross-appeal, Maxx is entitled to single column costs only. [178] The trial judge made no order as to costs as success had been divided. Maxx appealed this order, but as success on the counterclaim continues to be divided, am not disposed to interfere with the trial judge's decision. DATED at the City of Regina, in the Province of Saskatchewan, this 10th day of August, A.D. 2001. JACKSON J.A. [1] 1998 CanLII 14009 (SK QB), 170 Sask. R. 222, para. 70. [2] "top lease" is one which takes effect upon the termination of prior existing lease: Meyers et al v. Freeholders Oil Co. Ltd., 1960 CanLII 93 (SCC), [1960] S.C.R. 761 at 766 per Martland J. [3] Appeal Book, Vol. I, p. 127(a). [4] Appeal Book, Vol. I, p. 132(a). [5] Appeal Book, Vol. VII, pp. 198-200 and 222 and Appeal Book, Vol. V, p. 753(a), Exhibit D-38. [6] Appeal Book, Vol. VIII, p. 233 and Appeal Book, Vol. V, p. 808(a), Exhibit D-42. [7] This provision reads: 17a. (1) No person shall call at any residence and: (a) trade there in any security; or (b) offer to trade there or at any other place in any security; with the public or any member of the public. [8] See also: Prudential Trust Company et al v. Forseth et al, 1959 CanLII 48 (SCC), [1960] S.C.R. 210 and Prudential Trust company Limited et al v. Olson, 1959 CanLII 49 (SCC), [1960] S.C.R. 227. [9] See written opinion dated November 6, 1958 by Professor Bora Laskin (as he then was) to E. J. Moss. Appeal Book, Vol. V, pp. 783(a)-85(a). [10] See 170 Sask. R. 231, para. 21. [11] Halsbury's Laws of England, (4th ed.), Vol. 35, p. 624, para. 1016. [12] See for example Appeal of Mifflin, 121 Pa. St. 205, 15 525 at 526 with particular reference to Gray: Rule Against Perpetuities. [13] Bunch et al v. Nicks et al, S.W. 563 at 564: It was principle of the feudal law of England that "an estate of freehold must be created to commence immediately." "For," says Blackstone, "it is an ancient rule of the common law that an estate of freehold cannot be created to commence in futuro; but it ought to take effect presently, either in possession or remainder; because at common law no freehold in lands could pass without livery of seizin, which must operate either immediately, or not at all. It would therefore be contradictory if an estate which is not to commence till hereafter could be granted by conveyance which imports an immediate possession." [14] For an interesting analysis of the political and legal historical background to this rule See: Haskins: Extending the Grasp of the Dead Hand: Reflections on the Origins of the Rule Against Perpetuities, 126 U. of Pa. L. Review 19 (November 1977). [15] See 22 Eng. Rep. 948. [16] See 22 Eng. Rep. 953. [17] Haskins: Extending the Grasp of the Dead Hand: Reflections on the Origins of the Rule Against Perpetuities, supra, (footnote 14) at pp. 43-44. [18] Halsbury's Laws of England, supra, p. 615, para. 1008. [19] See for example Leach, Perpetutities in the Atomic Age: The Sperm Bank and the Fertile Decedent, 48 A.B.A. J. 942, (Oct. 1962); Schulyer, The New Biology and The Rule Against Perpetuities, 15 U.C.L.A. L. Rev. 420, (Feb. 1968). [20] 170 Sask. R. 242, para. [54] In my opinion, like conclusion is probably correct in respect to top leases of mineral rights. They do not remove land from commercial development and activity, but rather encourage it. This being so, it would not be contrary to the public interest to remove such leases from the ambit of the rule against perpetuities. [21] See for example Halsbury's Laws of England, supra, p. 616, para. 1009. [22] See Grynberg v. Amerada Hess Corp. (DC Colo) 342 F. Supp. 1314, Phelps v. Shropshire, 254 Miss. 777; 183 So. 2d 158; 20 A.L.R. 3d 1086 and Merchants National Bank v. Curtis, 98 N.H. 225; 97 A.2d 207. [23] See: Canadian Long Island Petroleums Ltd. v. Irving Wire Products, 1974 CanLII 190 (SCC), [1975] S.C.R. 715; Harris v. Minister of National Revenue, 1966 CanLII 58 (SCC), [1966] S.C.R. 489; Jewish National Fund (Keren Kayemeth Le Israel) Inc. v. Royal Trust Co. et al, 1965 CanLII 49 (SCC), [1965] S.C.R. 784; Frobisher Ltd. v. Canadian Pipelines Petroleums Ltd. et al, 1959 CanLII 47 (SCC), [1960] S.C.R. 126; Auld v. Scales, 1947 CanLII 22 (SCC), [1947] S.C.R. 543; Weinblatt v. Kitchener (City), 1968 CanLII 31 (SCC), [1969] S.C.R. 157; J.E. Gibson Holdings Ltd. v. Principle Investments Ltd., 1964 CanLII (SCC), [1964] S.C.R. 424; Halifax (City) v. Vaughan Construction Co. Ltd., 1961 CanLII 105 (SCC), [1961] S.C.R. 715; Jewish Home for the Aged of B.C. v. Toronto General Trusts Corp., 1961 CanLII 295 (SCC), [1961] S.C.R. 465; Prudential Trust Co. Ltd. v. Forseth, 1959 CanLII 48 (SCC), [1960] S.C.R. 210; Re Cox, 1952 CanLII 13 (SCC), [1953] S.C.R. 94; Halifax School for the Blind v. Chipman et al, 1937 CanLII 47 (SCC), [1937] S.C.R. 196; Guardian Realty Co. v. John Stark Co. (1922), 64 S.C.R. 207; McFarland v. Hauser et al, 1978 CanLII 164 (SCC), [1979] S.C.R. 337; Hofer et al v. Hofer et al, 1970 CanLII 161 (SCC), [1970] S.C.R. 958; Towle Estate v. Minister of National Revenue, 1966 CanLII 40 (SCC), [1967] S.C.R. 133; Prudential Trust Co. Ltd. v. Olson, 1959 CanLII 49 (SCC), [1960] S.C.R. 227; Royal Trust Co. et al v. Crawford et al, 1955 CanLII 36 (SCC), [1955] S.C.R. 184; Beard et al v. Barrett et al, 1954 CanLII 21 (SCC), [1955] S.C.R. 93; Canadian Pacific Railway v. Turta, 1954 CanLII 58 (SCC), [1954] S.C.R. 427; Ernst v. Zwicker (1897), 1897 CanLII 93 (SCC), 27 S.C.R. 594; Blackburn v. McCallum (1903), 1903 CanLII 68 (SCC), 33 S.C.R. 65; Re Hammond Estate, 1935 CanLII (SCC), [1935] S.C.R. 550; Fasken v. Fasken, 1953 CanLII (SCC), [1953] S.C.R. 10; Re Ganong Estate, 1940 CanLII 56 (SCC), [1941] S.C.R. 125. [24] At pp. 682-94. [25] At pp. 684-85. [26] See: Haggerty v. City of Oakland, (1st Dist.) 161 Cal. App. 2d 407. [27] See: 61 Am Jur 2d, pg. 62, para. 52. [28] Also See: Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.) (1998), 1997 CanLII 336 (SCC), 152 D.L.R. (4th) 193; [1997] S.C.R. 925.

The Court of Appeal was required to determine the limits of its authority to change the application of the Rule against Perpetuities, an established common law principle, to a particular type of oil and gas lease. In 1950 Taylor entered a 'top' (head) lease for mineral rights with Freeholders Oil, effective upon the expiry of Imperial's interest in 1959. The new owner of the land recognized the assignment of the 1961 top lease sold to Tarragon in 1993. After reaching an agreement in 1993 in principle for a 'farmout' arrangement whereby Maxx agreed to drill the lands for Tarragon, Maxx concluded the top lease offended the Rule against Perpetuities and entered its own lease with the landowner. The trial judge held the 1950 Freeholders lease was void because it contravened the Rule against Perpetuities; although top leases do not offend the policy behind the rule, any modification of the rule is best left to the legislature; there was a breach of confidence. HELD: The appeal was allowed with costs on double column V. The action for a declaration that the top lease is void was dismissed with costs in Queen's Bench. 1)The top lease in question was not void as it did not offend the object and purpose of the Rule. The reasoning and approach of the Supreme Court of Canada in Salituro, Tolofson and Morguard was persuasive. The decision of the House of Lords in Arthur J S Hall demonstrates the need to re-examine archaic rules of common law which cannot be justified in modern society. The genius of the common law lies in its adaptiveness to changing times. Its basic principles are not meant to become rigid formulae. Common law rules may be tweaked to do justice between the parties when a rigid and mechanistic application of the rule would run counter to the object and purpose of the rule. Since the socio-economic and political conditions which gave rise to the creation of the Rule no longer exist, it was open to the Court to consider the application of the rule in the context of a commercial instrument such as the top lease in question. 2)Although top leases have been attacked on other grounds, this was the first case before the Saskatchewan Courts in which the Rule against Perpetuities has been advanced to void such a lease. The historical background and object and purpose of the rule were reviewed. The general purpose is to prevent the tying up of property to the detriment of society in general. The common law rule against perpetuities prevails over intention because it is not a rule of construction, but a rule of property. A mere possibility, or even a probability that the estate or interest may vest within the time is not enough. The 'wait and see' doctrine has been adopted by statute in some jurisdictions.DISSENT: The Court should not modify the Rule in the face of the significance of such a modification, the efforts of the legislature to legislate and the inability to deal with such issues as the retrospective operation of such a decision. The Rule against Perpetuities applies to this top lease. As there is no life in being in this case, the interest must vest within 21 years of its creation which would have been 1971. The Rule is not concerned with the duration of an interest but only that an interest may vest at a remote time in the future. The rule invalidates interests in land that vest too remotely.

b_2001skca85.txt

J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 219 Date: 20050510 Docket: BA2/2005 Judicial Centre: Regina BETWEEN: [D.G.W.] and and HER MAJESTY THE QUEEN Counsel: J.F. Parker for [D.G.W.] B.P. Nychuk for [T.C.M.] R.K. Ottenbreit, Q.C. for Attorney General of Canada J.D. Kalmakoff for Attorney General of Saskatchewan JUDGMENT MATHESON J. May 10, 2005 [1] Mr. [D.G.W.] and Mr. [T.C.M.] have been charged with multitude of offences pursuant to the Controlled Drugs and Substances Act, S.S. 1996, c. 19 and the Criminal Code, which include trafficking in cocaine and methamphetamine, conspiracy to do so with one another and several other individuals, and several Criminal Code offences, including possession of proceeds of crime. Both individuals have been in custody since November 17, 2004. [2] After a show cause hearing on November 24, 2004 her Honour Judge Carol A. Snell refused to release Mr. [T.C.M.] from detention. [3] On January 5, 2005, after show cause hearing, her Honour Judge Janet E. McMurtry refused to authorize Mr. [D.G.W.]’s release. BASIS OF REFUSALS [4] Judge McMurtry’s justification for detaining Mr. [D.G.W.] in custody was to ensure his attendance in court and, having regard to all the circumstances presented to her, the substantial likelihood that Mr. [D.G.W.] would, if released from custody, commit criminal offence. Her conclusion in that respect cannot be seriously questioned. [5] Although only 21 years of age, Mr. [D.G.W.] was convicted, in youth courts in Manitoba, between August, 1998 and February, 2002, of 13 breaking and entering, and theft, and possession of stolen property charges; one charge of assault; three charges of failing to comply with undertakings; and one charge of being unlawfully at large. In November, 2002, as an adult, he was convicted, in Calgary, of two charges of obstructing peace officer and one charge of failing to attend court. [6] At the time of Mr. [D.G.W.]’s arrest he was facing outstanding charges, and arrest warrants, in Manitoba, and drug related charges in Alberta. He was using an alias when arrested. [7] Her Honour Judge Snell refused to release Mr. [T.C.M.] for the same reasons that Mr. [D.G.W.]’s release was denied. Mr. [T.C.M.] is also from Winnipeg, and he, too, has significant youth court record; six convictions involving breaking and entering and theft, and two convictions for failing to comply with disposition and recognizance. In April, 2002, as an adult, he was convicted of two assault causing bodily harm charges, possession of house breaking instrument charge, charge of mischief, and charge of failing to attend court. Once again, the conclusion of Her Honour Judge Snell cannot be seriously questioned. [8] It was asserted by counsel for the Attorney General of Canada that in May, 2004, an investigation into cocaine and methamphetamine trafficking in Regina was commenced. It was stated that Mr. Trinh was involved in selling multi-pound quantities of cocaine and methamphetamine from Calgary, to group in Regina, organized and operated by Mr. [D.G.W.]. Mr. [T.C.M.] is alleged to have been the number two man in the Regina organization. [9] As a result of the foregoing, a review of the detention orders of Her Honour Judge McMurtry and Her Honour Judge Snell would ordinarily be cursory; the applications would have been dismissed. However, a factor which causes concern with the continued detention of these individuals is that, six months after their arrest, not only has a preliminary hearing not been conducted, no date for a preliminary hearing has been set. No preliminary hearing date will be set before May 30, 2005, the next appearance date for Mr. [D.G.W.] and Mr. [T.C.M.] in Provincial Court. [10] The delay in setting preliminary hearing date has been attributed to variety of factors: the number of accused individuals, at least one of whom has not yet retained counsel; the changing of counsel by at least two accused; adjournments to accommodate defence counsel and new defence counsel; the voluminous Crown disclosure documents, stated to consist of 8,000–12,000 pages; and the inability of various counsel for the accused to agree on suitable preliminary hearing dates. [11] Crown counsel have estimated that the preliminary hearing will take two to three weeks. There are apparently three weeks not consecutive available in Provincial Court in August. But even if all counsel should agree to utilize that time, it will likely be several weeks thereafter, in view of the anticipated length of the preliminary hearing, before transcripts of the evidence are available. Thus, it seems unlikely that the trial of these individuals, even from the most optimistic view point, will take place within a year of the date when these individuals were arrested. [12] There will be an order that Mr. [D.G.W.] be released upon entering into recognizance containing the following conditions: 1) Keep the peace and be of good behaviour. 2) Appear in court whenever required to do so. 3) Maintain his residence at [location 1], Regina, Saskatchewan and not change that residence without the prior consent of the Commanding Officer, or his designate, Drug Section, Division, RCMPolice. 4) Report to the Commanding Officer, or his designate, Drug Section, Division, RCMPolice, Dewdney Avenue, Regina, Saskatchewan, not later than 5:00 p.m. each Friday until the final disposition of the charges against Mr. [D.G.W.]. 5) Not leave his place of residence between the hours of 10:00 p.m. and 7:00 a.m. the following day, and shall present himself personally to any peace officer checking such curfew. 6) Abstain from the consumption of alcohol and non-prescription drugs, and shall not enter any public premise which serves alcoholic beverages. 7) Not be in possession of any cellular telephones. 8) Not travel farther than 100 km. from the City of Regina without the consent in writing of the officer in charge, or his designate, of Drug Section, Division, RCMPolice. 9) Not possess any prohibited weapon. 10) Have no contact with the other alleged co-conspirators except for the purpose of preparation for trial. 11) Have no contact with any of Kent Heise Wilson Trinh David Roberts Steven Gagnon Sabrina Mark Jeremy Patrick Portia Nichol 12) File with the court security in the amount of $1,000.00 cash. [13] There will be an order releasing Mr. [T.C.M.] upon entering into a recognizance containing the following conditions: 1) Keep the peace and be of good behaviour. 2) Appear in court whenever required to do so. 3) Maintain his residence at Apartment #17 [location 2], Regina, Saskatchewan and not change that residence without the prior consent of the Commanding Officer, or his designate, Drug Section, Division, RCMPolice. 4) Report to the Commanding Officer, or his designate, Drug Section, Division, RCMPolice, Dewdney Avenue, Regina, Saskatchewan, not later than 5:00 p.m. each Friday until the final disposition of the charges against Mr. [T.C.M.]. 5) Not leave his place of residence between the hours of 10:00 p.m. and 7:00 a.m. the following day, and shall present himself personally to any peace officer checking such curfew. 6) Abstain from the consumption of alcohol and non-prescription drugs, and shall not enter any public premise which serves alcoholic beverages. 7) Not be in possession of any cellular telephones. 8) Not travel farther than 100 km. from the City of Regina without the consent in writing of the officer in charge, or his designate, of Drug Section, Division, RCMPolice. 9) Not possess any prohibited weapon. 10) Have no contact with the other alleged co-conspirators except for the purpose of preparation for trial. 11) File with the court security in the amount of $1,000.00 cash. J. W.R. Matheson

The accused has been in custody since November 17, 2004. After show cause hearings, the court refused to release the accused from detention. The accused apply for a review of the detention orders. HELD: 1) A review of the detention orders would ordinarily be cursory and the applications dismissed. The reasons for the decisions to refuse to release the accused cannot seriously be questioned. 2) However, a factor that causes concern is that 6 months after their arrest, not only has a preliminary hearing not been conducted, no date for a preliminary hearing has been set. No preliminary hearing date will be set before May 2005. The preliminary hearing will take 2 to 3 weeks. It seems unlikely that the trial of these individuals will take place within a year of the date of their arrest. 3) They are ordered released on terms and upon the filing of security in the amount of $1,000.

5_2005skqb219.txt

IN THE SUPREME COURT OF NOVA SCOTIA IN BANKRUPTCY AND INSOLVENCY Citation: Smith (Re), 2009 NSSC 261 Date: September 1, 2009 Docket: 32349 Registry: Halifax District of Nova Scotia Division No. 01 Halifax Court No. 32349 Estate No. 51-1087203 IN THE MATTER OF THE BANKRUPTCY OF ANGELA LYNN SMITH Registrar: Richard W. Cregan, Q.C. Heard: June 18, 2009 Present: Angela Lynn Smith, represented by Tim Hill Darryl Haley, of Haley Associates Inc., the Trustee, represented by Rubin Dexter Introduction [1] This is an application by Angela Lynn Smith to be discharged from bankruptcy. [2] Ms. Smith filed Proposal to Creditors on July 9, 2008 The Proposal was defeated at the general meeting of creditors on July 30, 2008. As result she was deemed to have made an assignment in bankruptcy that day. Her unsecured debts totaled $203,149. The major creditor was George Toulany who held judgment against her for $147,149. The remaining debts were to financial institutions. It was the negative vote of Mr. Toulany which resulted in the defeat of the Proposal. PricewaterhouseCoopers Inc. had been the Trustee under the Proposal. Haley Associates Inc. has been the Trustee under her assignment, having been elected at the first meeting of creditors. Darryl Haley is the personal Trustee. Mr. Toulany is the Inspector. [3] Ms. Smith is 41 years of age. She has four children whom she supports. Their ages are 12, 14, 16 and 21. The youngest three live with her and the eldest is away at university, but she continues to support this child. [4] She had served in the Canadian Armed Forces as paramedic. This service ended with her being discharged in 2003 because of illness arising from active service. Specifically she suffers from Post Traumatic Stress Disorder, Major Depression Disorder, and Chronic Adjustment Disorder with Mixed Anxiety and Depression and Borderline Personality Organization. These illnesses entitle her to pension from the Department of Veterans Affairs. [5] Her home was destroyed by fire in October 2007. She and her children lived in motel for eight months while the home was being repaired. [6] She now asks that she be discharged from bankruptcy. This application is opposed by the Trustee. There are number of issues of disagreement between her and the Trustee. shall deal with them one by one. Lawn Mower and Horse Trailer [7] At the time of her bankruptcy Ms. Smith owned ride-on lawnmower and horse trailer. They were not declared as assets. She took them with her to her new residence. The Trustee claims ownership and seeks possession of them or alternatively $3000 in compensation. [8] Ms. Smith’s position is that they have little or no value or alternatively that she should be allowed to keep them in compensation for the certain exempt personal property which has been taken from her. [9] She says these two items were not reported to the Trustee, as Ms. MaGee of the Trustee’s office gave her the impression that the Trustee was not interested in things valued less than $500. Ms. MaGee denies that she ever made such statement. do not need to make any findings as to who is correct on this point. [10] Ms. Smith says that the mower is worth no more than $400. Apparently the trailer was damaged by fire. She says it will not pass safety inspection. It may be worth very little. [11] It should be remembered that with respect to the Trustee’s interest in an asset, what is of concern is the net proceeds the Trustee can receive for an asset after covering all expenses in selling it. Values, given even by knowledgeable appraisers, may mean very little when one confronts the market. [12] doubt very much that significant amount could have been or can now be realized for the benefit of the estate from the mower. In any event think it may fairly be considered as exempt under section 45 of the Judicature Act, R.S.N.S. 1989, c. 240, being “household furnishings and furniture which are reasonably necessary for the debtor and his family”. It is something reasonably needed to maintain one’s household. Such items mentioned in this section are not property divisible among the creditors because of the provisions of Paragraph 67(1)(h) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, (BIA). [13] do not think the horse trailer qualifies as exempt property. As condition of her discharge Ms. Smith must allow the Trustee to inspect this trailer. The Trustee shall be entitled to either take possession of it at the expense of the estate or be entitled to be paid its agreed value. If the parties cannot agree on its value, shall hear the parties and set the value. Assets in the Barn [14] When Ms. Smith gave up possession of her home she advised the Trustee that she had left various assets in the barn, some of which she claims are exempt, and that she would collect them later. On her return to remove these assets, she found they were gone. Her solicitor asked for an explanation but has not received one. She relates in her affidavit an account provided by friend who observed that Mr. Toulany caused these items to be removed shortly after she vacated the property. [15] There is list of these items in an e-mail from Bruce Clarke, her former solicitor, to Mr. Haley dated October 3, 2008, being Exhibit of Ms. Smith’s affidavit evidence. There is further e-mail correspondence in which Mr. Haley gives his position as to whether these items are exempt or not. Generally he considers the items which relate to horses as not exempt but properly may be considered as property vested in the Trustee for the benefit of the creditors. Most of the other items he admits are exempt, particularly pieces of furniture made by her father and kids’ movies. [16] There is little evidence before me to make detailed analysis of what is exempt and what is not exempt, nor to place values. am not asked by Ms. Smith to do this. What she wants is that there be set off recognizing the approximate value of exempt assets against what might be demanded of her for rent. [17] Shortly after Ms. Smith became bankrupt the Trustee insisted that, if Ms. Smith was to continue to reside in her home, she should pay rent or maintain the mortgage in its current position. The monthly payment on the mortgage was $1,345.52. She left the home by September 1st. Thus in issue is whether she should in one way or other compensate the Trustee for one month’s occupation of the home. [18] think it fair to say that the relationship between the Trustee, the Inspector and Ms. Smith was not conducive to reasoned discussion regarding the turning over of the home to the Trustee, nor for the working out of reasonable period of transition. It must be remembered that she had presumably in good faith made proposal. She had some hope it would be accepted. With its rejection and deemed assignment, which immediately followed, she had the added stress of having to deal with immediately finding new home for her family. [19] Normally bankrupt is able to discuss such practical problems, as what will happen to one’s house, with the Trustee before making the assignment. She did not choose her Trustee. Mr. Toulany did. Counsel for the Trustee and for Ms. Smith elected not to lead any evidence of the past between Ms. Smith and Mr. Toulany giving rise to her indebtedness to him. However, there was enough said for me to fairly conclude that for one reason or other the administration of her estate has been characterized by certain hostility that should have been avoided particularly considering Ms. Smith’s health. [20] think it fair that she has to pay something for use and occupation, but there are mitigating factors. She had little time to make arrangements. She incurred expenses in moving. She had to act quickly under very stressful circumstances. Some of the assets taken by Mr. Toulany may well be exempt. They may have value which should be recognized. Note is also to be made that she left the house with full tank of oil. Considering these factors conclude that she shall be required to pay $500 for rent as condition of her discharge. [21] The Trustee claims that Ms. Smith should pay the Trustee $9,159.45 in insurance proceeds. Ms. Smith’s position throughout is that this sum was to cover her loss of household goods which under section 45 of the Judicature Act are exempt. The Trustee and his counsel have not accepted her claim that this money is exempt. They suggest that she should have provided some hard supporting evidence such as proof of loss. [22] She has sworn in her affidavit as to the nature of this money and confirmed it on cross examination. It is a modest sum. see no reason why her evidence should not be accepted. The money was used to replace lost personal exempt assets. The replacement assets are then exempt. The Trustee should have no claim to insurance money paid to replace exempt assets. The Trustee is not entitled to this sum. (See: Brown, Re (2006), 2006 ABQB 436 (CanLII), 23 C.B.R. (5th) 46 (Alberta, Q.B.)) VIN and Income Tax [23] The Trustee reports that he needs the VIN number on the 2007 Cobalt vehicle to properly identify the vehicle to the secured creditor. [24] The Trustee also reports that he requires information from Ms. Smith to allow him to complete an income tax return. [25] Supplying this information will be condition of Ms. Smith’s discharge. [26] There are three horses which the Trustee claims are property in the estate. They were taken by Ms. Smith to her new home. On the list of assets they are given nominal value of $1.00. [27] quote from the Trustee’s affidavit of June 8, 2009 where he speaks of meeting with Ms. Smith on August 5, 2008: 5. During the said meeting Ms. Smith informed me and do verily believe as follows: Neither the Trustee nor any horse or livestock broker on behalf of the Trustee would be permitted on the property by Ms. Smith, for the purpose valuing and inspecting of the three (3) horses which are listed in Ms. Smith’s Statement of Affairs true copy of which is attached as Exhibit “B” and having nominal value of $1.00. Ms. Smith further stated that the said three (3) horses belonged not to her but to her daughter. Ms. Smith has subsequently provided an appraisal of the value of the horses which is attached as Exhibit “C”. [28] The following is the text of this appraisal prepared by Barbara Claussen. It is prefaced by the questions of Bruce Clarke: Subject: Angela Smith Dear Ms. Claussen, further to our conversation, would very much appreciate receiving your opinion concerning (1) the condition of the three horses, (2) their possible value, (3) their costs of storage for sale (if that was to occur) and (4) any information you may have concerning the current market for such horses. Your assistance is most appreciated, Bruce Clarke Dear Mr. Clarke, in my opinion to the above questions can state the following: 1) all in good shape, the older mare is lame for the last 2-3 weeks 2) foal: maybe around $800 older mare: maybe $1,000 is not lame anymore, if lameness persists meat price might be $400. year old mare: green broke as far as know, no papers, maybe $1,000 3) pasture board: about $150 200 month, which would run from May to October, boarding in 24/7 facility is about $300 350 month per horse. 4) Current market situation: usually the most popular website to sell your horse through is Atlanticrider.com. In the past years there were about 350 horses at all times for sale, now there are 550..... Everybody in the horse world is talking about flooded market. have horse for sale that had months of professional training, very good reining blood lines, no vices and I’m asking for him $2,000. finally had to give him away after several months of internet exposure. I’m more than happy to talk to anybody about the horses, current market for them or any other concern. With best regards, Barbara Claussen [29] The overall thrust of the evidence is that these horses are considered as family pets or alternatively as belonging to one or more of her children. The Trustee’s position is that they are assets of the estate. There are two questions, first to whom do they belong, Ms. Smith and now her estate or one or more of her children, and second what is their net value, that is, what could the estate be able to realize from them for the benefit of the creditors. [30] As noted above she mentioned them in her list of assets but gave nominal value. She was asked at the hearing why she listed them as her assets but is now saying they belong to her children. Her response was that she was asked whether the family owned anything. do not think anything turns on this inconsistency. One has to look at the question of who really owns the so called family assets. [31] I understand Ms. Smith first bought the horses as pets for her children. They became part of the household goods, like furniture, automobiles, lawn mowers, etc. [32] Children can own things. Property can be transferred to them by deed, registration papers, etc. and as well by delivery. There are no papers respecting these horses. Have the children acquired title by delivery? Effective delivery depends on the circumstances and the subject matter. If parent who bought bicycle and gave it to child says, “Here is new bicycle bought for you. Take it. It is yours.”, and the child rides off to show his friends, think there would be effective delivery and the bicycle would belong to the child. [33] horse is quite different. First it may have been purchased at very significant cost. The parent supplies the barn, buys the feed, pays the veterinary, makes sure it is properly fed and groomed, takes the responsibility imposed by law for the care of domestic animals, and carries insurance, all things which normally mid teen child would not have the resources nor ability to do on her own without parental oversight and contribution. [34] In the present situation, I do not think one can fairly say that one or more of the children have acquired title to the horses. Their mother owns them and provides for them. Saying they belong to her children at most means that she owns them for the use of her children. They are things the use of which loving parent provides for her children. [35] Technically with the bankruptcy they become the property of the Trustee. Ms. Smith is accountable to the Trustee for them. [36] note that section 45 of the Judicature Act in paragraph (1)( exempts “All grain and other seeds, and all cattle, hogs, fowl, sheep and other livestock which are reasonably necessary for the domestic use of the debtor and his family.” (underlining added) think it would be stretching the meaning of these underlined words to find that they cover these horses. There must be clear element of necessity which do not think extends to horses used for recreation. [37] The only material before me helpful in determining value is the report from Barbara Claussen quoted above. Her “maybe” valuation of the foal is $800 and of each mare $1,000 for total of $2,800. However she says that there is “flooded market”. At the hearing the Trustee conceded that the only way anything could be recovered would be to dispose of them for their meat. Ms. Claussen’s report suggests “meat price” of $400 for the older mare. [38] There would be expenses for transportation. The net recovery would not justify the efforts required nor the stress which would be caused. However, the Trustee is entitled to something, if Ms. Smith and her children are to keep the horses. There is little evidence to guide me. set the amount to be paid by Ms. Smith to keep the horses at $300, i.e. $100 per horse. VAC Pension [39] Ms. Smith is the recipient of disability pension benefit from Veterans Affairs Canada. must decide whether it should be included in the calculation of surplus income. She receives this pension because she suffers from Post Traumatic Stress Disorder and other related disorders which are connected with her past services in the Canadian Armed Forces. The payments are approximately $1,500 per month. They are tax free. [40] It is well established law that any cause of action arising from bodily injury, mental suffering, or injury to reputation or character or the proceeds thereof is personal and does not vest in the trustee. quote Houlden and Morawetz: Bankruptcy and Insolvency Law of Canada, Fourth Edition, F§241, Page 4-176: Where cause of action arises from bodily injury or mental suffering or from injury to reputation or character, the cause of action belongs to the bankrupt and does not vest in the trustee. It is not the policy of the law to convert into money for creditors the mental or physical anguish of the bankrupt. Put another way the creditors are not entitled to benefit from that which bankrupt receives to make whole her injured body, mind or reputation. [41] In Duffney, Re (2007), 2007 NBBR 142 (CanLII), 32 C.B.R. (5th) 72 (N.B. Q. B.). Registrar Bray extended this principal to danger pay received by members of the Canadian Armed Forces serving in Afghanistan, which incidentally also is not taxable. quote from paragraph 7: Those who in the course of their rehabilitation, however, render exemplary service to their nation should be allowed to keep the stipend offered in recognition of such efforts. [42] would put it this way. Risk allowance or danger pay is that paid to soldiers in addition to their regular stipend for taking on serious risks to their person. These risks are personal to the soldiers and their families. The creditors do not take the risks and therefore should not be allowed to share in benefits given for taking the risks. The law does not require bankrupts to take risks to their person for the benefit of their creditors. [43] Ms. Smith is paid this pension because Veterans Affairs Canada recognizes that in the service of Canada she has been adversely affected in body and mind. It gives this pension to do what money can do to make her whole. think it morally offensive that her creditors could take portion of this pension away from her and in effect take something of her person. [44] think that the policy lying behind cause of action for personal injury being personal to the bankrupt and soldiers being able to keep their danger pay, extends to pensions such as Ms. Smith has. She has the pension not because she earned it, rather she has it because she was injured in the service of Canada and it helps in limited way to make her whole. Creditors cannot be allowed to benefit from her misfortune. [45] Counsel for the Trustee quotes from Roderick J. Wood: Bankruptcy and Insolvency Law (2009), Irwin Law at page 112: Surplus income is defined as the portion of the total income of an individual bankrupt that exceeds the amount that is necessary to enable the bankrupt to maintain reasonable standard of living. Total income is defined as all of bankrupt’s revenues from whatever nature or source that are received between the date of the bankruptcy and the discharge. [46] This is followed by several examples of what has been considered as income or not as income but as property. As well the author notes that provincial exemptions do not apply to income. This may well be so, but is not relevant. What we have is pension which essentially is form of income and not property. Just as for matters of public policy an award of damages for bodily injury or mental suffering is not considered property of the bankrupt distributable to the creditors, so pension like Ms. Smith’s should not be considered as income for the purposes of calculating surplus income. [47] As to Duffney note the following commentary in Wood at page 115: Military-danger pay is not considered income for the purposes of the surplus income calculation or after-acquired income. The debtor may retain these amounts, and in this respect the payments are akin to amounts received for personal injuries. (underlining added) [48] In Ford (Re), 2009 NSSC 124 (CanLII), reviewed in some length what is meant by “income” and “revenue” for the purposes of S.68, in the context of determining whether care giver amount under the Income Tax Act is income. said the following: [44] It follows that wide and generous meaning should be given to what constitutes revenue and thus the income subject to this section. It clearly covers what one might call the bankrupt’s pay, the bankrupt’s wages, commission, benefits in lieu thereof and what other modest periodic receipts they have and are expected to use for the expenses of daily life. [49] urged an overall comprehensive construction of “income” and “revenue” which could well help in making case for inclusion of Ms. Smith’s pension as income. But think the policy issue mentioned above overrides this definition or makes an exception in the case of this pension, much as this policy issue overrides the definition of property when dealing with damages for bodily injury or mental suffering. It should make no difference whether the compensation is one time damage award or periodic payments like Ms. Smith’s pension. [50] am satisfied that for the foregoing reasons this pension should not be factor in calculating surplus income. June 16, 2009 letter [51] The Trustee wrote letter to me dated Jun 16, 2009, raising number of points. think they were covered in the course of the hearing. [52] First, he asks whether Ms. Smith had provided funds for the purchase of her present residence in Wilmot. Ms. Smith’s evidence at the hearing was that she did not. [53] Second, he referred to the substantial amount of money Ms. Smith received from her insurers and raises the question of whether she has amounts of undisclosed and undeclared cash assets at the time of her bankruptcy. He asks for bank statements for twelve months prior to bankruptcy. [54] do not think that this should be an issue in her discharge. There are other ways either under the BIA, particularly section 163, or under the Civil Procedure Rules whereby this information might have been obtained and possibly may now be obtained. There was ample time for this to have been addressed already. [55] would observe that insurance companies are known for not advancing money to cover losses without first thorough accounting and appropriate assurances that it is properly directed such as to contractors and mortgagees. [56] will give no direction regarding these matters. Surplus Income [57] According to the information provided in Ms. Smith’s affidavit and reviewed in Mr. Haley’s affidavit the following appears to be her best recent monthly income: VAC Pension $1,509.39 CPP Pension 1,466.36 Child Support 1,814.00 Superannuation Pension 374.35 Child Tax Benefit 937.79 $6,101.89 There are some months where it has been less because of less child support being received. [58] have ruled that the VAC Pension should not be included in calculating surplus income. This reduces her best income for this purpose to $4,592.50. The 2009 Superintendent Standard under Directive No. 11R for family of five is $3,941.00. This leaves surplus of $651.50. Following this directive the amount to be paid would be 50% of this surplus, that is $325.75, but rounded to $325.00. Ms. Smith has not made any payments for surplus income. Trustees are permitted to make recommendations of up to twenty-one months, that is nine months for the initial bankruptcy period and further twelve. [59] The administration of this estate has been unusually stressful. am not convinced that Ms. Smith is responsible for this stress to the extent implied by the Trustee. There should be significant amount of equity in the home which will be realized by the Trustee when it is sold. [60] I think it important that Ms. Smith be able to stabilize her family finances as soon as possible. I have discretion in determining surplus income. think in the circumstances it is appropriate that she as condition of her discharge pay surplus income of $325.00 per month for the basic bankruptcy period of nine months. However, if there have been in the meantime changes in her income which would justify her paying lesser amount, will hear the parties before the discharge order is granted and consider making an adjustment. [61] The Trustee asks for s.68 order. am not prepared to grant one at this time. If Ms. Smith falls behind in her payments, an application can be made then. [62] My authority for granting discharges is section 172 of the BIA. The conditions am imposing are beyond that provided in subsection 172(1), but are within the scope of subsection 172(2). However, cannot rely on the latter subsection without there being proof of fact under section 173. Although have some reservations about the manner in which Ms. Smith has been treated in the administration of her estate, there nevertheless are duties which technically she has failed to perform, for example providing information for completion of income tax returns. Technically fact under paragraph 173(1)(0) has been proved. Conclusion [63] In summary, Ms. Smith will be entitled to an absolute discharge once the following are done:1. She resolves the matter of the horse trailer as provided in paragraph [13] above.2. She pays the Trustee $500 for rent.3. She provides the Trustee with the VIN number on the 2007 Cobalt vehicle and with the information required to complete the income tax returns which the Trustee is required to file.4. She pays the Trustee $300 for the horses.5. She pays surplus income as provided in paragraph [60]. R. Halifax, Nova Scotia September 1, 2009

The Trustee opposed the bankrupt's application for a discharge on various grounds. The bankrupt supported four children and had been discharged from the military due to illness arising from her active service. The bankrupt will be entitled to an absolute discharge once certain conditions are met, including the payment of one month's rent, the value of the horses and surplus income for nine months to the Trustee. The bankrupt's disability pension from Veterans' Affairs was not included in the calculation of surplus income as the public policy reason behind the exemption for proceeds received due to personal injury and a soldier's danger pay applied to this disability pension. The Trustee had no claim to the insurance proceeds received by the bankrupt following the loss of her home by fire as it was a modest sum used to replace lost personal exempt assets; the three horses were found to be owned by the bankrupt as opposed to her children, for whom she had purchased them as pets and were included in the value of her estate; the court exercised its discretion in determining the amount of surplus income, noting that the administration of the estate had been unusually hostile and it was important that the bankrupt be able to stabilize her family finances.

8_2009nssc261.txt

nan IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2009 SKPC 009 Date: January 7, 2009 File: SC #10 of 2008 Location: Melfort Between: Glenn and Arlene Franklin and Haul Co. (Canada) Ltd. Selves For the Plaintiffs Real Faucher For the Defendant JUDGMENT R.D. JACKSON, BACKGROUND [1] The Plaintiffs claim $6,700.77 against the Defendant for water damage sustained to their belongings while in transit from Edmonton to Nipawin, Saskatchewan in a one ton, 17 foot cube van owned by the Defendant. [2] The Defendant denies responsibility relying upon term of the rental contract which stated “... understand that the equipment rented is water resistant and not water proof”, as well as posted disclaimers to this effect situated in several locations inside the truck box. [3] The Defendant states further that even if the goods were transported in heavy rain conditions as the evidence disclosed, the Plaintiffs are nonetheless the authors of their own misfortune by permitting the loaded truck to sit for an additional two days after reaching their destination in steady rain prior to its unloading. The Defendant also questions the quantum of damages sustained and puts mitigation of damages in issue. II ISSUES [4] The following issues arise for determination: a) Whether the Plaintiffs are precluded from recovery against the Defendant by virtue of the contractual term acknowledging the equipment to be water resistant only as well as the posted disclaimers to this effect. b) Apportionment of damages. c) Quantum of damages and mitigation. III ANALYSIS a) Whether the Plaintiffs are precluded from recovery against the Defendant by virtue of the contractual term acknowledging the equipment to be water resistant only as well as the posted disclaimers to this effect. [5] The Plaintiff, Glenn Franklin, testified that he had originally booked 26 foot, ton truck to move his belongings from his acreage near Edmonton to Nipawin, Saskatchewan. Upon the designated pick up date however, he was informed that this truck was not available and that arrangements were being made for him to take the subject one ton, 17 foot cube van instead. This was on Sunday morning and the Haul depot in Edmonton was extremely busy when he arrived necessitating wait in excess of one hour before being attended to. He signed the contract and the truck was delivered to him outside, the exchange taking only moments. No features were shown or explained to him and he simply drove off the lot, no doubt in rush because he was now several hours behind schedule. [6] term of the agreement that he entered into stated “I understand that the equipment rented is water resistant and not waterproof” and the final term read “I acknowledge that have received and agreed to the terms and conditions of this rental contract and the rental contract addendum”. [7] The Plaintiffs together with relatives and friends then loaded this vehicle together with an assortment of other private vehicles and trailers and set out for Nipawin, Saskatchewan where the Plaintiffs were relocating to. Approximately one hour out of Edmonton extremely heavy rain began falling which continued for the entire balance of the trip. Upon arriving in Nipawin some seven hours later, the Plaintiffs parked the Haul truck on flat level surface where it remained for the next two days before being unloaded on the possession date of their new home. Throughout this period it continued to rain heavily. Upon opening the Haul truck, it became apparent that several items at or near the rear door were water damaged. Subsequent investigation determined that the packing blankets utilised to wrap the furniture had become soaked which in turn then caused moisture to seep into the goods. [8] The Plaintiffs took the truck to the local Haul agent in Nipawin, Glenn Verklan, for inspection. Mr. Verklan utilised pressure washer on the back door to test the seams. His report, which was admitted into evidence by consent of the Defendant and marked P-3, is hereafter reproduced: ckd Rear Door for water leak Pressure washer. first sprayed the Top of Door, opend ck’d for signs of leak none. then sprayed sides of door from top to approx. ft. from bottom no leaks. then sprayed bottom of door ck’d for sign of leaks. Water was entering van body each corner of door along bottom. The door was not set flat corners. cleaned out corners set door, was better but did not seal tight. [sic] “Glenn Verklan” Glenn Verklan 10.01.07. [9] Notwithstanding that the Plaintiff, Glenn Franklin, signed the rental contract acknowledging that the equipment was not waterproof and only water resistant, it appears from the last three sentences of Mr. Verklan’s report that water was entering at the corners of the door by virtue of the door not sitting “flat at the corners”. Further, that this appeared remedial to some extent through cleaning. [10] The Court infers from Mr. Verklan’s report that the apparent defect in the inability of the door to sit flat would have permitted excess water to enter prior to being cleaned by Mr. Verklan. Perfection however could not be expected since it was acknowledged that the rental unit was not waterproof and therefore, some seepage may be expected even after the door had been cleaned and remedied. Nonetheless, this existing sealing problem would have taken it beyond the acknowledgment of the unit being only water resistant. This may well have applied to the door seal once cleaned and remedied by Mr. Verklan, but not before. [11] The same rationale applies with respect to the disclaimers posted inside the vehicle. The Court adds, however, that if the Defendant had been relying solely upon the disclaimers i.e. that this wording had not formed part of the contract, the Defendant would not have been able to rely upon them in any event since they were not brought to the attention of the Plaintiffs prior to executing the contract.[1] b) Apportionment of damages. [12] The Plaintiffs acknowledge that the U Haul truck remained parked outside in heavy rainfall for two days and nights prior to being unloaded. This undoubtedly exacerbated the scope of the damage claimed since the water would have continued to seep in unabated for roughly six times as long as the trip itself took. Glenn Franklin acknowledged that he would have seen the decals inside the truck when he loaded it indicating that the unit was not waterproof and therefore he would have had knowledge that this may have been potential problem in leaving it sit for two extra days. Although he may have had little choice due to the inclement weather and the possession date for his property being two days hence, this nonetheless cannot be visited upon the Defendant in terms of assessing the totality of the damages suffered. Although hardly scientific, the Court concludes that in all the circumstances the Defendant to be only 20 responsible for the damages sustained to the Plaintiffs’ possessions. c) Quantum of damages and mitigation. [13] The Plaintiffs identified four specific items to be water damaged: a) Mattress and box spring Glenn Franklin testified that the damage sustained by the mattress and box spring was purely cosmetic with no discernible functional damage whatsoever. Photographs were tendered evidencing faint stain on the mattress, approximately two-thirds along one side together with four rust spots on the box spring. The Plaintiffs attempted to clean the damaged areas with moderate success. No attempt was made to have the items professionally cleaned. In the circumstances the Court assesses damages at $200.00. b) Kitchen/dining room table Photographs indicated that the laminate on the table was raised and swollen to the extent that the table could not close. This item was purchased in August, 2006, as part of five piece dinette suite for the sum of $899.97. The Court assesses damages of $150.00. c) Foosball Table The damage to this item again is with respect to laminate lifting on top and swollen wood on the ends, making the table virtually inoperable since the players are unable to have sufficient clearance to turn at the damaged end. The Plaintiffs produced an invoice of April 1, 2004 indicating that they had purchased the item used for the sum of $2,436.45. The Court estimates the current value of this table, prior to damage, to be $800.00. d) Dresser and mirror According to the photographs tendered and the evidence of the Plaintiff, Glenn Franklin, no damage was sustained to the dresser itself. The mirror, however, is mildewed and swollen to twice its size and the finish ruined. These items were acquired in the early 1990's with the mirror costing $249.00. The Court assesses its current value prior to damage to be $100.00. IV CONCLUSION [14] The Plaintiffs have proven damages totalling $1,250.00. The Court has determined the Defendant, for the reasons stated, to be responsible for 20% of these damages, totalling $1,250.00 x 20% = $250.00. [15] The Plaintiff shall have judgment against the Defendant in the amount of $250.00, plus costs of issuing the claim and service, if any. R.D. Jackson, J. [1] Aurora TV Radio Ltd. v. Gelco Express Ltd. 1990 CanLII 11152 (MB QB), 65 Man. R. (2d) 145, [1991] W.W.R. 525 (Man. C.A.) See also: Fridman, The Law of Contract 4th Ed. P. 610

The plaintiff claims against the defendant for water damage sustained to their belongings while in transit from Edmonton to Nipawin in a one ton, 17 foot cube van owned by the defendants. The issues are whether the plaintiffs are precluded from recovery against the defendant by virtue of the contractual term acknowledging the equipment to be water resistant only as well as the posted disclaimers to this effect. HELD: The plaintiff shall have judgment for $250 plus costs of issuing the claim and service. 1) Notwithstanding that the plaintiff signed the rental contract acknowledging that the equipment was not waterproof and only water resistant, it appears from the last three sentences of the inspection report that water was entering at the corners of the door by virtue of the door not sitting flat at the corners. This defect would have permitted excess water to enter prior to being cleaned. Perfection could not be expected since it was acknowledged that the rental unit was not waterproof and some seepage may be expected even after the door had been fixed. Nonetheless, the sealing problem would have taken it beyond the acknowledgment of the unit being only water resistant. 2) The plaintiff acknowledges that the truck remained parked outside in heavy rainfall for two days and nights prior to being unloaded. This exacerbated the scope of the damage claimed since the water would have continued to seep in unabated for roughly six times as long as the trip itself took. The Court concludes that the defendant is only 20% responsible for the damages sustained to the plaintiff's possessions.

e_2009skpc9.txt

U.F.C. A.D. 1993 No. 677 J.C.S. IN THE COURT OF QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: ANGELLA PHYLLIS PROTZ and ARCHIBALD WILLIAM PROTZ RESPONDENT D.J. Kendall for the petitioner M.W. Henderson for the respondent JUDGMENT GOLDENBERG J. May 28, 1996 Angella and Archie Protz are husband and wife. Therelief sought is divorce, division of matrimonial property,maintenance and costs. FACTS The parties were married on July 23, 1960 when they were both 19 years of age. They separated on December 10, 1991. This action was commenced on August 10, 1993. They have two adult children, son and daughter, who are both self-sufficient. At the time of the marriage Mrs. Protz's occupation was that of key punch operator. After the marriage she continued to work in that vocation. With the exception of 7-week period after the birth of their son in 1961, Mrs. Protz worked full time until their son was years old. At this time their daughter was born. About six months later she returned to the work force and then worked part time for almost all of the period until 1973. They had lived in Regina to that time. She was then able to obtain full time employment with IBM in Regina. At that time Mr. Protz's employment had been terminated and he was able to obtain employment as salesman with the J.I. Case company in Saskatoon. Mrs. Protz refused the job with IBM and they moved to Saskatoon. In Saskatoon she ultimately accepted job with the City of Saskatoon. As Mr. Protz wanted her to be at home until the children grew up she declined this position. Around 1985 Mrs. Protz moved to get back into the work force. The world of technology waits for no one. It certainly had not waited for Mrs. Protz. Mrs. Protz's world of the key punch operator was extinct. It had been replaced by the monitor and keyboard. It was world she was not familiar with. She took some upgrading and over the next fewyears cautiously did a small amount of part time work, usingthe new systems. She found this difficult. She also triedher hand at being a part time sales person and at direct homesales. She was not successful in that regard. In 1990 she was able to get position as data entry operator. Little more than half way through the 6-month training course she found her husband with another woman and discovered that they were having an affair. She had been having difficulties at work learning the new systems. After discovering her husband in compromising position she was emotionally distraught. She was not able to do the work. Mrs. Protz sought time off from work because of her matrimonial problems. She was told that the company would have to retain someone else. That leave of absence could not be granted as she had not been there long enough. She then terminated her employment. Mrs. Protz and Mr. Protz remained together until December 1991. At that time he assaulted her and they have not lived together since then. Mrs. Protz has sought employment, but has not been successful. She tried further upgrading, took counselling and has also sought employment in various retail outlets and other places. To no avail. An interim order was obtained on September 1,1993 under which Mr. Protz was to pay her spousal support of $1,700.00 per month. Under the order he was also to pay $15,428.64, being outstanding property taxes on the matrimonial home, on or before October 1, 1993. Mr. Protz did not do so. Mrs. Protz was obliged to ultimately borrow the approximate sum of $17,500.00 from her mother's estate in order to pay the taxes. In his affidavit of April 18, 1993, Mr. Protz swore that he was at that time regularly paying her expenses in the approximate sum of $1,200.00 per month and that he was additionally paying her $500.00 month for her expenses. On the application for interim maintenance Mr. Protz filed financial statement for Protz Power Inc. for the year ending May 31, 1992. The statement indicates an equipment rental expense of $43,807.00 and wages of $45,228.00. Mr. Protz showed net income after expenses of $30,618.00. As ordered, Mr. Protz paid $1,700.00 month for spousal maintenance until the examinations for discovery which took place in December of 1994 and January of 1995. He has not paid maintenance since that time. The value of certain of the assets is not in dispute. Also the evidence at the trial established that at the time of the application Mr. Protz had personal bank account in the sum of $6,373.56. Further the sum of $7,000.00 owing to Mr. Protz from his brother from the sale of farm machinery must be included as matrimonial asset. The parties have agreed as to the division of the furnishings. There is, however, dispute with respect to the farm machinery and Protz Power Inc. This dispute occupied major part of the trial. Protz Power Inc. The company has been in existence since 1989. Mr. Protz started the company and is the sole shareholder and director. The company has bought and sold new and used construction equipment, trucks, trailers and has sold construction equipment parts. Given the substantial dispute over the valuation of the company, it is necessary to look to the issue of the profitability of the company. This necessitates review of the financial statements. shall now review the evidence. Roger Protz, their son, gave evidence with respect to the company. must say at the outset that was impressed with his evidence. consider that while he was obviously distressed with having to testify as between his mother and his father, he gave his evidence in straightforward manner. recognize that Roger and his father parted company on what can only call strained circumstances. However, I prefer andaccept the evidence of Roger over Mr. Protz when there is avariance in their evidence. Roger worked with his father in the business from the time of the incorporation of the company in June of 1989 until December of 1994. The company sold construction equipment, parts, and had shop and service department. According to Roger his relationship with his father deteriorated after the commencement of the legal proceedings. His father accused him of providing his mother with financial information. Subsequently, Roger was not allowed access to any financial information of the company. He did continue working for the company until December, 1994 when his father terminated his employment. According to Roger, the mark-up on parts was about 60 to 70 percent. Parts were not sold at less than cost. On occasion when the parts could not be sold, they could be returned to the supplier upon payment of small restocking fee. Roger says the company also did service and repair work. Protz Power Inc. retained the services of freelance mechanic to do that work at $20.00 an hour. The company, in turn, charged customers at the rate of $36.00 to $38.00 an hour plus 10 percent for shop supplies for such work. In late 1992 or 1993 his father offered to sell him the parts section of the business for $87,000.00. When Roger last spoke to his father about the business, some months prior to trial, Mr. Protz stated that the business is "the best it's ever been". According to Roger the business at all times made significant profits. Doug Kalesnikoff testified as an expert with respect to the value of Protz Power Inc. In arriving at his conclusions it was necessary for him to review and give his opinion on the accuracy of certain of the financial statements of the company. In particular, there are two financial statements filed for the company for the year ending May 31, 1992. One financial statement records net earnings of $76,618.00, after payment of all expenses. The other financial statement for the same time period shows net earnings of only $30,618.00, after payment of all expenses. The financial statement showing net earnings of $76,618.00 was prepared by the company's accountant, Lorne Horning. In the financial statement for the following year Mr. Horning continued to use the sum of $76,618.00 for fiscal 1992 net earning. Notwithstanding this, Mr. Protz filed an income tax return with Revenue Canada to which was attached financial statement for the company showing net earnings of only $30,618.00 for the year ending May 31, 1992. The sum of $30,618.00 was carried forward into the next year's statement that was subsequently lodged with Revenue Canada. Before me Mr. Protz testified that he could not pay the income tax due on the correct figures and so he changed the amount of inventory and then submitted an incorrect statement to Revenue Canada. According to Mr. Protz, Mr. Horning participated in this false activity with him. From the evidence of Mr. Kalesnikoff take it that the figure of $76,618.00 is the correct figure. That it appears in one set of financial statements. That the false sum for net earnings of $30,618.00 appears on the set of financial statements provided to Revenue Canada. Before me Mr. Horning testified that he had previously been fined by the Institute of Chartered Accountants of Saskatchewan for providing the two separate financial statements for the same year. That he did not appeal his conviction. Before me Mr. Horning did not deny the evidence of Mr. Protz as to Mr. Horning's involvement in the changing of the financial statement. pause here to add that the company's income tax return with attached "lower income" financial statement was filed with this Court by Mr. Protz as part of his opposition to Mrs. Protz's application for interim maintenance. In his affidavit in opposition to her interim maintenance claim Mr. Protz does say that he is being audited by Revenue Canada. do however consider it significant that Mr. Protz placed the financial statement before this Court under circumstances such that it would be considered by this Court when the question of his income as derived from the company would have to be considered. consider that this affects materially on his credibility and affects it adversely. According to Mr. Kalesnikoff the company maintained consistent gross margin percentage until the May 31, 1993 financial statement: 21.6 percent for the year ending May 31, 1991; 28.8 percent for the year May 31, 1992; 25.3 percent for the period ending October 31, 1992. However, for the seven months from October 31, 1992 to May 31, 1993 loss of 8.3 percent is arrived at. Mr. Kalesnikoff says that the financial statement for the period ending May 31, 1993 is not reliable and that he did not take it into account in arriving at his valuation of the company. That he proceeded to value the company based on the financial statements of May 31, 1991, May 31,1992 and October 31, 1992. Mr. Kalesnikoff arrived at valuation for Protz Power Inc of between $17,600.00 and $217,854.00. His values are based on the sale of the business as going concern. He further says that if the business were liquidated as opposed to selling it as going concern the liquidated value would be $143,344.00. Robert Lacoursiere gave expert evidence on behalf of Mr. Protz with respect to the value of Protz Power Inc. He did acknowledge that the proper valuation would be to determine the higher value between selling as going concern and liquidation costs. It is his opinion that in the instant case the business should not be valued as going concern. Accordingly he did not value it on that basis. It was also his opinion that the value would be worth nothing if the business was liquidated. Mr. Lacoursiere proceeded on the basis that the May 31, 1993 financial statement was accurate. He was not aware that there were two separate financial statements for May 31, 1992 or for May 31, 1993. He was unable to determine reason for such situation. In his view it would be inappropriate to have two different statements. According to Mr. Lacoursiere, using the October 31, 1992 financial statement, and deducting expenses from assets, results in $125,532.00 remaining. Expenses to be paid would include shareholder's loan in favour of Mr. Protz of $33,094.00. The resultant valuation would be $159,626.00. Counsel for Mrs. Protz says that the loss as shown in the May 31, 1993 financial statement is artificial and false and is not to be relied upon. As support for this he points to the following actions:- (a) Mr. Protz's admission of creating false figures in the company's financial statement for May 31, 1992. This was used in an effort to reduce the income tax payable. The statement was also used by Mr. Protz in opposition to Mrs. Protz's application for interim maintenance. (b) Equipment rentals are shown as an expense item in the financial statement. Mr. Horning testified that all items shown as equipment rentals were in fact wages paid to Mr. Protz. According to Mr. Horning Mr. Protz was losing money on his farming operations. That by recording the expense in that way, it could be recorded as revenue on his farming statement and this allowed Mr. Protz to deduct his farming expenses. note that both Mr. Kalesnikoff and Mr. Lacoursiere considered this as inappropriate. (c) Mr. Horning further said that Mr. Protz was endeavouring to obtain settlement of his wrongful dismissal claim against J.I. Case and as such did not want to show himself as receiving salary. Counsel for Mrs. Protz also points out that until the commencement of the action in August 1993, Mr. Protz was making voluntary payments of $1,700.00 per month and all payments were current, as were all loans and lines of credit. Counsel says that this undermines the proposition that the company had just gone through the worst financial year in its history. The financial statement for fiscal 1993 was prepared in October 1993. By letter dated December 6, 1993 Mr. Protz sent copy to his bankers. note that the letter says in part: This statement was prepared to include all write downs possible to arrive at that figure. Also, am going through divorce. What is been done at this time to get by the next 90-120 days until the divorce is complete. am sure that after 90-120 days, will be able to conduct business as level acceptable to yourself. strongly agree with the submissions of Mrs. Protz's counsel. Mr. Kalesnikoff was correct in not taking the May 31, 1993 financial statement into account in arriving at his valuation. Mr. Kalesnikoff, in his rebuttal evidence said that he had reviewed the accounts receivables from year to year. That there was significant repeat business as the same names showed up year after year. Accordingly he disagreed with Mr. Lacoursiere when he said that there was not lot of repeat customers in this field of endeavour. According to Mr. Kalesnikoff he had acted for many small businesses that can be sold as going concern and that was the situation with respect to the business in question before me. Farm Machinery Given the unease that have with respect to the financial statements and the recordkeeping of Mr. Protz and Protz Power Inc. have determined that it is appropriate to value the machinery separately. fix the value of the farm machinery at $53,400.00. Debts There is an issue as to whether there is debt owing to John Wach. No such debt is shown on Mr. Protz's financial statement. On the evidence before me, have determined that Mr. Wach, who did not testify, received truck from Protz Power Inc. That there is no debt. LAW AND DETERMINATIONS I consider it appropriate that all the assets bevalued as the same time. (Tataryn v. Tataryn (1984), 38 R.F.L. (2d) 272 (C.A.); Shockey v. Shockey (1985), 45 R.F.L. (2d) 219 (C.A.)). On the evidence before me and given my substantialreservations as to the activities of Mr. Protz herein and asto the financial statements and records subsequent to theOctober 31, 1992 statement I consider it appropriate to valuethe assets as of the time of the application. (Mehling v. Mehling (1989), 1989 CanLII 4775 (SK CA), 20 R.F.L. (3d) 42 (C.A.); Benson v. Benson (1994), 1994 CanLII 4554 (SK CA), R.F.L. (4th) 291 (C.A.); Rade v. Rade (1984), 40 R.F.L. (2d) 47 (Ont. S.C); Brockie v. Brockie (1991), 34 R.F.L. 175 (Ont. Gen. Div.)). As to the matter of the value of the business, look to the decision of our Court of Appeal in Criton v. Criton (1985), 1985 CanLII 2632 (SK CA), 44 Sask. R. 238. In that matrimonial property case the trial judge had declined to fix value for goodwill in valuing dental clinic. On appeal goodwill was taken into account and valued. also note that in his December 6, 1993 letter to his bankers Mr. Protz said:- and rest assure your bank has no reason to be alarmed. have buyers in place to purchase my business or portion. I value Mr. Protz\'s interest in Protz Power Inc. at$192,727.00 being the mid-point of Mr. Kalesnikoff\'svaluations. Distribution value the matrimonial assets of the parties and attribute them as follows:- Mr. Protz: Farmland 53,382.00 Farm machinery 53,400.00 Protz Power Inc. 192,727.00 Standing crop 6,796.00 Sask. Wheat Pool 1,760.00 Co-op Hail Insurance 233.00 R.R.S.P. (Dataplan) 84,000.00 Account receivable (C. Protz) 7,000.00 Personal bank account 6,373.00 J.I. Case settlement 12,000.00 417,671.00 Less due to Royal Bank 38,869.00 Less due for farm loan 26,296.00 Less due to Revenue Canada 14,105.00 Net assets 338,401.00 There is also the issue of an advance from the Canadian Wheat Board. Mr. Protz has received all income from the farming operation. The advance was paid off entirely by the time of the trial. Under all the circumstances that debt is not to be taken into account. Protz: From the proceeds of the sale of the matrimonial home the sum of $13,500.00 was paid out to remove writ of execution by Saskatchewan Government Insurance against Mr. Protz arising out of an automobile accident. Mr. Protz refused to take the breathalyser test and was, therefore, obligated to pay for the damages. Mrs. Protz should receive an equivalent amount from the total matrimonial assets prior to any equal distribution. Net proceeds of matrimonial home (and after Mrs. Protz receives $13,500.00 by way of equalization for the $13,500.00 paid out to clear the above writ of execution) 56,536.16 Automobile 8,300.00 R.R.S.P. 1,300.00 Bank account 2,800.00 68,936.00 Less debt as per financial statement 2,500.00 Net assets 66,436.16 Difference in assets ($338,401.00 $66,436.00 (rounded) $271,965.00, of which Mrs. Protz's one-half share is $135,982.00 (rounded). There will be the following orders: (1)From the proceeds of the sale of the matrimonial home Mrs.Protz is to receive the sum of $13,500.00 by way ofequalization for the monies paid out to clear Mr. Protz\'s writof execution; (2)Mrs. Protz is to receive the balance of the sale proceeds free and clear; (3)Any interest accrued on the matrimonial home sale proceedsis to be divided equally between the parties hereto andinterest accruing to Mr. Protz is to be paid out to Mrs.Protz, to be applied by her against the judgment that iscreated hereafter in her favour as against Mr. Protz; (4)In addition to the sale proceeds as above, Mrs. Protzreceives her automobile, her R.R.S.P. and her bank account; (5)Mrs. Protz shall have judgment against Mr. Protz for thesum of $135,982.00. A charge in that sum is created againstthe matrimonial assets that become Mr. Protz\'s as a result ofmy judgment herein. The Registrar of the Land Titles Officefor the Yorkton Land Registration District is directed toregister such charge against Mr. Protz�s interest in the NW �,the NE � and the SE �, all in Section 14, Township 25, Range5, West of the Second Meridian; (6)There will be a transfer to Mrs. Protz, by way of spousalrollover, of monies in Mr. Protz\'s R.R.S.P. and to the extentof $84,000.00. In the event that it is necessary, Mr. Protz is directed to execute all documents as may be required to give effect to this order; (7)Settlement proceeds from Mr. Protz\'s claim against J.I.Case (or such other name as may be correct), and to the extentof $12,000.00, are to be assigned and paid out to Mrs Protz. Mr. Protz is directed to execute all documents as may be necessary to give effect to this order; (8)All monies received by Mrs. Protz from items and above are to be credited against the judgment created herein; (9)Mr. Protz is to pay the monies owing to Mrs. Protzhereunder, together with all interest accruing thereon, withinsix months of the date of this judgment. In the event thatpayment is not made as ordered, the Sheriff of the JudicialCentre of Saskatoon and the Sheriff of the Judicial Centre ofYorkton, if the involvement of that Sheriff is required, is toproceed with the judicial sale of such of the assets of Mr.Protz as may be required to secure payment of the monies thendue to Mrs. Protz pursuant to my judgment herein; (10)Pursuant to the September 1,1993 order of this Court Mr.Protz was to pay $15,428.64, being outstanding property taxeson the matrimonial home, on or before October 1, 1993. Thiswas not done. Mrs. Protz shall now have judgment against himfor the sum of $15,428.64, which is also to be a charge and isto be paid and if necessary is to be enforced, all as providedearlier in these orders Spousal Maintenance Mrs. Protz seeks spousal maintenance in the sum of $2000.00 month. In Miller v. Miller, [1996] S.J. 212, F.L.D. 01515 J.C.R., March 29, 1996, Wimmer J. said: [para24] Spousal support orders are authorized and governed by the following provisions included in s. 15 of the Divorce Act. (2) court of competent jurisdiction may, on application by either or both spouses, make an order requiring one spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of (a) the other spouse (4) The court may make an order under this section for definite or indefinite period or until the happening of specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and (5) In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse including (a) the length of time the spouses cohabited; (b) the functions performed by the spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of the spouse (6) In making an order under this section, the court shall not take into consideration any misconduct of spouse in relation to the marriage. (7) An order made under this section that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (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. It is now necessary to decide whether any spousal support order is justified in light of the matrimonial property division. [para27] In Ritchie v. Ritchie (1994), 1994 CanLII 5101 (SK QB), 121 Sask. R. 197 at 208 and 209, Maurice J. aptly summarized the rationale underlying spousal support orders. In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813; ... the Supreme Court of Canada considered the principles that courts should apply when awarding spousal support under the Divorce Act 1985: (1) Spousal support provisions are intended to deal with the economic consequences of marriage breakdown and to relieve economic hardship resulting from (2) The objectives enumerated in s. 15(7) are to be considered in the context of the circumstances listed in s. 15(5) in fashioning an appropriate order of spousal (3) All of the objectives enumerated in s. 15(7) must be taken into account in deciding an appropriate support order. No single objective is paramount. [para28] He held that when applying these principles court must take into account the sharing of matrimonial property when considering economic advantage or disadvantage arising from the marriage or its breakdown. He also ruled that the wife had not demonstrated any economic hardship arising from the breakdown of the marriage notwithstanding that the husband's annual income by then was more than ten times hers. Taking the wife's assets into account, including her share of the matrimonial property, he found that she had ample resources to support lifestyle comparable to what she enjoyed before separation, and he declined to order spousal support. Messer v. Messer (1993), 1993 CanLII 9094 (SK QB), 108 Sask. R. 155, underscored the difficulties in applying the Moge v. Moge principles where there is significant amount of matrimonial property. Matheson J. found it impossible to weigh economic advantages or disadvantages without reference to matrimonial property and concluded at p. 158 that "... the greater the value of the divisible matrimonial property, the less significant is any discrepancy between the employment incomes, or potential employment incomes, of the parties." [para30] Rarely will two people, living apart, be able to maintain the same standard of living that they enjoyed while together. That is not the objective of s. 15 of the Divorce Act. Rather, the goal is economic justice and the promotion of financial self-sufficiency. [para31] Given the value of her share of the matrimonial property, it is difficult for the respondent to contend that she has suffered economic disadvantage arising from the marriage or its breakdown. One can only speculate as to whether she would have been better or worse off financially but for the [para32] Nor has she demonstrated any particular economic hardship arising from the breakdown of the marriage. prudent utilization of her resources will provide standard of living comparable, or nearly comparable, to that she enjoyed prior to the breakdown. In short, when she has in hand all that she is entitled to by virtue of the matrimonial property order, she will be economically self-sufficient. [para33] The spousal support order now in place will continue until the matrimonial property order is given full effect. That is, until the respondent has received all of the payments and transfers of property that are coming to her. Thereupon, the order will terminate. I have earlier referred to technology passing Mrs.Protz by. am satisfied that had she remained in the data entry field the very progress that have been referring to would have carried her along with it. To what extent cannot say. am mindful of the distribution of matrimonial property that have ordered. I do however consider that Mrs. Protzhad been economically disadvantaged to some extent arisingfrom the marriage or its breakdown. Until Mr. Protz satisfies the orders that I havemade herein, Mrs. Protz shall receive spousal maintenance inthe sum of $2000.00 per month. The first of such payments is to be made on the June 1, 1996 and on the 1st day of each month during the currency of this provision. Upon the ordersherein being satisfied, Mrs. Protz is to receive the sum of$1000.00 a month thereafter until her 60th birthday at whichtime spousal maintenance is terminated. On the evidence before me am satisfied that Mr. Protz should have complied with the outstanding order for spousal maintenance. Mrs. Protz seeks costs on solicitor-and-client basis, including all the fees and costs of Mr. Kalesnikoff. have considered the state of the information provided by Mr. Protz, what term his evasiveness and obstinance on the stand, and his attempts to falsify and manipulate information. Applying the principles enunciated in Ewing v. Ewing (1987), 1987 CanLII 4865 (SK CA), 56 Sask. R. 263 (C.A.) and Logan v. Logan (1986), R.F.L. (3d) 152 (Sask. U.F.C.), costs are awarded against Mr. Protz on solicitor-and-client basis. The costs are to be taxed. This includes the fees and disbursements of Mr. Kalesnikoff. Divorce There will be judgment dissolving the marriage, same not to be effective until the expiration of 31 days. have considered the arguments, and written submissions of counsel. Also the cases and articles cited. thank counsel for their assistance.

The relief sought was divorce, division of matrimonial property, maintenance and costs. The respondent admitted to having two different financial reports prepared in 1992 for his company of which he was sole Director and shareholder. The company's accountant had been fined for preparing a false report and the respondent was being audited by Revenue Canada. The false report had been submitted to the Court for valuation of the company. HELD: 1)The testimony of the son who had worked for the respondent until fired for allegedly disclosing information to the mother was accepted over that of the respondent. 2)All assets were valued as the same time, the time of the application. The midpoint of the valuations was used to value the respondent's interest in the company at $192,727.00. 3)The petitioner was to receive the balance of the proceeds of the sale of the matrimonial home plus $13,500 to equalize for monies paid to clear off the respondent's writ of execution. 4)Any interest accrued on the sale of the matrimonial home was to be divided equally. 5)The petitioner received her automobile, RRSP and bank account. 6)She was given judgment against the respondent for $135,982.00 with a charge against the matrimonial assets to be registered at Land Titles. 7)$84,000 of the respondent's RRSP was transferred by way of spousal roll over to the petitioner. 8)$12,000 of the settlement proceeds from the wrongful dismissal claim were to be assigned and paid out to the petitioner. 9)All monies were to be paid within six months failing which the Sheriff was to proceed with the judicial sale of such of the assets of the respondent as may be required. 10)Judgment and a charge was ordered against the respondent for the outstanding property taxes in the amount of $15,428.64 which he was to have paid on or before October 1, 1993 by a previous court order. 11)Technology had passed the petitioner by and she had been economically disadvantaged to some extent from the marriage or its breakdown. She had upgraded but had been unable to secure employment. She was to receive $2,000 per month in support until the orders were satisfied and thereafter, $1,000 a month until her 60th birthday. 12)Costs were awarded to the petitioner on a solicitor-and client basis.

a_1996canlii7006.txt

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. M.M., 2011 NSPC 27 Date: April 19, 2011 Docket: 2261626, 2261628, 2261630, 2261632, 2261634, 2261636, 2261638, 2261640, 2261642, 2261644, 2261646, 2261648, 2261650, 2261652, 2261654, 2261656, 2261658, 2261660, 2261662 Registry: Halifax Her Majesty the Queen v. M.M., young person DECISION Judge: The Honourable Judge Jamie S. Campbell Heard: April and 8, 2011 Decision: April 19, 2011 Charges: cc 344, cc 267(a) 2, cc 264.1(1)(a), cc 279(2), cc 87, cc 88(1), cc 88(1), cc 94(1), cc 94(1), cc 95(2), cc 86(1), cc 86(2), cc 90 3, cc 91(2) 2, cc 92(1), cc 96(1) Counsel: John Nisbet Crown Attorney Eugene Tan Defence Counsel By the Court: [1] On December 13, 2010 the police stopped a car driven by Candace MacDonald. It was suspected of having been involved in a robbery with a firearm at a specific address in Sackville. In the car were the driver, Candace MacDonald, another adult, Cody Muise and two young men, K.M. and M.M. In the car were also found, some drugs, some items reported to have been stolen in the robbery, set of brass knuckles and 32 calibre semi-automatic handgun. The gun was found under the back seat of the car, loaded. [2] M.M. has been charged with number of offences, including robbery. He provided statement to the police. That might be an overly generous description. It might be more accurate to say that he just said some random things. He said that he and Candace MacDonald were in the car. They picked up some guys, at some building, somewhere in Fairview. At first he said he didn’t know the guys but then agreed that he just didn’t want to name them. Given that the two guys were in the car with M.M. when the police stopped it in high risk take down and that their identities would be pretty quickly determined, that is perhaps technically in strict compliance with the non-ratting provisions of the code of the street. Otherwise, it doesn’t seem to make much sense at all. [3] He said that he had not been in Sackville at all. He had nothing to do with any robbery. It was not at all clear how and when he ended up in the car with Candace MacDonald. While at the police station, M.M. was observed by the police reaching into the waistband of his pants. He took out gold and diamond ring that had been reported stolen in the robbery and placed it on his finger. M.M. is found in car, with the property reported stolen in the robbery, now wearing the ring reported to have been stolen. [4] It only gets worse. K.M., the other young person in the car, pleaded guilty to the robbery and to the possession of the gun and the brass knuckles. While that may be seen as taking the responsibility it has another affect. It means that M.M. was found, in the car, with the gun and the stolen property, with the stolen ring directly in his possession, in the company of person who has now admitted to having committed the robbery, having the gun and having the brass knuckles. [5] K.M. gave evidence. He was not asked about what had taken place during the robbery or who had been there when it happened. In other words, he was not asked to implicate M.M. directly. He just confirmed that he had pleaded guilty to those offences. As he left the courtroom, M.M. said to him, “Thanks buddy”. [6] The driver of the car, Candace MacDonald gave evidence as well. She too is facing criminal prosecution arising from this incident. She was not asked about the robbery itself. She was asked only about the drive from her home in Sackville and the route she took. She said she drove directly from her home to the point where the vehicle was stopped by the police. She said that she did not stop anywhere else. It was direct drive. [7] Her evidence is in direct contradiction to some of what M.M. said to the police. No one was picked up in Fairview according to Candace MacDonald. Two guys were not picked up. The evidence given by Ms. MacDonald and M.M. is the same in this sense though. Neither of them suggested that M.M. was picked up anywhere along the highway or in Fairview. The circumstantial evidence at this point is piling up. [8] K.M. admitted to doing the robbery. The car left Sackville, where the robbery is supposed to have taken place and he was in the car when it was stopped. Candace MacDonald said they didn’t stop to pick anyone up or drop anyone off. It is entirely logical to infer that the people found in the car when it was stopped by the police were the people who got in the car when it left Sackville. [9] Candace MacDonald’s car was stopped on Northwest Arm Drive. The police observed the car taking the exit from the highway from Sackville. Had it gone to Fairview, using this exit would have required considerable backtracking. From the time when the robbery report was called in, to the take down by the police, would allow for direct drive from the address in Sackville to the place on Northwest Arm Drive where the car was stopped. It was suggested that the times are not precise. The time when the robbery is said to have taken place could be off by some minutes. The time of the police stop could also be off by some minutes. The time of the drive itself would depend on the traffic patterns at the time. [10] Considering the time periods involved, it is possible that stop was made. The time allows for that. The other evidence doesn’t. The problem is that Candace MacDonald herself said nothing about stopping anywhere. M.M., in his statement, such as it was, spoke about picking up guys in Fairview and not having been in Sackville himself. He did not make any reference to Candace MacDonald and the guys stopping to pick him up in the moments before the car was stopped by the police. Having been in vehicle when the police executed the high risk take down procedure and where robbery and guns were being talked about, if person had just been picked up, that would be an overpoweringly relevant piece of information for him to have provided. It would have been simple enough to have said. He had only to say that he had not been in Sackville but had been picked up just few moments before in Fairview or somewhere else for that matter. He has the right to remain silent, but when he made the statements he did to the police, inferences can be drawn from what he said and what was left out. [11] In summary then, M.M. is found in car driven by Candace MacDonald, who says she drove straight from Sackville, with person, K.M., who has pleaded guilty to the robbery that had taken place few minutes before in Sackville. Also in the car are gun and number of items reported to have been stolen in that robbery. M.M. himself has ring reported stolen in the robbery. If M.M. was not at the scene of the robbery, why was he in the car that had driven directly from the scene? If he had been picked up on the way, why did he tell the police that he had been in the car with Candace MacDonald when the others were picked up in at some building, somewhere in Fairview? If he had nothing to do with robbery why was he hiding the stolen ring and why did he later put it on his finger? At this point it is very difficult to conceive of how M.M. was not involved with that robbery. [12] Nykell Brooks was the victim of the robbery. It is no longer an alleged robbery. K.M. has pleaded guilty to robbing him. Mr. Brooks told of how he had been lured to Candace MacDonald’s house and essentially ambushed by Ms. MacDonald and three males. He said that Ms. MacDonald wrongfully accused him of taking her wallet. Ms. MacDonald says that Mr. Brooks was her drug dealer. She was not asked about the circumstances surrounding the robbery itself. [13] Nykell Brooks says that he was taken into Candace MacDonald’s house. gun was placed to his head. He was forced to sit down and empty his pockets. His brass knuckles were taken. Money was taken from his wallet. His prescription drugs were taken. His watch, his ring and his earrings were taken. The robbers went to his car and removed his GPS system. Mr. Brooks said that the robbers wrote down his address and warned him of repercussions for himself and his family if he reported the matter to the police. handwritten note with his address written on it was found in the car. [14] Mr. Brooks did not get merely fleeting glimpse of these people. He was with them for some minutes. The situation as he reported it was stressful in the extreme. He was however able to provide detailed descriptions of the individuals. First, they were in the company of Candace MacDonald, whom he certainly knew. [15] He said that he did not know any of the three young men. They were, in his judgment all young men of about the same age. One of them had red hair. K.M., who has pleaded guilty to the robbery of Mr. Brooks, at least now, has short and distinctively red hair. It is reasonable to conclude that the red haired person identified by Mr. Brooks was K.M. [16] One of the remaining two was described as having black hair and the other blond hair with “buzz cut”. Mr. Brooks said that the blond person with the buzz cut hair also had tattoo on his forearm. The adult male found in the car, Cody Muise, has short hair and tattoo on his forearm. While in the photograph put in evidence of Cody Muise his hair appears dark, Mr. Tan pointed out that the police officers described Cody Muise as having short light hair. Mr. Muise would appear at least, to fit the description of the second of the three males. [17] The third male was described by Mr. Brooks as having black hair and wearing dark jacket and jeans. M.M. was not found wearing either dark jacket or jeans. Mr. Brooks was asked to look at M.M. in the dock and say whether he believed him to have black hair. He said no. When asked whether any of the three males was in the court room, he said no. Significantly, he did not say that he didn’t know or wasn’t sure. After looking around the court room he said no. [18] When shown the gun that was found in the car, Mr. Brooks said that this was not the same gun. He said that the gun that he saw was older with chipped paint. Something doesn’t seem quite right. Given the strength of the circumstantial case, it seems natural to try to reconcile these troubling inconsistencies. [19] Perhaps Mr. Brooks was just scared to make an identification. He had said that threats were made against his family. But Mr. Brooks is not witness who was reticent about identification of the people involved. He gave descriptions of the three men. One is clearly consistent with the description of K.M. The other is reasonably consistent with the description of Cody Muise. He was not hesitant about saying that Candace MacDonald was the “mastermind” to use his word. There is nothing here to allow that inconsistency to be resolved by inferring that Mr. Brooks just didn’t want to point the finger at M.M. [20] Perhaps Mr. Brooks was too agitated, intoxicated or confused to recognize the people involved. The police confirmed that he was not intoxicated, and while agitated he does not appear to have been addled. He gave description that fit the one person who has pleaded guilty. [21] It is now trite to say that an in dock identification is not the most compelling of evidence. person who is asked to identify his assailant and for the first time picks the accused out of the dock, may be acting in good faith. He may also be subconsciously drawn to the one person in the courtroom who is most obviously implicated by virtue of where he is seated. [22] An identification made in the moments or hours after the event may also be questioned if the witness caught fleeting glimpse of the suspect as he fled, if the lighting was poor or if the person is being asked to distinguish or identify features of race other than his own. [23] Identification in some circumstances can be more compelling. People are able to identify and distinguish one person from another. The proper but sometimes artificial skepticism of the courtroom goes only so far. Each day we do not wander through world made up entirely of complete strangers. Of course people can recognize other people. It is far from perfect, and perhaps much less reliable than is often thought. But there is difference between appropriately critical skepticism and the outright denial of reality. [24] Here, Mr. Brooks clearly saw the people who robbed him. He described them. None of the people he described fit the description of M.M.. Had he simply not been able to identify M.M. in the courtroom as one of those people, it could be said that with the passing of a few months that could be accounted for by fading memory. [25] But here, the failure to identify must be considered in light of two other things. The first is the fact of what might be called positive non-identification. This was not to the extent of looking him the eyes and saying…”No, that’s not one of the guys”. It is very close. Mr. Brooks did not simply say that he couldn’t be sure. He positively said that none of the people who robbed him were present in the courtroom. M.M. was no more than few feet away, sitting on the bench next to the lawyers. The second is the failure of the description to match M.M. Had Mr. Brooks provided no description of the third assailant, or had he given description that generally fit M.M. his failure to identify him might be capable of being explained away. [26] This is where the highly probable meets that something else. The circumstances in which M.M. was taken into custody on December 13, 2010 are more than suspicious. am conscious of being repetitive here. He was found in car, minutes after robbery with the person who has pleaded guilty to the robbery, another who was identified as being involved, and third who fit the general description of one of the robbers. The driver of the car said they left the location of the robbery and didn’t stop until they were apprehended by the police. M.M. is found in the car with hand gun under the seat and with the stolen property. He has in his possession ring taken from the victim, Mr. Brooks. His statement given to the police makes no reference to his having been picked up moments before and instead suggests that he and Candace MacDonald had picked up “two guys”, from some building, somewhere in Fairview. That all suggest that it is highly probable that M.M.was one of the people involved in the robbery of Nykell Brooks. [27] It is natural, it seems, to try to resolve the loose ends of any narrative by making some inferences. The known knowns add together to fill in the gap left by the known unknowns. Given the probability that M.M. left Sackville with the others in Candace MacDonald’s car, after robbing Nykell Brooks, it seems logical to resolve the discrepancy by assuming that Nykell Brooks was either mistaken or not telling the whole truth. In some situations that inference might be entirely reasonable. There are reasons here why it is not. [28] Nykell Brooks was critical Crown witness. He is the only person who told of how he was robbed. Neither Candace MacDonald nor K.M. gave any evidence about what happened in the house where the robbery took place. If Nykell Brooks were intentionally refusing to identify M.M. as one of the robbers, it would beg the question as to why he was doing that and what else he might be saying that was not true. That also seems to be unlikely given that he readily identified Candace MacDonald and provided descriptions of the others. [29] The other inference to resolve the narrative inconsistency is that Mr. Brooks was just mistaken or confused. That is also difficult inference to draw. He clearly saw his assailants. They were close to him. He saw them for number of minutes. He gave detailed descriptions. The descriptions, match K.M. who has pleaded guilty and Cody Muise who was also in the car. The descriptions do not match M.M., either in terms of hair colour or clothing. [30] In court Mr. Brooks looked directly at M.M. He had already confirmed red haired man, and blond man with tattoo on his arm. That left the black haired man. He said that M.M. did not have black hair. When asked if any of the people who robbed him were in the courtroom he said that they were not. He did not say that he was not sure or that he couldn’t tell. People who are most sure are often the least reliable. Of course he could be wrong. [31] The evidence of M.M.’s involvement would have to be so strong that it would allow the inference to be made that Nykell Brooks was just wrong, having regard to the factors that add to the reliability of his assertion that none of the people who robbed him were in the courtroom. In the face of evidence that is plainly inconsistent with his guilt, and which itself has some indicators of reliability, the evidentiary gap cannot be closed. The circumstantial evidence does not support the inference, in the absence of anything else, that Mr. Brooks was just wrong. It does not provide an answer to what will now call the critical known unknown. If M.M. robbed Nykell Brooks, why didn’t Mr. Brooks describe him or identify him when given the opportunity? [32] That important question remains unresolved. The narrative is incomplete. There is an inconsistency in the story that is so important that it raises a reasonable doubt. That doubt applies to all of the charges. The Crown has not proven beyond a reasonable doubt that M.M. was involved in the robbery, assault, confinement or threatening of Nykell Brooks. It has proven that he was in vehicle, with the stolen property and the gun. It has not proven that he was involved in the robbery and because of that there is no evidence that he knew or should have known that he was in a car with a gun or stolen property.

The female driver, the accused and two other men were in a vehicle that was stopped on suspicion of being involved in a robbery. A gun and many of the stolen items were found in the vehicle and all the occupants were charged with a number of offences, including robbery. The accused denied being in the area where the robbery occurred but alleged that they had stopped and picked up the two other men. While at the police station, he pulled a ring that had been reported stolen out of his pants and placed it on his finger. At his trial, one of the other men testified that he had pled guilty to the robbery; the driver testified that she had driven directly from her home to where the vehicle was stopped by the police, without stopping; and the complainant testified that he had been lured to the driver's house, where he was ambushed by her and three men, robbed and threatened. Although his descriptions matched the two other males in the vehicle, he positively stated that the accused was not the third person. Accused found not guilty on all charges; the Crown had not proven that he was involved in the robbery or that he should have known there was a gun or stolen property in the car. Although the circumstances in which the accused was taken into custody were more than suspicious, the fact that the complainant had clearly seen the robbers but had made a positive non-identification created an inconsistency that raised a reasonable doubt.

7_2011nspc27.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 037 Date: March 7, 2013 Information: 24384124 Location: Carnduff Between: Her Majesty the Queen and Milan Lawrence Ac Appearing: James Fitz-Gerald For the Crown David Kreklewich For the Accused JUDGMENT J. BENISON, CHARGES [1] The accused is charged that on the 5th of September 2010 at Oxbow, Saskatchewan:(1) while his ability to operate a motor vehicle was impaired by alcohol he did operate a motor vehicle contrary to section 253(1)(a) of the Criminal Code; and(2) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood he did operate a motor vehicle contrary to section 253(1)(b) of the Criminal Code. CIRCUMSTANCES [2] Around midnight on September 5, 2010, the accused was stopped by an RCMP officer shortly after driving away from bar/restaurant in Oxbow. The accused blew fail on the approved screening device and was taken to Carlyle, where samples of breath were obtained with readings of 130 mgs and 120 mgs at 1:21 a.m. and 1:41 a.m. respectively. 1) Were the accused’s rights to counsel infringed and, if so what is the remedy? 2) Did the destruction of video evidence held by the RCMP breach the accused’s right to make full answer and defence? RIGHT TO COUNSEL DEFENCE ARGUMENT [3] The defence argued that, since the accused had been allowed to call his wife from his cell phone in the police cruiser on the way to Carlyle, the investigating officers should have waited reasonable time for the accused’s wife to call him back. In fact, the accused’s cell phone was taken from him on arrival at the Carlyle Detachment. [4] The second issue raised by the defence related to the availability of phone books and lists of lawyers for the accused. Phone books were available in the main office of the detachment but not in the lawyer room where the accused was placed to speak to counsel. [5] Thirdly, the defence argued that the officers, having full control over the phone, were obligated to act with the same diligence as the accused would have done if attempting to contact lawyer by phone. [6] Fourthly, the defence argued that the accused had, by implication, expressed dissatisfaction with his call to Legal Aid. Accordingly, the officer(s) should have provided “Prosper” warning to the accused before proceeding to take samples of breath. [7] Having heard testimony from Cst. Lachapelle and the accused on this issue, make the following findings of fact. [8] En route to Carlyle in the police cruiser, the accused made call on his cell phone to his wife, who was in Calgary, and asked her to find lawyer for him. The accused did not receive a call back from his wife by the time he arrived at the Carlyle Detachment and his cell phone was taken away from him. [9] At the Carlyle Detachment, Cst. Lachapelle asked the accused which lawyer he wanted to call and the accused said that his wife hadn’t called him back. Cst. Lachapelle advised the accused that he could provide phone book and access to phone and that Legal Aid was available. The accused stated that he would talk to Legal Aid. Contact was made with Legal Aid by the officer and the accused consulted with Legal Aid lawyer. After his consultation with Legal Aid, the accused asked the officers if they had got the dumbest lawyer they could find. Cst. Lachapelle asked the accused if he was satisfied and he said “sure”. Although the accused testified that he was being sarcastic, Cst. Lachapelle testified that he took this response at face value. The accused said nothing further to indicate that he was dissatisfied with his telephone consultation. CREDIBILITY OF ACCUSED [10] Except on few points, the accused’s testimony confirms the Crown evidence. found the accused to be very credible witness and accept all of his testimony, including his statements that he did not recollect number of details found that the accused was very frank in admitting that he did not remember Cst. Lachapelle offering to provide him with phone books at the detachment or offering to call Legal Aid; he did not specifically deny that these things had happened. In addition, at this point he did not make any further requests to call his wife. Finally with reference to his telephone call with Legal Aid lawyer, he did suggest that the officers had got the dumbest lawyer they could find; however on being asked if he was satisfied with his call to legal counsel he said “sure”, intending his reply to be sarcastic. After this, he made no further request to call another lawyer or call his wife. ANALYSIS OF RIGHT TO COUNSEL ISSUE [11] Based on my findings of fact set out above, it is my conclusion that there was no breach of the accused’s right to counsel. The removal of the accused’s cell phone at the detachment does give me some pause for thought in that the accused had initiated a procedure for obtaining legal advice which clearly could not be pursued once his cell phone was taken away. However, it is clear from the evidence that the accused made a conscious decision to consult with Legal Aid and, by implication, did not wish to pursue his first course of action. In this situation there was no obligation on the police officer to provide the accused with a Prosper warning. This was not situation where the accused opted not to contact legal counsel and thus waived his rights under s. 10(b). accept the Crown’s submission that there is no obligation on the police to monitor the quality of legal advice received by an accused: R. v. Willier, [2010] S.C.R. 429. On my view of the evidence, the accused did not clearly indicate that the legal advice he received was inadequate or suggest that he wanted to consult with another lawyer. Accordingly, the officer was justified in assuming that he was satisfied. On hearing the accused’s testimony, formed the opinion that he is an easygoing individual and not at all aggressive. accept his testimony that he was not satisfied with the legal advice he received, but find that he did not clearly communicate his dissatisfaction to the officer. [12] With reference to the issue raised by the defence about the RCMP having control over the phone, find that, in the circumstances of this case, there was no interference with the accused’s right to counsel. believe that, if the accused had had control over dialling the phone, no different outcome would have occurred. DESTRUCTION OF VIDEO EVIDENCE [13] Cpl. Guider of the Carlyle RCMP Detachment testified that occurrences in the hallway and breathalyzer room are recorded on VHS; there is still video with pictures taken every four seconds, with no audio. The cameras are placed in the top corner of each room and according to Cpl. Guider it would not be possible to pick out the features of individuals. Every 60 days, the tapes are put back into use, thus erasing the previous content. The tape in question had been erased before the defence had requested disclosure. [14] If the videotape had been preserved, it would have provided series of still shots, taken every four seconds, with no audio covering the period that the accused was in the hallway and the breathalyzer room, but not in the lawyer room. It is not necessary for the Court to decide whether the RCMP was negligent in erasing the recording after 60 days. This would only become an issue once the Court determines that the destroyed evidence was relevant. There must be reasonable possibility that the information could be useful to the accused in making full answer and defence: R. v. Banford, 2011 SKQB 418 (CanLII) at para. [15] Applying this principle to the facts in the case before me, note, firstly that the Crown directed stay of proceedings on the impaired driving charge before the conclusion of the trial. With reference to the remaining charge of driving while over .08, the observations of the accused, the roadside screening demand and the demand for samples of breath all occurred at the roadside and would not have been recorded on video at the detachment. The only remaining issue, the accused’s right to counsel, would have been covered by the video to the extent of the discussion about the accused talking to lawyer, his decision to talk to Legal Aid lawyer and his comment about the RCMP getting the dumbest lawyer they could find. In my opinion, series of still photos taken every four seconds with no audio could not conceivably have provided assistance to the Court on this issue. I therefore find that the destroyed video evidence was of no relevance and could not have assisted the accused in making full answer and defence. On the facts of this case, the accused’s rights were not breached by the destruction of the video evidence. CONCLUSION [16] The Certificate of Analyses filed as Exhibit P-1 is admitted into evidence. I find the accused guilty of the charge under s. 253(1)(b) of the Criminal Code. J. Benison,

The accused was charged with impaired driving and driving with a blood alcohol level over .08. The accused was permitted to use his cell phone on the way to the RCMP detachment to call his wife in Calgary and request help in finding a lawyer. He did not receive a call back from his wife. The RCMP officer advised the accused that he could provide a phone book and access to a phone and that Legal Aid was available. The accused stated that he would talk to Legal Aid. After the call was completed, the accused asked the officer if they had got the dumbest lawyer they could find. The officer asked the accused if he was satisfied with his call and he said 'sure.' The accused testified that his response was sarcastic, but the officer took it at face value. The accused said nothing further about the lawyer call. The accused's movements in the detachment were recorded on VHS videotape. The video is a series of still shots taken every four seconds and there is no audio. The video was taped over every 60 days and had been destroyed before it was requested by defence counsel. HELD: There was no breach of the accused's rights under s. 10(b) of the Charter. Even though the accused's cell phone was taken from him before he received a call back from his wife, it is clear that the accused made a conscious decision to call Legal Aid, and by implication, did not wish to pursue the first course of action. There was no obligation on the part of the RCMP to provide the accused with a Prosper warning. The accused did not clearly indicate that the legal advice he received was inadequate or suggest that he wanted to consult with another lawyer. The officer was justified in assuming that the accused was satisfied with the legal advice he had received. The Crown stayed the impaired driving count prior to the conclusion of the trial. The videotape evidence was not relevant to the .08 offence because all observations were made at roadside. The video would not have shown anything of relevance to the charge. There is no breach of the accused's rights under s. 7. The Certificate of Analysis was admitted into evidence and the accused was convicted of the .08 charge.

c_2013skpc37.txt

J.D. KOCH SUPREME COURT OF NOVA SCOTIA Citation: Boone v. Medusa Medical Technologies Inc., 2011 NSSC 492 Date: 20111028 Docket: Hfx No. 352947 Registry: Halifax Between: Peter Boone and Loren Bough Applicants/Respondents v. Medusa Medical Technologies Inc. Respondent/Applicant LIBRARY HEADING Judge: The Honourable Justice Allan P. Boudreau Heard: October 25, 2011, in Halifax, Nova Scotia Oral Decision: October 28, 2011 Written Decision: January 11, 2012 Subject: Civil Procedure Applications versus Actions Motions to Convert Nova Scotia Civil Procedure Rule 6. Summary: The Applicants, Peter Boone (“Boone”) and Loren Bough (“Bough”) hold some $2.5 million dollars worth of debentures issued by the Respondent, Medusa Medical Technologies Inc. The debentures have matured and Medusa has failed to pay the principal and interest amounts owing. Boone and Bough are taking steps to attempt to secure payment of their debentures by means of an application to this Court. Medusa says that Boone and Bough’s attempt to enforce their debentures at this time and in this manner constitutes breaches of the agreements governing the debentures and that therefore the application cannot proceed under the present circumstances. Medusa further claims that the alleged breach by Boone and Bough has caused it to suffer damages and it wants to counterclaim against Boone and Bough. In fact, Medusa has commenced separate action against Boone and Bough, alleging breach of contract and resulting economic losses. Medusa has now moved to have the Boone and Bough application to enforce their debentures converted into an action. The intent being that once that occurs this proceeding and the separate action for damages commenced by Medusa will be consolidated into one action with Boone and Bough as plaintiffs and Medusa as defendant and plaintiff by counterclaim. Boone and Bough vigorously oppose the motion by Medusa to convert their initial application into an action. Issue: Factors for the Court to consider on Motion to Convert. Result: Dismissed the Motion of Medusa to convert as it had failed to satisfy the Court, on a balance of probabilities, that an application was not appropriate. Costs awarded to Respondents. 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: Boone v. Medusa Medical Technologies Inc., 2011 NSSC 492 Date: 20111028 Docket: Hfx No. 352947 Registry: Halifax Between: Peter Boone and Loren Bough Applicants/Respondents v. Medusa Medical Technologies Inc. Respondent/Applicant Judge: The Honourable Justice Allan P. Boudreau. Heard: October 25, 2011, in Halifax, Nova Scotia Written Decision: January 10, 2012 Counsel: Alexander Cobb, for the Applicants/Respondents Roderick (Rory) H. Rogers, Q.C., for the Respondent/Applicant By the Court: INTRODUCTION [1] The Applicants, Peter Boone (“Boone”) and Loren Bough (“Bough”) hold some $2.5 million dollars worth of debentures issued by the Respondent, Medusa Medical Technologies Incorporated. The debentures have matured and Medusa has failed to pay the principal and interest amounts owing. [2] Boone and Bough are taking steps to attempt to secure payment of their debentures by means of an application to this Court. Medusa says that Boone and Bough’s attempt to enforce their debentures at this time and in this manner constitutes breaches of the agreements governing the debentures and that therefore the application cannot proceed under the present circumstances. [3] Medusa further claims that the alleged breach by Boone and Bough has caused it to suffer damages and it wants to counterclaim against Boone and Bough. In fact, Medusa has commenced separate action against Boone and Bough, alleging breach of contract and resulting economic losses. [4] Medusa has now moved to have the Boone and Bough application to enforce their debentures converted into an action. The intent being that once that occurs, this proceeding and the separate action for damages commenced by Medusa will be consolidated into one action with Boone and Bough as plaintiffs and Medusa as defendant and plaintiff by counterclaim. Boone and Bough vigorously oppose the motion by Medusa to convert their initial application into an action. [5] Medusa is body corporate registered pursuant to the laws of the Province of the Nova Scotia and it is in the business of creating and developing software and other technology solutions for the healthcare industry. [6] Mr. Boone is resident of London, England and he holds PHD in economics from Harvard University and he has been lecturer at the London School of Economics and an investment banker and he is presently the Chair of charity based in the U.K. called Effective Intervention. Mr. Bough is resident of Big Sky, Montana, USA. [7] In 2006, Medusa issued certain secured debentures with maturity date of June 30, 2010. This maturity date was subsequently extended to January 14, 2011, by agreement of the parties. Mr. Boone and Mr. Bough hold 2006 debentures in the principal amounts of $1,500,000.00 and $500,000.00 respectively. [8] In 2008, Medusa issued further debentures with maturity date of January 31, 2012. Mr. Boone and Mr. Bough hold 2008 debentures in principal amounts of $375,000.00 and $125,000.00 respectively. [9] January 14, 2011, being the extended maturity date for the 2006 debentures, has come and gone and Boone and Bough have not been paid. Moreover, the debentures contain an acceleration clause in the event of default and Boone and Bough are seeking repayment of the 2008 debentures as well. [10] Boone and Bough have demanded payment of all of the principal and interest amounts owing under both the 2006 and 2008 debentures and these amounts remain unpaid. Medusa does not dispute that the amounts remain unpaid. [11] In an effort to secure repayment of the debts owing to them, Boone and Bough have commenced an application in this court, requesting four avenues of relief as outlined in paragraphs (a), (b), (c) and (d) of the Notice of Application filed on July 25, 2011. These are: (a) judgment for all amounts owing under the debentures; (b) the appointment of receiver; (c) in the alternative, the appointment of receiver pursuant to the Third Schedule of the “Companies Act” by reason of alleged “oppressive” conduct on the part of Medusa; and [12] Medusa has contested the Boone and Bough application, alleging that they are barred from pursuing such enforcement procedures by virtue of the clear and unambiguous language contained in the Debenture Agreements signed by the parties. Medusa says the agreements provide clear steps in the event of an alleged default. [13] Both the 2006 and 2008 Debenture Agreements contain the following clauses: 2.2 Enforcement of Security 2.2.1 Each Debentureholder shall give immediate written notice to the other Debentureholders of the following: (a) the occurrence of an event of default or default under any Debenture held by it or under any of its Security; or (b) any action taken by it for any reason to accelerate payment of any indebtedness evidenced by any Debenture held by it; or (c) its desire to commence enforcement proceedings under or in respect of any Debenture held by it or under or in respect of any of its Security. 2.2.2 No Debentureholder shall commence enforcement proceedings under or in respect of any Debenture without the express written consent of the holders of not less than Sixty percent (60%) of the then aggregate outstanding principal amount issued under the Debentures. 3. EXERCISE OF REMEDIES 3.1 Appointment of Enforcement Committee In the event one or more Debentureholders is authorized in accordance with 2.2.2 to commence proceedings to enforce its Security, which shall only occur after such Debentureholder(s) receives the express written consent of the holders of not less than Sixty percent (60%) of the then aggregate outstanding principal amount issued under the Debentures, the Debentureholders shall, subject to applicable law and within ten (10) days following the forwarding of Notice of Commencement of Enforcement, meet and appoint committee (the “Enforcement Committee”) to supervise, direct and carry out the security enforcement proceedings, which actions may include directing the sale of the assets and undertaking of the Company as going concern, the appointment of receiver, receiver and manager or receiver-manager (herein referred to as the “Receiver”) under the Debentures and the Security, the instruction of such Receiver and/or the exercise of any other rights or remedies provided for under the Debentures and/or Security. The Debentureholders shall appoint one member of the Enforcement Committee as the secretary of the Enforcement Committee and shall set the initial time and place for the first meeting of the Enforcement Committee, which first meeting shall be held no later than seven (7) days following the appointment of the Enforcement Committee. The Enforcement Committee shall be compromised of not more than five (5) persons and shall include one nominee appointed by CICI, one nominee appointed by InNOVAcorp, one nominee appointed by TVC, one nominee appointed by Boone and one nominee appointed by Bough. Each Debentureholder covenants and agrees to respect and comply with decisions of the Enforcement Committee and to use its best efforts to cause its nominee to the Enforcement Committee to attend at all meetings of the Enforcement Committee. [14] Medusa alleges that Boone and Bough do not have the expressed written consent of the holders of at least 60% of the aggregate outstanding principal amount of debentures; and that, therefore, Boone and Bough are contractually barred from taking any enforcement action. Medusa has stated that, to the contrary, 66% of the holders of the aggregate outstanding principal amount of debentures have agreed to extend the maturity date of their debentures and that these are not yet due. [15] Medusa further alleges that even if Boone and Bough were not barred from taking enforcement steps in the present circumstances, then such enforcement steps would have to be in accordance with section of the Debenture Agreements, “Exercise of Remedies”, and in particular clause 3.1, which have just read, which mandates any enforcement to be effected by way of the “Enforcement Committee”. [16] Boone and Bough contest Medusa’s interpretation of the pertinent clauses of the Debenture Agreements and say that they are not barred from taking steps to secure repayment of their past due debentures by way of an application to this court. [17] Boone and Bough further allege that the conduct of Medusa with regard to repayment of their debentures amounts to “oppression” and they seek remedy pursuant to the Third Schedule of the “Companies Act”. While Boone and Bough have made an allegation of “oppression” by Medusa, they have not provided any details of this allegation to this point in time; although it should be noted that affidavits have not yet been filed in the initial application of Boone and Bough. That application was preempted by Medusa’s “Motion to Convert” it into an action pursuant to the Nova Scotia Civil Procedure Rules. [18] Medusa has also commenced separate action against Boone and Bough, alleging that their initial application is an attempt at enforcement in violation or in breach of clauses 2.2.2 and 3.1 of the Debenture Agreements. Medusa claims it has suffered or that it will suffer damages or losses because of contracts it may have lost due to the enforcement application of Boone and Bough. It is alleged that some of the contracts bid on by Medusa contain clause requiring Medusa to warranty that it is not being sued for alleged claims by third parties. [19] It is important to note that Medusa indicates that it may be up to year before it can ascertain if it has in fact suffered such losses and before any losses could begin to be quantified. [20] would summarize the position of the parties as follows. SUMMARY OF THE POSITIONS OF THE PARTIES [21] Boone and Bough maintain that their application should be allowed to continue because converting it to an action will protract proceedings indefinitely, denying them their right to timely determination of their claim. [22] They maintain that their application is basically one of interpreting the contract documents. They also maintain that the Third Schedule of the “Companies Act” contemplates claims of “oppression” being commenced by application in order to achieve just and timely determination. They also maintain that by combining their application with an as yet undeterminable and speculative claim by Medusa will deny them their right to timely determination on the question of repayment of their debentures. [23] They see their application as basically an issue of simply determining liability for and enforceability of their debentures, which decision could be determinative of all of the proceedings between the parties. [24] Medusa, on the other hand, maintains that Boone and Bough’s application is more complicated then might initially appear. They say that Boone and Bough intend to lead “extrinsic” evidence on the meaning and interpretation of the Debenture Agreements. It says this will involve countless and yet unascertained witnesses. Medusa also maintains that the claim of “oppression” is, at present, moving target without details and will likely further render the proceedings complex and, by nature, more protracted than professed by Boone and Bough. [25] Moreover, Medusa maintains that if the matter continues as an application, it will not be able to advance counterclaim in that proceeding and it will be forced to continue with its separate action for damages for the alleged breach of the Debenture Agreements. It says this will entail two separate proceedings with many of the same issues, witnesses and evidence, and possible conflicting decisions. [26] Medusa maintains that there should only be one proceeding, namely an action with claim from Boone and Bough, with defence and counterclaim by Medusa. AUTHORITIES AND ANALYSIS [27] The governing authority for Medusa’s motion to convert the within application to an action is found in Nova Scotia Civil Procedure Rule 6, which provides as follows: Choice of proceeding 6.01 person may choose to start an action or an application as the person is satisfied would be appropriate, unless legislation under which the proceeding is started requires only one kind of proceeding. Converting action or application 6.02 (1) judge may order that proceeding started as an action be converted to an application or that proceeding started as an application be converted to an action. (2) party who proposes that claim be determined by an action, rather than an application, has the burden of satisfying the judge that an application should be converted to an action, or an action should not be converted to an application. (3) An application is presumed to be preferable to an action if either of the following is established: (a) substantive rights asserted by party will be eroded in the time it will take to bring an action to trial, and the erosion will be significantly lessened if the dispute is resolved by application; (b) the court is requested to hold several hearings in one proceeding, such as with some proceedings for corporate reorganization. (4) An action is presumed to be preferable to an application, if the presumption in favour of an application does not apply and either of the following is established: (a) party has, and wishes to exercise, right to trial by jury and it is unreasonable to deprive the party of that right; (b) it is unreasonable to require party to disclose information about witnesses early in the proceeding, such as information about witness that may be withheld if the witness is to be called only to impeach credibility. (5) On motion to convert proceeding, factors in favour of an application include each of the following: (a) the parties can quickly ascertain who their important witnesses will be; (b) the parties can be ready to be heard in months, rather than years; (c) the hearing is of predictable length and content; (d) the evidence is such that credibility can satisfactorily be assessed by considering the whole of the evidence to be presented at the hearing, including affidavit evidence, permitted direct testimony, and cross-examination. (6) The relative cost and delay of an action or an application are circumstances to be considered by judge who determines motion to convert proceeding. Evidence for converting an application 6.03 (1) party who makes motion to convert an application to an action must, by affidavit, provide all of the following: (a) description of the evidence the party would seek to introduce; (b) the party’s position on all issues raised by the application; (c) disclosure of all further issues the party would raise by way of either notice of contest, if the proceeding remains an application, or statement of defence, if the proceeding is converted to an action. (2) Despite Rule 6.03(1), party who wishes to withhold disclosure of evidence the party will produce only to impeach witness need not describe the evidence, or the investigations to be undertaken to obtain the evidence. [28] Civil Procedure Rule 6.01 makes it clear that it is the initiating party who chooses the method of proceeding, ie., application or action, which it “is satisfied would be appropriate”. Rule 6.02(2) clearly places the burden of satisfying the judge that an application is not the appropriate means of proceeding on the party advancing that proposition. Therefore, the burden of satisfying me of such proposition, on balance of probabilities, rests with Medusa in this instance. [29] Rule 6.03 provides list of the items of evidence which must be provided by way of affidavit on motion to convert. While the parties have complied with this requirement, the affidavit evidence in this regard, as provided by both parties, is rather sketchy and very speculative in many aspects. There is dearth of detail on the evidence, especially the witnesses the parties would introduce. While Rule 6.03(1) places the burden on the moving party to provide the Court with that evidence or information in its affidavits with respect to its intended evidence; it would seem to me that the responding party must also do its best to provide the same information in its affidavit or affidavits. Otherwise, the Court only gets one portion of the entire picture. [30] Rule 6.02(3) provides presumption in favour of an application if the court finds that either of the two things enumerated are established. The first is finding that substantive rights asserted by party will be eroded in the time it will take to bring an action to trial and that an application will significantly lessen that erosion. [31] In the instant case, Boone and Bough maintain that the passage of time will significantly diminish their ability to secure payment of the amounts owing under their Debentures because it will at the same time significantly diminish Medusa’s ability to pay those Debentures. [32] Medusa has stated in the affidavit of Mr. Glen Dexter that ongoing legal claims against it will cause the company to potentially lose contracts on which it is bidding or on which it intends to bid. am therefore satisfied that lengthy court battle over Boone and Bough’s claims would significantly erode their substantive rights and the ability to secure repayment of their Debentures from Medusa. As things presently stand, more Debentures will mature next year. [33] Rule 6.02(3)(b) provides for another presumption in favour of an application if the Court will be requested to hold several hearings in one proceeding. While this Rule gives one example of such hearings, it is by no means clear what would qualify as such hearings. In the present case, it is anticipated that there will be Motion for Directions if the matter proceeds as an Application. There may also be Motions for Production of Documents or for the ordering of discoveries of some of the parties or witnesses. But these, if they occur, should be minor. Therefore, on the face of it, am satisfied that the presumption outlined in Rule 6.03(b) would also apply. [34] Rule 6.03(4) provides presumptions in favour of an action if the presumptions in favour of an application outlined in Rule 6.03(3) do not apply. Although have found that the presumptions in Rule 6.03(3) do apply, would have no hesitation in finding that presumptions in favour of an action found in Rule 6.03(4) do not apply. [35] Notwithstanding the above, that is not the end of the analysis. Rule 6.03(5) provides other factors in favour of an application and which the Court can consider in deciding whether the presumptions favourable to an application found in Rule 6.03 should carry the day. [36] The first such factor is found in sub-clause (a) of Rule 6.03(5). It is whether the parties can quickly ascertain who their important witnesses will be. It is noteworthy that the term (witnesses) has been qualified with the adjective, important. There are very few “key players” involved in the determination of Boone and Bough’s application. Medusa says that the allegation of “oppression” complicates the matter to such an extent that it is not possible to determine who the parties’ witnesses will be because we have no details of this allegation. [37] As stated, there are very few important or “key players” involved in both issues raised by Boone and Bough’s application. am satisfied the important witnesses can be quickly ascertained. Moreover, the Third Schedule of the “Companies Act”, provides for commencing allegations of “oppression” by means of an application. Although the latter is not determinative or binding on the Court, am not satisfied that, at this stage of the proceedings, an application is not appropriate for an allegation of “oppression”. [38] Sub-clause (b) of Rule 6.03(5) asks whether the parties can be ready to be heard in months rather than years. There is very little doubt but that Boone and Bough’s initial application can be heard in months rather than years. The issue that will necessarily drag the proceedings to years is the intended counterclaim by Medusa for as yet undeterminable, possible or potential economic losses allegedly caused by Boone and Bough’s enforcement application. [39] Medusa maintains that if Boone and Bough’s application is not converted to an action, it will be forced to continue with its separate action for those alleged damages. On the other hand, the Boone and Bough application can be heard in months and is potentially determinative of both proceedings on the question of possible liability on the part of Boone and Bough. If it is not, then Medusa can continue with separate action for damages, which, according to Medusa’s evidence, will not be ready to proceed in any meaningful way for year and would presume substantially longer than that. [40] This is prime case for determining any possibility of liability on the part of Boone and Bough at the earliest possible stage and that can best be accomplished in an application which may decide that issue. [41] Medusa raises the possibility of conflicting decisions on the question of the legality of Boone and Bough’s application if separate proceedings are maintained. In my view, that is very unlikely because there would be strong argument that “issue estoppel” would prevail. In fact, the most likely parties who would possibly want to re-litigate that issue would be Boone and Bough and they have acknowledged in these proceedings that “issue estoppel” would apply to any subsequent proceedings questioning the legality of their enforcement application. [42] While the possibility of discoveries has been raised, that would require the permission of the court and the need for those is not apparent at this time. In any case, they would probably be minimal. am satisfied the parties can be ready in months. [43] Another factor enumerated in Rule 6.03(5) is clause (c), which asks whether the hearing is of predictable length. Contrary to what some of the parties have alluded to in this motion, am of the view that the hearing should be predictable. It would appear at this stage that the hearing could proceed primarily by way of affidavit evidence and cross examinations. The issues are very straight forward. With appropriate directions, the hearing should be of predictable length. [44] Sub-clause (d) of Rule 6.03(5) raises the question of credibility and whether it can be satisfactorily assessed in an application, which would proceed primarily by way of affidavit evidence and cross examination and possibly limited direct testimony. In my view, the application of Boone and Bough is primarily document driven and it will require minimum assessment of credibility. If there are such issues, am satisfied that they can be satisfactorily assessed in the context of the initial application as that proceeding is envisaged at this time. [45] Rule 6.03(6) provides other circumstances to be considered by the Court in motion such as this one. These are the relative costs and delay associated with the two different modes of proceeding. There can be no question that an action as intended by Medusa will significantly increase the costs of determining the initial issue in these proceedings; which issue is “the legality” of Boone and Bough’s enforcement application. [46] On the other hand, the issue of damages or economic losses allegedly suffered by Medusa, as result of Boone and Bough’s enforcement application, will be much more time consuming and costly then the application to determine the legality of Boone and Bough’s initial application. This issue will of necessity cause extensive delays in finalizing an action involving such counterclaim. [47] In conclusion, have considered all of the evidence presented, the applicable Civil Procedure Rules, the jurisprudence referred to me and the able and helpful submissions by counsel for the parties and am not satisfied that the initial application of Boone and Bough should be converted to an action at this time. [48] The moving party, Medusa, has failed to meet its burden of proving such proposition on balance of probabilities. The motion of Medusa is therefore dismissed. [49] Having said that, court proceedings are live and fluid thing. It is not always possible to predict, with any degree of certainty, how future events may unfold. However, court directions after motion for such can go long way to make future events more predictable and more certain. That certainly appears to be the case in these proceedings. [50] If matters should unfold in direction which indicates that an application is no longer appropriate, believe it is always open to party to bring forth new motion to convert an application which has gone awry into an action. [51] Boone and Bough shall have their costs on this motion on party and party basis. If the parties cannot agree on such costs, which strongly urge them to attempt, will entertain written submissions from Boone and Bough and Medusa on or before November 18, and December 2, 2011, respectively. [52] will grant an Order accordingly, prepared by counsel for Boone and Bough and consented as to form by counsel for Medusa. Boudreau, J.

motion dismissed. There are factors that suggest there is a presumption in favor of proceeding by way of an application (Rule 6.02(3)). The respondent failed to show that, on balance, an action is the preferable route. While not all of the witnesses will be ascertained quickly, the important ones can be, which is all that Rule 6.03(5)(a) requires. The hearing should be predictable in scope and length and ready to be heard within months. The issues are straightforward. The only thing that would cause delay is the intended counterclaim.

8_2011nssc492.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 403 Date: 2013 11 14 Docket: Q.B. 620 of 2012 Judicial Centre: Regina BETWEEN: CAREY HEILMAN and THE WORKERS’ COMPENSATION BOARD Counsel: Nicole L. Sarauer for the applicant Leonard D. Andrychuk Q.C. for the respondent JUDGMENT WHITMORE J.A. November 14, 2013 Ex officio INTRODUCTION [1] This is an application for judicial review of decision of The Workers’ Compensation Board (the “Board”) denying the applicant reimbursement for the cost of the applicant’s medical marihuana. [2] The applicant suffers from chronic back pain and muscle spasms as result of work related injuries incurred in 1981 and 1982. The respondent concedes the applicant is entitled to compensation under The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1 (the “Act”). [3] The applicant has been prescribed numerous medications for pain over the years with varying degrees of success. In 2002, on the recommendation of his physician, he commenced using medical marihuana. The marihuana provides him more effective relief without the severe side effects that accompany other drugs. His primary method of marihuana consumption is through baked goods or vaporizer, although he smokes it when other methods are not readily available. [4] In 2011, the Board denied the applicant reimbursement for the cost of his medical marihuana. Upon an application for judicial review of that decision, Justice McMurtry found that the Board improperly fettered its discretion by relying on the submissions of the Board’s medical consultant and medical department. See: Heilman v. Saskatchewan (Workers’ Compensation Board), 2012 SKQB 361 (CanLII), 404 Sask. R. 134. Justice McMurtry remitted the matter to the Board. The applicant brings this application to review the Board’s decision to once again deny reimbursement to the applicant. 1. What is the standard of review of the Board’s decision to deny reimbursement of Mr. Heilman’s medical marihuana costs? 2. Did the Board exceed its jurisdiction in enacting Policy Statement of POL 10/2011 to deny reimbursement of medical marihuana claims in all cases? 3. Does the Board have the jurisdiction to deny reimbursement for specific medical treatment? 4. Did the Board’s decision to deny reimbursement to Mr. Heilman meet the appropriate standard of review? 5. Was the Board’s decision made for an improper purpose? Did the Board base its decision on irrelevant considerations? 1. What is the standard of review of the Board’s decision to deny reimbursement of Mr. Heilman’s medical marihuana costs? [5] In the earlier decision referred to, Justice McMurtry determined that the applicable standard of review was that of reasonableness. The parties agree that reasonableness is the appropriate standard of review for this matter as well. [6] Dunsmuir v. New Brunswick, 2008 SCC (CanLII), [2008] S.C.R. 190 (“Dunsmuir”) established that there are only two standards of review, that of reasonableness and that of correctness. In Mellor v. Saskatchewan (Workers’ Compensation Board), 2012 SKCA 10 (CanLII), 385 Sask. R. 210 (“Mellor”) at para. 19, the Court held that the standard of review for decisions of The Workers’ Compensation Board will be reasonableness if the question before the Board “...relates to the interpretation and application of the Act, is within the Board’s expertise and does not raise issues of general legal importance...”. In the case before me, the Board is interpreting and applying the Act. There are no issues of general legal importance. Thus the appropriate standard of review in this matter is the standard of reasonableness. [7] In Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] S.C.R. 890, [1997] S.C.J. No. 74 (QL), the Supreme Court specifically found that the Saskatchewan Workers’ Compensation Board has significant expertise in dealing with all aspects of the workers’ compensation system. [8] In reviewing the reasonableness standard in Mellor, the Court of Appeal held that decision is reasonable if it falls within the range of “possible acceptable outcomes”. In Dunsmuir, at para. 47, it was held that “...[i]n judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process. But it is also concerned with whether the decision falls within range of possible, acceptable outcomes which are defensible in respect of the facts and law.” [9] In the case of Canada (Director of Investigation and Research Competition Act) v. Southam Inc., 1997 CanLII 385 (SCC), [1997] S.C.R. 748, [1996] S.C.J. No. 116 (QL) at para. 56, it was held that decision is unreasonable where it “is not supported by any reasons that can stand up to somewhat probing examination.” In the case of Law Society of New Brunswick v. Ryan, 2003 SCC 20 (CanLII), [2003] S.C.R. 247 at para. 55, it was held that “[a] decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.” 2. Did the Board exceed its jurisdiction in enacting Policy Statement of POL 10/2011 to deny reimbursement of medical marihuana claims in all cases? [10] The Board has approved Policy 10/2011 which contains specific policy for the reimbursement of medications which includes policy regarding reimbursement for medical marihuana, which does not allow reimbursement for medical marihuana. [11] Statement of Policy 10/2011 reads as follows: 5. The WCB will not reimburse the costs of obtaining, growing, or using medical marihuana (i.e., the smoked form). [12] The applicant argues that the prohibition on the reimbursement of the cost of medical marihuana exceeds the Board’s jurisdiction. Although the applicant acknowledges that clause was not specifically mentioned in the decision, he argues the clause was influential in the decision and should be held ultra vires. [13] The respondent argues that clause is not relevant as the Board did not apply or rely on it in reaching its decision. The respondent states that the Board’s decision was based on its authority under the Act rather than relying on clause 5. The respondent further states that the Board decided the issue of reimbursement by asking whether, based on the evidence, medical marihuana was “appropriate and needed” to treat Mr. Heilman. [14] The Board found that it had the power to create POL 10/2011 as an exercise of the exclusive jurisdiction granted to it under s. 22(1) of the Act. The respondent argues there is no evidence that the Board relied on clause to deny reimbursement. Rather, the decision was based on medical research and on the fact that Mr. Heilman had not tried the marihuana drug derivative Sativex. [15] am in agreement with the position of the respondent. While it is certainly arguable that the Board cannot rely on blanket prohibition to deny the reimbursement of particular drug, this does not appear to be the case here. The Board did not rely on Policy Statement 5 or even mention it in its decision, but based its decision on the evidence before it. Therefore, even if Policy Statement is ultra vires, it does not decide this matter. It is not necessary to decide whether Policy Statement 5 is ultra vires. 3. Does the Board have the jurisdiction to deny reimbursement for specific medical treatment? [16] The relevant statutory provisions of the Act are as follows: 21.1(1) The board shall: ... (b) arrange to provide any medical aid or treatment that may be required in the circumstances as result of injuries to workers; 22(1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which power, authority or discretion is conferred upon the board and, without limiting the generality of the foregoing, the board shall have exclusive jurisdiction to determine: (a) whether any condition or death in respect of which compensation is claimed was caused by an injury; (b) whether any injury has arisen out of or in the course of an employment; (c) the existence and degree of functional impairment to worker by reason of an injury; (d) the permanence of functional impairment resulting from an injury; (e) the degree of diminution of earning capacity caused by an injury; (f) the average earnings; (g) the existence of the relationship of any member of the family of worker and the degree of dependency; (h) whether any industry or any part, branch or department of any industry is within the scope of this Act and the class to which it is assigned; (i) whether any worker is within the scope of this Act. (2) The decision and finding of the board under this Act upon all questions of fact and law are final and conclusive and no proceedings by or before the board shall be restrained by injunction, prohibition or other proceeding or removable by certiorari or otherwise in any court. (3) Notwithstanding subsection (2), the board may reconsider any matter that it has dealt with or may rescind, alter or amend any decision or order it has made. 106(1) Every worker who is entitled to compensation or who is disabled only on the day of the accident shall be entitled without charge to: (a) any medical aid that may be necessary as result of the injury; (b) any other treatment by health care professional; (c) any artificial member or apparatus that may be necessary as result of the injury, and to have any artificial limbs and eyes and any surgical appliances such as belts, braces, supports and orthopaedic shoes, whether provided before or after this section comes into force, repaired, maintained and renewed when necessary by reason of accident or ordinary wear and tear; (d) any transportation or sustenance occasioned by the medical aid. (2) Medical aid shall be furnished or arranged for by the board as it may approve. [17] The Board found that it had authority to determine “if it will reimburse any worker for medications whose medical efficacy has not been established” pursuant to its exclusive jurisdiction granted by s. 22(1) to determine all matters in questions arising under the Act. [18] The applicant argues that the Act does not grant such broad authority. Instead, s. 22(1) must be read in context with s. 106(1). According to the applicant, neither ss. 106(1) or (2) permits the Board to decide that particular medical aid will not be reimbursed. The use of the word “shall” in s. 106(1) requires the Board to provide medical aid to injured employees. [19] The applicant further argues that decision to ban the reimbursement of specific type of drug effectively forces patients to take different course of treatment from that recommended by their doctor. [20] The respondent’s position is that the Board’s conclusion that the Act provides discretion to determine whether or not to reimburse the cost of the drug is “well within the bounds of reasonableness.” (Brief, para. 36) The respondent states that s. 21.1(1)(b) and ss. 106(1) and (2) must be read together with s. 22(1) which expressly grants the Board exclusive jurisdiction to hear and determine “all matters and questions arising under this Act ...”. [21] According to the respondent, the question of whether medical aid is “required in the circumstances” under s. 21.1(1)(b) or is “necessary as result of the injury” under s. 106(1)(a), are matters arising under the Act. The Board is expressly given jurisdiction to decide such matters by s. 22(1). Therefore, according to the respondent, the Board has jurisdiction to deny reimbursement for medical aid that it determines is not required or necessary in particular case. [22] The respondent states that the Board was required to interpret its own statute with which it is well familiar. The approach to interpreting legislation is articulated by Elmer Driedger in Construction of Statutes, 2nd ed. (Toronto:Butterworths, 1983) as quoted in Rizzo Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] S.C.R. 27, [1998] S.C.J. No. (QL) and as referred to in Mellor, supra: ... Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [23] Based on the wording of the Act and the context of the relevant provisions, I am of the view that the Board’s interpretation that the Act granted the Board discretion to refuse to reimburse a specific medical treatment is reasonable. [24] Section 22(1) grants the Board “...exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which power, authority or discretion is conferred upon the board ...”. [25] The question of what medical aid is necessary for particular patient is, by definition, question arising under the Act. There is nothing in the language of s. 106(1) indicating that determining what “may be necessary” for particular patient is outside the ambit of the Board’s exclusive jurisdiction. The most that might be said is that s. 106(1) mandates the Board to provide particular medical aid once the Board has determined that aid is necessary for the patient. The plain language of s. 106(1), read in conjunction with the rest of the Act, does not lead to the conclusion that the Board has no say over whether particular medical aid is necessary and should be reimbursed. [26] The same analysis applies to s. 21.1(1)(b). There is nothing in the language of that section that suggests the Board does not have the power to determine whether particular type of treatment “may be required in the circumstances” and to refuse treatments that are found not to be required. [27] am of the view that the conclusion that the Board has discretion to refuse to reimburse particular treatment falls within the range of “possible acceptable” interpretations of the Act. Following the language of Ryan, supra, there is line of analysis that could “reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.” Therefore, in my view, the Board’s decision that it has the power to deny reimbursement meets the standard of reasonableness. [28] The applicant’s position is that once doctor recommends course treatment or medication, the Board has no authority to determine whether such treatment is “necessary as result of the injury” under s. 106(1). do not find this to be reasonable interpretation, however, even if this is reasonable interpretation of the Act, it is not the only reasonable interpretation. The Board provided an interpretation that was also reasonable and deference must be given to it. 4. Did the Board’s decision to deny reimbursement to Mr. Heilman meet the appropriate standard of review? [29] The applicant takes the position that the Board has denied reimbursement for medication that had worked for Mr. Heilman for 10 years and that had been recommended by an expert doctor. The only reason the Board could provide was perceived lack of scientific approval for medical marihuana. [30] The respondent replies that the Board denied reimbursement only after thorough consideration of medical studies dealing with the use of medical marihuana for pain relief. The Board acknowledged the applicant’s evidence that marihuana was providing more effective relief than other drugs. However, the Board noted that the studies presented did not support the applicant’s claim that the use of marihuana in “...smoked, vaporized form or in baked goods, is currently safe or effective, or will be so in the long term. All of the studies indicated further research was required.” [31] The Board concluded that because medical marihuana had not been “scientifically proven” as appropriate for Mr. Heilman’s condition with respect to “...effectiveness, long term effects, interaction with other medications or safety of medication...”, it would not approve reimbursement. The Board also found that viable marihuana substitutes, such as Sativex, were available but the applicant had not tried to use them, despite the fact that reimbursement is available for the cost of Sativex. [32] According to the respondent, the Board’s decision is “...clearly within the range of reasonable outcomes. To argue otherwise would be to suggest that the medical studies support only one reasonable conclusion that medical marihuana is proven, effective treatment for Mr. Heilman’s condition...”. Furthermore, it would require finding that Sativex was not reasonable alternative to marihuana. [33] In its decision, the Board canvassed the studies submitted by the applicant. After providing brief summary of each study, the Board concluded that while the studies suggested that there may be “promise at some point in the future related to the use of medical marihuana”, nevertheless further research was required to assess the relative risks and benefits, recommended dosages, safety, quality and efficacy of marihuana as medicine. [34] The Board’s conclusion falls within range of acceptable outcomes and is supported by the evidence. The Board did not misinterpret or misconstrue the results of the studies. The studies did not definitively state that medical marihuana was effective. Many studies noted side effects and most recommended further research before drawing definitive conclusions on the use of marihuana as medicine. [35] The Board’s conclusion led to its ruling that the cost of medical marihuana should not be reimbursed as the Board can deny reimbursement for treatment that has not been proven safe or effective. The Board’s explicit assumption is that an unproven drug is not, using the language of ss. 106(1) and 21.1(1)(b) “necessary” or “required” for the patient. The Board said at p. “[w]here there is scant evidence regarding the effectiveness, long term effects, interaction with other medications or safety of medication, including medical marijuana [sic], the Board finds that it is not necessary to the worker that he be provided with this type of medical aid for the treatment of his injury.” [36] It is possible that a situation may arise where a patient’s only recourse is to use a non-clinically approved drug whose safety and efficacy is still somewhat questioned. In such a case, a determination that the medical aid is not “necessary” or “required” might be unreasonable but this is not the case here. [37] As the Board noted, Mr. Heilman had the opportunity to try Sativex, marihuana derivative that does not share the potential adverse side effects associated with marihuana. Mr. Heilman declined to try Sativex. The Board’s decision to decline reimbursement on the basis that medical marihuana is not proven and therefore not “necessary or required” is reasonable when one considers the availability of Sativex. [38] Ultimately, the Board’s decision is reasonable. The Board essentially held that the benefits and safety of medical marihuana have not been established to the point that it is “necessary” or “required” medical aid. This conclusion is supported by research and is all the more reasonable when one considers alternative medication. This may not be the best decision for Mr. Heilman, particularly in view of the fact that medical marihuana has worked for Mr. Heilman for 10 years, however, the Board’s decision was within range of reasonable outcome supported by the evidence. 5. Was the Board’s decision made for an improper purpose? Did the Board base its decision on irrelevant considerations? [39] The applicant argues that the Board’s decision was made for an improper purpose. According to the applicant, the Board denied reimbursement because medical marihuana is socially contentious. [40] The Board refused reimbursement on the basis that medical marihuana is potentially unsafe and its positive effects are clinically unproven. If the Board has authority to refuse reimbursement for such reasons, there is no improper purpose. There is no evidence before me that the Board based its decision on the basis that medical marihuana is controversial moral issue. [41] The applicant also asserts that the Board based its decision on irrelevant considerations, in effect, misconceived perception of the potential political ramification of paying for medical marihuana. [42] Again, there is no evidence that the Board made its decision on the basis of considerations such as the potential political consequences of paying for medical marihuana. On the face of its reasons, the Board denied reimbursement specifically because medical marihuana is potentially unsafe and unproven. [43] In the end result, the application is dismissed. J.A. P. A. WHITMORE

HELD: The application was dismissed. With respect to the issues, the Court found: 1) that the board had not relied upon the clause in the Policy Statement but on the evidence before it. It was not necessary to decide then whether the Policy Statement was ultra vires; 2) that the board’s interpretation that the Act granted discretion to the board to refuse to reimburse a specific medical treatment was reasonable; 3) that the board’s conclusion was reasonable. The scientific studies did not definitively stated that medical marijuana was effective. In some situations where a patient’s only recourse would to be to use a non-clinically approved drug whose safety and efficacy was still questioned, a determination that the medical aid was not necessary or required might be unreasonable, but not in this case where the applicant declined to try Sativex; and 4) that there was no evidence that the board based its decision on irrelevant considerations such as the potential political ramifications of paying for medical marijuana.

8_2013skqb403.txt

2004 SKQB 19 Q.B.G. A.D. 2003 No. 2102 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: WESTRIDGE CONSTRUCTION LTD. and ZURICH INSURANCE COMPANY and SOVEREIGN GENERAL INSURANCE COMPANY RESPONDENTS Gary G. W. Semenchuck, Q.C. for the applicant Richard W. Danyliuk for Zurich Insurance Company C. Dean Clackson for Sovereign General Insurance Company JUDGMENT McLELLAN J. January 23, 2004 [1] The applicant (“Westridge”) applies by originating motion for a declaration that the respondents (“Zurich” and “Sovereign”) are obligated to pay a proportionate share of defence costs to defend a claim brought against Westridge and others by Genex Swine Group Inc. (the “underlying action”). [2] In the action Genex claims damages from Westridge with respect to the construction of hog barn to house genetic nucleus herd of swine near Balcarres Saskatchewan (the “hog barn”). Westridge was the general contractor. [3] Each of the respondents issued comprehensive general liability policies in favour of Westridge. The respondents take the position that under the policies they issued they are not obligated to defend (and to pay defence costs) for the claims brought against Westridge in the underlying action. [4] The law is well established that the pleadings determine whether or not the respondents have duty to defend. It matters not whether Genex may or may not succeed in the action. If the claim alleges state of facts which, if proven, would fall within the coverages provided for under the policy, the obligation of the insurer to defend is triggered, regardless of the truth or falsity of those allegations. This principle was reiterated by the Supreme Court of Canada in Monenco Ltd. v. Commonwealth Insurance Co., 2001 SCC 49 (CanLII); [2001] S.C.R. 699 at para. 28, in the following terms: 28 The starting premise for assessing whether an insurer’s duty to defend has been triggered rests in the traditional “pleadings rule”. Whether an insurer is bound to defend particular claim has been conventionally addressed by relying on the allegations made in the pleadings filed against the insured, usually in the form of statement of claim. If the pleadings allege facts which, if true, would require the insurer to indemnify the insured for the claim, then the insurer is obliged to provide defence. This remains so even though the actual facts may differ from the allegations pleaded. The “pleadings rule” was articulated by the British Columbia Supreme Court in Bacon v. McBride (1984), 1984 CanLII 692 (BC SC), C.C.L.I. 146, where Wallace J. stated, at p. 151: The pleadings govern the duty to defend—not the insurer’s view of the validity or nature of the claim or by the possible outcome of the litigation. If the claim alleges state of facts which, if proven, would fall within the coverage of the policy the insurer is obliged to defend the suit regardless of the truth or falsity of such allegations. If the allegations do not come within the policy coverage the insurer has no such obligation. [5] The onus of establishing that the terms of the policy obligate the insurer to defend rests with the applicant. If the applicant satisfies that onus then the onus shifts to the insurer to establish that the claim is not covered by reason of an exclusion under the policy. [6] This principle was summarized by the Ontario Court of Appeal in Alie v. Bertrand Frère Construction Co. (2002), 2002 CanLII 31835 (ON CA), 222 D.L.R. (4th) 687; (2002), 62 O.R. (3d) 345 at para. 22, as follows: [22] The trial judge correctly noted that there is two‑step process in the interpretation of an insurance policy. First, it is for the insured to demonstrate that the claim advanced comes within the insuring agreement. If the insured satisfies this burden, then it is for the insurer to establish that claim that would otherwise be covered is excluded by some term in the policy. [7] The relevant portions of the statement of claim setting forth the claim made by Genex against Westridge are the following: 27. It was expressly indicated on the instructions to tenderers, inter alia, that: (a) the project was for the construction of the “Tullymet Nucleus Unit”, which would have been known and understood to be barn for the housing of swine.... 28. On November 26, 1993, Westridge delivered its tender for the construction of the Tullymet Nucleus Unit, in accordance with the Invitation to Tender and the Specifications, by which it offered to furnish all material, plant and labour necessary for the proper completion of the Tullymet Nucleus Unit. 29. By letter dated December 2, 1993, Westridge provided to Genex list of modifications that it represented could be implemented by Genex in order to achieve cost savings. Among the modifications was proposal by Westridge to delete the Painted Sheet Steel Roof and use and substitute instead “Galvalume” steel cladding (the “Galvalume alternate”). 30. Westridge represented to Genex, expressly or by implication, that: (a) it had carefully examined all of the tender documents, including the tendering and contract requirements, the formal agreement, the general conditions of the contract, the general requirements, specifications, drawings and addenda; (b) it had the qualifications, expertise and ability to furnish all material, plans and labour necessary for the proper completion of the entire work as described in the tender and contract documents; (c) it had the qualifications and expertise to recommend the use of alternative products and construction methods; (d) the use of alternative products and construction methods, would not compromise the performance or longevity of the Tullymet Nucleus Unit unless expressly identified, and in particular that the use of the Galvalume alternate, would not compromise the performance or longevity of the building, or the building’s roof; (e) it could and would bring to bear due and proper expertise, skill, care and diligence in respect of all aspects of the construction of the Tullymet Nucleus Unit undertaken by it; and (f) if retained by Genex, it could and would carry out all aspects of the work in respect of the construction of the Tullymet Nucleus Unit with the result that the Tullymet Nucleus Unit would be fit and sufficient for the purpose for which it was intended and be of good material, design and workmanship and free of defects and be of reasonable durability having regard to similar structures built for similar purposes. 31. Both BBK and UMA were aware of the terms of the Westridge Tender, and the proposal by Westridge to use the Galvalume alternate. 32. In reliance upon the representations of Westridge referred to in paragraph 30, and the purported expertise of BBK, UMA and Westridge, Genex entered into contract with Westridge, made as of January 7, 1994, for Westridge to build the Tullymet Nucleus Unit (the “Westridge Contract”), which contract also included the Galvalume alternate. 33. Among the express terms of the Westridge Contract were the following: (a) Westridge would perform all work required by the contract documents (which include, inter alia, the tender documents, including the Specifications and Conditions of Contract); (b) Westridge would furnish all material, plant and labour necessary for the proper completion of the entire Tullymet Nucleus Unit; (c) Westridge would correct promptly, at its own expense, defects or deficiencies in its work which appear prior to and during the period of one year from the date of substantial performance of the work; (d) Westridge would review the contract documents and promptly report to Genex’s consultant any error, inconsistency or omission it may discover and not proceed with the work affected until it had received corrected or missing information from the consultant; (e) defective material and workmanship whenever found would be rejected regardless whether the defect was present but undetected during previous inspections; (f) defective material and workmanship would be removed and replaced by Westridge at its own expense; (g) work of Westridge and all subcontractors would be fabricated and installed in accordance with the best practice by craftsmen skilled in the work; (h) unless otherwise specified, the manufacturers latest printed instructions would be rigidly complied with in the methods and materials to be used in the installation of the work; and (i) Genex was to be notified in writing if the Specifications and/or any drawings conflict in any way with any manufacturers instructions. 34. It was further express term of the Contract that the duties and obligations imposed on Westridge by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. 35. In all of the circumstances, including those referred to above, Westridge, and its servants, agents and employees owed to Genex, inter alia: (a) duty of care, skill and diligence in respect of the construction of the Tullymet Nucleus Unit; (b) duty to warn Genex of any aspect of the Specifications, or change thereto, that would or might affect the use, maintenance, durability and/or longevity of the Tullymet Nucleus Unit; and (c) duty to make recommendations and to provide advice with respect to the Tullymet Nucleus Unit generally. ... The Completion of the Tullymet Nucleus Unit 39. The Tullymet Nucleus Unit was constructed at its intended location, near Balcarres, Saskatchewan, beginning in or about January, with “Galvalume” as the roof cladding material and using Foil Backed Insulation and the Heat Recovery System, in accordance with the Specifications. 40. Substantial Performance of the Westridge Contract was achieved on or about October 5, 1994. The Problems with the Tullymet Nucleus Unit Roof and the Breaches of Duties 41. Unknown to Genex at the time that it awarded the Westridge Contract, and allowed the construction of the Tullymet Nucleus Unit to proceed: (a) the Galvalume alternate was unsuitable for use in swine barn and its use would materially affect the maintenance, durability and longevity of the roof of the Tullymet Nucleus Unit and the use of the barn itself; (b) manufacturers of Galvalume had issued instructions with respect to the use of Galvalume which included warnings against the use of Galvalume in swine building applications; (c) the use of the Heat Recovery System as specified by UMA was unsuitable for use in swine building applications; and (d) the use of Foil Backed Insulation was unsuitable for swine building applications. 42. At no point in time did any of the Defendants warn Genex with respect to the matters referred to in paragraph 41 above, or that constructing the Tullymet Nucleus Unit in accordance with the Specifications, including with the Galvalume alternate, the Heat Recovery System and Foil Backed Insulation, would or might affect the use, maintenance, durability and/or longevity of the Tullymet Nucleus Unit and its roof. 43. Subsequent to the completion of the Tullymet Nucleus Unit, Genex discovered that the roof at the Tullymet Nucleus Unit was experiencing rusting. By May, 2001, severe corrosion had developed to the extent that the roof of the Tullymet Nucleus Unit had become perforated in areas, in the absence of intervention, extensive and catastrophic failure of the roof cladding system was to be expected within three to five years. 44. Each of BBK, UMA, Westridge, Van Alstine and Robertson were negligent and breached the contractual and other duties owed by them to Genex, particulars of which breaches include, inter alia, the following: ... (c) on the part of Westridge, it: (i) lacked the expertise and knowledge of, alternatively failed to apply the expertise and knowledge that it did have relating to: A. the limits and correct use and application of the material proposed by it to be used in the construction of the roof of the Tullymet Nucleus Unit, and in particular the Galvalume alternate; B. the limits and correct use and application of Foil Backed Insulation systems; (ii) failed to properly research the appropriateness of the material proposed by it to be used in the construction of the roof of the Tullymet Nucleus Unit, and in particular the Galvalume alternate; (iii) failed to warn Genex that the material proposed by it to be used in the construction of the roof of the Tullymet Nucleus Unit, and in particular the Galvalume alternate, was not recommended for use in swine building, and/or was not reasonably fit for use in swine building or that such use would or could affect the use, maintenance, durability and longevity of the Tullymet Nucleus Unit; (iv) failed to warn Genex that the proposed Foil Backed Insulation was not suitable for use in and was not reasonably fit for use in swine building or that such use would or could affect the use, maintenance, durability and longevity of the Tullymet Nucleus Unit; (v) failed to correct promptly, at its own expense, defects or deficiencies in its work which appeared prior to and during the date of substantial performance of the work; (vi) failed to review the contract documents and failed to promptly report to Genex’s consultant errors, inconsistencies or omissions it discovered or should have discovered if in fact it had reviewed the said contract documents; (vii) failed to reject defective or unsuitable material; (viii) failed to remove and replace defective or unsuitable material and workmanship at its own expense; (ix) failed to fabricate and install its work (and/or that of its subcontractors) in accordance with the best practice by craftsmen skilled in the work; (x) failed to comply rigidly with the manufacturers latest printed instructions in the methods and materials to be used in the installation of the work; and/or (xi) failed to notify Genex in writing that the specifications, as modified by its tender (and in particular, the use of the Galvalume alternate), conflicted manufacturers’ instructions. [Emphasis added] [8] The policies provide Westridge with the following coverage. Zurich Policy [9] The pertinent provisions of the police issued by Zurich are as follows: SECTION I—COVERAGES COVERAGE A. ... PROPERTY DAMAGE LIABILITY 1. Insuring Agreement a. We will pay those sums that the insured becomes legally obligated to pay as compensatory damages because of “bodily injury” or “property damage” to which this insurance applies. No other obligation or liability to pay sums or perform acts or services is covered unless explicitly provided for under SUPPLEMENTARY PAYMENTS—COVERAGES A, AND D. This insurance applies only to “bodily injury” and “property damage” which occurs during the policy period. The “bodily injury” or property damage” must be caused by an “occurrence”.... 1) The amount we will pay for compensatory damages is limited as described in SECTION III—LIMITS OF INSURANCE; Exclusions This insurance does not apply to: b. “Bodily injury” or “property damage” for which the insured is obligated to pay compensatory damages by reason of the assumption of liability in contract or agreement. This exclusion does not apply to liability for compensatory damages: 1) Assumed in contract or agreement that is an “insured contract”; or 2) That the insured would have in the absence of the contract or agreement. h. “Property damage” to: 6) That particular part of any property that must be restored, repaired or replaced because “your work” was incorrectly performed on it. i. “Property damage” to “your product” arising out of it or any part of it. ... SECTION V—DEFINITIONS 8. “Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions. 10. “Products-completed operations hazard” includes all “bodily injury” and “property damage” occurring away from premises you own or rent and arising out of “your product” or “your work” except: 1) Products that are still in your physical possession; or 2) Work that has not yet been completed or abandoned. 11. “Property damage” means: a. Physical injury to tangible property, including all resulting loss of use of that property; or b. Loss of use of tangible property that is not physically injured. 12. “Your product” means: a. Any goods or products, other than real property, manufactured, sold, handled, distributed or disposed of by: 1) You; 2) Others trading under your name; or 3) person or organization whose business or assets you have acquired .... 13. “Your work” means: a. Work or operations performed by you or on your behalf; and b. Materials, parts or equipment furnished in connection with such work or operations. “Your work” includes warranties or representations made at any time with respect to the fitness, quality, durability or performance of any of the items included in a. or b. above. [Emphasis added] The Soverign Policy [10] The pertinent provisions of the policy issued by Sovereign are as follows: 1. INSURING AGREEMENT To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay by reason of the liability imposed by law upon the Insured or assumed by the Insured under contract (as defined herein) for damages because of: (a) bodily injury (as defined herein) sustained by any person or persons; (b) person injury (as defined herein); (c) property damage which shall mean: (i) physical injury to or destruction of tangible property, caused by an accident or occurrence during The Policy Period including the loss of use thereof at any time resulting therefrom; or (ii) loss of use of tangible property which has not been physically injured or destroyed, providing such loss of use is caused by an accident or occurrence during The Policy Period. subject to the limits of liability, exclusions, conditions and other terms contained herein. 5. EXCLUSIONS: 3. This insurance does not apply to: (1) Property damage to: ... (b) except with respect to liability under written sidetrack agreement or the use of elevators, to ... (iii) property in the custody of the Insured which is to be installed, erected or used in construction by the Insured; (iv) that particular part of any property, not on premises owned by or rented to the Insured; 1. upon which operations are being performed by or on behalf of the Insured at the time of the property damage arising out of such operation, or 2. out of which any property damage arises, or 3. the restoration, repair or replacement of which has been made necessary by reason of faulty workmanship thereon by or on behalf of the Insured; (2) with respect to the completed operations hazard, to property damage to that particular part of work performed by the Named Insured out of which such injury, destruction or loss of use arises. (3) expenses incurred for the withdrawal inspection, repair, replacement, or amounts claims [sic] for loss of use of the Insured’s products or work completed by or for the insured or of any property of which such products or work form part, if such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein. (4) claims for loss of use of tangible property which has not been physically injured or destroyed resulting from: (i) delay in or lack of performance by or on behalf of the Named Insured of any contract or agreement, or (ii) the failure of the Named Insured’s products or work performed by or on behalf of the Named Insured to meet the level of performance, quality, fitness or durability warranted or represented by the Named Insured; but this exclusion does not apply to loss of the use of other tangible property resulting from the sudden and accidental physical injury to or the destruction of the Named Insured’s products or work performed by or on behalf of the Named Insured after such products or work have been put to use by any person or organization other than an Insured. 6. DEFINITIONS: 4. Occurrence “Occurrence” includes continuous or repeated exposure to conditions which result in loss neither expected nor intended from the standpoint of the Insured. [11] The respondents argue that must carefully examine the statement of claim to determine the true nature of the claim being brought against Westridge. [12] In Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24 (CanLII); [2000] S.C.R. 551 the allegations in the underlying action were of sexual battery, negligence, and breach of fiduciary duty. The insurance policies in that case covered negligence but did not cover intentional torts such as sexual battery. In determining the true nature of the claim Iacobucci J. outlined three step process to be followed by courts: 50 Determining whether or not given claim could trigger indemnity is three‑step process. First, court should determine which of the plaintiff’s legal allegations are properly pleaded. In doing so, courts are not bound by the legal labels chosen by the plaintiff. plaintiff cannot change an intentional tort into negligent one simply by choice of words, or vice versa. Therefore, when ascertaining the scope of the duty to defend, court must look beyond the choice of labels, and examine the substance of the allegations contained in the pleadings. This does not involve deciding whether the claims have any merit; all court must do is decide, based on the pleadings, the true nature of the claims. 51 At the second stage, having determined what claims are properly pleaded, the court should determine if any claims are entirely derivative in nature. The duty to defend will not be triggered simply because claim can be cast in terms of both negligence and intentional tort. If the alleged negligence is based on the same harm as the intentional tort, it will not allow the insured to avoid the exclusion clause for intentionally caused injuries. 52 Finally, at the third stage the court must decide whether any of the properly pleaded, non‑derivative claims could potentially trigger the insurer’s duty to defend. [13] The mere fact that Genex alleges both negligence and breach of contract is of no moment. Iacobucci J. points out: 79 The appellant notes that the plaintiff’s statement of claim alleged the non‑intentional torts of negligence and breach of fiduciary duty. He therefore argues that the respondent has duty to defend because the exclusion clause does not apply to these claims. However, these bare assertions alone cannot be determinative. Otherwise, the parties to an insurance contract would always be at the mercy of the third‑party pleader. What really matters is not the labels used by the plaintiff, but the true nature of the claim. [Emphasis added] [para. 79] And again at para. 82 In my view, the correct approach in the circumstances of this case is to ask if the allegations, properly construed, sound in intentional tort. If they do, the plaintiff’s use of the word “negligence” will not be controlling.... [14] The court applied the same reasoning in the case of Sansalone v. Wawanesa Mutual Insurance Co., 2000 SCC 25 (CanLII); [2000] S.C.R. 627, judgment released concurrently with Scalera. In that case Iacobucci J. concluded: 23 The allegations of negligent battery and breach of fiduciary duty are subsumed into the sexual battery claim. These claims are based on the same facts, and resulted in the same harm to the plaintiff. The mere fact that they are pleaded as negligence does not, for the purpose of this appeal, change the intentional nature of the acts.... [15] The court revisited the issue of an insurer’s duty to defend in Monenco, supra. In that case Iacobucci J. points out: 28 The starting premise for assessing whether an insurer’s duty to defend has been triggered rests in the traditional “pleadings rule”. Whether an insurer is bound to defend particular claim has been conventionally addressed by relying on the allegations made in the pleadings filed against the insured, usually in the form of statement of claim.... [16] Iacobucci J. also discussed at para. 31, the general principles to be applied when construing insurance policies: 31 Where pleadings are not framed with sufficient precision to determine whether the claims are covered by policy, the insurer’s obligation to defend will be triggered where, on reasonable reading of the pleadings, claim within coverage can be inferred. This principle is congruent with the broader tenets underlying the construction of insurance contracts, namely the contra proferentem rule, and the principle that coverage provisions should be construed broadly, while exclusion clauses should receive narrow interpretation.... [17] However, he also points out: 32 As G. Hilliker writes in Liability Insurance Law in Canada (3rd ed. 2001), at p. 72, some courts have interpreted the foregoing passage as saying that if there is any possibility that the claim falls within liability coverage, the insurer must defend. However, Hilliker also maintains that courts must not engage in “a fanciful reading of the statement of claim merely for the purpose of requiring the insurer to defend”. He notes that it is only where there is genuine ambiguity or doubt that the duty to defend must be resolved in favour of the insured party.... [Emphasis added] [18] agree with the respondents that the statement of claim is the primary document on which the duty to defend is to be determined. do not consider it necessary to examine the statements of defence filed by the respondents and the other defendants in the action. [19] The essence of the claim by Genex is that the roof of the barn has failed prematurely. It alleges that the reason for the failure is due to the fact that the Galvalume recommended and supplied by Westridge is unsuitable for use in swine barn. It is of no consequence, in this application, that Westridge subcontracted with Van Alstine who, in turn, subcontracted with Robertson with respect to the supply and installation of the Galvalume roof. [20] Bearing in mind that these are only allegations in the statement of claim: (a) Westridge was the general contractor and it was responsible for the construction of the entire building; (b) Westridge covenanted to furnish all materials, plans and labour necessary for the proper completion of the hog barn; (c) Westridge represented that the roof set out in the specifications could be replaced by the Galvalume roof and that it would not compromise the performance or longevity of the structure; (d) Westridge agreed to use due and proper expertise, skill, care and diligence in all aspects in the construction of the hog barn; (e) Westridge covenanted that when the construction was completed the hog barn would be fit and sufficient for the purpose for which it was intended and that the hog barn would be constructed of good material, design and workmanship, free of defects and be of reasonable durability; (f) Westridge agreed that any defective material and workmanship would be removed and replaced by Westridge at its own expense. [21] Genex alleges that Westridge was negligent and breached the contractual and other duties owed by it to Genex, particulars of which include: (a) Lacking expertise and knowledge as to the correct use and installation of the Galvalume roofing and the Foil Backed insulation; (b) Failing to properly research the uses for Galvalume roofing; (c) Failing to warn the plaintiff that the Galvalume roofing and Foil Backed Insulation were not recommended for use in swine buildings; (d) Failing to promptly correct these deficiencies; (e) Failing to reject defective and unsuitable material; (f) Failing to remove and replace defective material; (g) Failing to fabricate and install its work in accordance with the best practices of craftsmen skilled in the work; and (h) Failing to comply with the manufacturer’s recommendations. [22] Genex does not allege any property damage other than damage to the hog barn itself. The very property that Westridge agreed to build. [23] In my view, a careful reading of the statement of claim leads to the inescapable conclusion that, the true nature of the claim by Genex is that Westridge failed in its contractual duty. Contrary to the terms of the contract it did not construct and deliver to Genex a hog barn that was suitable for the purposes intended. [24] It is fundamental principle of insurance law that Comprehensive General Liability policy (“CGL”) is not intended to be means for contractor (or supplier of goods) to cover the expenses to correct its own faulty or defective workmanship or materials. In other words CGL policies are not intended to be performance bonds. [25] This was pointed out in the recent decision from the Ontario Court of Appeal in Alie v. Bertrand, supra at paras. 23 and 24, as follows: [23] The material provisions were very similar in all of the insurance policies. Under each policy, the insurer agreed to pay those sums that the insured would become legally obligated to pay as compensatory damages because of property damage occurring during the policy period. “Property damage” was defined as “physical injury to or destruction of tangible property” in most policies and as “injury to or destruction of tangible property” in some others. The different wording is not significant in the result in this case. Property damage in the various policies also included the “loss of use of tangible property that is not physically injured”. [24] It is common ground between the parties that CGL policies are not performance bonds. They are not intended to cover the costs of repairing or replacing the insured’s defective work or product. They are intended, rather, to cover tort liability for injury to other persons or damage to their property. This general intent is expressed in the language used in the various policies to define both the coverage and the exclusions. [26] The court went on to state at para. [27] As indicated, the CGL policies are generally intended to cover an insured’s tortious liability to third parties, but not including the cost of repairing or replacing the insured’s own defective work or product. This intent is manifest by the language usually found in CGL policies and the interpretation generally given by the courts to such policies. The policy reason underlying this interpretation is set out succinctly in Privest Properties Ltd. v. Foundation Co. of Canada Ltd. (1991), 1991 CanLII 2346 (BC SC), 57 B.C.L.R. (2d) 88 (S.C.) at 131, as follows: If the insurance proceeds could be used to pay for the repairing or replacing of defective work and products, contractor or subcontractor could receive initial payment for its work and then receive further payment from the insurer to repair or replace it. Equally repugnant on policy grounds is the notion that the presence of insurance obviates the obligation to perform the job initially in good and workmanlike manner [citation omitted]. [27] The matter was also considered by Roy J. of the Ontario Court of Justice, General Division in Carelton Iron Works Ltd. v. Ellis Don Construction Ltd., [1996] O.J. No. 2427 (QL). In that case the plaintiff brought an action against its insurer to be indemnified for repairs and reinstallation of cladding. Pieces of exterior cladding fell from building and damaged an automobile. The cause of the accident was found to be faulty welding of the support brackets by the plaintiff’s employees. The insurers did not dispute their liability to pay for the damage to the car. The plaintiff made no claim for the $250,000.00 it cost to correct its faulty workmanship. It claimed $467,000.00 which it cost to remove and reinstall the cladding. [28] Roy J. stated as follows: ¶15 Most of the authorities cited by both parties, except for number of American authorities, are in agreement that comprehensive general liability policies are intended to protect the insured from liability for injury or damage to persons or property of others. They are not intended to pay the cost associated with repairing or replacing the insured’s defective work or products, which are purely economic losses. ¶19 ... Basically, these authorities conclude that comprehensive general liability policies are intended to protect the insured from liability to injury or damage to persons, and property of others. They are not intended to pay the cost associated with repairing or replacing the insured defective work and products. ¶20 Two of the leading authorities on this issue are the case of Privest v. Foundation Company of Canada (1992) 1992 CanLII 32 (SCC), I.L.R. 1‑2737 (B.C.S.C.) at 1370 and more recently our Court in Tsubaki of Canada v. Standard Tube Canada [1993] O.J. No. 1855. ¶21 Clearly these two cases follow most Canadian cases which restrict “property damage” to physical damage to the property of third parties. There is no coverage when what is claimed basically are the costs associated with repairing or replacing the insured’s defective work and products. ¶26 They are unanimous in concluding that when the loss is for the cost of repairing defective work, that’s not “property damage” within the terms of the policy. ¶27 Also Courts should not interpret words such as “property damage” or “accident” and give them meaning which go far beyond their ordinary meaning. The cost associated with repairing the defective work cannot be interpreted to be property damage in these circumstances. ¶28 Further, when the loss suffered is the cost of remedying the defect which arises out of faulty workmanship, this cannot be interpreted to be an accident or an occurrence within the terms of the policy. [paras. 15, 19-21 and 26-28]. [29] agree with counsel for the respondents that while Genex may, in addition to the cost of repairing the roof, incur loss of profits due to potential disruption of its operation during repairs, that loss is also cost arising from the repair or replacement of Westridge’s defective work and thus is an economic loss, not property damage. [30] As noted earlier, the true nature and substance of the plaintiff’s claim against Westridge is for breach of construction contract. The claims by Genex that Westridge owed duties of care and was negligent, would necessarily arise only as direct result of its having entered into the construction contract. There is no suggestion in the pleadings that any duty of care was owed by Westridge to Genex as the result of any other relationship or proximity between the parties, other than that that arose as result of the parties entering into the contract. [31] Insofar as the claim relies on alleged negligence, this claim is derivative of the contract claim. As the Supreme Court stated in Scalera, supra, the claims in negligence are not sufficiently disparate to render the two claims unrelated and they arise from the same actions and cause the same harm. [32] The claims in negligence are inseparable from the claims in contract and do not exist but for the contractual relationship. [33] The applicant argues that, rather than follow the cases cited by the respondents, should adopt the reasoning in the case of Alsthom Canada Inc. v. PCL Constructors Eastern Inc. [2001] O.J. No. 3862 (QL) (Ont. Sup. Ct.). [34] The facts of that case are summarized in the applicant’s brief as follows: ... In that case, PowerTel agreed to design, supply, and install power transmission facilities, including steel anchors, pursuant to its subcontract with PCL. Sometime after this was completed, the owner of the facilities sued PCL for costs incurred to repair steel anchors that had become corroded, and PCL—in turn—sued PowerTel for the same. 18. PowerTel’s insurers refused to defend the claim against it, firstly on the basis that the claim did not come under the insuring agreement since it was for faulty workmanship or for warranty work assumed by contract. Although the Court noted that the insurer’s position might be supported if it were to look at certain of the allegations against PowerTel in isolation, other allegations indicated that PowerTel’s work was completed in accordance with contractual specifications. 19. The totality of the pleadings instead suggested that the corrosion of the steel anchors was caused by reaction with nearby pipeline’s cathodic protection system. Accordingly, the Court in Alsthom found that the costs of the remedial work to repair these corroded steel anchors could be properly characterized as “compensatory damages because of property damage.” [35] In Alsthom, Del Frate J. stated at paras. 22, 37 and 40: ¶22 The pleadings, in their totality, however, would indicate that the work performed by PowerTel had been completed in accordance with the contract specifications, the industry practice and the Ontario Hydro requirements. ¶37 The Respondent’s position is that the Policy is not intended to pay for the costs associated with repairing or replacing the insured’s defective work and products. fully agree that that is the intent of comprehensive general liability policy. However, this is not what is alleged in the pleadings. reiterate that the allegation is that the work that was required of PowerTel, pursuant to the contracts, had been completed in satisfactory and acceptable manner and according to the terms of the contract. ¶40 ... In this case, the allegations are that the damages result not by defective work, but rather by reaction by the cathodic protection system in the TransCanada PipeLines system. [36] Unlike the pleadings before Del Frate J., the whole of the statement of claim in this case does not indicate that the physical injury to the roof of the Tullymet Nucleus Unit was (or could have been) caused by external factors or reaction with external factors and not by Westridge’s faulty or defective work or product. There is no suggestion that some force outside of the building constructed by Westridge may have caused the injury to the roof. Further, find nothing in the pleadings which suggests that Westridge completed the work in satisfactory and acceptable manner. This case is clearly distinguishable from Alsthom. [37] Again, the essence of the pleadings by Genex is that Westridge failed to provide the work or product bargained for under the contract. IX [38] The insuring agreement between Westridge and Zurich provided for the payment of all sums Westridge might become legally obligated to pay as compensatory damages because of property damage caused by an occurrence which was defined to mean an accident. [39] The insuring agreement between Sovereign likewise provided that the coverage was for compensatory damage to property caused by an accident or occurrence. [40] What is alleged by Genex cannot be interpreted to be an accident or occurrence. Furthermore, the mere presence of defective roof in an otherwise sound building does not amount to property damage within the policies. [41] The applicant has failed to meet the onus of establishing that the claims in the underlying action would fall within the insuring agreements contained in the CGL policies issued by Zurich and Sovereign. [42] Further I am satisfied that the work/product exclusion clauses found in the policies would relieve the respondents from any duty to defend. [43] In the result, the application is dismissed with costs.

The applicant applied by originating motion for a declaration that the respondents, Zurich and Sovereign, were obligated to pay a proportionate share of defence costs to defend a claim brought against the applicant. The underlying action claims damages from the applicant with respect to the construction of a hog barn. The applicant was the general contractor. Each of the respondents issued a comprehensive general liability policy to the applicant. The law is clear that the pleadings determine whether or not the respondents have a duty to defend. If the claim alleges a state of facts, which would fall within the coverage provided by the policy, the obligation of the insurer to defend is triggered. The Court reviewed the claim and concluded that the true nature of the claim was that the applicant failed in its contractual duty to construct and deliver a hog barn suitable for the purposes intended. HELD: The application was dismissed with costs. 1) It is a fundamental principle of insurance law that a comprehensive general liability policy is not intended to be a means for a contractor to cover the expenses to correct its own faulty or defective workmanship. They are not performance bonds. 2) The claims in negligence are inseparable from the claims in contract and do not exist but for the contractual relationship. 3) The insuring agreement provided for the payment of all sums the applicant might become legally obligated to pay as compensatory damages because of property damage caused by an occurrence, which was defined to mean an accident. What is alleged in the underlying action was not an accident or occurrence. Further, the work/product exclusion clauses in the policies relieve the respondents from any duty to defend.

4_2004skqb19.txt

J. 2004 SKQB 101 Q.B. A.D. 2004 No. 121 J.C. P.A. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: HER MAJESTY THE QUEEN E. W. C. L. Alexander for the Crown P. A. Abrametz for the accused ORAL JUDGMENT MAHER J. March 12, 2004 [1] E.W. is a young person, born December 25, 1985, who is charged with murder. The hearing on his interim judicial release was held before the Provincial Court. The learned Provincial Court judge declined the accused’s application for interim judicial release on the grounds that the accused’s presence in the community awaiting trial would erode the public’s confidence in the administration of justice. [2] The accused has now made an application to this court under s. 515 of the Criminal Code, R.S.C. 1985, c.C-46 and ss. 33 (8) and 13(2) of The Youth Criminal Justice Act, S.C. 2002, C.-1, for interim judicial release of the accused pending his preliminary inquiry. [3] The Crown has asked for a determination of two preliminary issues:a) Whether the Youth Court judge in Provincial Court had jurisdiction to hear and determine the accused’s application for judicial interim release; b) Whether this honourable court has jurisdiction to conduct review of the Youth Court judge’s decision. Issue #1 [4] Whether the Youth Court judge in Provincial Court had jurisdiction to hear and determine the accused’s application for judicial interim release. [5] The Criminal Code of Canada provides the following on interim judicial release where person is charged with murder: 522.(1) Interim release by judge only where an accused is charged with an offence listed in s. 469, no court, judge or justice, other than judge of or judge presiding in superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial. [6] The accused is charged with second degree murder which is an offence listed in s. 469 of the Criminal Code. Therefore, the jurisdiction for judicial interim release on an offence of this nature is limited exclusively to the superior court unless another act of the parliament of Canada was to limit that jurisdiction. [7] The matter of jurisdiction under the old Young Offender’s Act, R.S.C. 1985, c.Y-1 for interim judicial release on the charge of murder was dealt with by Madam Justice Pardu in R. v. M.R. [2001] O.J. No. 2598. She held that the Superior Court did not have jurisdiction in the case of murder when she said the following at paragraphs and 3: 2. S. 8(8) of the Young Offenders Act provides, "that where young person against whom proceedings have been taken under this Act is charged with an offence referred to in s. 522 of the Criminal Code, Youth Court judge, but no other court judge or justice may release the young person from custody under that section. 3. Homicide falls within the offences referred to in s. 522 of the Criminal Code. [8] The Youth Criminal Justice Act, S.C. 2002, c.1, has now replaced the Young Offender’s Act. The issue must resolve is whether the Youth Criminal Justice Act has now changed the matter of jurisdiction on the issue of interim judicial release, from the Provincial Court to the superior court, when young person is charged with murder. [9] Section 33(8) of the Youth Criminal Justice Act provides the following: (8) If young person against whom proceedings have been taken under this Act is charged with an offence referred to in s. 522 of the Criminal Code, youth justice court judge, but no other court, judge or justice, may release the young person from custody under that section. [10] This section is for all practical purposes identical to s. 8(8) of the Young Offender’s Act which Pardu J. relied upon in R. v. M.R. when she held that the superior court had no jurisdiction on interim judicial release on the charge of murder. [11] The Young Offender’s Act in s. 2(1) defined Youth Court judge as follows, “A Youth Court judge means person appointed to be judge of Youth Court”. [12] The Young Offender’s Act then goes on to define Youth Court as “a Youth Court means court established or designated by, or under an Act of the Legislature of province or designated by the Governor in Council or the Lieutenant Governor in Council of province, as Youth Court for the purpose of this Act.” These sections clearly gave the Provincial Court exclusive jurisdiction on the matter of interim judicial release on charge of murder. It is necessary for me now to review the provisions of the Youth Criminal Justice Act which has replaced the Young Offender’s Act. [13] The Youth Criminal Justice Act provides the following in s. 13(2): 13(2) When young person elects to be tried by judge without jury, the judge shall be judge as defined in section 552 of the Criminal Code, or if it is an offence set out in section 469 of that Act, the judge shall be judge of the superior court of criminal jurisdiction in the province in which the election is made. In either case, the judge is deemed to be youth justice court judge and the court is deemed to be youth justice court for the purpose of the proceeding. [14] The Youth Criminal Justice Act provides the following on the matter of interim judicial release for charge of murder: 33 (8) If young person against whom proceedings have been taken under this Act is charged with an offence referred to in section 522 of the Criminal Code, youth justice court judge, but no other court, judge or justice, may release the young person from custody under that section. reference must be made to s. 28 of the Youth Criminal Justice Act which provides as follows: 28. Except to the extent that they are inconsistent with or excluded by this Act, the provisions of Part XVI (compelling appearance of an accused and interim release) of the Criminal Code apply to the detention and release of young persons under this Act. [15] The issue then becomes for young person charged with an offence set out in s. 522 of the Criminal Code what is the definition of Youth Justice Court judge? Section 13(2) of the Youth Criminal Justice Act provides, “if it is an offence set out in s. 469 of that Act, Criminal Code of Canada) the judge shall be judge of the superior court of criminal jurisdiction in the province in which the election is made.” [16] There was no similar provision in the Young Offender’s Act. am satisfied that the Parliament of Canada when it enacted the Youth Criminal Justice Act made change in jurisdiction for an offence of this nature from that as provided in the Young Offender’s Act. I find that the jurisdiction for determination of interim judicial release of a young person charged with murder under the Youth Criminal Justice Act rests solely with the superior court of criminal jurisdiction which in the Province of Saskatchewan is the Court of Queen’s Bench. [17] Whether this honourable court has jurisdiction to conduct review of the Youth Court judge’s decision. [18] Having found that the learned Provincial Court judge under s. 13(2) was not Youth Justice Court judge for an offence as set out in s.469 of the Criminal Code am satisfied that the provisions of s. 33 (1) of the Act apply which say the following: (1) If an order is made under section 515 (judicial interim release) of the Criminal Code in respect of young person by justice who is not youth justice court judge, an application may, at any time after the order is made, be made to youth justice court for the release from or detention in custody of the young person, as the case may be, and the youth justice court shall hear the matter as an original application. [19] Therefore will proceed to hear this matter as an original application.

The accused made an application to the Court of Queen's Bench under s. 515 of the Criminal Code and s. 33(8) and s. 13(2) of The Youth Criminal Justice Act for interim judicial release of the accused pending his preliminary inquiry on a charge of murder. The accused had previously applied to a Provincial Court judge, who had declined the accused's application. The issue was whether the Youth Court judge in Provincial Court had the jurisdiction to hear and determine the accused's application for judicial interim release. HELD: The jurisdiction for determination of interim judicial release of a young person charged with murder under the Youth Criminal Justice Act rests solely with the superior court of criminal jurisdiction, which is the Court of Queen's Bench in Saskatchewan.

b_2004skqb101.txt

J. F.L.D. A.D. 1997 No. 111 J.C.S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: TERRY JAMES FRIESEN and LAURIE DAWN FRIESEN RESPONDENT D. McIver for the Maintenance Enforcement Office Laurie Friesen on her own behalf REASONS FOR CONFIRMING PROVISIONAL ORDER ROTHERY J. May 12, 1997 I will confirm the provisional order but reduce themonthly child maintenance from $300.00 per month per child to$50.00 per month per child, for the following reasons:The respondent, Laurie Friesen, earns approximately$12,000.00 per year gross. Based on the federal guidelinesfor Saskatchewan, she would be required to pay $142.00 permonth to the father of the children, Cassandra and Anastasia. However, the respondent has unusually high costs forexercising access, as she lives in Saskatoon, Saskatchewan andthe former husband lives in Calgary, Alberta. In light of that cost, reduce the child maintenance to $100.00 per month, or $50.00 per month per child; commencing June 1, 1997.

Reasons for confirming provisional order. HELD: The provisional order was confirmed but the monthly child maintenance was reduced from $300 per child to $50 as the respondent earned approximately $12,000 per year gross. Based on federal guidelines she would be required to pay $142 for the two children but had unusually high costs for exercising access as the former husband lived in Alberta.

7_1997canlii11046.txt

nan Claim No: 301383 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Horne v. Burrows, 2009 NSSM 47 BETWEEN: BRIAN HORNE and DOROTHY KENT and KENNETH C. BURROWS and PETER RENOUF Defendants REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Dartmouth, Nova Scotia on May 12 and June 17, 2009 Decision rendered on September 10, 2009 APPEARANCES For the Claimants Peter Coulthard Counsel For the Defendants Stephen R. Boyce Counsel BY THE COURT: [1] The Claimants are Husband and Wife who own home sitting on lovely several acre property in Lower Sackville, Nova Scotia. The Defendant Burrows also has nice property in the area, where he lives with his wife and where he also carries on consulting business. The two properties roughly abut back to back. [2] The Defendant Renouf is friend of the Defendant Burrows. [3] The issue in this unusual case concerns some trees that the Defendant Renouf cut down on the Claimants’ property, by mistake, while allegedly doing a favour for the Defendant Burrows. [4] The Defendant Renouf does not live on or near either of these properties. He has worked in forestry all of his life, but is presently receiving pension because of health problems. While no specifics were offered, it appears that Mr. Burrows has helped out his friend at times, and Mr. Renouf finally saw chance to reciprocate. This was in late 2007 when Mr. Burrows noted that there were some trees near his garage that were damaged and should probably come down. Mr. Renouf offered to do it when the weather improved. [5] That opportunity did not arise until early April 2008. At the time, Mr. and Mrs. Burrows were away in the United States attending to issues surrounding the death of Mr. Burrows’s father. With fine weather upon him, Mr. Renouf came to the property and started clearing up the dead or damaged trees that had been pointed out to him by Mr. Burrows the previous fall. [6] Working several hours day, over several days, he expanded the project and worked his way up the property to the area where it bounded the Claimants’ property, working with apparent energy and enthusiasm, taking down what he regarded as damaged or unhealthy trees as he went. At some point, he spotted survey marker and began to suspect that he may have been cutting on the neighbour’s property. With the help of one of the Burrows grown sons, he looked at survey plan and confirmed that he had, indeed, strayed off the Burrows property. By then, he had felled some sixteen or seventeen mature, though in his opinion far from healthy trees, on property belonging to the Claimants and, it appears, in one case on property belonging to another neighbour, Robert Arends. The diameters at the base of the trees ranged from inches to as much as 20 inches. Many of them were 14 inches or so. [7] The cutting activity was not obvious from the Claimants’ home. Ms. Kent first heard from this same other neighbour, who had observed some of the activity, that some of her trees had apparently been taken down, and she was upset with what she saw. While these trees were not visible from their home, the Claimants testified that they enjoyed all parts of their property which they accessed via trails they had cleared. [8] Later that day, when Mr. Horne found out from his wife what had occurred, he drove over to the Burrows property in very upset state, and confronted one of the Burrows sons who had no idea why this irate man was there. This encounter did nothing positive, and led to an escalation of complaints and concerns going both ways. The RCMP was called and investigated. What might have started as an innocent misunderstanding ended up fomenting something of feud with threats of peace bonds and huge amount of mistrust between neighbours that has not dissipated over time. [9] Efforts to settle the issue privately on Mr. Burrows’s return from the US were ultimately unsuccessful. Equally unsuccessful for the Claimants was claim which they lodged with their home insurer. The claim was ultimately denied, though not until after an investigation by an independent adjuster which yielded, if nothing else, some timely photographs of the affected trees and some witness statements. Issues [10] The issues as I see them are these: A. Did the Defendant Renouf trespass on the lands of the Claimants? B. Was the Defendant Burrows jointly or vicariously responsible for the actions of Mr. Renouf, either because he was “hired” by Burrows or because the two were involved in a joint enterprise? C. If there is liability on either or both of the Defendants, what are the damages? i. What value did the trees have? ii. What would be the cost to remove the fallen trees and restore the land with new planting? iii. Is there a risk that removal of the trees will damage the Claimants’ septic field, and should the likely cost be added to the damages? Did the Defendant Renouf trespass on the lands of the Claimants? [11] Of course, for Mr. Renouf’s activities to amount to trespass it would have to be proven that he entered onto land belonged to the Claimants and not to the Defendant Burrows. am aware that there is difference of opinion as to the precise location of the boundary line. personally visited the land at the request of the parties and note that there is narrow area of unclear ownership, based on the available evidence, but it is also quite clear that on any view of it, Mr. Renouf was cutting trees on the Claimants’ property. The precise number of trees is something that will address later. [12] By walking on the land belonging to the Claimants, Mr. Renouf trespassed in technical sense. Cutting trees was the more serious trespass, because growing trees are like fixtures and form part of the land. Cutting trees potentially causes damage to the land itself. If trees are taken down without permission, that would clearly expose the trespasser to claim for damages. [13] I have no doubt that this was an honest though careless mistake on the part of Mr. Renouf. But trespass in law does not require any element of bad faith or improper purpose. Mr. Renouf is clearly liable for a trespass. Was the Defendant Burrows jointly or vicariously responsible for the actions of Mr. Renouf, either because he was “hired” by Burrows or because the two were involved in a joint enterprise? [14] Trespass is, of course, what the law calls “tort” i.e. legal wrong. More than one person may be held responsible, in an appropriate case, for the same wrongful act. The Claimants are clearly not content to limit their recovery to the Defendant Renouf, at least in part because they fear he would not have assets to satisfy judgment, and are asking that the court find the Defendant Burrows to be jointly liable. [15] On all of the evidence, there is no basis to conclude that Mr. Renouf was paid employee of Mr. Burrows. Nor was there any evidence that Mr. Burrows had any idea in advance that Mr. Renouf would be expanding his cutting to an area anywhere near the neighbours. [16] So the question is, whether having given his blessing to the more limited enterprise undertaken by Mr. Renouf, Mr. Burrows became vicariously or jointly responsible when Mr. Renouf went on “frolic of his own,” as the old English cases so charmingly put it. Vicarious liability [17] Vicarious liability is “the term used to describe the law's imposition of responsibility on one person for the tort of another, even though the first person did not commit the act which constitutes wrong. It is form of liability imposed on one party for the misconduct of another.[1]” [18] Vicarious liability is most often applied in the master and servant and agency contexts. In the master and servant (i.e. employee and employer context, the rule (as stated in the CED title on Torts) is that: §70 master is responsible for his or her servant's acts only if they were done in the course of the servant's employment. However, plaintiff need not establish that the specific act complained of was specifically authorized by the employer, provided it meets the closely connected test in that it is so closely connected with authorized acts that it constitutes an improper mode of performing it. §71 In general, an employer is not vicariously liable for the acts of an independent contractor or the employees of that contractor. However, person under certain positive duties may be held liable for failure of an independent contractor to perform them. [19] In the case here, had the Claimants been able to prove that the Defendant Renouf was an employee of the Defendant Burrows, vicarious liability could well apply. [20] I accept that there was no such relationship here. It was merely a case of one friend offering to perform a small gratuitous service, and expanding the scope of that service without the knowledge or assent of the other friend. [21] Counsel for the Claimant has cited case, Barnstead v. Ramsay 1996 CarswellBC 1014 [1996] B.C.W.L.D. 1528, which concerned similar situation where trees were cut on the land of the Plaintiff by contractor who was hired by the Defendant neighbour. The latter was held liable on the theory that there was common enterprise: 16 find in these circumstances the trespass was committed in furtherance of common design between the defendant Ramsays and the defendant Westlee Contracting. Westlee was to log the trees and sell them, the proceeds of which were to be deducted from the cost of the work done. The Ramsays' intention was to take down all the large trees along the south side of their property to open it up for security reasons and to give them more light. Westlee was to make profit from the enterprise: the Ramsays were to benefit from the sale of the logs. The defendant Westlee committed tort that was done in furtherance of common design with the defendant Ramsays and so the defendant Ramsays are also liable. 17 In reaching this conclusion, have applied the reasoning of Shaw J. in Horseshoe Bay Retirement Society v. S.I.F. Development Corp. (1990), 1990 CanLII 8047 (BC SC), 66 D.L.R. (4th) 42 at 45 (B.C. S.C.): In Petrie v. Lamont (1841), Car. M. 93 at p. 96, 174 E.R. 424 at p. 426, Tindal C.J. said: "all persons in trespass who aid or counsel, direct, or join, are joint trespassers." In The "Koursk", [1924] P. 140 (C.A.) at pp. 151‑2, Bankes L.J. said by way of dicta: The learned authors of Clerk and Lindsell on Torts 7th ed., p. 59, say this: "Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of common design," and they cite dictum of Tindal C.J. in Petrie v. Lamont in support of their statement. Later they say "there must be concerted actions towards common end." The "Koursk" was followed in Brooke v. Bool, [1928] K.B. 578, in case of negligence where the court found there was joint enterprise for concerted purpose: see Salter J. at pp. 585‑6. In British Columbia both The "Koursk" and Brooke v. Bool were applied in case of negligence: see Dawes v. Scoular, 1949 CanLII 232 (BC CA), [1950] D.L.R. 643, [1950] W.W.R. 15 (C.A.). O'Halloran J.A. said, at p. 645: They were engaged in the co‑operative and joint operation of getting the two cars across the street, in the course of which and in furtherance of that common design, one of them at least committed an act of negligence, for which their joint control of the operation makes them jointly liable. The negligence of one was then the negligence of both. [22] have been unable to find case anywhere in Canada which has followed this authority. [23] There are many other cases which hold that there can be joint liability for the tort committed by another, where the two are engaged in an inherently illegal “joint enterprise.” In the case of Newcastle (Town) v. Mattatall (1987) 1987 CanLII 5331 (NB QB), 37 D.L.R. (4th) 528, 78 N.B.R. (2d) 236, the New Brunswick Court of Queen’s Bench dealt with case where three young persons had broken into an arena for the purpose of stealing things, and one of them accidentally started fire. They were all held equally responsible, in part in reliance on American authority: 77 have also been referred to very interesting American decision concerning joint responsibility. In American Family Mutual Ins. Co. v. Grim, 440 P. 2d 621 (Kansas Sup. Ct., 1968) fact situation was presented that is very similar to that in the instant case. In Grim four children, ages 13 and 14, broke and entered church for the purpose of stealing soft drinks from pop machine they knew was on the premises. Three of the children went into the attic and while there lit paper which they found in order to have torch to see what they were doing. The other youngster had no knowledge that these fires were lit. Before leaving the attic, the children thought that all flames were extinguished. In fact, fire resulted later in the evening in that area of the church and the Court found that it was caused by the torches lit by the children. The defendant Grim was the child who participated in the trespass but had no knowledge of the fires lit in the attic. He was found to be equally liable with his co‑trespassers. 78 O'Connor J. held at p. 625 of the decision: "The rule of joint and several liability also prevails where tort‑feasors act in concert in the execution of common purpose." He goes on to cite with approval the principle of law stated in 52 Am. Jur., Torts 116: The general rule is that two or more persons engaged in common enterprise are jointly liable for wrongful acts done in connection with the enterprise, at least where the enterprise is an unlawful one, in which case all are answerable for any injury done by any one of them, although the damage was greater than was foreseen, or the particular act done was not contemplated or intended by them. ... 79 am satisfied that review of the case law in the area of joint liability supports the conclusion have reached with respect to the facts and circumstances of the case before me to the effect that each of the defendants Mattatall, Porter and Harris should be held jointly and severally liable to an equal extent for the negligent acts of Mattatall done in connection with the common enterprise of break, enter and intent to commit theft at the Newcastle town rink. [24] The rationale in these cases is that if the joint enterprise is in itself unlawful, any consequences of the unlawful enterprise, however unintended, will be the joint responsibility of all of those who put in motion the enterprise and created the risk of unintended consequences. [25] This is clearly not such case. Mr. Burrows was clearly part of joint enterprise to remove few damaged trees from his own property, which was fully lawful enterprise. There was no reasonable foreseeability that Mr. Renouf would stray so far from the area discussed that a neighbour’s property might be breached. [26] The rule set out in Barnstead (above) seems on first blush to be broader one, however, it appears to be central to the finding in that case that the Defendant landowners were not careful in their selection of the contractor, knew they were cutting close to the line, and took no proper precautions to ensure that the cutting stayed on their land only. In my view, the unifying principle in these cases is that there is a degree of blameworthiness which causes liability to attach. It can be because the enterprise was itself unlawful, or because there was neglect on the part of one of the parties which created a foreseeable risk of harm. [27] I cannot find any element of blameworthiness here on the part of Mr. Burrows. It would not matter whether he supplied the chainsaw or the gas. He could not have foreseen that Mr. Renouf would do what he did and should not incur any legal responsibility. If there is liability on either or both of the Defendants, what are the damages? [28] The Claimant seeks damages under variety of heads. [29] For my purposes, begin with the premise that 17 trees in the immediate area were cut down. On the evidence there is real doubt that two of them were on the Claimants’ land at all, but find that the other 15 clearly were on the land of the Claimants. What value did the trees have? [30] There is no evidence that all but perhaps one of the trees were in danger of falling or posed any hazard. However, do accept that the only reason Mr. Renouf cut them at all was because he regarded them as unhealthy. [31] The trees in question were not ornamental trees. They were mature, native trees, and while not dead, probably not all that healthy. However, even trees that are less than healthy can stand for many years and continue to contribute to the aesthetic value of wooded land. Removing them can fundamentally alter the feel of the land. [32] must also take into account the fact that the trees were at the far edge of the Claimants’ land and not part of their “view” from the house. They would only have seen the trees by walking into the forested part of the property. [33] In arriving at value, am not prepared to consider what value such trees would have as timber, which is an approach that the Defendants have argued. That would be something like killing prized bull and offering to pay the price of beef. These trees were not being grown for their timber value and this is not wood lot; it is treed residential lot. [34] Although it is theoretically possible to transplant fairly large trees, this is very expensive and difficult, and to compensate the Claimants on this basis would be unrealistic. The likelihood is that once the felled trees are removed and the land cleaned up, they will plant smaller trees. [35] The Claimants produced an estimate from Terra Nova Landscaping, offering to supply and plant 17 trees, including Austrian Pines, Norway Spruce, Silver Fir, Hemlock and Emerald Queen Maples. All but the last maples would be 125 cm, or about feet, while the two maples would be 300 cm, or about 10 feet. The total estimate is $9,290.00 plus HST. This averages out to approximately $550.00 per tree. [36] The Defendants produced quote from landscaper offering to plant 12 trees as replacements for the removed ones for $50.00. It can only be presumed from the quote that the replacement trees would be seedlings which cost next to nothing. [37] find both quotes to be unrealistic. The Claimants are asking for trees which include trees that are not native, but are ornamental. The Defendants are proposing saplings which will take years to reach even knee high. [38] In the absence of any more balanced estimate, am obliged to arrive at figure that is more reasonable. In my view, the Claimants should receive $250.00 for each of the fifteen trees, for a total of $3,750.00. What would be the cost to remove the fallen trees and restore the land in order to accommodate new planting? Is there a risk that removal of the trees will damage the Claimants' septic field, and should the likely cost be added to the damages? [39] The Claimants produced at trial two estimates for removal of the felled trees, both of which were for $5,500.00 plus HST. There is an additional quote for $1,975.00 plus HST for repairs to the Claimants’ septic field, anticipated to be caused by the four-wheeler removing trees and debris. [40] Dealing with the last item first, accept based on the evidence and on my first-hand observations that it would be awkward getting in and out of the affected area without potentially crossing part of the septic field, but the challenge will be to use smaller equipment or human power only, to ensure that no such damage occurs. [41] Several weeks following the trial, the Claimants took it upon themselves to cut up some of the logs into manageable sized pieces and move them out of the way to partially clear trail. Despite an effort to keep the logs on their own property, given the uncertainty about the boundary, it is possible that some of them are actually on the Burrows property. Despite the friction that this has caused, it may actually simplify things bit for the Claimants as the Defendant Burrows can look after removing all of the logs that are sitting in this area of uncertain ownership. [42] The most efficient way to dispose of the rest of the trees would have been to obtain access via the Burrows property, thus avoiding any risk to the Claimants’ septic field. It appears that Mr. Burrows would be willing to arrange for that, and thus save the Claimants the expense and risk. However, neighbourly relations are such that the Claimants do not want the task of removing the logs to be entrusted to Mr. Burrows, out of concern (well founded or not) of how the land will be left. As to having people hired by the Claimants accessing the land through the Burrows property, this is not something that can order be done. Nor am certain that Mr. Burrows would be content to allow that to happen, there being concern for what might be done to his property during such an exercise. [43] On the evidence available to me, cannot say that the Claimants’ concerns about what Mr. Burrows would do have any foundation in fact. However, it is their land and if they do not trust the Defendant Burrows, nothing can say or do is going to change that. [44] Nonetheless, party that has suffered damages has an obligation to mitigate those damages by all reasonable means. In my view, the reasonable course of action would be to take advantage of any assistance that might be forthcoming from Mr. Burrows, either by allowing him to arrange for the work or negotiating for access. Failing willingness to accept and/or seek such assistance, the Claimants cannot expect to use the most expensive solution and be fully compensated for doing so. [45] Again do not have quote for tree removal that am willing to accept at face value. The $5,500.00 quotes involve more trees than currently need to be removed, and regard the quote for damage to the septic field to be highly speculative. Furthermore, I regard the unwillingness of the Claimants to accept the assistance offered by Mr. Burrows to represent a failure to mitigate. [46] Given all of the factors at play, I allow the Claimants a further $2,000.00 for tree removal and all possible expenses associated with it. Counterclaim [47] There was also a Counterclaim filed in this matter, though not seriously pursued at the trial. The Defendant Burrows sought damages for the allegedly reckless behaviour of Mr. Horne when he first went to the Burrows property and confronted the Burrows sons. Suffice it to say for my purposes that believe the claim was largely an emotional reaction to being sued, and the fact that it was not seriously pursued speaks to the fact that counsel became involved in the file and cooler heads prevailed. There are no out of pocket costs, which means that the claim is essentially one for general damages. The limits of this court’s jurisdiction restrict such claims to $100.00. [48] One of the problems with such claim is that, even if Mr. Horne’s behaviour caused any upset, it would have been to the Burrows sons and not to either of the named Defendants, because they were not present at the time of the incident. [49] As such, I do not consider the Counterclaim to have been established and it will be dismissed. Conclusions [50] To summarize, I am dismissing the Counterclaim and allowing the action against the Defendant Renouf only and award damages against him in the amounts of $3,750.00 for tree replacement and a further $2,000.00 for tree removal, for a total in damages of $5,750.00. [51] As for costs, the Claimants are entitled to their costs of $174.13 for the issuance of the claim, plus $100.00 for service of the claim on the two Defendants. These are incontestable. [52] In addition, the Claimants have asked for further amount for service of subpoenas on number of other individuals. The amounts that have been documented and filed include the following amounts: service of subpoena on Andrew Helpard $84.75 service of subpoena on Peter Renouf, Peter Hawkins and Constable Dowling (plus travel) $314.50 service of subpoena on Robert Arends (plus travel) $129.59 service of subpoena on Valerie Quinlan $84.75 service of subpoena on Chris Poole $84.75 service of subpoena on Trevor Chisholm and Mike Delude (plus travel) [53] There appears also to have been some witness fees provided to some of the witnesses, although full details were not provided. [54] At first blush, it appears that the disbursements expended on this case are high, if not actually excessive. have some difficulty understanding why it was thought necessary to subpoena the Defendant Renouf. Some of the other minor witnesses were only marginally helpful. Having said that, however, am willing to allow the costs as submitted, on the basis that the case was large one, and it had been met with large Counterclaim which, though not seriously pursued, was nonetheless hanging over the heads of the Claimants as they prepared for the trial. [55] In summary then, the Claimants are allowed their costs in the amount of $1,234.90 in addition to the damages of $5,750.00, as against the Defendant Renouf. The claim against the Defendant Burrows is dismissed. Eric K. Slone, Adjudicator

The claimants live on property abutting the defendant Burrow's property. The defendant Renouf is Burrows' friend. As favour, Renouf attended the property while Burrows was away and cut down some trees that he was asked to cut. He went on to cut down several others that he felt were diseased/damaged. eventually realizing he had crossed the property line and cut down more than 17 of the claimants' trees. The claimants sued for the cost of replacing the trees with a comparable number of mature trees, the cost of removing the felled trees and to recoup for anticipated damage to their septic field. At issue was: 1. whether Renouf trespassed; 2. whether Burrows was liable for Renouf's actions (for 'hiring' Renouf or because they were engaged in a joint enterprise); and 3. damages. The claimants did not want Burrows helping with the tree removal, even if doing so would save money. 1. Renouf trespassed on the claimants' land and is liable for damages. That it was an honest mistake is irrelevant since trespass does not require bad faith or improper purpose. 2. Burrows is not liable. He was not Renouf's employer, nor were Renouf's actions foreseeable. It was a favour and Renouf went way beyond the scope of what he was asked to do. Burrows is not responsible for everything that flowed from their limited enterprise. The case law requires a degree of blameworthiness (a neglectful or unlawful enterprise) which creates a foreseeable risk of harm. 3. Renouf to pay the claimants: $3,750 to replace the trees with young, native trees (half the amount sought by the claimants), $2,000 for tree removal (half the quote submitted by the claimants since they refused to mitigate the damage by allowing Burrows to help). While Burrows had counterclaimed for damages arising from a confrontation between the claimants and his son, he did not seriously pursue it and it was dismissed. Costs of $1,234 awarded to the claimants (including $960.77 for disbursements). While the amount seems high, the case was large one and the counterclaim, although not seriously pursued, hung over the claimants' heads as they prepared for trial.

e_2009nssm47.txt

1991 S.K. No. 2978 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN; BOYD A. CORKUM ‑and- BARTLEY SAWATSKY and CHARLES SAWATSKY and SUN ALLIANCE INSURANCE COMPANY, body corporate Defendants HEARD: at Kentville, Nova Scotia, before the Honourable Mr. Justice Jamie W.S. Saunders, Trial Division, on September 29 and 30,. 1992 and at Halifax, Nova Scotia, on October and 13, 1992 DECISION: January 25, 1993 COUNSEL: Walter O. Newton, Q.C., Randall P.H. Balcome, Esq., and Scott A. Gillis, Esq., for the plaintiff David A. Miller, Q.C., for the defendants Sawatsky and Sawatsky 1991 S.K. No. 2978 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: BOYD A. CORKUM ‑and BARTLEY SAWATSKY and CHARLES SAWATSKY and SUN ALLIANCE INSURANCE COMPANY body corporate J.: Proceedings: This is an assessment of damages. The plaintiff was seriously hurt in motor vehicle accident on May 26, 1989. He was 53 years of age at the time. The defendants, Bartley and Charles Sawatsky admit liability. They go further. They formally: "... accept the assertion of the Plaintiff that the injuries suffered ... rendered the Plaintiff totally and permanently disabled from the duties of his then employment and for all employment in which he was capable of engaging by reason of education, training or experience." (Exhibit No. being letter from David A. Miller, Q.C. to Walter O. Newton, Q.C. dated September 28, 1992) Mr. Corkum and His Work Boyd Corkum married when he was 19 years of age. He and his wife Edna had five children. One died in infancy. Another daughter, Julia, died from complications attributable to cystic fibrosis at age 22. Their son Tim and one daughter live in this community. second daughter resides in New Brunswick. Mr. Corkum was born in the house in which he now resides. He has lived his entire life in Scotts Bay, Kings County. He attended elementary school but left after completing Grade 7. He has no formal training or trade and his skills in mechanics, farming, logging and millwork are all self‑taught. From the time he was 14 years of age Mr. Corkum has devoted his life to the farm and the other business ventures which he managed to initiate or develop. His evidence was really shining example of the pride and benefit of long days and hard physical labour. Mr. Corkum worked six days week, from dawn until dark. In winter he was up at 4:00 an. and had left the house by 5:00 a.m. He would return home at 5:00 p.m. when darkness fell, but tending the cattle and maintaining equipment kept him up until 9:00 or 10:00 p.m. Even at meal time Mr. Corkum ate by the phone in order to deal with customers and tend to other business. Those long hours were only slightly reduced in spring and summer. There was not any spare time for hobbies or community activities. As Mr. Corkum put it: "I done whatever had to be done ... the idea was to keep moving ... to have that many more dollars ..." He thrived on hard work. Mr. Corkum described himself in "perfect" health prior to the accident. He sustained his various operations through continuous activity. Some thirty years ago Mr. Corkum bought the family homestead and surrounding lands from his father. He already owned 120 acres himself. Over the years he acquired other parcels including woodlots. At the time of the accident he had assembled 1,020 acres of property, all in the Scotts Bay area. Of that, approximately 40 acres were devoted to Christmas tress. As well, Mr. Corkum paid an annual stumpage fee for the use of other land owned by two Americans. Apart from his home, other buildings on the property included wood house, warehouse, storage barn, saw mill, planer mill, workshop and various barns. Over the years Mr. Corkum developed five different business operations on his property. The largest operations were his logging, milling and Christmas tree business. He also raised beef cattle. He has employed full‑time hired hand, Mr. Blaine Huntley since 1986. He has also employed number of seasonal, full‑time workers to assist in the logging and milling operations. As one would expect, Mr. Corkum was directly and personally involved in his various operations. All winter he drove the skidder. The very nature of this piece of machinery and the terrain over which it passes jostles the body. Mr. Corkum was strong enough to haul 100 feet of inch steel cable with 10 chokers attached to corral the foot lengths. He would then pile these lengths in stacks, each length weighing up to 100 pounds. This work was often done in deep snow. The plaintiff did his own fencing. He baled hay. He operated and maintained his own machinery including tractors, trucks, harvesters, and combines. He is proficient welder. He shovelled manure from the cattle stalls. He vaccinated and castrated his cattle. Seldom was veterinarian needed. Mr. Corkum started his own saw mill and developed regular and continuous market for his products. Some of this was custom work for boat and bridge builders. Prior to 1988 Mr. Corkum did all of the sawing in the mills. By 1989 he had started to train his son, Timothy in the operation. The plaintiff had to turn down orders because he simply did not have enough lumber to fill demand. By the end of the season he "wouldn't even have truckload of inventory left". Mr. Corkum also developed Christmas tree operation. Each year he supplied to markets in New York and New Jersey. He harvested from the first week of November to the first week of December. Mr. Corkum did all the pruning and cutting. His helpers dragged the trees out of the woods. The plaintiff developed regular pulpwood supply business. Since 1984 he sold pulpwood in foot lengths to Bowater Mersey in Liverpool. Mrs. Corkum prepared tally (Exhibit 6) showing prices paid for pulpwood, per cord at roadside. In May, 1987 the price per cord was $47.00. In 1988 it increased to $49.00. 1989 and 1990 showed increases to $52.00 and $56.00 respectively. The Corkums' financial records show an aberation in 1986. This was obviously due to their daughter Julia's progressing illness which required her lengthy and frequent hospitalization. Mr. and Mrs Corkum spent many days and weeks visiting her at the Victoria General Hospital in Halifax. Understandably Mr. Corkum's tireless physical efforts were diverted on account of his daughter's terminal illness. Mr. Corkum testified he thought things were starting to "turn around" and the future looked much brighter by May, 1989. He said he had more cash in hand and was paying down his farm loan and other debts incurred in acquiring his tractors. He had also sold some special veneer logs. He said he thought 1989 would have been one of his best years. Mr. Corkum had also just started silviculture operation. His hired hand had successfully completed power saw course so that Mr. Corkum then qualified as silviculture contractor Mr. Corkum's Injury and Treatment. Mr. Corkum sustained a very serious neck injury in the mishap. His automobile was struck by the defendants' in an intersection. He was driving. His wife was front seat passenger. Mrs. Corkum was not injured. Although the plaintiff was not hospitalized and never required surgery for his injury, he is by all accounts completely and permanently disabled for any type of employment for which he was suited by education, training or experience. He was sent to physiotherapy which he attended every day for almost year. There were no benefits. He was then referred to the Rehab Centre in Halifax where he spent six weeks. His condition worsened. Two nerve blocks were administered at the Pain Clinic, to no avail. One of them caused his ear to ring for six months. He could not get any sleep. He tried to sleep in chair, or on the floor, or leaning on the bed. He suffered headaches, blurred vision and vertigo. Depression and anxiety led to psychiatric counselling and heavy night sedations. Experimental injections with lethal toxins by noted neurologist David B. King failed to bring relief. His physiotherapist describes Mr. Corkum's case as: "... probably one of the most severe whiplash type injuries that have seen in practice." (Exhibit 12, Tab 4, Report dated April 2, 1992) In all he has been seen by 14 specialists and been prescribed regimen of treatment and medication. None has given relief. His neck and chest is tight. He cannot turn his head. He demonstrated the marked lack of rotation. In order to answer my questions he had to turn his body completely in the chair. Prior to the accident he had no trouble hoisting 165 pound barrels of potatoes. Now he experiences continuous pain in his left shoulder which prevents him from lifting anything. His left leg is not as strong as his right. He stumbles easily. He has many restrictions. He confines himself to driving in his community where he knows he will "be safe". His wife does most of the driving. Sadly, but not surprisingly there has also been an emotional component. His psychiatrist Dr. Brian Garvey writes: "... Mr. Corkum has suffered very seven whiplash injury to his back and neck, injuries so severe that he is almost certainly permanently incapacitated from returning to any form of gainful employment. His physical injuries are not my concern and am no specialist in them but have never met man whose injuries are so obviously severe, whose neck is so clearly in spasm and who has been so handicapped by his affliction. ... The emotional problem with which am dealing in Mr. Corkum's case and which is directly the result of the accident is his inability to adapt to the idea that he will not be able to work again. He is being called upon as result of his injuries to completely change his lifestyle and his value system; not only can he no longer do the work he enjoyed, he cannot look forward to ever doing it again even should he recover. have had great difficulty in convincing Mr. Corkum that he should not remain even living on the farm because any improvement he will show will encourage him to go out, look at his cattle, examine his trees, inspect his machinery and he will not be able to refrain from pulling, hauling, looking up at or jarring himself on the uneven ground and he knows very well that any such activity will set him back. In my attempts to encourage him to totally change his way of life have loaned him wood carving set which hoped would encourage him to do the only sort of work he will be able to do in future which is indoor sedentary work not requiring him to look up. So far have been unsuccessful. There is another aspect to Mr. Corkum's emotional distress that is worth mentioning. He has long been known as one of the area's most kindly employers and as he put it, 'I have the best hired men in the country. They will do anything ask. have never had to fire one, no one has ever stolen anything from me and never have had to lock anything up.' It has hurt Mr. Corkum greatly to have to let these men go and all he has left now on the farm is his son, Tim, who is doing his best to keep things going." (Exhibit 12, Tab 5, letter from Dr. Garvey dated January 6, 1992, pp. 1‑2) It was very obvious to me that the disabling effects of this mishap have dampened Mr. Corkum's spirit. He often had trouble keeping his emotions in check. He is not used to and doesn't especially like others having to do for him. Claims: The plaintiff claims under the following heads of damage: (1) Non‑pecuniary damages (2) Pecuniary Damages (a) Loss of Past Income (b) Loss of Future Income (3) Section "B" Benefits (4) Management Fee (5) Prejudgment Interest An assessment of these claims will necessitate an analysis of such issues as fair compensation for actual loss, mitigation, discount rates and contingencies. The Evidence: Carl Kent, C.A. was retained to provide an opinion on the plaintiffs loss of income claim. He had prepared the plaintiffs personal tax returns and financial statements since 1981. In preparing his report he relied upon the plaintiffs income tax returns. He visited the plaintiffs farm and mill to familiarize himself with the operations. He said they were not sophisticated. In February, 1991 the plaintiffs solicitor delivered to the defendants report prepared the month before entitled "Report on Special Damages" written by Mr. Kent (the "Kent report"). The Kent report purports to calculate the plaintiffs loss of income allegedly resulting from the injuries from the date of the accident until the normal retirement age of 65. The report was premised on the assumption that Mr. Corkum would not recover from his injuries so as to be able to resume working at the same level he had worked prior to the accident. At page of the report Mr. Kent writes: "Our understanding of Mr. Corkum's physical condition is that, as result of the accident, he suffers from pain on continual basis and is severely hampered in returning to his usual work routines since the date of the accident. Ordinarily, Mr. Corkum worked fairly long day at physical labour in respect to running his farm and mill operations. His injuries are such that he is now unable to attend to these same duties in the same manner as he was prior to the accident." Mr. Kent expressed the opinion that as result of Mr. Corkum's inability to work, as before, the business had suffered substantial losses to the end of 1990. In his opinion these losses were so severe as to not only wipe out the income which the plaintiff had made from the business prior to the mishap but, in addition, to generate large net losses. Mr. Kent then projected these losses as continuing until the plaintiffs retirement at age 65. He then put forward claim based on the combination of those losses as well as the income which in Mr. Kent's opinion Mr. Corkum would not earn until he reached age 65. Mr. Kent said he assumed that Mr. Corkum's income would show real growth after inflation during those years. In order to calculate the value of Mr. Corkum's contribution, Mr. Kent said key indicator would be wages and operating costs for the eight years prior to the accident. He looked at the extra wage costs that were paid following the mishap as suggesting value for the plaintiffs contribution before the accident. He thought business loans, taxes and insurance were related to the proprietor's value and should be part of the calculations of future pecuniary losses. Another approach he took was what he called the subsidy method. His third approach was to consider the rate of return on assets. His fourth calculation explored actual operating losses based on the farm's historical performance. Mr. Kent then took an average of these four methods which he then projected, using 10% growth rate. thought Mr. Kent's approach and conclusions were seriously weakened on cross‑examination. He often hedged and seemed very reluctant to commit to any one position. He said he obtained his rate for projecting 10% annual growth by looking at the data for Christmas trees and logs which he assembled as schedule of income and expenses (Identified at trial as Schedule "E" revised June '91, and which appears directly after page 11 of Mr. Kent's January 11, 1991 report). On cross‑examination Mr. Kent admitted that the percentage increases would be significantly different depending on how many years one included in the analysis. He agreed it would have been more appropriate to examine the period over which particular segment of the operation had been dominant, if one were serious about trying to predict trend. He also agreed that the net income fluctuated drastically, and that the net income figure could not support the 10% "growth rate" upon which he based his opinion. Mr. Kent was referred to Exhibit No. which Mrs. Corkum had prepared and introduced during her testimony. Kent had not seen it before but after reading it agreed on cross‑examination that there was nothing in it, with respect to Christmas trees, which confirmed any trend. Yet, when he prepared his report he had assumed trend, and an improvement. Further, Mr. Kent agreed the only way for the plaintiff to increase revenue would be to either work harder or charge higher prices which would at least exceed inflation rates. Since all persons agreed it would be impossible for Mr. Corkum to work any harder (or longer) and since Mrs. Corkum had testified that the price of $56.00 per cord, at roadside had not changed in the last two years, and because of rising inflation, Mr. Kent was forced to agree that one could not comfortably project any improvement. He admitted that he had not studied the Christmas tree market either in terms of quantity or prices. He restricted his analysis to discussions with the plaintiff. Mr. Kent acknowledged that he had not allowed for any depreciation. Had he done so, it would have had the effect of reducing earnings and consequently Mr. Corkum's net income would have been even lower than Kent showed it to be. He was confronted with Mr. Corkum's outstanding liabilities including his loan for $140,000.00 to the Farm Loan Board. After some initial hesitancy, he allowed that there "may have been an element of not having enough cash to meet financial obligations" and that this would have to be taken into account in assessing economic viability. find Mr. Kent's projection of 10.5% rate of growth in forestry income suspect in that in 1991 and in 1992 there was no increase in the price of pulp. At page of his report Mr. Kent assumed "a ... pre‑tax rate of return of 8% to 10% ..." but admitted that historically Mr. Corkum's rate of return was never close to the $51,800.00 $63,900.00 range projected in his report. And if one accounted for Mr. Corkum's own efforts there would be very little net income. reject Mr. Kent's approach which extrapolated projections from various costs and revenue factors in those four different scenarios. In none of those did Mr. Kent employ the proven net income earned by Mr. Corkum for the previous eight years when Mr. Kent served as his accountant. It is inappropriate and unreasonable to project income of $47,000.00 per year, indexed to inflation and compounded until retirement for plaintiff who only last year reported net income of $13,000.00. As its last witness the plaintiff sought to call Jessie Gmeiner, MSC, FCIA, FSA. She is well known and respected actuary, presently engaged as vice‑president of W.F. Morneau Associates in Halifax. Mr. Miller opposed the reception of Ms. Gmeiner's report. After considering submissions of counsel refused to give the plaintiff leave to call Ms. Gmeiner and introduce her report. It was late. wish to elaborate on my reasons for doing so. C.P. Rule 31.08 provides: "31.08 (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 by the party filing the notice of trial at the time the notice is filed but otherwise served on each opposite party within thirty days of the filing of the notice of trial, and (b) delivered with the brief to the trial judge under Rule 28.07(1). the evidence of the expert shall not be admissible on the trial without leave of the court. Mr. Newton admitted that their decision to engage an expert actuary came late in the day. Ms. Gmeiner's report is dated September 10, 1992. The defendants' expert actuary was engaged in 1991. Mr. Burnell's reports are dated November 7, 1991 and June 12, 1992 and were delivered to the plaintiff in accordance with the Rules. As Mr. Miller said, had the plaintiff wished to counter this evidence, he could easily have engaged his own expert and furnished report long before this. No mention was made of the plaintiff's intention at the first pre‑trial telephone conference. When the subject was first broached by Mr. Newton at subsequent conference, Mr. Miller objected. It is not enough for the plaintiff to urge that leave be granted because defence counsel is sufficiently skilled, prepared and experienced to deal with its late introduction. The time prescribed by the Rule is there for reason. Margaret E. Miller v. Prest Brothers Limited (unreported, S.H. No. 82796, November 6, 1992). Fairness and predictability demand that the Rule be applied strictly and fairly to all sides, save in exceptional circumstances. There is burden of persuasion upon the defaulting party to show that the interests of justice would merit its late reception. heard no such submission during argument. Rather, Mr. Newton explained that it was decision come by lately and that Ms. Gmeiner's report might be "helpful to the court". That is not reason to grant leave to waive the clear requirements of C.P.R. 31.08. The Rule is intended to avoid surprise or costly delay brought on by request for an adjournment. Adherence to the Rule should promote settlement by giving each side sufficient time to address the content of an expert's report and obtain reasoned instructions which might lead to an early resolution. It was after all the plaintiff who pressed for trial during the term of the Supreme Court in Kentville. While much of the docket was taken with criminal jury trials assigned the last days available to this case. In his Notice of Trial, Mr. Corkum certified his readiness and certified that all interlocutory steps had been taken. It was for all of these reasons that I rejected Ms. Gmeiner\'s report. The defendants called Arthur Speed, AACI, P. App., M.A.I. who was qualified as an expert in the field of real estate appraisal. He has carried on business as an appraiser in Canada since 1960 and has also been engaged as realtor. He has frequently appeared as an expert in court. He has extensive experience appraising real estate of all descriptions including woodlands. His experience includes rural and urban areas. Mr. Speed was obviously quite familiar with the lands in this area. Mr. Speed was engaged to prepare an opinion of the current market value of the real and personal property, excluding furnishings, owned by the plaintiff at Scotts Bay, Kings County. The real and personal property consists of approximately 1,020 acres of land together with the plaintiffs residence and outbuildings, saw mill buildings, livestock and hay barns, potato storage building, and equipment maintenance and repair garage; mill machinery, agricultural machinery and equipment, vehicles and miscellaneous machinery and equipment. While admittedly title to certain portions of the property resides in the Nova Scotia Farm Loan Board or financial institutions, Mr. Speed appraised the total interest in the property and did not make any separate determination as to the interest of the owner or lending agencies. Mr. Speed relied upon other sub‑consultants for the timber cruise; the replacement cost figures for the saw mill and planer mill buildings; the saw mill and agriculture machinery and equipment, and cattle, as set out in his report. The automotive and miscellaneous items of machinery and equipment were separately valued at $51,500. In the result, Mr. Speed's opinion of the market value of the real and personal property as of August 15, 1991 is $735,000.00 calculated as follows: Real Estate $532,200 Sawmill, Planer Mill and Agriculture $132,400 Machinery and Equipment Cattle 18,900 $683,500 Miscellaneous Machinery and 51,500 including Automotive TOTAL $735,000 Mr. Speed made repeated visits to the property to conduct his inspection and spoke with the plaintiff. He assembled very comprehensive report which incorporates several tables describing residential home sales, agricultural land sales, woodland sales, surveys of stumpage prices, and valuation summaries for cattle, equipment and structures. Various addenda include photographs of the property, building diagrams and descriptions, forestry cruise report and other valuations. The helpful land composition map drawn from aerial photographs and prepared by Mr. Dan Dorey captures the diversity of the lands including the fields, cutover sections, gravel pit, space occupied by the residents and farm buildings together with the commercial mill operation, the woodlands with marketable timber, and the Christmas tree areas. Having studied Mr. Speed's report and considered his testimony accept his opinion, his methodology, and the assumptions upon which it was based. In conducting his investigation he intended to estimate the market value of Boyd Corkum's real and personal property at their highest and best as of August 15, 1991. The principle of highest and best use is fundamental consideration and may be defined as: "that use which at the time of the appraisal is most likely to produce the greatest return to the property over given period of time." Market value is defined as: "The most probable selling price of the property if offered for sale on the open market for reasonable period of time." In preparing his report Mr. Speed assumed that all of these assets would be placed for sale. He predicted that at sale it would not be as likely that all of the assets valued could be sold at their market value to single purchaser. For example, someone interested in buying the woodlands might not be interested in purchasing the cattle or the agricultural buildings and equipment. Neither might that purchaser be interested in buying the sawmill. Clearly, an orderly disposition would be required so as not to impair the value of the remaining assets. As Mr. Speed noted: "One would not sell off the sawmill equipment, "that use which at the time of the appraisal is most likely to produce the greatest return to the property over given period of time." Market value is defined as: "The most probable selling price of the property if offered for sale on the open market for reasonable period of time." In preparing his report Mr. Speed assumed that all of these assets would be placed for sale. He predicted that at sale it would not be as likely that all of the assets valued could be sold at their market value to single purchaser. For example, someone interested in buying the woodlands might not be interested in purchasing the cattle or the agricultural buildings and equipment. Neither might that purchaser be interested in buying the sawmill. Clearly, an orderly disposition would be required so as not to impair the value of the remaining assets. As Mr. Speed noted: "One would not sell off the sawmill equipment, until the woodlands had been sold and every reasonable effort made to sell the sawmill land, buildings and equipment as an operating unit; or One would not sell off the frontage to the land or the home and home site as first item of business." Mr. Speed envisaged preparing colored brochure at reasonable cost which would contain series of aerial and ground photographs and list of the entire assets. Initially it would be offered as complete package. Because of its ideal location, surrounded by three well known geographical landmarks, Mr. Speed thought it might well be purchased as block. He thought he would test the market for three or four months and if no attractive offers were forthcoming then he would switch emphasis to parcel approach. As he said, some of the assets would require less time to sell than others. For example some of the equipment could be sold during the spring and summer months. Overall, Mr. Speed estimated that reasonable period of time to effect sale of all of the plaintiffs property would be two years. If the assets were sold in their entirety then Mr. Speed foresaw continuation of the operation under existing use of farmlands and woodlands. For something this size, he expected it all to be sold in two years. If on the other hand the assets were sold separately then he expected that to occur on progressive basis but completed after two years. Having examined comparable sales in Kings County and because the plaintiffs lands are within 75 miles of Halifax, Mr. Speed was confident that the offer would be well received. Mr. Paul Gervason, B. Comm. MA (Econ.) P. Ag. was called by the defendants. His qualifications were admitted. Mr. Gervason is professional agrologist, consultant and pan‑time lecturer in the School of Business and Department of Economics at Acadia University. His several memberships include the Agricultural Institute of Canada and the Canadian Agricultural Economics Society. He has appeared as an expert witness before various provincial Public Utilities Boards and has prepared and presented briefs to the Senate Committee on banking, trade and commerce and the House of Commons Committee on finance, trade and economic affairs. Mr. Gervason was asked to investigate the plaintiffs forestry products operation. His report is dated March 30, 1992. During the course of his investigation Mr. Gervason reviewed and critiqued the damage claim analysis prepared by the plaintiffs expert, Carl Kent, C.A.. While noting that the plaintiffs woodland/lumber mill business was "substantially altered" by his motor vehicle accident, .., an analysis of Mr. Corkum's operating results for the period before and after the accident, and examination of relevant information on the forest‑products industry in general, suggests clearly that number of influences were already well under way at the time of the accident, whose impact would have negatively influenced both 1989 and subsequent‑years operations of Mr. Corkum." (Gervason report, Exhibit No. 2, Tab 5, p. 1) Mr. Gervason was highly critical of Mr. Kent's projections of "average growth of 8.1% in total revenues" or forest‑products income "experiencing an average yearly growth of 10.5%". Mr Gervason said that in his opinion there was no basis for even approaching those projections. At best he predicted that the plaintiffs sawmill operation would be "flat". There was absolutely nothing in the historical data which he reviewed suggesting that the outlook could by any reasonable standard be described as "growth". There was nothing to indicate that Boyd Corkum had contemplated any modernization of the technology he used in his woodlot operation. The evidence disclosed that Mr. Corkum was committing all of his personal effort and energies to running his woodlot and lumber mill. It was unreasonable to expect that he could improve his levels of production. Mr. Gervason noted: "Further, the very modest level of returns earned from those efforts, and review of 1990 results where additional hired labour was used to replace now‑unavailable owner‑operator effort, suggest that such additional effort, at standard wage, would reduce the already precariously‑low level of income being generated by the Corkum woodlot operation. Such an increase in effort would likely have, as 1990 results demonstrate, reduced the operation from marginal one at best, to chronically money‑losing one. Thus, the argument of Increase in Effort should not be used to justify future output/earnings growth." (Gervason report, Exhibit No. 2, Tab 5, pp. 16‑17). In Table to his report Mr. Gervason analyzed annual volumes of certain forest products sold in Kings County and across the province from 1980 to 1990. The measure of lumber sales was expressed in million board feet (mfbm). Whatever growth might have been experienced in the province, was not shared in Kings County. accept Mr. Gervason's opinion. am satisfied that the major forestry products produced lumber, Christmas trees, pulpwood and logs in the years up to the time of this accident (1989) were all negatively affected by wide variety of market pressures including an erratic exchange rate and disease infestation in Christmas trees. doubt that Mr. Corkum could have maintained gross revenues for his woodlot and sawmill operations beyond 1988 and even modest rates of inflation would further erode the low level of net farm income which Mr. Kent recorded. Given the evidence of Mrs. Corkum and Mr. Jon Porter there was no basis for optimism that contractors would experience an increase in selling prices for the forest products sold. While Mr. Gervason refers to March, 1991 report to the Legislative Assembly of New Brunswick which confirms significant downturns in both paper‑products and lumber exports from Canada, his observations are equally apt in Nova Scotia. The force of his conclusions was not weakened on cross‑examination. Residential housing starts dropped dramatically both nationally and locally in 1990 and in 1991. Mr. Gervason has not seen growth to this point and in looking ahead over the next five years he was not optimistic. He described it as situation of crisis proportions, the "worst" he has seen in his lifetime. He didn't know of single economist in Canada who had predicted that the Canadian Dollar would have fallen, so far, in the few days before he testified. Mr. Gervason could find no support for the proposition that Mr. Corkum would experience growth in revenues from his woodlot/sawmill operations. In fact Mr. Gervason concluded that none of the potential for growth applied to Mr. Corkum's operations. He said he did not expect any improvement in housing starts and it would take an enormous turn‑around before anyone experienced return to 1989 levels. accept Mr. Gervason's evidence that fluctuating Canadian Dollar has had significant effect on trade in forestry and other products between Canada and the United States. An erosion in the value of the Canadian Dollar between 1981 and 1986 made it easier to sell Canadian Forest products on U.S. markets. Conversely steady improvement in the value of the Canadian Dollar between 1986 and 1991 has lessened the competitive edge of Canadian suppliers to U.S. markets. This pressure has reduced volumes of Canadian product sales in the United States. Increasing domestic prices of Canadian raw materials has added to the spiral. Mr. Gervason said that Mrs. Corkum's records (Exhibit 6) bore out the statistical information he collected in Table C. Prices have stagnated. He predicted little or no growth in the future. Similarly saw log reduction has flattened. Locally, the price has stayed the same. Until there was dramatic improvement in the economy, these pressures would continue and prices would stay flat. Mr. Gervason foresaw no change in the next couple of years. His review of building permits issued by the Municipality of the County of Kings bore out these projections. Whatever gains were achieved in 1989 have dropped off in 1990 and 1991. For small mills like Mr. Corkum's, residential construction is the primary market. These sizeable reductions on the local scene over the last three years have paralleled the national experience. accept Mr. Gervason's opinion that one could not possibly project any growth greater than that seen in 1989 and it would take tremendous improvement in 1993 and in 1994 before anyone could confidently predict favourable trend in the foreseeable future. The Christmas tree segment of Boyd Corkum's operations naturally attracted Mr. Speed's attention. The factors which negatively impacted on the industry in this province are addressed at p. 60 of his report. In addition, specific investigation of the 40 acres used to grow Christmas trees was undertaken by Dan Dorey, forester who completed the timber cruise. His report dated October 18, 1991 is found at Addendum to Mr. Speed's Report. This letter details his recent inspection. Mr. Speed revisited the Christmas tree areas accompanied by Paul Gervason which resulted in Gervason's subsequent report dated November 18, 1991 appended as Addenda to Exhibit 2). Mr. Gervason also attacked Carl Kent's forecast that the plaintiff could expect forest product income growth of 10% per annum, with particular reference to Boyd Corkum's Christmas tree operation. In particular Mr. Gervason noted the rise and fall of the Nova Scotia Christmas tree industry. marked increase in the number of U.S. Christmas tree growers has cut into the Nova Scotia industry. fluctuating dollar has increased the risk for Nova Scotia growers. Changed customer preferences has downsized export markets of certain tree species. Tighter inspection controls have held up trans‑border deliveries. The trend away from natural trees has eroded the potential market demand. The appearance of U‑Cut Christmas tree operations in Nova Scotia over the last two years has come in response to the eroding U.S. market available to Nova Scotia Christmas tree growers. All of this against the reality here that the commercial market for Christmas trees in this province does not exceed 80,000 trees annually. Mr. Gervason thought that in the 1990's Mr. Boyd Corkum would do well to "stay even" with his performance in the 1980's. While the figures assembled by Mrs. Corkum (Exhibit 6) show change in approach and diversification in the 80's, Mr. Gervason doubted that such product‑mix changes would have brought about any sustained improvement: "... all of the main wood products sold were experiencing at least similar market constraint, suggesting that more of one or less of another would not have significantly altered income potential. For these reasons then, change in product mix cannot be used as justification for projecting an increasing income stream." (Gervason Report, supra, p. 18) On cross‑examination Mr. Gervason was shown Exhibit 13 which is table dated April 30, 1992 by Statistics Canada showing Christmas tree exports from Nova Scotia between 1981 to 1991. agree with Mr. Gervason that Exhibit No. 13 is not compelling statistical data. It is simply bar graph purporting to show, in millions of dollars, export sales in that decade. Without knowing volume and price per unit one cannot say that the chart reflects growth. Mr. Gervason remained convinced that the number of trees sold flattened in 1986. There were two other factors which signalled future difficulty in Mr. Corkum's forest products operations. The absence of any capital cost allowance provisions from 1981 to 1990 spelled trouble ahead in modernizing or even maintaining structures and equipment. Secondly, many of the tasks in which Boyd Corkum was personally involved were dangerous. He was getting older. Mr. Gervason said: "... it is troubling to contemplate the ongoing level of effort required of Mr. Corkum, to maintain his woodlot/mill operations up to the 'normal' time of retirement had the accident not occurred. Should any other factor natural or accidental intruded (sic) which had the effect of reducing Mr. Corkum's customary level of effort, the impact would very likely have been to reduce the already‑marginal operation to loss position, and force permanent resolution to its underlying problem of inadequate income potential" (p. 19) These fluctuations of markets, exchange rates, economic cycles and prices were given practical support by Jon Porter, assistant woodlands manager for Bowater Mersey, called on behalf of the defendants. He explained the modernization techniques and changed strategies employed by his company, forced to cut costs and maintain its position in today's economy. The pulpwood price of $56.00 per cord, at roadside has not changed since May, 1990 (Exhibit 6). Bowater Mersey divides its territory (both corporate owned or in the hands of others) into four districts. The Medway district covers Annapolis and Kings Counties. Boyd Corkum's lands are within the Medway district. In November, 1989 Mr. Porter's company replaced its pulpmill with new thermo‑mechanical pulpmill (TMP). This is much more efficient in its use of wood. The new mill uses 20% less wood to produce the same volume of newsprint. He produced memorandum (Exhibit 19) which analyzes deliveries of spruce pulpwood to their mill in 1989, 1990, 1991 and projected for 1992. Deliveries of total fibre cords and total pulpwood cords have dropped markedly in the space of three years. In fact cords delivered by private suppliers has dropped from 186,300 cords in 1989 to projected 100,000 cords in 1992. Even though Mr. Corkum had supplied to Bowater Mersey in other years, there was no guarantee that he would be asked to continue to supply Bowater's needs. The company changed its requirements as of January 1, 1992. Time requirements for allowing cutting in advance have been slashed. Suppliers are obliged to acquire tickets confirming their adherence to these regulations. The days of contractors delivering wood cut months in advance are over. The defendants called Brian L. Burnell, FCIA, FIA, ASA. For more than 20 years Mr. Burnell has appeared as an expert actuary in cases in this and the other Atlantic Provinces. He has published in his field and has served as secretary‑treasurer of the Canadian Institute of Actuaries. The Atlantic Canada office of The Wyatt Company operates in Halifax under Mr. Burnell's direction. His qualifications were admitted by the plaintiff. Mr. Burnell was asked to do two things: calculate present value "multiplier" based on $1,000.00 per annum for the plaintiff's future loss of income; and calculate the present value of the plaintiff's future Section benefits. In his first report dated November 7, 1991 Mr. Burnell made those calculations as of December 1, 1991. In calculating the multiplier he used net interest rate of 2.5% per annum as prescribed by Civil Procedure Rule 31.10. Mr. Burnell assumed that Mr. Corkum would retire at age 65 and that he would survive to that age. He made no allowance for employment income after age 65. The probability of Mr. Corkum surviving to age 65 was 86.25%. Mr. Burnell calculated multiplier, based on $1,000.00 per annum, of $7,359.00. He testified that at the time he prepared this report he did not think that net interest rate of 2.5% reflected the difference between estimated investment and price inflation rates. He did not think it an appropriate figure to use, but did so by virtue of C.P. Rule 31.10(2). He was then asked to review Armstrong v. Baker and McCrindle (1992) 11 N.S.R. (2d) 239. Through his inquiries and studies Mr. Burnell said he confirmed that 2.5% was not realistic, especially for the short term. Consequently at the request of counsel Mr. Burnell prepared second report dated June 12, 1992. He analyzed yields obtained from Government of Canada Bonds and certain Provincial Guarantee Bonds and compared these yields to the rate of increase in the Consumer Price Index over the last twelve months. This proved real rate of return of approximately 7%. The computer printout attached to Mr. Burnell's report summarizes the rate of increase in the C.P.I. and yields available on Government of Canada Bonds over the past 10 years. This proved that the ten year average real rates of return ranged between 5.71% and 6.20%. In his report to David A. Miller, Q.C., counsel for the defendants Mr. Burnell wrote: "Your (sic) have drawn my attention to the comments made by Mr. Justice Saunders in the Armstrong vs. Baker case with particular reference to determination of an appropriate rate of interest to be used in valuing future loss of income when the term of payment is relatively short ... In the case of Mr. Corkum, we are dealing with working life expectancy of 8.16 years calculated as of December 1, 1991. Clearly, this is situation of the type where the considerations involved are very different to those involving long term of payments ... Accordingly, in the circumstances, I am satisfied that the use of a net rate of interest (i.e. a real rate of return) of 5% per annum is reasonable in placing a value upon Mr. Corkum\'s future income loss, between now and the date he attains age 65. On this basis, the multiplier to be used in respect of loss of future employment income for an amount of $1,000 per annum, would be $6,674." (Exhibit 2/Tab 4) Mr. Burnell also referred to new investment vehicles available and in particular the so‑called Real Return Bond issued by the Government of Canada late in 1991. These are intended for the long term, upwards of 30 years. It is unique in Canada in that it provides complete protection against inflation. sample was introduced as Exhibit 20. The interest rate is indexed, as is the maturity date at the end of term. To the extent that it is traded, recent yields have been in the 4.65 to 4.70 range. Such rates for bond with 30 year maturity satisfied Mr. Burnell that he was justified in applying net rate of interest of 5% per annum in Mr. Corkum's case with working life expectancy of 8.16 years. He had reviewed John Carter's reports and confirmed that Mr. Carter had made appropriate use of Mr. Burnell's rates and figures. The defendants called John B. Carter. Mr. Carter is managing partner with the chartered accountancy firm Ernst and Young in Halifax. He has testified as an expert witness in the courts of this province and before Government regulatory bodies. His qualifications were admitted by the plaintiff. Mr. Carter explained his reports, the first dated January 7, 1992 (Exhibit 2/Tab 1) and subsequently June 22, 1992 (Exhibit 2/Tab 2). Certain revised schedules were prepared by Mr. Carter and these schedules were introduced together with his letter to defence counsel dated September 28, 1992 as Exhibit 21. He concurred with the comments of Brian Burnell that rather than the 2.5% prescribed in C.P.R. 31.10(2), 5% rate was much more reasonable over an year term. Mr. Carter was engaged to review the calculation of loss of income as prepared by the plaintiff's expert, Carl Kent, CA. After criticizing Mr. Kent's methodology and conclusions, Mr. Carter went on to provide his own determination of the plaintiffs loss of earnings. Having studied both opinions and considered the testimony of both accountants, the assumptions and data upon which they relied, theft approach and methodology, much prefer and accept the evidence of the defence expert, John Carter. It is evident from the schedule of income and expense attached to Mr. Kent's report of January 11, 1991 that both the revenue generated and the net income resulting from the revenue fluctuated dramatically from year to year. Mr. Kent himself wrote: “We also have compared Mr. Corkum's income and expenses for the ten year period (1981‑1990) schedule A. This graph shows that Mr. Corkum\'s operation is marginally profitable at the best of times; and, on average, has provided him with a net income of 4.6% to 5.2% of gross ‑ sales." (Exhibit 3/Tab 4, p. 3) It is clear that Mr. Corkum was involved in all facets of his business and normally worked 12 to 16 hour day, days week. Despite this formidable effort Mr. Corkum was only earning about $7,000.00 year (which equates to $2.00 per hour). Mr. Corkum was born August 13, 1935 and is currently 57 years of age. If one assumes normal retirement age of 65 then Mr. Corkum would have about years of earning potential remaining. agree with Mr. Carter that past results are often very good indicator of future results. In the case of Boyd Corkum they are the best indicator. It is misleading to find at page of the Kent report: "... while there have been wide fluctuations in both income and expenses over the years, the years which were not in keeping with the trend were 1989 and 1990 in which income was level or decreased, but expenses rose sharply, 1989 was the year of the accident, and 1990 continued this declining trend." careful reading of Mr. Kent's own Chart confirms that total income declined markedly in 1983 and 1986 in addition to 1990 and net income declined sharply in 1982, 1984 and 1986 as well as in 1989 and 1990. This shows that Mr. Corkum's business was subject to earnings fluctuations throughout the previous ten years of operations. am not satisfied that there were any obvious, positive trends for Mr. Corkum's future operations. Like Mr. Caner, reject Mr. Kent's use of flat 10% rate of growth in revenue for all future years. reject each of the four methods employed by Mr. Kent for the reasons stated by Mr. Carter in his critique. As an example of the weakness of Mr. Kent's approach mention his third approach which calculated Mr. Corkum's loss of future income based on possible rate of return on the assets invested in the business operations. He used fair market value for the land and the net book value for fixed assets in arriving at net asset investment of $639,816.00. Mr. Kent then assumed 9% pre‑tax rate of return in order to arrive at an annual rate of return of $57,917.00. At page of his report Mr. Kent wrote: "... Mr. Corkum would have to have an income of $51,852 to $63,982 annually to justify maintaining ownership of these assets. Prior to his accident, it would appear that Mr. Corkum's farm and forestry operation generated the necessary income to maintain ownership of these assets." There is nothing in the evidence to suggest that the plaintiff ever received anything approaching an 8‑10% rate of return. On the contrary Mr. Corkum only ever received about 1% rate of return on the fair market value of his assets over the decade that Mr. Kent represented him. accept Mr. Carter's submission that this illustration: "... continues to underscore the nominal amount of income Mr. Corkum was receiving from the assets invested in his business and the purely economic common sense of liquidating his operations and earning substantial investment rate of return on his proceeds." (Exhibit 2/Tab 1/p. 5) In preparing his own quantification of the plaintiff's claim for loss of earnings Mr. Carter kept three dates in mind: May 26, 1989 as the date of this accident; December 1, 1991 as benchmark for the calculation of current and future loss of earnings; and December 31, 1992 as notional date by which the orderly disposition of assets would be completed. In taking an approach which would most conservatively affect the plaintiff, Mr. Carter has applied the net income determined by Mr. Kent for 1989 and 1990 as representing the actual losses from operations and has added to those amounts the expected net income for those years (as calculated based on weighted average net income adjusted for 5% inflation factor) in order to determine the overall costs of maintaining the operations for 1989 and 1990. This led to total loss of past earnings from which he deducted the Section automobile insurance benefits actually received by the plaintiff. Mr. Carter went on to assess the plaintiff loss of future earnings. He used both four year and eight year history of earnings and weighted both periods to accurately determine Mr. Corkum's average historic earnings. To ensure the most conservative impact upon Boyd Corkum, Mr. Carter chose four year weighted average earnings. After deducting the present value of future Section automobile insurance benefits, and taking into account the interest income generated by the disposition of business assets (as detailed in Schedule 8, revised by Mr. Carter while testifying) Mr. Carter is of the opinion that the plaintiffs net proceeds on disposition of the business assets would be $493,762.00 (page of Mr. Carter's report, Schedule 8, Exhibit 2/Tab 1). Mr. Carter said that there were approximately 3/4 of million dollars worth of assets available for disposition. While never choosing to categorize the plaintiff's standard of living as "subsistence level" Mr. Carter didn't budge from his opinion that Boyd Corkum never had more than subsistence level of income, (emphasis mine). If he were called upon to give business advice to Boyd Corkum, he said the only recommendation he could possibly make would be that the plaintiff sell the assets and live well off the interest income generated. REASONS: Non‑Pecuniary Damages: need not repeat my description of the very significant and disabling injuries suffered by Mr. Corkum in this motor vehicle crash. have considered all of the cases cited by counsel. Principally the plaintiff relies upon three decisions: Brown v. Matheson and Von Kintzel (1990), 1990 CanLII 2473 (NS CA), 97 N.S.R. (2d) 428 (N.S.S.C., AD.); Benson v. Jamieson (1991), 1991 CanLII 4259 (NS SC), 106 N.S.R. (2d) 335 (N.S.S.C., T.D.); and King v. Briand's Cabs Limited (1984), 64 N.S.R. (2d) 210 (N.S.S.C., T.D.). In Brown, supra, Mr. Justice Kelly awarded the plaintiff $75,000.00, which was upheld on appeal. Her most significant injury was neck muscle disfunction. She was still suffering chronic pain four years after the mishap and at the time of trial was unemployable. The plaintiff also suffered chronic post‑traumatic stress disorder requiring psychiatric counselling. Her fiancé had been killed in the mishap. Benson v. Jamieson is easily distinguishable. There, 20 year old plaintiff suffered whiplash in 1987 accident which aggravated very serious injuries suffered in motorcycle crash two years earlier. King v. Briand's Cabs Limited is 1984 case and provides little comparison or assistance in assessing Mr. Corkum's situation. While it is true that the plaintiff in Brown, supra was much younger than Mr. Corkum, that is not reason enough in the circumstances presented here to discount the amount which Mr. Corkum ought to receive. Non‑pecuniary damages are intended to provide some measure of solace and compensation for pain, and suffering, and loss of enjoyment of life. All of the circumstances must be considered in order to arrive at fair and reasonable level of compensation for the level of suffering or loss of enjoyment sustained by that particular claimant. Here is man who has worked 16 hours day for more than 40 years. As Mr. Newton eloquently stated on his behalf: "The motor vehicle accident caused him an injury to his neck, which was very painful, and which persists today without any probability of improvement. The most meaningful diagnosis of his injury did not come until 1992, when Dr. David King, well known neurologist of Halifax, diagnosed him as having locked neck. The medical name for this is cervical dystonia or torticollis. Dr. King even recommended to Mr. Corkum an innovative and risky procedure involving potentially toxic medication which was injected in the base of the neck and, unfortunately, ... did not improve the symptoms. Mr. Corkum has pursued every avenue of therapy and treatment which modern medicine can provide or recommend without any improvement to his physical injury. He has suffered depression as result of his condition ... and has not been able to accept the recommendation of his psychiatrist, Or. Brian Garvey, that he sell his property. The result of his injury is that his day‑to‑day existence is fraught with pain and discomfort, and the frustration that arises from being unable to involve himself in the operation of the substantial real estate which he has acquired and developed over his lifetime. On one day Mr. Corkum was in excellent physical health and the next day he became permanently unable to do the hundreds of physical activities which were normal to him, which helped him create and maintain his estate and which, without any doubt in the world, provided sheer pleasure to him from seeing the results of those efforts." Mr. Corkum's pleasure in life was inextricably wrapped up in his family, home, work style, workplace and work ethic. With respect cannot agree with Mr. Miller for the defendants when he argues that there is prospect for some recovery. At least the first injection of botulinum toxin administered by Dr. King brought absolutely no improvement. In his most recent report dated September 14, 1992 to Dr. Garvey, Dr. King writes: "The question is whether anything more can be done to help him." How can say it is more likely than not there will be some relief from pain, which will then go to relieve his depression? While there is no evidence that Mr. Corkum's condition will worsen, neither am prepared to infer that he will experience any real, tangible improvement. Mr. Corkum's "loss" in terms of enjoyment of life, is huge. Dr. Garvey stated that the idea Mr. Corkum must relinquish his former way of life is "by far the most grievous stress he will ever face". Mr. Corkum had enjoyed quality of life which would inspire all those who sought to emulate it. The fact that he will now be denied the opportunity to benefit from long hours of outdoor, hard physical labour is of great importance to me as assess his claim for non‑pecuniary damages. This award also takes into account and is intended to reflect Mr. Corkum's inability to increase, or seek to increase the value of his holdings. For Mr. Corkum, his work was his life. However, each is so inextricably tied to the other that this is case where it would not be useful to segregate one facet of the award from another. It is different than the situation which faced the Saskatchewan Court of Appeal recently in Fobel v. Dean (1991), 1991 CanLII 3965 (SK CA), C.C.L.T. (2d) 87. There, in writing for the majority, Vancice, J.A. held that the trial judge erred in not segregating, in those circumstances, the component of the non‑pecuniary damage award which was attributable to an impaired housekeeping capacity. Wakeling, J.A., in dissent, found that while it would have been helpful for the trial judge to divide his assessment of general damage into various sub‑categories, its absence did not prevent realistic assessment of the adequacy of the award. However, he would have increased the non‑pecuniary damage award from $60,000.00 to $100,000.00 because it: ... does not appear to have adequately included factor for the additional inconvenience, pain and suffering which will be involved as result of the appellant's intention to continue to perform her household responsibilities ... [and] ... bearing in mind the significant nature of the injury she has suffered, that the prospect of recovery is unlikely, and that she will continue to perform both household and business activities despite the pain and suffering this involves." (at p. 140) Obviously Mr. Corkum would be foolhardy if he were to make any attempt to perform his pre‑accident duties. By all accounts such efforts would be impossible and would most certainly ignore the very clear advice from his doctors. Thus, his non‑pecuniary damages need not be extended to accommodate additional suffering in the continued performance of duty, but should and do include component (assuming he follows the best advice to dispose of the assets) for his inability to increase or seek to increase the asset value of his operations. While difficult to measure and not forming large part of this award, it is real loss and compensable. For pain and suffering, past, present and future, and for loss of amenities and the permanent adverse impact on his quality of life I award Boyd Corkum non‑pecuniary damages of $60,000.00. Pecuniary Damages (a) Loss of Past Income Subject to confirmation explained at page 49 of these reasons, accept Mr. Carter's calculation showing loss of past earnings owing to the plaintiff of $70,624.00. simply leave it to counsel to verify that figure as accurately reflecting deduction for Section "B" automobile insurance benefits actually received by the plaintiff. will deal with the settlement reached by Mr. Corkum shortly before trial for future Section benefits separately in these reasons. (b) Loss of Future Income This is by far the most difficult aspect of the case. Mr. Corkum argues that he has earned the right to stay on his farm and asks that the defendants be obliged to finance the continued operation of his business for almost eight years, in other words to retirement age of 65. This request is vigorously contested by the defendants. They say such demand is patently unreasonable and unfair because to do so would compel them to pay the combined annual loss from the costs of maintaining this property together with loss of income which would then total something of the order of $47,000.00 per year, increasing annually. All this allegedly to compensate Mr. Corkum for an annual pre‑accident income of only $7,000.00. Counsel advise that they have thoroughly canvassed authorities across the country and there is paucity of jurisprudence in the field. Here am faced with what appears to be very unusual situation where substantial capital business assets acquired over lifetime are in the hands of sole proprietor and provider who has been completely disabled from all forms of work for which he is uniquely suited. The evidence at trial has satisfied me that many of the liabilities and significant debt load were incurred before the plaintiffs accident on May 26, 1989. By the same token much of the added value of his business assets came about over the years and arose on account of inflation. find that but for this accident Mr. Corkum's operations would have continued much the same, or worse, but not better as they had before May, 1989. The plaintiff did not have any more time or energy to invest, and further borrowings would have added to his debt load and reduced the already minimal margin of profitability. There is no evidence that Mr. Corkum's properties and assets had increased in value over the last few years before the mishap, or that they would increase in value at any greater rate than inflation. must assess the plaintiff’s loss in real terms based on the most persuasive evidence led at trial. Taking into account all of the contingencies identified by the defendants' experts conclude that it is only reasonable to assume retirement age for Boyd Corkum at 65. Even his own accountant used that time frame as cutoff point. Whether or not Mr. Corkum was injured in this accident, it is implicit in his own accountant's analysis that at some time, sooner or later, he would be required to sell his business assets when because of advancing age, or ill health or some other unforeseen eventuality he would be unable to apply his own physical labour and managerial skills to the business. Mr. Newton argues that because of the plaintiffs dedication and hard work he has earned the right to "enjoy the fruits of his labour" and that the defendants should be called upon to subsidize the plaintiffs business for another eight years. With respect, cannot agree. To do so would provide Mr. Corkum with huge sum of money and at the end of the day Mr. Corkum would still own all of his assets and presumably retire living off the interest earned on investing that capital. He could simply do nothing, hold onto the assets until age 65 thereby incurring very substantial costs, at the expense of the defendants, while earning no income whatsoever. Alternatively, if Mr. Corkum were awarded the sums of money he claims, he could take the award, sell the farm and all other business assets thereby eliminating loans to the Bank and Farm Loan Board, property taxes, carrying charges and all other liabilities. In that event Mr. Corkum would be doubly enriched. victim is entitled to compensation. These defendants are obliged to compensate Mr. Corkum for the damage he has suffered, but no more. Thus, the plaintiff's demands may be challenged on two grounds: true compensation, and mitigation. Mr. Corkum asserts that his assets can no longer generate income because of his disabling injuries. While that is true, it has been proved that Mr. Corkum would be able to convert those capital assets to another form which will then produce income, in the form of interest, without any requirement that the plaintiff expend physical labour or managerial skills. In the case of Warkentin v. Sandy (unreported, Manitoba Court of Queen's Bench, December 11, 1989) an injured plaintiff who was unable to continue operating her business was said to have acted reasonably by selling the business. Her damages were assessed after taking into account the effect of the earlier than anticipated liquidation of the business. The defendants' expert Mr. Carter also took this circumstance into account in preparing his report. While the point has not been the subject of any elaborate discussion in Canadian case law, the comments of Dr. Christopher Bruce, Professor, Department of Economics at the University of Calgary in Assessment of Personal Injury Damages, 2nd edition (Toronto: Butterworths) are helpful. Dr. Bruce has focused on the distinction between the injuries for which the tortfeasor is obliged to compensate, and invested capital which has not been impaired by the accident. In particular, at pp. 103 108 of this text, the author explains that in firm with significant assets, nothing happens to the "investment" portion of the firm's earnings in the event that the owner is incapacitated. The owner then has the option of selling the company and investing the proceeds, thereby maintaining the imputed investment income portion of the company's assets. Dr. Bruce writes at p. 104: "These earnings are not affected by the presence or absence of the owner and, therefore, do not form part of the claim for damages." On this analysis, as Mr. Miller has noted in his brief, the issue is in fact not one of mitigation. If the plaintiffs holdings have value as an investment (and they clearly would) and if there is no loss because the investment can be made in another form, then there should be no duty on the defendants to provide compensation in that regard. am also persuaded that the duty to mitigate assists the defendants here. Any plaintiff is required to act reasonably and to take all reasonable steps to mitigate the loss which is suffered at the hands of the defendant. If he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided: 12 Halsbury's Laws of England, 4th edition, para. 1193. See as well the helpful analysis by Paul J. Bates in Mitigation of Damages: Matter of Commercial Common Sense" (1992) 13 Adv. Q. 273. case with some factual similarities is Kellar v. Estate of Genereux (unreported: No. 8801‑14247, Moshansky, J., June 28, 1983, Alta. Q.B.). There, the plaintiff owned forest products processing business which was dependent on his ability to fly his own aircraft. Due to the injuries he received in motor vehicle accident, the plaintiff was unable to continue flying and was forced to close the plant. As the court stated at p. 11 of the decision: "As in all damage claims there comes point in time beyond which there is duty on an aggrieved party to mitigate damages. One cannot charge business losses to wrongdoer ad infinitem. The problem here as see it to arrive at an equitable interval during which losses should be charged to the wrongdoer." (underlining mine) Mr. Corkum had the option and, find, the duty, after it became clear in his own mind that he was permanently disabled, to take all reasonable steps to cease business operations and to sell income producing assets so as to convert them to assets which would then produce investment income. Mr. Corkum's financial returns were never of the size or consistency forecast by his accountant. In spite of his sacrifice and endless toil Mr. Corkum's annual income was low. By all accounts, his operations were marginal. Yet it provided standard of living which satisfied Mr. Corkum and his family. They were proud, content and self‑sufficient. These qualities brought their own rewards. Mr. Newton has argued that Mr. Corkum is not without aspirations. accept that. He will have to change his outlook. While he may choose to continue to live in his community, he must adjust his focus and learn to develop other pastimes and interests. cannot order Mr. Corkum to sell his assets. But am able to relieve the defendants of the obligation to financially sustain the plaintiffs operations. accept Mr. Miller's key submission that the defendant should not be expected to subsidize the plaintiffs ongoing losses simply so that he might be permitted to hold onto those assets until age 65, all the while earning no income whatsoever from his capital. The Kent report is prepared on the assumption that the plaintiff will maintain his business assets until age 65, thereby sustaining an annual loss in the order of $47,000.00. This proposal leads Mr. Corkum to claim very large sums as "compensation", yet at age 65 the plaintiff would still own the assets and presumably could retire living off the interest earned on investing the capital. Mr. Corkum is entitled to full compensation for his injuries and losses, but no more. The award must be fair, both to the plaintiff and the defendant. Mr. Corkum is not entitled to profit at the expense of the Sawatskys. The basic principle in assessing damages in claims arising out of personal injuries was stated by Viscount Dunedin in Admiralty Commissioners v. S.S. Susquehanna (Owners), 1926] A.C. 655 (H.L.), adopted in Andrews v. Grand and Roy Alberta Limited, 1978 CanLII (SCC), [1978] S.C.R. 229. The most recent affirmation of the principles which form the basis for awarding compensation in personal injury cases came in Ratych v. Bloomer (1990), 1990 CanLII 97 (SCC), 69 D.L.R. (4th) 25 where, McLachlin, J., writing for the Court, held: "In the trilogy this court affirmed that the purpose of awarding damages in ton is to put the injured person in the same position as he or she would have been in had the ton not been committed, in so far as money can do so. The plaintiff is to be given damages for the full measure of his loss as best as can be calculated. But he is not entitled to turn an injury into windfall. In each case the task of the court is to determine as nearly as possible the plaintiff's actual loss. With respect to non‑pecuniary damages the task is necessarily imprecise, and resort must often be had to conventional figures. But where pecuniary damages are at issue, it is the actual pecuniary loss sustained by the plaintiff which governs the amount of the award. The functional rationale for the award of damages adopted in the trilogy of Andrews v. Thornton and Teno underlines the necessity of using the plaintiffs actual loss as the basis of his or her damages. The award is justified, not because it is appropriate to punish the defendant or enrich the plaintiff, but because it will serve the purpose or function of restoring the plaintiff as nearly as possible to his pre‑accident state or alternatively, where this cannot be done, providing substitutes for what he has lost." (at p. 40) The Kent Report purports to calculate the plaintiff's loss of income allegedly resulting from his injuries, from the date of the accident until the normal retirement age of 65. Mr. Kent premised his report on the assumption that Mr. Corkum would not recover from the injuries so as to be able to resume working at his original. level. The Report states, at p. 1: "Our understanding of Mr. Corkum's physical condition is that, as result of the accident, he suffers form pain on continual basis and is severely hampered in returning to his usual work routines since the date of the accident. Ordinarily, Mr. Corkum worked fairly long day at physical labour in respect to running his farm and mill operations. His injuries are such that he is now unable to attend to these same duties in the same manner as he was prior to the accident." As Mr. Miller demonstrated during his cross‑examination of Mr. Kent, the accountant projected the plaintiff's losses as continuing until his retirement age 65 and then put forward claim based on the combination of those large net losses as well as loss of income. Mr. Kent assumed that Mr. Corkum's income would show real growth after inflation during those years. On the evidence find that as of early 1991 Boyd Corkum must be taken to have adopted the position that he was totally disabled from employment and would remain so for the balance of his working life. In January 1991 the Kent Report was prepared. This report was delivered to the defendants in February, 1991. find that the plaintiff must be taken to have agreed with the contents of his own expert's report. No one would expect that on the day following the motor vehicle accident Mr. Corkum should have put his assets up for sale. He was entitled to wait reasonable period of time to evaluate the effects of his injuries. After the mishap he was told by his doctors that he might expect recovery within about six months. That time frame was later changed to year. During the period within which Mr. Corkum thought there was chance of recovery, he hired extra help and turned over greater responsibility to his son. Nonetheless, the 1990 fiscal year was not success. By early 1991 Mr. Corkum's financial and medical experts came to believe that he would never return to his former work level. Accordingly find that it was reasonable and appropriate for Mr. Carter to use January 19, 1991 as the trigger date from which the plaintiff should have begun his efforts to dispose of his assets and mitigate his loss. This was, after all, just slightly less than two years after the motor vehicle mishap, during which time the plaintiff had undergone considerable medical treatment which, he now says, did not result in any substantial improvement in his condition. In his analysis, Paul J. Bates, supra, writes that there are, generally, three rules of the law of mitigation: "(1) The plaintiff will not recover for those losses which can be avoided by taking reasonable steps. The plaintiff is expected to conduct himself as though there is no claim in which to expect recovery of losses. (2) The plaintiff will recover as damages all costs and expenses incurred in taking reasonable steps in mitigation of damages. (3) The plaintiff claim for damages must be adjusted to take into account the amount of any losses avoided or, in exceptional cases, the amount of losses incurred in taking reasonable steps in mitigation of damages. (at p. 274) Applying the analysis to Mr. Corkum's situation, is it reasonable to have expected him to begin to minimize his loss by selling off assets when he realized he could not return to work? Put another way, was Mr. Corkum's failure to take those steps unreasonable? The plaintiffs choices, and obligation may be distinguished from the situation addressed in Stoddard v. Atwil (1991), 1991 CanLII 4329 (NS SC), 105 N.S.R. (2d) 315. That was "repair" case where found the plaintiffs were justified in waiting to establish the builder's liability without borrowing $60,000.00 to effect full program of repair. In effect, did not oblige the plaintiffs to spend more in order to risk less. Mr. and Mrs. Stoddard would not be prejudiced by their financial inability to do anything more than they already had. On the contrary, the situation which faced Mr. Corkum was when did it become reasonable to accept the urgings of those who counselled him and get on with his life? There are no extraordinary circumstances here which would cause me to engage in anything other than an objective assessment. There are no factors peculiar to Mr. Corkum which would alter the test. ... distinctive attributes of the plaintiff's personality and mental composition are ignored in favour of an objective assessment of the reasonableness of his choice. So long as he is capable of choice the assumption of tort damages theory must be that he himself assumes the cost of any unreasonable decision ..." (per Wilson, J. in Janiak v. Ippolito (1985), 1985 CanLII 62 (SCC), 31 C.C.LT. 113 at pp. 126‑7) As explained by Bates, supra at p. 277: “When there are mitigatory measures that .are less costly than the amount of the projected losses, mitigation is necessary ... This cost‑benefit analysis is at the foundation of the law of mitigation. Reasonable steps in mitigation of damages are those which are consider efficient on considered risk assessment of all feasible options." accept Mr. Carter's allowance of period of two full years for disposition of those assets in order to realize the appraised values set out by Mr. Speed in his report. As noted previously, Mr. Speed's opinion was that period of one to two years is reasonable time to sell these assets. Giving Mr. Corkum the full benefit of the doubt, Mr. Carter has assumed that two full years would be necessary for the sale and that none of the proceeds of disposition would be applied to the calculations until the expiry of that two year period, namely this month. This then adopts calculation most favourable to the plaintiff. Mr. Carter's report, which accept, has allowed real estate commission of five percent and has excluded the value of the Corkum residence from the total appraised value of the other assets so that the plaintiff might re‑establish himself in other suitable accommodation. This has produced net capital sum of $433,762.00 which the plaintiff will then be able to invest and earn income. Discount Rate Having considered the evidence of Messrs. Carter and Burnell am satisfied that this is case where the spread between interest rates and general price inflation should be pegged at other than the 2.5% provided for by C.P.R. 31.10(2). As said in Armstrong, supra, it is open to the parties to lead evidence to show whether or not the mandated capitalization rate is reflective of the difference between the criteria stipulated in the Rule. Here find that the defendants have succeeded in persuading me that this is an appropriate case to apply different rate. Mr. Corkum's claim for loss of income to the date of retirement is something in the order of eight years from the time of trial. As Messrs. Carter and Burnell have said, this is time frame during which reasonable forecasts can be made. I am confident that a higher discount rate should be used and I accept Brian Burnell\'s supplementary report dated June 12, 1992 where he expressed the opinion that it was appropriate to use "a net rate of interest" (i.e. a real rate of return) of 5% per annum in valuing Mr. Corkum\'s future income loss to age 65. On the same basis accept Mr. Carter's supplementary report dated June 22, 1992 which incorporates the discount rates recommended by Mr. Burnell. Mr. Carter's calculations provide for both mitigation of the plaintiffs losses and protection of his capital against inflation until the normal retirement age. Having accepted Mr. Carter's assumptions and applying real interest rate of 5%, have concluded that (but for an adjustment will make on account of Section benefits) Mr. Corkum does not have loss of earnings. The evidence convinces me that the plaintiffs business operations were significantly below market rates of return on even the safest forms of investment. find that the sale of the plaintiffs property and re‑investment of the sale proceeds would earn higher income than the business operation was generating. Accordingly the loss as result of Mr. Corkum's accident and alleged inability to continue to operate his business would be nil. (Exhibit 22). Section Automobile Insurance Benefits By Originating Notice (Action) and Statement of Claim amended September 11, 1991 Mr. Corkum sued his Section "B" insurer, Sun Alliance, for re‑instatement of his no‑fault benefits on the ground that he was and continues to be totally disabled from employment. He had received 104 weeks' worth of benefits before Sun Alliance cut him off. Sun Alliance filed its defence on October 28, 1991 alleging that it had fulfilled all contractual requirements and denying the plaintiffs, claim for any future benefits. At the pre‑trial conference held September 15, 1992 Mr. Newton presented an order for dismissal of the plaintiff's action against Sun Alliance advising that settlement had been reached. The defendants claim that their rights were prejudiced by the unilateral action of the plaintiff. The defendants argue that at the pre‑trial conference Mr. Newton for the plaintiff asked the defendants to admit that Mr. Corkum was totally and permanently disabled from his employment by reason of the injuries suffered in the motor vehicle accident. As previously noted, that admission was given, formally, on September 27, 1992 (Exhibit No. 1). It is the position of the defendants that as Mr. Corkum is in fact totally and permanently disabled from all employment for which he is reasonably suited by education, training or experience, then the Sawatsky defendants are entitled to deduct not merely the amounts actually received by the plaintiff from his Section insurer, but also the present value of all future Section payments to which the plaintiff is entitled. It is sizeable amount. Mr. Burnell calculated the present value of Mr. Corkum's future Section benefits at the rate of $140.00 per week ($7,280.00 per annum) to be $64,065.00 (Exhibit No. 23). While not without some hesitation, am not persuaded that the defendants' position is sound. In his search for authorities Mr. Miller has advised that there is only one reported decision in Canada touching upon the situation where plaintiff has entered into settlement with the no‑fault insurer. He relies upon Cattapan et al v. Mitchell et al (1978), 1978 CanLII 1264 (ON SC), 105 D.L.R. (3rd) 508 where the Ontario Supreme Court considered case where the plaintiff was entitled to and had been paid no‑fault benefits and was further entitled to receive similar benefits as long as his injuries incapacitated him. Before trial of the main action against the defendant, the plaintiff settled his future entitlement to benefits and accepted lump sum payment of $8,300.00 from his own Section insurer in exchange for release. am not prepared to extend the result of Cattapan, supra to accrue benefit to the defendants here. Section 140(1) of the Insurance Act, R.S.N.S. 1989, c. 231 provides that every motor vehicle liability policy shall provide loss of income benefits as set out in Schedule "B" to the Automobile Insurance Part of the Act. These are the so‑called no‑fault benefits provided for by Section "B" of the policy. Section 140(2) provides: "Payment constitutes release Where an insurer makes payment under provision of contract of insurance referred to in subsection (1), the payment constitutes, to the extent of such payment, release by the insured person or his personal representatives of any claim that the insured person or his personal representatives or person claiming through or under him or by virtue of the Fatal Injuries Act may have against the insurer and any other person who may be liable to the insured person or his personal representatives if that other person is insured under contract of the same type as is specified in subsection (1), but nothing in the subsection precludes an insurer from demanding, as condition precedent to payment, release to the extent of the payment from the person insured or his personal representative or any other person. Section 146(2) of the Act provides as follows: Entitlement constitutes release of Claim Where claimant is entitled to the benefit of insurance within the scope of Section 140, this, to the extent of payments made or available to the claimant thereunder, constitutes release by the claimant of any claim against the person liable to the claimant or the insurer of the person liable to the claimant." Mr. Miller argues that were this section designed to merely prevent double recovery then the legislation would have specifically used the word "recovery" and not "entitlement". He says that because Section 146(2) makes specific reference to "(w)here claimant is entitled ...", and the plaintiffs own Section insurer was party to the action and where (so the defendants complain) the plaintiff has settled for less than 15% of what he was claiming, that the defendants should not be expected to give up credit for the difference. find that Cattapan, supra does not assist the defendants and no other authority has been put forward in support. In MacKay v. Rovers (1987), 1987 CanLII 130 (NS CA), 79 N.S.R. (2d) 237 (N.S.S.C., A.D.) Hart, J.A. said at p. 250: If it alleged by defendant that the damages he would otherwise have to pay would be reduced by the amount the plaintiff could have recovered under the no‑fault provisions of an insurance policy, the burden rests firstly with the defendant to show that such policy exists. If the defendant is able to show that such payments have been made or that they are available to plaintiff entitled thereto then the defendant should succeed unless the plaintiff is able to establish that such payments have been claimed and refused. It is not necessary for the plaintiff to show that the issue between the plaintiff and the insurance company has been litigated but only that the insurer has taken the position that the plaintiff is entitled to recover. In this case the defendant ceases to be entitled to deduct the Section benefits from the damage award against him." (emphasis mine) At pp. 248‑50 Mr. Justice Hart referred to the remarks of Zuber, J. in Stante v. Boudreau (1981), 1980 CanLII 1875 (ON CA), 112 D.L.R. (3d) 172 (Ont. CA), and the reasons therein attributed to Wilson, J.A. (as she then was) in Brown v. Bouwkamp (1976), 1976 CanLII 740 (ON CA), 12 O.R. (2d) 33 (CA) at p. 36: "Nor, in our opinion, can person whose claim has been rejected be stated unequivocally to be person who is 'entitled' to the benefits. To so describe him would be to prejudge the merits of the grounds on which the insurer had rejected his claim." Here Mr. Corkum was entitled to and did receive some benefits. Sun Alliance then refused him further benefits beyond the 104 week period. As is made clear in MacKay, supra, Mr. Corkum was under no obligation to pursue his no‑fault Section insurer any further. However, he did sue Sun Alliance and shortly before trial they reached settlement of about $9,000.00, which the defendants now argue grossly undervalues Mr. Corkum's true entitlement. If the defendants' submission were accepted, it would lead to the anomalous result that his decision to pursue some action against his own insurer might actually result in reducing his total recovery by almost $64,000.00 (using the defendants' revised figures). In this context the remarks of McMahon, J. in Cudmore v. Seaman (1987), 62 Nfld PEIR 123 (P.E.I.S.C.) are apt where at p. 128 he reached the conclusion "without elation" that plaintiff, who made no claim at all against the insurer, must have the benefits he ought to have received, deducted from his award. In this case, unlike the situation where plaintiff has made no claim, it may be suggested that the defendants have not really been prejudiced by Mr. Corkum's settlement. While it is true that had he pursued his litigation against Sun Alliance, he might have recovered more than $9,000.00, the law is clear that he was not obliged to do so in the face of his own insurer's refusal to pay the claim. Having sued, and settled, the defendants at least are given a credit for all benefits paid, including the amount negotiated as a lump sum. From policy perspective, plaintiffs ought be encouraged to settle claims against their own Section insurers, and not be thwarted by having to obtain the consent of the defendants' (presumably, insurers). Whether it was wise for Mr. Corkum to buy out his claim for only $9,000.00 is not the point. If, as it has been said, no‑fault insurance was promoted by insurance companies to avoid litigation and reduce the cost of insurance to policy holders then, in the absence of clear legislative amendments, any such "loss" should be borne by the defendant and not the plaintiff. see no basis in law or on policy grounds to refuse to shift that loss where, as here, the net result of Mr. Corkum's settlement is to give the defendants credit of $9,000.00 which they would not otherwise have received. Summary For clarification will reproduce the table prepared by Mr. Carter and marked Schedule and introduced during his direct examination (Exhibit No. 22, p. 1) Using 2.5% Using 5% Discount Rate Discount Rate Loss of past earnings $70,624 $70,624 Cost of maintaining business property 40,161 40,161 until disposition Loss of future earnings 60,550 54,914 Gross Loss 171,335 165,699 Present value of future Section Automobile Insurance Benefits (72,143) (64,065) Present value of additional sources of future funding (Schedule B) (69,521 (126,658) Net loss of earnings 29,671 $(25,024) NIL Mr. Carter calculated loss of past earnings of $70,624.00. That calculation was based on the assumption that the plaintiff had received Section automobile insurance benefits totalling $18,293.00. However, do not believe any deduction was made to include the settlement reached by Mr. Corkum shortly before trial. am not certain whether the lump sum settlement was exactly $9,000.00. therefore leave it to counsel to verify the sums actually paid and received by the plaintiff so that his gross loss might be confirmed. Assuming the totals of such payments are accurate then Mr. Corkum's gross loss would be $156,699.00 ($165,699.00 less $9,000.00). From this must be deducted$126,658.00 (Exhibit 22, Schedule B) leaving a net loss of earnings to Mr. Corkum of $30,041.00 for which the defendants are liable. Had found in the defendants' favour on this point would have accepted Mr. Burnell's calculations thereby resulting in credit to the Sawatskys of the present value of future Section automobile insurance benefits in the amount of $64,065.00. Had that been the case, no loss of earnings would have been suffered by Boyd Corkum. MANAGEMENT FEE No evidence was put forward by the plaintiff and the subject was not addressed in argument. There is nothing to support such claim and reject it. PREJUDGMENT INTEREST In final argument counsel agreed to rate of 7%. CONCLUSION The plaintiff will have judgment for the amounts ordered together with costs. will be pleased to hear counsel at their convenience on the subject of costs if they are unable to reach agreement. J. Halifax, Nova Scotia 1991 S.K. No. 2978 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: BOYD A. CORKUM and BARTLEY SAWATSKY and CHARLES SAWATSKY and SUN ALLIANCE INSURANCE COMPANY, body corporate Defendants DECISION OF SAUNDERS, J.

The 53-year-old plaintiff suffered a neck injury (cervical dystonia) in a car accident. After undergoing treatment from 14 specialists, the plaintiff had little relief four years following the accident. He was rendered permanently disabled from all work for which he was trained and could no longer work the farm, sawmill or Christmas tree operation he had developed. Assessing non-pecuniary damages at $60,000. In assessing pecuniary damages, the court accepted the defendant's expert evidence which led to the conclusion the plaintiffs businesses were marginally profitable. The defendants were ordered to pay $30,000 as real, net loss of future income. The court approved a 5% capitalization rate as being appropriate where there was an eight year term to age 65. The plaintiff settled his future Section B benefits just before trial. The court rejected the defence argument that they were entitled to a credit for present value of those benefits which represented a figure over seven times the settlement figure. The defendants were only entitled to a credit for sums actually paid to the plaintiff. The court rejected the plaintiff's actuarial report as being late and in breach of Civil Procedure Rule 31.08.

a_1993canlii4687.txt

J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 424 Date: 2005 10 05 Docket: Q.B.G. No. 1275 of 2005 Judicial Centre: Regina IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52 OF THE RULES OF THE COURT OF QUEEN’S BENCH AND THE INHERENT SUPERVISORY JURISDICTION OF THE COURT BETWEEN: BRAD GALGER and THE WORKERS’ COMPENSATION BOARD OF SASKATCHEWAN Counsel: R.A. Nordal for the applicant W.P. Dale for the respondent FIAT CURRIE J. October 5, 2005 [1] On December 18, 2000 the medical review panel of the Workers’ Compensation Board of Saskatchewan decided that Brad Galger was not fit for employment. On January 20, 2005 the Board’s appeals committee upheld a 2004 decision of the Board’s case management division that Mr. Galger was fit for employment. [2] Mr. Galger says that the decisions of the Board’s case management division and appeals committee are contrary to s. 64(2) of The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1: 64(2) The decision of the majority of the members of the medical review panel is the decision of the panel and is binding upon the board and the worker. [3] Mr. Galger applies to the court for an order: (a) in the nature of certiorari quashing or setting aside the decisions that Mr. Galger was and is fit for employment; (b) as consequence, remitting the matter back to the medical review panel, if required; and (c) as consequence, in the nature of mandamus directing the Board to pay benefits to Mr. Galger in accordance with the decision of the medical review panel. [4] Although Mr. Galger has another avenue of appeal available to him within the workers’ compensation system, he takes the position that the impugned decisions were made without jurisdiction, so that there is no proper decision from which to appeal, leaving him with an application for judicial review as his only remedy. [5] The Board says that, on examination of the circumstances, the decisions are not contrary to s. 64(2), and that in any event Mr. Galger must exhaust his right to appeal before seeking judicial review. [6] Mr. Galger says that the return should include his counsel’s April 5, 2005 letter and the April 13, 2005 reply from the Board’s appeals committee. He argues that the April 13, 2005 letter is clarification of the Board’s position, and that it can be understood only by reference to the April 5, 2005 letter. [7] The April 5, 2005 letter from Mr. Galger’s counsel attaches letter from Mr. Galger’s doctor, and indicates that Mr. Galger is on surgical waiting list. The April 13, 2005 reply from the appeals committee advises that the committee is not changing its January 20, 2005 decision, because nothing in the April 5, 2005 correspondence changes the committee’s conclusion that Mr. Galger is fit for employment. [8] The Board takes the position that the letters are neither part of the impugned decisions nor part of the record. [9] The Board is correct. Rule 669 requires return that includes information up to and including the impugned decision and the reasons therefor. Such information has been provided in the return in this case. [10] The Board’s appeals committee did not create clarification or addendum to its decision or reasons by simply responding to the letter from Mr. Galger’s counsel. In that response there is no decision, and there is no expansion on the January 20, 2005 decision. [11] The return will not be amended to include the documents suggested by Mr. Galger. The panel’s decision [12] On December 18, 2000 the medical review panel issued certificate, the relevant parts of which provided that: (a) Mr. Galger was not fit for employment; and (b) “after proper surgical treatment and surgical fusion it is hoped that the permanent functional impairment will be minimal”. [13] On August 13, 2001 the medical review panel issued an “additional clarification” to its earlier decision. The clarification states: 1) If surgery is booked or planned it should be expedited then functional capacity evaluation should follow his post surgical rehabilitation period. 2) If Mr. Galger wants surgery and it is not planned the panel urges an immediate surgical consultation. 3) If Mr. Galger refuses the recommended surgery (as per the medical review panel certificate of December 18, 2000) then the functional capacity evaluation should proceed to determine his fitness for employment and further evaluation would be required. The Board’s actions [14] Following delivery of the medical review panel’s December 18, 2000 certificate, the Board began to develop the view that Mr. Galger might be fit for employment after all. The Board thought this because Mr. Galger actually was working full-time at the time of the panel’s review. [15] The Board, through its case management division, eventually asked Mr. Galger to undergo functional capacity evaluation, and Mr. Galger did so in May 2003. Following completion of the functional capacity evaluation the case management division evaluated Mr. Galger’s claim, and the division concluded in April 2004 that Mr. Galger was fit for employment. [16] Effective July 1, 2004 the division reduced Mr. Galger’s benefits. That led to Mr. Galger’s appeal to the Board’s appeals committee. In its January 20, 2005 decision the appeals committee upheld the determination that Mr. Galger was fit for employment. This decision has led Mr. Galger to apply for judicial review of both the decision of the case management division and decision of the appeals committee. [17] It is not necessary for me to address Mr. Galger’s argument on the issue of jurisdiction because, however that issue might be determined, his application is determined on the issue of the availability of relief in the nature of certiorari. Availability of relief in the nature of certiorari [18] Mr. Galger acknowledges that he has available further right of appeal in the workers’ compensation system. He may appeal from the decision of the appeals committee to the Board members. [19] Such circumstance was addressed by the Saskatchewan Court of Appeal in Bayne No. 371 (Rural Municipality) v. Saskatchewan Water Corp. (1990), 1990 CanLII 7675 (SK CA), 90 Sask. R. 102. Referring to the Supreme Court of Canada decision in Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] S.C.R. 561, Cameron, J.A. said at paras. [9] We indicated that we were, of course, bound by the statements of principle found in the majority decision in Harelkin’s case. Mr. Justice Beetz, speaking for the majority expressed three opinions of particular significance to the matter at hand. [10] The first had to do with whether, in principle, certiorari goes as of right or grace, even in cases entailing lack of jurisdiction. He said this (at pp. 574-576): “The principle that certiorari and mandamus are discretionary remedies by nature cannot be disputed. The principle was recently affirmed in unanimous decision of this Court, P.P.G. Industries Canada Ltd. v. The Attorney General of Canada, 1975 CanLII 204 (SCC), [1976] S.C.R. 739 at p. 749 ... “The use of the expression ex debito justitiae in conjunction with the discretionary remedies of certiorari and mandamus is unfortunate. It is based on contradiction and imports great deal of confusion into the law. “Ex debito justitiae literally means ‘as of right’, by opposition to ‘as of grace’ (P.G. Osborne, Concise Law Dictionary, 5th ed.; Black’s Law Dictionary, 4th ed.); writ cannot at once be writ of grace and writ of right. To say in case that the writ should issue ex debito justitiae simply means that the circumstances militate strongly in favour of the issuance of the writ rather than for refusal. But the expression, albeit latin, has no magic virtue and cannot change writ of grace into writ or right or destroy the discretion even in cases involving lack of jurisdiction.” [11] The second concerned whether, conceptually, an order which is nullity might nevertheless be appealed, depending on the scope and effect of the appeal provisions bearing on that issue. Of this Mr. Justice Beetz said (at p. 586): “Furthermore, and even if it can be said that the decision of the council committee was nullity, believe it was still appealable to the senate committee for the simple reason that the senate committee was given by statute the power to hear and decide upon appeals from the decisions of the council, whether or not such decisions were null ... Prov. Sec. P.E.I. Egan, 1941 CanLII (SCC), [1941] S.C.R. 396; 76 C.C.C. 227; [1941] D.L.R. 305 ...” [12] The third of the opinions of particular significance to the instant case centred on whether the right of appeal there in issue “constituted an adequate alternative remedy”. Mr. Justice Beetz suggested that that question be addressed with reference, among other considerations, to the nature of the complaint and the right of appeal; the composition, powers and duties of the appellate body; the manner in which it was apt to exercise its powers; and the comparative expedition and cost of proceeding by way of appeal rather than alternatively. [13] In light of the foregoing, we took Harelkin’s case as standing for the following propositions: 1. Certiorari remains “a writ of grace” to grant or withhold as, in the discretion of the court, circumstances suggest. 2. If in the circumstances right of appeal of sufficient scope and appropriate effect exists, then an order, even though it be nullity, is nevertheless appealable. 3. If the right of appeal provides an “adequate alternative remedy”, having regard for the considerations bearing upon that matter, the residual discretion in the court will ordinarily be exercised in denial of certiorari. Only if “special circumstances” are present will the courts then exercise their prerogative power and quash on certiorari. [20] When person has an adequate alternative remedy available that he or she has not pursued, relief in the nature of certiorari is not available to that person except in special circumstances: Bayne at para. 13. Mr. Galger has available to him further right of appeal that he has not pursued. [21] He argues, though, that the decisions that he is fit for employment were made without jurisdiction, so that there is no proper decision from which to appeal. In effect, he argues that each of the decisions of the case management division and of the appeals committee is nullity, depriving Mr. Galger of an adequate alternative remedy. As discussed in Bayne at paras. 11 and 13, however, even if the decision is nullity it still can be appealed. [22] If the appeal available to Mr. Galger in the workers’ compensation system is an adequate alternative remedy, then in the absence of special circumstances he must attempt to have the alleged error of fact remedied through appeal before resorting to judicial review. Adequate alternative remedy [23] The right of appeal from the appeals committee to the Board members does provide Mr. Galger with an adequate alternative remedy. The power of the Board to delegate its powers, and to provide for review of decisions made under the Act, stems from ss. 19, 21-24 and 104(1): 19 Subject to subsection 21.1(4), the board shall sit at any time and conduct its proceedings in any manner that it considers advisable for the conduct of its business and affairs. 21(1) The board may delegate any of its powers or functions to any of its staff and any employer or worker affected by any act of person in the exercise of any delegated power may apply to the board to review, set aside, amend, stay or otherwise deal with the act of that person. (2) The board may, upon an application under subsection (1) or of its own motion, exercise its powers and perform its functions with respect to the delegated power in issue as if the person had not acted in that manner. 22(1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which power, authority or discretion is conferred upon the board (2) The decision and finding of the board under this Act upon all questions of fact and law are final and conclusive and no proceedings by or before the board shall be restrained by injunction, prohibition or other proceeding or removable by certiorari or otherwise in any court. (3) Notwithstanding subsection (2), the board may reconsider any matter that it has dealt with or may rescind, alter or amend any decision or order it has made. 23 The board shall have the same powers as the Court of Queen’s Bench for compelling the attendance of witnesses and examining them under oath, and compelling the production of books, papers, documents and things. 24 The board may cause depositions of witnesses residing within or outside the province to be taken before any person appointed by the board, in manner similar to that prescribed in The Queen’s Bench Rules for the taking of those depositions. 104(1) Any weekly or other periodical payment to worker or dependent spouse of worker payable out of the fund may be reviewed on the motion of the board or at the request of the worker, dependent spouse or employer and, on that review, the board may terminate or diminish the payment or may increase the payment to sum not beyond the maximum compensation prescribed in this Act. [24] Under these provisions the Board has established its appeal process, including final right of appeal to the Board members. The Board has made information available to workers that describes the appeal process. That information includes: (a) Saskatchewan Workers’ Compensation Board policy no. POL 03/96, entitled “Appeals”; (b) Saskatchewan Workers’ Compensation Board policy no. POL 13/91 (amended by ADM03/2000), entitled “Reversing Decisions”; and (c) Saskatchewan Workers’ Compensation Board Fact Sheet, entitled “Appeals: how to have an injury claim decision reviewed”. [25] These materials establish that: (a) worker who disagrees with decision of the appeals committee may obtain “further review” by the Board members; (b) if requested by the worker, the Board review will include personal attendance by the worker; (c) in appeal proceedings worker may be represented; (d) there is no restriction of the subject matter of an appeal to the Board members; and (e) Board members will rule on an appeal with full written reasons. [26] The subject matter of an appeal to the Board members is not limited to points of law, and so on appeal the Board members would be able to consider Mr. Galger’s issue of fact. [27] In the case of the Board there is not, in either the Act or in the information made available by the Board, detailed recitation of procedures relating to an appeal to the Board’s members. Countering that absence, though, are the remarks of Sopinka, J. in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] S.C.R. 890 at pages 913-914: The composition, tenure, and powers of the Board demonstrate that it has very considerable expertise in dealing with all aspects of the workers’ compensation system. Not only does the Board have day-to-day expertise in handling claims for compensation, in setting assessment rates and promoting workplace safety; but it also has expertise in ensuring that the purposes of the Act are not defeated. As Wakeling J.A. commented at p. 301 in his dissenting reasons: [The Board members] are well equipped to draw on background of experience to determine how the Act will best function so as to assure continued consistent development of the intended purposes of the Act. have no reason to doubt they are well qualified to decide the various issues the legislation is designed to present them. [28] The legislature has chosen to establish the workers’ compensation system as an self-contained system, with no right of appeal to the courts beyond the final decision of the Board: s. 22(2). The legislature regarded this as sufficient in matters of workers’ compensation, likely because of the extensive system that it established in the Act. [29] Finally, especially in light of the comments of Sopinka, J. in Pasiechnyk, there is no reason to suppose that the Board members would not effectively deal with the issue raised by Mr. Galger. Conclusion [30] Whether or not each of the impugned decisions was made without jurisdiction and consequently is a nullity, Mr. Galger has an adequate alternative remedy available to him. No special circumstances, that might justify judicial intervention at this time, have been presented. An order in the nature of certiorari is not available to Mr. Galger because he has not yet pursued his right of appeal. [31] The application is dismissed. The parties may speak to costs. J. G.M. CURRIE

FIAT: In December 2000, the medical review panel of the Workers' Compensation Board of Saskatchewan decided that the applicant was not fit for work. On January 2005, the Board's appeals committee upheld a 2004 decision of the Board's case management division that the applicant was fit for employment. Although the applicant has another avenue of appeal available to him within the workers' compensation system, he takes the position that the impugned decisions were made without jurisdiction, so that there is no proper decision from which to appeal, leaving him with an application for judicial review as his only remedy. HELD: Whether or not the impugned decisions were made without jurisdiction and consequently are a nullity, the applicant has an adequate alternative remedy available to him. No special circumstances that might justify judicial intervention at this time have been presented. An order in the nature of certiorari is not available to him because he has not yet pursued his right of appeal. The application is dismissed.

d_2005skqb424.txt

nan IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2008 SKPC108 Date: May 30, 2008 File: SC #174 of 2007 Location: Saskatoon Between: Dennis Ens and Anne Ens and Pacific Home Products Ltd. Lynne Greenhorn For the Plaintiff Jon Danyliw For the Defendant JUDGMENT D.M. ARNOT, [1] Dennis and Anne Ens wanted to build deck and glass sunroom on the back of their home in Warman, Saskatchewan. They attended trade show in the spring of 2004 and met Mr. Doug Goertzen from Pacific Home Products Ltd. The Defendant corporation is in the business of building decks and sunrooms and has been for 18 years. Mr. Goertzen is the President and owner of the corporation. Pacific Home Products Ltd. has built approximately 400 such sunroom additions to homes. [2] Mr. Goertzen attended the Ens home in early April, 2004. He had discussion to ensure he knew what the Ens’ expected. Mr. Goertzen took the information he received and on April 10, 2004 created detailed quotation which included the provision of four new ten inch by ten feet deep concrete pilings designed as the foundational support for wood deck upon which would sit custom manufactured glass wall sunroom. Mr. Goertzen attended the Ens’ home on May 5, 2004 with an amended quotation. The total cost to the Ens was to be $11,847.53. The Ens accepted the quote and contract was made to supply and install sunroom at the Ens home. The Ens made deposit of 20% which was $2,200.00 paid by cheque. [3] Mr. Ens knew that Pacific Home Products Ltd. would be ordering the material to complete the project after they had received the deposit. The project was to be completed in the summer of 2004. Time was of the essence. Mr. and Mrs. Ens gave the project very high priority as they wanted to complete landscaping of their yard in the late summer of 2004 after the sunroom was completely installed. [4] Mr. Goertzen attended the Ens’ home later in May of 2004, after the contract was made, to take final detailed measurements and drawings to ensure that the glass sunroom structure would be ordered with the most exact specifications. On May 13, 2004 Pacific Home Products Ltd. submitted an application to the Town of Warman for building permit for the construction of the sunroom at the Ens residence, which was approved by the Town of Warman on May 18, 2004. Pacific Home Products Ltd. ordered the sunroom to be manufactured and Pacific Home Products Ltd. was invoiced on May 26, 2004 by the factory, AAA Aluminum Products Ltd. of British Columbia in the amount of $5,529.13. Pacific Home Products Ltd. also incurred shipping costs of approximately $400.00 to have the product shipped to their warehouse in Saskatoon. The sunroom was delivered to Pacific Home Products warehouse prior to July10, 2004. The necessary excavation was arranged for July 10, 2004. [5] On July 10, 2004 Craig’s Excavation attended the Ens residence at the request of Pacific Home Products Ltd. pursuant to subcontract with Pacific Home Products Ltd. Mr. Betky, the construction manager for Pacific Home Products, attended and marked out the locations of the piles. The excavator used bobcat tractor and attempted to drill ten inch diameter hole, ten feet deep as per the original contract. In drilling the first hole it became apparent that the plan for provision of piles would not work. The hole could not be emptied of soil material. The auger came up wet. The hole was filled with water saturated sand and kept falling in on itself such that Mr. Betky determined that the concrete piles could not be created at this job site. [6] There is high water table in the Martensville area which was unbeknownst to Mr. Ens or Mr. Goertzen in May, 2004. Mr. Goertzen believed that he could not drill pilings due to the existing soil conditions. He communicated this to Mr. Ens within two weeks of the failed attempt to create the pile holes. In discussion with Mr. Ens, Mr. Goertzen wished to proceed with the building project and offered to use an alternate method for the building of the foundation for the deck and the sunroom. He suggested that pad and pillar system be utilised. This would require excavation with backhoe tractor to significant depth and then pouring concrete pad and further making concrete pillar to sit on top of the pad and thus become the foundational support for the beams and joists for the wood deck on which the sunroom would sit. Mr. Goertzen advised that he had used this system in other applications and was satisfied it would work in this application. He advised that this would entail an additional cost of approximately $1,500.00. Mr. Ens rejected the concept that he would be required to pay additional costs. He further rejected the solution proffered by Pacific Home Products Ltd. of constructing concrete pad and pillar system. [7] Mr. Ens believed that the pad and pillar method would destroy the integrity of the weeping tile system around the foundation of his house. Two pads and pillars would necessarily have to be installed very close to the foundation of his house. He was especially concerned because of the high water table issue. He believed it could lead to serious foundation drainage problems if the weeping tile system was disturbed. Further, he was concerned about the integrity of special in-floor basement heating system in his home. Mr. Ens believed that 13 foot piles could be drilled as they had been drilled for his garage and an existing pile in the backyard. He believed that other contractors in the Warman area were able to drill 13 foot piles and therefore, make foundation with concrete piles at that depth. find Mr. Ens reasons for rejecting the installation of the concrete pad and pillar system, different foundation type and design, were reasonable in the circumstances. [8] The contract made on May 5, 2004 was clearly frustrated by the unforseen soil conditions which prevented the drilling of ten foot depth pile holes for concrete piles. Neither party could have foreseen this issue. The parties could not come to an agreement as to how to remedy the frustrated contract. [9] Mr. Ens attended the Pacific Home Products show room some time after, probably in early August 2004, and it was alleged that he was abusive to an employee. Mr. Goertzen on behalf of Pacific Home Products Ltd. sent Mr. Ens letter dated August 16, 2004 advising him not to attend the Pacific Home Products Ltd. show room in the future, and further, he suggested that binding mediation process be used by both parties to resolve the outstanding issues between the parties. [10] In response to that letter, Mr. Ens engaged lawyer to act on his behalf as the relationship between he and Pacific Home Products Ltd. received deleterious blow during the visit Mr. Ens paid to the Pacific Home Products Ltd. showroom. The lawyer, acting on Mr. Ens’ instructions, contacted Mr. Goertzen. record of their discussion is contained in letter dated August 30, 2004 from the lawyer to Mr. Ens. The contents of the letter reveal that Mr. Goertzen agreed to use concrete pilings, as requested by Mr. Ens, but that Pacific Home Products would not guarantee their work if those concrete pilings were used. Mr. Goertzen suggested that if Mr. Ens agreed to the pad and pillar method which he was putting forward Pacific Home Products would guarantee their work. Mr. Ens rejected this offer. Mr. Ens felt he could not proceed as the relationship had devolved to such degree that he did not believe he would receive any service or any warranty work if it was required. His rejection and the reasons therefor were never communicated to Pacific Home Products Ltd. [11] Mr. Goertzen was anxious to complete the product as he had in stock the unique custom built sunroom material for application at the Ens job site. However, without formal response from Mr. Ens, Mr. Goertzen and Pacific Home Products Ltd. treated the project as being left in abeyance. [12] There was no agreement between the parties as to how to proceed. The relationship between Mr. Ens and Mr. Goertzen became irreconcilable after August 31, 2004. Pacific Home Products Ltd. did not receive any response or any communication whatsoever from Mr. Ens post August 31, 2004 and was entitled to assume that their obligations concerning the contract were at an end based on the frustration of the contract and the fact that the parties were unable to agree as to any remedy that would be satisfactory to both parties. [13] There was no further contact between the parties until Mr. Ens demanded repayment of his $2,200.00 deposit in letter dated March 27, 2007, period of approximately two years and eight months. [14] Mr. Ens and his wife attended trade show in the spring of 2005 and eventually engaged Mr. Martin Doell of Pyramid Sunrooms. Mr. Doell was engaged to construct foundation, deck and glass sunroom at the Ens home. The structure was completed satisfactorily in October, 2005. Pyramid is competitor of Pacific Home Products Ltd. Pyramid used different method of deck support. They installed an engineered screw pile as an alternate to concrete piles. This is one and three-quarter inch solid steel shaft with an eight inch in diameter auger screw, eight feet long. Mr. Doell constructed the foundation, beams and joists and deck floor. He then took exact measurements and at that point ordered the glass sunroom to be custom made. His method of staging the construction is different than that of Pacific Home Products Ltd. He chooses to order the sunroom after the deck is constructed to ensure the base is stable and all measurements are entirely accurate. The glass sunroom product is made of tempered glass walls. Any settling of the base can result in cracked glass and malfunction of both windows and doors. [15] After August 31, 2004 Mr. Ens had paid the sum of $2,200.00 as deposit which was not returned to him by Pacific Home Products Ltd. Pacific Home Products Ltd. had in stock unique custom made glass sunroom for application at the Ens job site. Pacific Home Products Ltd. was able to mitigate its losses by salvaging approximately $1,000.00 in parts from the Ens sunroom material. [16] The Plaintiffs, Dennis Ens and Anne Ens sued the Defendant, Pacific Home Products Ltd., for the return of the $2,200.00 deposit they gave to the Defendant on May 5, 2004. [17] The Defendant in that claim, Pacific Home Products Ltd., filed a dispute note and became a Plaintiff in the Counterclaim against Dennis Ens and Anne Ens for recovery of the amount of $3,604.13, which they allege represents the losses incurred by Pacific Home Products Ltd. as a result of the frustration of the contract with Dennis Ens and Anne Ens. [18] Pacific Home Products Ltd. led evidence to show that they paid the sum of $5,529.13 to AAA Aluminum Products Ltd. for the custom made sunroom. In addition, they alleged they incurred costs of $400.00 for the shipping of the sunroom product to their warehouse, $80.25 paid by them to the Town of Warman for the building permit application fee, $272.85 paid by them to Craig’s Excavation for the excavation at the Ens job site, and the labour and costs in preparing detailed designs and drawings for both the AAA Aluminum Products Ltd. order and the application for building permit. These costs they estimate at $500.00. Pacific Home Products Ltd. led evidence to show that they mitigated their losses by salvaging $1,000.00 worth of parts from the Ens sunroom material and further they deducted the down payment of $2,200.00 received and kept by them. They then sued by way of Counterclaim against the Ens, Defendants in the Counterclaim for a balance, they believe owing to them, of $3,604.13. [19] The doctrine of frustration operates as an excuse for the non-performance of contractual obligation. The accepted view of this doctrine was described in Davis Contractors Ltd. v. Fareham U.D.C., [1956] nan All E.R. 145 (H.L.). In that case the doctrine of frustration was analyzed. Lord Radcliffe described the test as the “radical change in obligation test” that effectively rewrites the bargain in terms that were previously unintended. He stated at p. 160: So perhaps it would be simpler to say at the outset that frustration occurs whenever the law recognizes that without default of either party contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it thing radically different from that which was undertaken by the contract. Non haec in foedera venie. It was not this that promised to do. ... it is not hardship or inconvenience or material loss itself which calls the principles of frustration into play. There must be as well such change in the significance of the obligation that the thing undertaken would, if performed, be different thing from that contracted for. [20] Another definition was provided by Viscount Simon, L.C. in the case of Cricklewood Property Investment Trust Ltd. v. Leighton’s Investment Trust, Ltd. (1945) A.C. 221, as follows: “... the premature determination of an agreement between parties, lawfully entered into and in course of operation at the time of its premature determination, owing to the occurrence of an intervening event or change of circumstances so fundamental as to be regarded by the law both as striking at the root of the agreement, and as entirely beyond what was contemplated by the parties when they entered into the agreement.” [21] Recently in Canada the Ontario Court of Appeal quoted with approval the definition of frustration of contract given by Lord Radcliffe in Davis Contractors Ltd., (supra) in the case of Capital Quality Homes Colwyn Construction Ltd. (1976) 1975 CanLII 726 (ON CA), 61 D.L.R. (3d) 385, See Evans, J.A. who comments as follows: “The legal effect of the frustration of contract does not depend upon the intention of the parties, or their opinions or even knowledge as to the event that has brought about the frustration, but upon its occurrence in such circumstances as to show it to be inconsistent with the further prosecution of the adventure. On the contrary, it, seems that when the event occurs, the meaning of the contract must be taken to be, not what the parties did intend (for they had neither thought nor intention regarding it) but that which the parties as fair and reasonable men, would presumably have agreed upon if, having such possibility in view, they had made express provision as to their several rights and liabilities in the event of its occurrence: Dahl v. Nelson et al. (1880) 6, App. Cas. 38. The supervening event must be something beyond the control of the parties and must result in significant change in the original obligation assumed by them. The theory of the implied term has been replaced by the more realistic view that the Court imposes upon the parties the just and reasonable solution that the new situation demands.” [22] Most recently the doctrine was considered in KBK No. 138 Ventures Ltd. v. Canada Safeway Limited (2000), 2000 BCCA 295 (CanLII), 185 D.L.R. (4th) 650. In that case the Plaintiff agreed to purchase land from the Defendant. The Plaintiff intended to construct mixed residential and commercial building. After the land purchase contract was entered into, but prior to construction, the municipality amended its zoning bylaws which prevented the proposed building from being constructed as intended. The British Columbia Court of Appeal applied the law of frustration, summarized by Folia v. Trelinski (1997), 14 R.P.R. (3d) (B.C.S.C.). The six-part test may be characterized as follows: In order to find that the contract at issue has been frustrated the following criteria would have to be satisfied. The event in question must have occurred after the formation of the contract and cannot be self-induced. The contract must, as result, be totally different from what the parties had intended. This difference must take into account the distinction between complete fruitlessness and mere inconvenience. The disruption must be permanent, not temporary or transient. The change must totally affect the nature, meaning, purpose, effect and consequence of the contract so far as concerns either or both parties. Finally, the act or event that brought about such radical change must not have been forseeable. [23] The required constituent elements for the application of the doctrine of frustration of contract are distilled in Dicastri on the Law of Vendor Purchaser (2nd Edition) 1976 at page 319 to be: 1. The express words of the contract; 2. Its nature and subject matter; 3. The circumstances surrounding the making of the contract; 4. The circumstances that are said to have brought about the frustration. THE FINDINGS [24] find the contract in this case made on May 05, 2004 called for the provision of ten foot deep, ten inch diameter concrete pilings to be the foundation for the deck upon which would sit glass sunroom. This provision of the contract was fundamental element in the contract. Movement of the foundation or the deck could cause damage to the glass sunroom, the walls, the window openings, and the door openings. The type and design of the foundation was critical to the mutual satisfaction of both parties and the overall success of the installation in both the short and long term. Both parties acted in good faith. [25] The contract was frustrated on July 10, 2004 when it was discovered that the intended foundation could not be constructed due to the high ground water in the town of Warman and specifically on the Ens job site. [26] The frustrating event or circumstance occurred after the formation of the contract. I find as a matter of fact in this case that it was not reasonably forseeable by either party. The change affected the fundamental nature of the contract. The event was permanent and non-transient. The contract as a result would be totally different from what the parties intended. The difference was much more than mere inconvenience. I find that the supervening event was beyond the control of both parties and resulted in a significant change in the original obligation assumed by them. [27] Based on the facts as I find them, and the applicable law, I find the contract was frustrated. [28] further find that there was not sufficient evidence to show that the sum of $96.25 was paid by Pacific Home Products Ltd. to Craig’s Excavation and Landscaping. find that Dennis Ens and Anne Ens are responsible to pay that sum directly to Craig’s Excavation and Landscaping as it was Dennis Ens who made the contract for the removal of miscellaneous items from his lot. [29] The Plaintiff Ens submitted that the Defendant Pacific Home Products Ltd. abandoned the contract. I find that the Plaintiff Ens has failed to prove that claim on a balance of probabilities. [30] The Plaintiff in the counterclaim, Pacific Home Products Ltd. submitted that the Defendant in the counterclaim, Ens repudiated the contract. I find that the Plaintiff in the counterclaim, Pacific Home Products Ltd. failed to prove that claim on a balance of probabilities. [31] With respect to damages find that The Frustrated Contracts Act, Chapter F-22.2, Statutes of Saskatchewan, 1994, applies. Under that Act the Court is given discretion to determine what amount of restitution is appropriate in the circumstances. 5(1) Every party is entitled to restitution of benefits conferred by that party’s performance or part performance under the contract on another party prior to the frustration or avoidance. (2) In determining the value of the benefits conferred, the court shall consider: a) the contract price; and b) any diminished value of performance caused by the failure to complete the contract. 6(1) In determining the value of the expenses lost due to frustration or avoidance, the court shall consider the contract price. (2) The court may apportion the value of expenses lost due to frustration or avoidance: a) equally between the parties; or b) in any manner that the court consider appropriate. (3) In apportioning the value of expenses lost, the court shall consider: a) course of dealing between the parties; b) custom or common understanding in the trade practice relating to insurance and; and c) any other relevant circumstances that suggests that: (i) one of the parties should bear the risk of expenses lost due to frustration of avoidance; or (ii) each party should bear the risk of its own lost expenses. [32] Considering all the facts presented in the case, I find that a just and reasonable resolution demands that the value of the expenses lost due to the frustration of the contract should be borne by the parties in a 65/35 ratio. I find that Pacific Home Products Ltd. should bear 65% of the loss and Dennis Ens and Anne Ens, 35% of the loss. make this finding based on the fact that Pacific Home Products Ltd. is in the business of constructing sunrooms. The Ens’ and Pacific Home Products Ltd. were not on an equal plane because Pacific Home Products Ltd. has more experience in constructing glass sunrooms. The Ens’ relied on the contractors experience to some degree, although not entirely, as Mr. Ens had firmly fixed definite opinions on some of the construction issues. The corporation may be able to further mitigate its losses over the course of time by using more parts salvaged from the material left over in the failed Ens project. Further I find that the corporation will be able to write off this loss over the course of time. [33] find the total loss proven in evidence to Pacific Home Products Ltd. is as follows: a) Sunroom material $5,529.13 b) Shipping costs 400.00 c) Building permit 80.25 d) Excavation costs 272.85 e) Design and drawing labour 500.00 Subtotal $6,782.23 f) Minus mitigation through salvage -1,000.00 TOTAL LOSS $5,782.23 [34] find this loss to be fairly apportioned as follows: 65% to Pacific Home Products Ltd. $3,758.45 35% apportioned to Dennis Ens and Anne Ens $2,023.78 [35] find that the Defendant Pacific Home Products Ltd. is required to pay the sum of $176.22 to the Plaintiff, Ens’ being the balance between the deposit of $2,200.00 received on May 05, 2004 and the apportionment of damages pursuant to the Frustrated Contracts Act, as have assessed it. [36] Therefore I award judgment in favour of the Plaintiff Ens’ against the Defendant Pacific Home Products Ltd. in the amount of $176.22. [37] In the circumstances of this case there will be no order as to costs.

The plaintiffs wanted to build deck and glass sunroom on the back of their home. They attended trade show and met the defendant, whose corporation had been in the business of building decks and sunrooms for 18 years. The plaintiffs contracted with the defendant to build their sunroom. The contract called for the provision of ten-foot deep, ten inch diameter concrete pilings to be the foundation for the deck upon which would sit glass sunroom. This provision was fundamental element in the contract. The type and design of the foundation was critical to the mutual satisfaction of both parties and the overall success of the installation in both the short and long term. The contract was frustrated when it was discovered that the intended foundation could not be constructed due to the high ground water in the town of Warman and specifically on the job site. The plaintiffs sued the defendant for the return of their $2,200.00 deposit. The defendant filed a dispute note and counterclaimed for a balance they believed was owed to them of $3,604.13. HELD: There will be a judgment in favour of the plaintiffs against the defendant in the amount of $176.22. In the circumstances, there will be no order as to costs. Based on the facts and the applicable law, the contract was frustrated. The frustrating event or circumstance occurred after the formation of the contract. It was not reasonably foreseeable by either party. The change affected the fundamental nature of the contract. The event was permanent and non-transient. The contract as a result would be totally different from what the parties intended. The difference was much more than mere inconvenience. The supervening event was beyond the control of both parties and resulted in a significant change in the original obligation assumed by them. Both parties acted in good faith. The plaintiffs submitted that the defendant abandoned the contract. The court finds that the plaintiff has failed to prove that claim on a balance of probabilities. The defendant, in its counterclaim, submitted that the plaintiffs repudiated the contract. The court finds that the defendant (plaintiff in the counterclaim) failed to prove that claim on a balance of probabilities. Considering all the facts presented in the case, the court finds that a just and reasonable resolution demands that the value of the expenses lost due to the frustration of the contract should be borne by the parties on a 65/35 ratio: the defendant should bear 65% of the loss, and the plaintiffs should bear 35% of the loss. The plaintiffs and the defendant were not on an equal plane. The plaintiffs relied on the contractor's experience to some degree, although not entirely. The defendant corporation may be able to further mitigate its losses over the course of time by using more parts salvaged from the material left over in the failed project. Further, the corporation will be able to write off this loss over the course of time.

e_2008skpc108.txt

nan Date: 19980213 Docket: CA 141313 NOVA SCOTIA COURT OF APPEAL Freeman, Pugsley and Cromwell, JJ.A. 3004876 Nova Scotia Limited -and- LASERWORKS COMPUTER SERVICES INC. Respondent James A. Musgrave for the Appellant Roy F. Redgrave for the Respondent D. Bruce Clarke and Pamela J. Clarke-Priddle for the Respondent Trustee Appeal Heard: December 9, 1997 Judgment Delivered: February 13, 1998 THE COURT: The appeal is dismissed, per reasons for judgment of Freeman, J.A.; Pugsley and Cromwell, JJ.A., concurring. FREEMAN, J.A.: The respondent LaserWorks Computer Services Inc., a dealer in supplies for laser printers, made a proposal to its creditors under the provisions of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the BIA). A competitor, Datarite, operating through the appellant 3004876 Nova Scotia Limited, acquired the claims of eighteen creditors and voted them over the objections of LaserWorks at the meeting of creditors, defeating the proposal. Only two of the remaining sixteen creditors opposed the proposal. Acceptance required votes representing majority in number and two-thirds in value of the class of unsecured creditors present in person or by proxy. The Registrar of Bankruptcy of the Supreme Court of Nova Scotia in Bankruptcy, Tim Hill, found: Upon the vote being taken, fourteen creditors with total claim value of $206,531.65 voted in favour of the proposal. Twenty creditors with total claim of $140, 370.00 voted against the proposal. Thus 41% of creditors representing 59% of the claims voted pro, and 59% of the creditors with 40.5% of the claims voted con. The proposal was defeated, subject to the resolution of the objections before the court today. At the hearing into the objections the Registrar, after hearing evidence from the appellant's solicitor Victor Goldberg, who was not counsel on the appeal, disallowed the appellant's votes. He found the proposal had been accepted by the votes of the other creditors. His decision was upheld by Justice Stewart on an appeal to the Supreme Court of Nova Scotia in Bankruptcy. Issues and Standard of Review The overriding issue is whether the court's inherent supervisory jurisdiction should be invoked to interfere in proposal to creditors under the BIA when it appears the statutory process is being used for purposes not contemplated by Parliament. The appellant submits it was true appeal before Justice Stewart, and not hearing de novo, on the authority of Re McCulloch Estate (1992), 1992 CanLII 2799 (NS SC), 13 C.B.R. (3d) 201 Tr. Div.) and Cockfield Brown Inc. (Trustee of) v. Reseau de Television TVA Inc. (1988), 1988 CanLII 875 (QC CA), 70 C.B.R. (N.S.) 59 (Que. C.A.) On further appeal to this court the grounds are whether Justice Stewart erred in: 1. Failing to reverse the Registrar's finding that 18 creditors of LaserWorks assigned their rights to the appellant; 2. Sustaining the Registrar's finding that Datarite engaged in an improper purpose in acquiring and voting the claims of the 18 creditors; 3. Sustaining the Registrar's finding that the Appellant's purpose in acquiring and voting the claims was relevant; and 4. Concluding that there was an abuse on minority of class of unsecured creditors and that duty in this respect was owed by the appellant. An appeal lies to this court under s. 193 of the BIA which reads in part: 193. Unless otherwise expressly provided, an appeal lies to the Court of Appeal from any order or decision of judge of the court in the following cases: (a) if the point at issue involves future rights; ... (e) in any other case by leave of judge of the court of appeal. The appellants assert future rights are involved and no leave is necessary. The respondents take no issue with this. Neither is issue taken with the jurisdiction of the Registrar and Justice Stewart to deal with the matters in question pursuant to the BIA. The issue is whether they erred. The appellant's submission with respect to the standard of review is that: the Registrar's discretion will not be disturbed on appeal unless he failed to consider or misconstrued material fact or violated principle of law. If the Registrar did not appreciate the nature of the evidence before him, it was open to the Supreme Court to substitute its discretion for that of the Registrar. There is also authority that the Registrar's decision should not be disturbed unless it was clearly wrong: Re Achilles (1993), 23 C.B.R. (3d) 20 B.S.S.C.). It cites Industrial Acceptance Corp. v. Lalonde, 1952 CanLII (SCC), [1952] S.C.R. 109 p. 120; Re Gilmartin bankrupt), [1989] nan All E.R. 835 (Ch. D.) p. 838; and Re Barrick (1980), 36 C.B.R. (N.S.) 286 (B.C.C.A.) p. 290. In Industrial Acceptance Estey J., writing for the Supreme Court of Canada, held at page 120 that: judgment rendered in the exercise of judicial discretion under s. 142 ought not to be disturbed by an appellate court, unless the learned judge, in arriving at his conclusion, has omitted the consideration of or misconstrued some fact, or violated some principle of law. The respondent LaserWorks urges that this court should only substitute its own discretion when the Registrar is clearly wrong. Apparent failure by the Registrar to appreciate the nature of the evidence before him is too low threshold: The court in Re Barrick ((1980), 36 C.B.R. (N.S.) 286 (B.C.C.A.)) substituted its discretion for that of the trial judge only after ruling that he misapplied legal test. Justice Taggert, at page 290, gives three reasons the Court of Appeal should substitute its discretion for that of the trial judge: In these circumstances, it would seem to me that the learned judge has not applied the correct test, has not given the effect that ought to be given to the trustee's report and has not appreciated the nature of the evidence which was before him. In these circumstances, think we are justified for substituting our discretion for that of the trial judge. On that basis the respondent submits the first three grounds of appeal fail. The Trustee under the Proposal submits that "the Appellant has not satisfied the onus upon it in this appeal to overturn the decision of the Honourable Justice Stewart to decline to substitute her discretion for that of the Registrar." The respondent also referred to the principles stated by McLachlin, J., in Toneguzzo-Norvel (Guardian Ad Litem of) v. Savein and Burnaby Hospital (1994), 1994 CanLII 106 (SCC), S.C.R. 114 at page 121, which this court has followed consistently: It is by now well established that Court of Appeal must not interfere with trial judge's conclusions on matters of fact unless there is palpable or overriding error. In principle, Court of Appeal will only intervene if the judge has made manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it: see P. (D.) v. S. (C.), 1993 CanLII 35 (SCC), [1993] S.C.R. 141, at pp. 188-89 (per L'Heureux-Dube J.), and all cases cited therein, as well as Geffen v. Goodman Estate, 1991 CanLII 69 (SCC), 1991] S.C.R. 353, at pp. 388-89 (per Wilson J.), and Stein v. The Ship "Kathy K", 1975 CanLII 146 (SCC), [1976] S.C.R. 802, at pp. 806-8 (per Ritchie J.). Court of Appeal is clearly not entitled to interfere merely because it takes different view of the evidence. The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal. These principles apply in bankruptcy matters, and provide guidance when, as here, the Registrar's findings have been upheld by judge of the Supreme Court. The Registrar's Decision The Registrar based his decision on the following findings: Before turning to deal with these submissions, it is essential that make some findings of fact. In large part the facts are uncontested. No affidavits were filed, but counsel agree that may rely on the minutes of the meeting of creditors, the testimony by Mr. Goldberg upon the section 163(2) examination, and the list provided by Mr. Goldberg in compliance with his undertaking on the examination. find that Datarite through its solicitor approached some but not all of the creditors of Laserworks with the intention of obtaining an assignment of those creditors' claims and consequently rights to vote on the proposal. The claims were obtained and the votes utilized to defeat the proposal. This would have the effect under section 57(a) of the BIA of placing LaserWorks into bankruptcy by virtue of deemed assignment. can only conclude that the purpose of Datarite was to effect the bankruptcy of LaserWorks. It is reasonable supposition that the purpose was to remove competitor from the marketplace. find that it was the intention of Datarite to put LaserWorks in bankruptcy. further find that the motive was to lessen competition. In my view, Datarite was engaged throughout in an improper purpose not contemplated by the BIA, the purpose of which is far removed from the use to which Datarite put it. It is apparent that the Registrar, in speaking of "purpose", included both motive or intent and the steps taken to give effect to that motive or intent. While the record is somewhat sparse, as counsel have remarked, there was evidence in support of these findings. am not satisfied that the Registrar failed to appreciate the nature of the evidence before him or that he was clearly wrong, or alternatively that he omitted the consideration of or misconstrued some fact, or violated some principle of law. The questions before this court relate to the effect of these findings. The Registrar disallowed the votes of the eighteen creditors represented by the appellant because he considered they had been cast for an improper purpose. In the absence of authority specific to proposals to creditors, he applied jurisprudence related to bankruptcy petitions, stating: It has long been held that the court will not grant petition in bankruptcy where the petition is filed for an improper purpose: Re E. De La Hooke (1934), 15 C.B.R. 485 (Ont. S.C.); Re Pappy's Good Eats Limited (1985), 56 C.B.R. (N.S.) 304 (Ont. S.C.); Dimples Diapers Inc. v. Paperboard Industries Corporation (1992), 15 C.B.R. (3d) 204 (Ont. G.D.); Re Shepard (1996), 1996 CanLII 18061 (MB QB), 40 C.B.R. (3d) 145 (Man. Q.B.). In Hooke the petitioner obtained an assignment of judgment against the debtor for the sole purpose of filing petition in bankruptcy and of removing the debtor as business competitor. In that case, as is the situation in this case, there was no evidence that the debtor had any business dealings with the party seeking to place the debtor in bankruptcy. The petition was dismissed. In Hooke the court made extensive reference to the decision of the House of Lords in King v. Henderson, [1898] A.C. 720. The comments of James, L.J., at p. 732 are particularly germane here: After what Lord Justice Cotton has said, in which entirely agree, people will probably think twice before they buy debts for the purpose of taking bankruptcy proceedings. Lord Justice Cotton had commented that the proceedings in bankruptcy were not taken to obtain payment of the debt, but rather the debt was purchased for the purpose of taking the proceedings. would simply add that in tight of the decision make here persons should certainly think twice before they purchase debts in order to defeat proposal. It is my opinion that the eighteen creditors are tainted with the improper motive of Datarite. In Pappy's Good Eats the petition was filed by creditor with genuine claim. The creditor entered into an agreement with three franchisees of the debtor. This agreement provided that the creditor would prosecute the bankruptcy proceedings while the franchisees financed the proceeding in exchange for share of the dividends. The motive of the franchisees was to bring about bankruptcy so as to terminate the franchise agreements between them and the debtor. The court found that there had been an improper use of the bankruptcy legislation. The effect of the agreement was to embroil the creditor in the improper objectives of the franchisees who were intermeddling in the proceeding. This tainted the whole proceeding. Clearly where the object of the intermeddling party is to bring about the bankruptcy of the debtor an improper purpose is present. The court will act to prevent such an abuse of the legislation. The other cases have referred to, Dimples Diapers Inc. and Shepard also deal with bankruptcy petitions instigated for an improper collateral purpose. In Dimples that purpose was to recover trademark and business opportunity. In Shepard that purpose was to obtain control of certain shares. While this case does not involve bankruptcy petition, it does involve the placing of Laserworks into bankruptcy. In my view, it would be wrong to allow Datarite to do in the proposal process what it cannot do by petition. Datarite's intention was to place Laserworks in bankruptcy. The motive was to remove competitor. That motive reveals an improper purpose. The court will not allow to be done by the back door what cannot be done by the front. By entering into this arrangement with the numbered company the eighteen creditors have tainted themselves and become embroiled in the improper purpose of Datarite. Their votes cannot stand. If Laserworks has the right to be free of this type of interference the Court must be able to fashion remedy. This court does have the inherent jurisdiction to supervise the bankruptcy process and consequently the conduct of creditors where that conduct constitutes an abuse of the provisions of the BIA. While creditors can certainly vote in their own best interest, they may not collude with third party to place debtor in bankruptcy for an improper purpose. Such activity lacks commercial morality and offends the integrity of the bankruptcy process. While Datarite was not permitted to vote the claims it had acquired, they remained debts of the insolvent debtor. Justice Stewart The first ground of appeal to this court, the issue of whether the claims of 18 creditors were actually assigned to Datarite, does not appear to have been ground of appeal before Justice Stewart. On the next two grounds of appeal, whether the Registrar failed to appreciate the evidence before him in concluding that Datarite's purpose in acquiring and voting the 18 claims was an improper one, and whether such purpose was relevant consideration, Justice Stewart, in upholding the Registrar, took different route to arrive at the same conclusion. She stated: Although stated in the context of voting by debenture holders when the majority had votes to modify the rights of the debenture holders in clause, the statements of principle by Viscount Haldane of the Judicial Committee of the Privy Council in British America Nickel Corporation v. M. J. O'Brien, 1927 CanLII 470 (UK JCPC), [1927] A.C. 369 at p. 371 are, no less, here applicable: To give power to modify the terms on which debentures in company are secured is not uncommon in practice. The business interests of the company may render such power expedient, even in the interests of the class of debenture holders as whole. The provision is usually made in the form of power, conferred by the instrument constituting the debenture security, upon the majority of the class of holders. It often enables them to modify, by resolution properly passed, the security itself. The provision of such power to majority bears some analogy to such power as that conferred by s. 13 of the English Companies Act of 1908, which enables majority of the shareholders by special resolution to alter the articles of association. There is, however, restriction of such powers, when conferred on majority of special class in order to enable that majority to bind minority. They must be exercised subject to general principle, which is applicable to all authorities conferred on majorities of classes enabling them to bind minorities, namely, that the power given must be exercised for the purpose of benefitting the class as whole, and not merely individual members only. And later at p. 373, noting this to be principle which does not depend on misappropriation or fraud, stated: but their Lordships do not think that there is any real difficulty in combining the principle that while usually holder of shares or debentures may vote as his interest directs, he is subject to the further principle that where his vote is conferred on him as member of class he must conform to the interest of the class itself when seeking to exercise the power conferred on him in his capacity of being member. The court, applying the principle stated by Viscount Haldane, should not sanction scheme if it appears that the majority have not voted bona fide in the interests of the class as whole. Justice Quilliam in an unreported decision of the High Court of New Zealand, Re: Farmers' Co-Operative Organization Society of New Zealand Limited (M 12/97, August 1987) in addressing the very issue of company whose proposal had been defeated by the votes cast by some of its direct competitors, in circumstances where the majority had the right to bind the minority by statute relied on the principle enunciated in British American Nickel Corp. Inc. v. O'Brien, supra, during the objection to votes application before him. He concluded the votes should be discounted as their votes were cast out of self-interest and not in the interest of the class of creditors as whole, or of the company. Unlike the present case, he did not determine there was specific activity of an improper purpose other than recognizing the votes were cast by creditors in direct commercial competition with the company. The Registrar, on his finding of facts, was not faced with preexisting creditor voting as it wished for whatever reason. He was faced with unique set of circumstances where he found the appellant shelf company and Datarite, competitor of Laserworks, involved selective, secret arrangement with creditors against Laserworks, an arrangement that would hurt some creditors and favour other creditors, although as competitors rather than as creditors, given its purpose of removing Laserworks from the market place and diverting from it, its asset, the market share, so it could be available to Datarite, all of which would result in the balance of the creditors receiving little, if anything, and Laserworks having been deemed bankrupt. Justice Stewart found that Datarite was not entitled to use its votes for motives unrelated to the best interest of the creditor group and only pursuant to its own self interest in removing potential competitor from the market place without regard to the interests of the other members of its class, the other voting creditors. She concluded: The Appellant is not entitled to use its votes to achieve this improper purpose. The Registrar's decision prevents an abuse on minority of the class of unsecured creditors and in so doing upholds fundamental and viable in the circumstances principle of class voting. He did not err in concluding improper purpose is relevant. On the fourth ground she found that while there had been no collusion by the eighteen creditors sufficient to deprive them of the right to vote, the Registrar was justified in determining that in the circumstances Datarite controlled the way the claims were voted. She upheld the Registrar's decision and declined to interfere with it. Assignment The First Ground The appellant submits that the judge erred when she declined to address and reverse the Registrar's finding that 18 unsecured creditors of LaserWorks assigned their rights to the appellant. On proper appreciation of the evidence, it submits, no assignment took place. It states in its factum: The appellant did not take issue with the Registrar's finding that four of the 18 creditors received payment for them prior to the vote .... Each of the four creditors provided executed assignments and proxies to Mr. Goldberg, and each assignment was completed by payment. The 14 remaining creditors did not receive payment for their claims prior to the vote, and the appellant submits that the teamed Registrar failed to appreciate the evidence in this regard when he concluded that the claims of these 14 creditors had been assigned to the appellant before the vote was taken. LaserWorks submits that the Registrar did not decide whether or not the claims voted by Datarite were assigned: The conclusion of the Registrar with respect to the assignment issue is: Given my findings with respect to the intent and motive of Datarite, find it unnecessary to consider whether Datarite should have exercised vote or 18. The reference to vote or 18 relates to the assignment of claims. If the 18 claims had been assigned to the Appellant, the authorities establish that only one vote could be cast on the proposal. The Registrar found it "unnecessary to consider" this issue. We submit that the Registrar would need to consider the issue before making decision. It seems reasonable that the Registrar did not intend to decide whether the claims were assigned because it would not determine the question before him. Even if the appellant were restricted to voting as one creditor, leaving majority of creditors in favor of the proposal, the value of the claims voted by the appellant was sufficient to defeat the proposal and thus achieve the appellant's objective. If the claims had been assigned to the appellant, the voting rights would have been merged and the appellant could only cast one vote for the value of the claims it had acquired. If the creditors retained their own claims, the appellant could have voted once for each creditor for whom it held proxy. There is authority for this proposition and the parties seem in agreement with it. The rationale is clear. Each creditor has vote, to be exercised in person or by proxy. If the claim is assigned, the assignor ceases to be creditor. It loses its right to vote in person or to control the vote of the proxy. The assignor becomes creditor and is able to vote its claim, no matter the amount of the claim. If it acquires the claims of other creditors the amount of its claim increases, but it does not pluralize itself. It remains one creditor, entitled to one vote. The appellant referred to Toia v. Cie de Cautionnement Alta Inc. (1989), 77 C.B.R. (ICS.) 264 (Que. S.C.). The respondent insurance company paid out 19 claims against bankrupt under performance bond; each claimant signed release and subrogated its claims to the respondent, which filed 19 proofs of claim. The Official Receiver permitted 19 votes but the Quebec Supreme Court reversed this, allowing only one vote. The appellant purports to distinguish Toia because "there the respondent completed the assignments by payment prior to the vote." In my view it is of small importance whether the appellant bought for cash or on credit. The situation seems clear when creditors authorize votes on their behalf by proxy: each creditor is entitled to its vote and the proxy may cast votes for several creditors. It is equally clear when creditor assigns its claim to another creditor: the assignee creditor has only one vote. This was the case with the four creditors whose assigned claims were accepted and paid for by the appellant. It is less clear with respect to the remaining fourteen creditors who had executed assignments to the appellant. The appellant says they had not yet been accepted, pending proof of the claims. However they had to be proven before they could be voted, and their values were proved for the purpose of calculating their percentage of the total of the unsecured claims. Any condition on the assignment would appear to have been met. The intention of the parties must be determined: did the appellant vote those claims on its own behalf, or as an agent exercising the rights of the original creditors by proxy? If it had been necessary for the Registrar to decide this question, there was evidence before him that the original creditors had given control over their claims to the appellant by entering into enforceable contracts to assign them. That is, while the appellant voted the claim in the form of proxies, in fact it had acquired sufficient interest in the claims to vote them in its own right, as assignee, as though the assignments had been fully executed. It is clearly an improper practice for an assignee to purport to vote as the proxy of creditor which has assigned its claim, thereby ceasing to be creditor. If Datarite was otherwise entitled to vote at the creditor's meeting, it had one vote for the full value of the claims it had acquired. It was not justified in voting by proxy. I would dismiss this ground of appeal. Evidence of Datarite's purpose the second ground Mr. Goldberg testified as follows to Datarite's purpose in buying claims and voting against the proposal: Q. Can you tell me the benefit the numbered company will get in the bankruptcy of LaserWorks? A. Well, the purpose of the numbered company hopefully in buying the claims is that it'll buy the claims at reduced price and get full payment one day. The appellant states that Mr. Goldberg's evidence was uncontradicted, and submits: It is respectfully submitted that the Registrar was clearly wrong in his appreciation of the evidence. The learned Judge concluded that the Registrar made finding of credibility with respect to Victor Goldberg's evidence on this issue. However, the Registrar's decision does not indicate that Mr. Goldberg's evidence on this key issue was even considered. The Registrar simply failed to address Mr. Goldberg's evidence on this issue at all. It is therefore open to this Honourable Court to substitute its discretion for that of the Registrar. It is submitted that the Registrar could only find an improper purpose on the record by overlooking the only piece of direct evidence before him on Datarite's intentions. Mr. Goldberg was obviously only stating his client's ostensible intentions, not its true ones. The Registrar in fact had commented on Mr. Goldberg's evidence after quoting passage from the minutes indicating how he had responded to certain questions. He said: It is not unfair to say that Mr. Goldberg was obtuse to very great degree. While this does not necessarily confirm suspicion as to the motives of his client, it does explain the concern expressed by the principals of LaserWorks. The evidence before the Registrar included the proposal itself, which shows total liabilities of $585,459 of which $247,651 was unsecured, $334, 838 secured and $2,970 preferred. Assets totaled $306,158 including book debts of $170,000, leased vehicles 95,958, stock in trade $18,500, cash in the bank (which was the principal secured creditor) $8,000 plus fixtures, furnishings and equipment. Virtually all of the assets would be subject to security. The overall deficiency is shown as $279,301. It is difficult to see basis for Mr. Goldberg's client's optimism that it might get full payment for the claims it bought at reduced value, or indeed, to see any significant source of dividends for unsecured creditors, on bankruptcy. Datarite had not been creditor of LaserWorks before the proposal. There was evidence, however, that it had been competitor. The Registrar was entitled to consider the evidence as whole in making findings of fact and drawing inferences that led him to the conclusion that: ... Datarite's intention was to place Laserworks in bankruptcy. The motive was to remove competitor. That motive reveals an improper purpose... In my view the Registrar did not fail to appreciate the evidence nor otherwise err in arriving at this conclusion. Neither did Justice Stewart err in upholding him. I would dismiss this ground of appeal. Is Purpose Relevant? The Third Ground. (i) The Statute The appellant submits that the trial judge erred in upholding the Registrar's decision that Datarite engaged in an improper purpose in acquiring and voting the claims of the 18 creditors, and that its purpose was relevant. In view of the conclusion on the second ground that the Registrar did not err in finding improper purpose, the appellant is left with the relevancy argument. It argues that the authority relied on by the Registrar, De La Hooke, Pappy's Good Eats, Dimples Diapers and Shepard, arises under s. 43(7) of the BIA which deals only with bankruptcy petitions: 43(7) Where the court is not satisfied with the proof of the facts alleged in the petition or of the service of the petition, or is satisfied by the debtor that he is able to pay his debts, or that for other sufficient cause no order ought to be made, it shall dismiss the petition. (emphasis added.) It cites the discussion of the discretion thus created in Houlden Morawetz, Bankruptcy and Insolvency Law of Canada (3d) at p. 2-50: Section 43(7) permits the court to dismiss petition if it concludes "that for any other sufficient cause no order ought to be made". Section 43(7) confers discretion; the exercise of that discretion must be founded on sound judicial reasoning based on credible evidence and must be exercised judicially according to common sense and justice in manner which does not occasion miscarriage of justice. Section 43(7) clearly does not create the supervisory jurisdiction of the court over the bankruptcy regime; it is simply concrete application of discretionary power inherent in the scheme of the BIA. Each step in the bankruptcy process, whether initiated by creditor's petition for receiving order or debtor's assignment for the benefit of creditors, is supervised by court officials or the court itself. For example s. 108 in Part V, the Administration of Estates, relates to "any meeting of creditors". At the meeting which gave rise to this appeal the chairman applied s. 108(3): 108(3) Where the chairman is in doubt as to whether proof of claim should be admitted or rejected, he shall mark the proof as objected to and allow the creditor to vote subject to the vote being declared invalid in the event of the objection being sustained. Section 187(9) provides broad directive: 187(9) No proceeding in bankruptcy shall be invalidated by any formal defect or by any irregularity, unless the court before which an objection is made to the proceeding is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of that court. The short answer to the question raised by this ground of appeal is that motive or purpose is relevant to court authorized to remedy substantial injustice. The appellant takes the narrow position that proposals are outside the discretionary supervisory jurisdiction of the court because they are not specifically included in s. 43(7) or some equivalent provision. This submission cannot be sustained. There is similarity between creditor's petition for receiving order under s. 43 and refusal of proposal. In either case it is something done by creditor or creditors that places the debtor in bankruptcy, likely against its will. But proposal is also similar to an assignment: the debtor has itself resorted to protection under the BIA and its proposal will be deemed to be an assignment unless it succeeds in persuading its creditors to accept it in their own best interests. The appellant submits that s. 54 is the provision in the proposals Part of the BIA which corresponds with s. 43(7). S. 54 provides: 54(1) The creditors may, in accordance with this section, resolve to accept or may refuse the proposal as made or as altered at the meeting or any adjournment thereof. While s. 43(7) provides an occasion for the exercise of the court's supervisory jurisdiction, an examination focused on the merits of the petition itself, s. 54(1) does not. Such an examination of proposal is not necessary at that stage. The validity of the claims voted at the creditor's meeting at which the proposal is accepted or refused is subject to the court's scrutiny under s. 108(3). If the proposal is refused by regular vote of creditors it vanishes and further examination is unnecessary; the debtor is deemed under s. 57(a) to have made an assignment in bankruptcy and the matter proceeds as on an actual assignment. If the creditors approve the proposal, it is then examined on its merits under s. 59, which provides: (1) The court shall, before approving the proposal, hear report of the trustee in the prescribed form respecting the terms thereof and the conduct of the debtor, and, in addition, shall hear the trustee, the debtor, any opposing, objecting or dissenting creditor and such further evidence as the court may require. (2) Where the court is of the opinion that the terms of the proposal are not reasonable or are not calculated to benefit the general body of creditors, the court shall refuse to approve the proposal, and the court may refuse to approve the proposal whenever it is established that the debtor has committed any one of the offences mentioned in sections 198 to 200. Proposals are therefore just as much part of the bankruptcy regime, and just as subject to the supervision of the court exercising an equitable jurisdiction under the statute, as petitions and assignments. In Whiteman v. UDC Finance Ltd., [1992] NZLR 684, Hardie Boys J., writing for the New Zealand Court of Appeal with respect to the New Zealand Insolvency Act, which varies in detail but not in principle from our own, said at p. 691 that proposals are merely the other side of the coin to petition for adjudication. The only distinction between petitions and proposals in the exercise of the court's supervisory jurisdiction is that under the scheme of the BIA occasions for judicial scrutiny occur at different stages of the process. In the present appeal, court intervention was occasioned by objections to proofs of claims affecting the right to vote at the creditors' meeting considering the proposal. The correct procedure was followed, and the objections were considered by the Registrar who had jurisdiction under s.187(9) to remedy substantial injustice. Motive or purpose is not relevant to objections to proofs of claim based on statutory exceptions under the BIA. These are established in several sections, including s.109(1), persons who had not duly proved and lodged claim; s.54(3), relative of the debtor (who may vote against but not for proposal); 109(4), the debtor as proxy for creditor; s.109(6), creditor who did not deal with the debtor at arm's length (with exceptions); s.110(1), person with claim acquired after the bankruptcy unless the entire claim is acquired; s.111, creditor with claim on or secured by current bill of exchange (subject to conditions); s.112, creditor holding security (subject to conditions); and s. 113(2), trustee as proxy (subject to restrictions). See also s. 109, the trustee as creditor. (It will be noted that many of these exceptions arise from circumstances that could give rise to conflict of interest. This will be considered further under the fourth ground of appeal.) However the statutory exceptions are not code exhausting the forms in which substantial injustice may manifest itself. Objections will be sustained under s. 108(3) if they result from crime or tort against the debtor or crteditor. In the present appeal, and in the authorities cited by the Registrar, the substantial injustice assumes the guise of tortious behavior, to which motive is relevant. In the s. 108(3) context the commonest torts, or instances of substantial injustice arising from tortious behavior, relate to abuse of process and fraud. However conspiracy to harm was also found in Dimples Diapers. Tortious or tort-tike behavior falling short of fully developed tort susceptible of formal proof or definition can nevertheless result in substantial injustice, particularly for persons at point so vulnerable they must resort to insolvency protection. (See Shepard.) In my view that is why Parliament chose the language it did in s.187(9): to create discretionary jurisdiction in courts that is not fettered, for example, by the high standards required for establishing such torts as abuse of process in other contexts. What remains to be considered is the threshold level of the substantial injustice which will result in remedial action by the court. (ii)The Authorities The four cases cited by the Registrar establish that the threshold is crossed when the BIA is used for an improper purpose. An improper purpose is any purpose collateral to the purpose for which the bankruptcy and insolvency legislation was enacted by Parliament. Farley J. held in Dimples Diapers that: the Bankruptcy Act, R.S.C. 1985, c. B-3 has as its purpose the provision of "the orderly and fair distribution of the property of bankrupt among its creditors on pari passu basis". (L.W.Houlden and C.H.Morawetz, Bankruptcy Law of Canada, 3rd ed. (looseleaf) (Toronto: Carswell, 1989) at p. 1-3 [A&4].... In the cases cited the improper purpose takes the form of abuse of process or tortious behavior closely analogous to abuse of process. In each case the court reacted to what could be seen as substantial injustice. The remedy of choice arising under s. 43(7) is refusal of the petition. The appropriate remedy in the present case is rejection of the tainted votes. In vigorous judgment in Dimples Diapers Farley J. dismissed the bankruptcy petition because it was brought for an improper purpose, to recover the diaper trademark and business opportunity, and awarded damages for abuse of process and conspiracy against three creditors. He held at p. 219: .. The tort of abuse of process consists in the misuse of legal process for any purpose other than that which it was designed to serve. It is immaterial in establishing abuse of process that the process was properly commenced or founded by the defendants and it does not matter that the process be concluded in the instigator's favour. The improper purpose is the gravamen of liability. See Unterreiner v. Wilson (1982), 1982 CanLII 1814 (ON SC), 40 O.R. (2d) 197, 24 C.C.L.T. 54, 142 D.L.R. (3d) 588 (H.C.), at p. 203 [O.R.], appeal dismissed (1983), 1983 CanLII 1968 (ON CA), 41 O.R. (2d) 472, 146 D.L.R. (3d) 322 (C.A.), and J.G.Fleming, The Law of Torts, 7th ed. (Sydney: Law Book, 1987) at pp. 591-592. Potts J. In R. v. Cholkan Co. v. Brinker (1990), 1990 CanLII 6865 (ON SC), 71 O.R. (2d) 381, C.C.L.T. (2d) 291, 40 C.P.C. (2d) (H.C). at p. [C.P.C.] said: Most recently, Montgomery J. writing for the divisional Court in Bentham v. Rothbart (1989), 36 O.A.C. 13 (Div. Ct.), stated: The constituent elements of the tort of abuse of process are: (a) collateral improper purpose such as extortion; and (b) definitive act or threat in furtherance or purpose not legitimate in the use of the process. Montgomery J. was clearly using "extortion" as an example only. Any crime or tort would be an improper purpose. In de la Hooke the petition was dismissed when petitioning creditors, who had had no business dealings with the debtor, obtained an assignment of judgment debt he owed for the sole purpose of filing petition in bankruptcy to remove him as business competitor who was using similar trade name. Registrar Cook cited number of leading English cases relevant to the circumstances of the present appeal. These included King v. Henderson, [1898] A.C. 720 at p. 731 which considered abuse of process or fraud on the court; Ex Partre Griffin; in re Adams (1879), 12 Ch. Div. 480 in which worthless debt was purchased to take proceedings in bankruptcy to force the debtor to give up just debt, causing Brett L.J. to remark, "a viler fraud have never heard of"; Ex parte Harper; In re Pooley (1882), 20 Ch. D. 585 at p. 692 in which buying debt to force bankruptcy in order to get rid of trustee was found "a gross abuse of the bankruptcy laws;" and In re Debtor [1928] Ch. 199 at p. 211 in which the bankruptcy laws were used for the collateral purpose of extortion. In Pappy's Good Eats petition was denied when three franchisees of the debtor, who were not creditors, contracted with the petitioning landlord who had $65,000 unsatisfied judgment against the debtor, to pay the landlord's costs to petition the debtor into bankruptcy so they would be relieved of obligations under their franchise agreements. Henry J. held the effect of the agreement was to "embroil the petitioning creditor in the improper objective of the purchasers who as non-creditors have no status in these proceedings and are intermeddling in it. The whole proceeding is inescapably tainted; the petition must be dismissed." He found that "the abuse occurred when the parties agreed or arranged improperly to use the facility of the Act to advance the objectives of the franchisees to cause injury to the debtor." In Shepard it was found that the purpose of the petitioner was to gain control over certain shares of the debtor, an important business advantage. "It is not appropriate or indeed, correct in law, to have the courts facilitate such an objective when the objective is very clearly the main purpose of the application." This finding is consistent with finding of substantial injustice resulting from abuse of process. (iii) The Present Case It is most significant that the appellant was not creditor of LaserWorks prior to the proposal. Intermeddling by strangers to the pre-existing debtor creditor relationship for an improper purpose was determinative factor in Pappy's Good Eats. The practice of buying dubious claims against an insolvent for purposes foreign to the bankruptcy process was denounced in the English cases cited in de la Hooke. The Registrar in the present case understandably looked askance at it. Few legitimate reasons come to mind for buying into bankrupt estate. When somebody does so, it is matter of common sense to assume, subject to correction, they intend to use the bankruptcy process for some purpose it was not meant for. In the present case it was readily apparent that mischief was afoot. The "orderly and fair distribution of the property of bankrupt among its creditors on pari passu basis" was not the purpose behind the acts of the appellant. The appellant made separate approaches to each of the eighteen creditors whose claims it succeeded in acquiring. It negotiated separate deal with each for varying considerations presumably seen to be more advantageous to the creditor than reliance on the proposal. From most of them it obtained an agreement, an executed assignment and proxy. It purported to vote the proxies of former creditors whose claims had been assigned to it. Its purpose was not an orderly recovery of debts from the debtors assets but to limit competition by the debtor in its own marketplace by rejecting the debtor's proposal and forcing it into bankruptcy. The appellant was acting on its own making sharp use of the provisions of the BIA for its own advantage. There was no evidence that the co-operating creditors were part of conspiracy with the appellant to injure the debtor. Otherwise the tort of conspiracy to injure could be found where the predominant purpose of the appellant's conduct is to cause injury to the plaintiff, whether the means used by the defendants are lawful or unlawful: Canada Cement LaFarge Ltd, v. British Columbia Lightweight Aggregate Ltd., [1983] S.C.C. 452. It is undeniable that the appellant caused injury to the debtor not negligently but deliberately. The debtor made its proposal to avoid bankruptcy; bankruptcy therefore must have been seen by Laserworks as more injurious alternative than acceptance of the proposal by the creditors. Laserworks had the heavy burden of persuading its creditors that their best interests lay in approving the proposal; it did not have the impossible burden of dissuading financially stronger competitor bent on using the provisions of the BIA to destroy it as competitor. The appellant derailed the proposal procedure to force the debtor into bankruptcy. Using bankruptcy to cause injury, thereby eliminating the debtor as an entity capable of competing in the marketplace, is abusive of the purpose of the BIA. It does not qualify as "the orderly and fair distribution of (its) property." Annihilation of an individual business or company may be an unfortunate consequence of bankruptcy, an unavoidable side-effect, but it is not the purpose of the BIA. Use of the Act to accomplish such an objective is in my view so abusive of the purpose of the legislation as to engage the supervisory jurisdiction of the courts under s. 187(9). It is substantial injustice to be remedied. No distinction in principle is possible between the present case and the four cited by the Registrar. He identified the problem and he applied the remedy. He was upheld on appeal in the Supreme Court. I would dismiss this ground of appeal. Class voting The Fourth Ground In upholding the Registrar Justice Stewart added string to his bow by introducing the class voting analysis of Viscount Haldane in British American Nickel. In light of the holdings respecting the second and third grounds of appeal, it is not necessary to the outcome to decide this ground. The appellant submits that the trial judge was wrong in concluding there was an abuse on minority of class of unsecured creditors and that duty in this respect was owed by the appellant: nan There was no abuse on minority of the unsecured creditors and no duty was imposed on the Appellant to cause votes to be cast in the best interest of the class. Without such duty the learned Judge was without authority to consider Datarite's motives and the votes in question should have been allowed. In British America Nickel Viscount Haldane stated that where power is conferred on special class, majority in exercising power to modify the rights of minority must exercise that power in the interests of the class as whole. nan But their Lordships do not think that there is any real difficulty in combining the principle that while usually holder of shares or debentures may vote as his interest directs, he is subject to the further principle that where his vote is conferred on him as member of class he must conform to the interest of the class itself when seeking to exercise the power conferred on him in his capacity of being member... In the present case the minority creditors saw their alternative of furthering their best interests by voting in favour of the proposal disappear when the votes amassed by the appellant were exercised, not in the interest of making the most favourable recovery from combination of distribution of the assets of LaserWorks and its continuance in business as customer or potential customer, but in the interests of removing competitor of Datarite. Justice Stewart was concerned that the other creditors, as well as the debtor, suffered from the abusive use of the provisions of the BIA. Of the sixteen creditors who did not assign their claims to Datarite, fourteen voted in favour of the proposal. The rationale for Viscount Haldane's conclusion in British America Nickel was carefully reviewed by Hardie Boys J. in Whiteman v. UDC Finance Ltd. The court found it should not intervene in the refusal of proposal by creditors including several who were being sued by the debtor, and who therefore had collateral interest in seeing him out of business. Hardie Boys J. cited the same passage quoted above by Justice Stewart from Vicount Haldane's judgment. It concludes that there is restriction on powers conferred on majority of special class in order to enable that majority to bind minority: .. They must be exercised subject to general principle, which is applicable to all authorities conferred on majorities of classes enabling them to bind minorities; namely, that the power given must be exercised for the purpose of benefiting the class as whole, and not merely individual members only. Hardie Boys J. considered Re Farmers' Co-operative, which was also cited by Justice Stewart, in which votes of several creditors who were competitors of the debtor were disallowed .. In later development of the same matter, but not now involving the Court's sanction under s. 205, Gallen J. accepted that the Court has an overriding control, not limited to the approval stage under s. 205, and may restrict right to vote where the equities of particular situation require it: see [1992] NZLR 348. It is unnecessary for present purposes to decide whether these cases were correctly decided, for even if they were, the principle is not of unlimited application, and does not apply to the exercise of voting rights generally. This is clear from what Viscount Haldane said in the British America Nickel case. Immediately after the passage already quoted, his Lordship said Subject to this, the power may be unrestricted. It may be free from the general principle in question when the power arises not in connection with class, but only under general title which confers the vote as right of property attaching to share. Thus in Pender v. Lushington (1877) Ch. D. 70, 75-76 Jessel MR said there is: no obligation on shareholder of company to give his vote merely with view to what other persons may consider the interests of the company at large. He has right, if he thinks fit, to give his vote from motives or promptings of what he considers his own individual interest. While the voting rights conferred by Part XV of the Insolvency Act are not akin to "right of property attaching to share", they are rights conferred without reservation. There is no requirement for class voting; there is instead general right conferred equally on all creditors. The rationale of the principle does not apply. It is well settled that the motive (short of fraud) of petitioning creditor, no matter how reprehensible, is irrelevant to his right to obtain an order of adjudication: King v. Henderson [1898] AC 720, Re King, ex parte Commercial Bank of Australia Ltd. (No. 2) [1920] VLR 490. The motive of creditor voting on proposal, really the other side of the coin to petition for adjudication, can be no different. That is not to say that there may be no remedy in an extreme case, such as fraud or mistake. But certainly where, as here, there are perfectly legitimate reasons for opposing the proposal, creditor is not to be denied that right because he may have some other motive as well... If the exception made for fraud is broadened to "substantial injustice" would take Hardie Boys J.'s conclusions to be fair statement of the law in Canada as well, as applied by Canadian courts in the cases cited by the Registrar. The New Zealand court included mistake as well as fraud as an exception. creditor is not to be deprived of the right to vote for wrongful motives alone; motive must be coupled with tortious act to support finding of improper purpose. Canadian case supporting broad interpretation of the right of creditors to vote on proposals is Re Bedard Louis Inc. (1991) 1991 CanLII 3533 (QC CA), 22 C.B.R. (3d) 218. The debtor sued three creditors who had sought to seize his goods before judgment for amounts far exceeding their claims against him. One creditor petitioned for receiving order, and the Quebec Superior Court rejected the debtor's argument that the petitioner was not creditor because of the large undecided actions. The debtor was declared bankrupt and later filed proposal. The trustee refused to let the three creditors vote at creditors' meeting considering the proposal because of possible conflict of interest. The Superior Court allowed an appeal against the trustee's decision, and the Quebec Court of Appeal upheld the Superior Court, holding (headnote) that: No provision of the Act authorizes the trustee to exclude creditor whom he considers to have conflict of interest. The debtor's action for damages against the creditors, which constituted debt not yet payable, did not strip the creditors of their status of ordinary creditors. By the proposal, the debtor presented the creditors with terms of payment which were different from those provided legally by contract. The Act was intended to allow the voting of all duly acknowledged creditors. Exceptions to that rule were properly specified in the Act and none of them pertained to creditor against whom debtor had filed legal proceedings. The Proposals Part of the BIA recognizes only two classes of creditors, secured creditors who are presumably protected by the security they hold, and unsecured creditors, all the others. This does not appear to meet Viscount Haldane's criterion of special class bound to exercise its voting rights for the benefit of the class as whole. That concept seems surplus to and difficult to reconcile with the scheme of the BIA where, as the Quebec Court of Appeal found in Bedard, all duly acknowledged creditors are entitled to vote as they please, subject to exceptions set out in the Act (and the exception for tortious or criminal behavior.) As remarked above, those exceptions reflect the manner in which Parliament dealt with conflicts of interest which might arise in the context of voting on proposals. Parliament has obviously legislated on the subject and cannot be assumed to have created by implication an exception for general, unspecified, conflicts of interest. The mere fact that creditor is also competitor of the debtor or otherwise in conflict of interest with the debtor does not give rise to statutory exception. The scheme for protecting minority creditors adopted under the BIA was not class voting concept but rather system of specific exceptions coupled with discretionary power in the courts to remedy substantial injustice. It is not necessary to make final determination on this point. The rational of Justice Stewart's decision is found in her adoption of the Registrar's conclusions as to improper purpose in the following passage: The applicant is not entitled to use its votes to achieve this improper purpose. The Registrar's decision prevents an abuse on minority of the class of unsecured creditors and in so doing upholds fundamental and viable in the circumstances principle of class voting. He did not err in concluding improper purpose is relevant. That is, while the Registrar's decision was consistent with considerations of class voting, he was upheld on his findings of improper purpose. I would dismiss the fourth ground of appeal. Conclusion The appellant attempted to abuse the provisions of the BIA by using them to intermeddle for an improper purpose with the proposal of a debtor to its creditors, giving rise to a substantial injustice. This affected not only the debtor but the remaining creditors who supported the proposal. The Registrar made no error in discerning this from the evidence and in exercising the court's discretionary jurisdiction to remedy substantial injustice. He was upheld on appeal to the Supreme Court. The appellant's actions are not to be condoned. I would dismiss the appeal with costs which I would fix costs at $3,000 plus disbursements to the Respondent and $3,000 plus disbursements to the Trustee. Freeman, J. A. Concurred in: Pugsley, J.A. J.A. 1997 B19853 IN THE SUPREME COURT OF NOVA SCOTIA IN BANKRUPTCY IN THE MATTER OF the Proposal of Laserworks Computer Services Inc. -and- IN THE MATTER OF Section 194(2) of Bankruptcy and Insolvency Act, &S.C. 1985, c.B-3 and IN THE MATTER OF an appeal by 3004876 Nova Scotia Limited DECISION HEARD: at Halifax, Nova Scotia, before the Honourable Justice Margaret J. Stewart on June 24, 1997 DECISION: August 13, 1997 COUNSEL: Michael, S. Ryan, Q.C. Counsel for the Appellant, 3004876 Nova Scotia Limited Roy F. Redgrave Counsel for the Laserworks Computer Services Limited D. Bruce Clarke Counsel for McCuaig Company Inc., Trustee under Proposal C.A. No. 141313 NOVA SCOTIA COURT OF APPEAL BETWEEN: 3004876 NOVA SCOTIA LIMITED -and- LASERWORKS COMPUTER SERVICES INC. Respondent REASONS FOR JUDGMENT BY: Freeman, J.A.

The respondent made a proposal to its creditors under the provisions of the Bankruptcy Act. A competitor, operating through the appellant company, acquired the claims of 18 creditors and voted them over the objections of the respondent at a meeting of the creditors, defeating the proposal. Only two of the 16 remaining creditors opposed the proposal. The Registrar disallowed the appellant's votes, and found the proposal had been accepted by the votes of the remaining creditors. The Supreme Court upheld the decision. The appellants appealed. Dismissing the appeal, that the appellant attempted to abuse the provisions of the Act by using them to interfere for an improper purpose with the proposal of a debtor to its creditors. The Registrar made no error in discerning this from the evidence and in exercising the court's discretionary jurisdiction to remedy this substantial injustice.

e_1998canlii2550.txt

J. IN THE FAMILY COURT OF NOVA SCOTIA Citation: Family and Children’s Services of Yarmouth County v. L.J. 2004 NSFC Date: March 31, 2004 Docket: 04Y030046 Registry: Yarmouth Between: Family and Children’s Services of Yarmouth County Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on December 9, 2008. Publication restriction: Publishers of this case please take note that Section 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94 provides: 94(1) No person shall publish or make public information that has the effect of identifying child who is witness 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 Judge John D. Comeau, Chief Judge of the Family Court of Nova Scotia Heard: March 10, 2004, in Yarmouth, Nova Scotia Written Decision: March 31, 2004 Counsel: Martin J. Pink, Q.C., for the Applicant Murray R.K. Judge, for the Respondent THE APPLICATION: [2] This is an application brought by the Agency for a finding that the Respondent has abused a child as described in Section 62(a) or (b) or (c) of the Children and Family Services Act. It is for the purpose of entry of the Respondent’s name in the Child Abuse Register. [3] The Complainant born [in 1989], is now fifteen years of age and is in Grade Nine. She has known the Respondent for considerable period of time and has stayed over at his house alone with him. The original connection was her mother’s boyfriend is the Respondent’s nephew. This is how the Complainant got to know him and stay over at his house. [4] The Respondent at the time of this hearing was seventy-seven years of age and he has never been married or lived with woman, just him and his dog. [5] When the Complainant started staying over at the Respondent’s she was eleven or twelve years old and she says they had sexual contact as follows (in the words of the Complainant): He came in the room and found me fooling around with the dog (dog’s penis), and he said, “If you want to play with one, play with mine,” (and she did). He had an erection and then went and cleaned up. OTHER SEXUAL CONTACT: He tried to get his penis in my bum but it did not work so we used liquid detergent but it still did not work. [6] She says that this and other times she was most likely undressed and he had his shirt unbuttoned and pants down to his knees. The attempt at anal intercourse was so she would not get pregnant. [7] Another time (her idea) she sat on the toilet with her legs apart and he stood over her to pee together. [8] During her stays at the Respondent’s home she slept in the bedroom and the Respondent asked her where she wanted him to sleep but she told him she did not care. He would lie down on the bed but never woke up with her in the morning. She thought so much of him that she would do anything for him. [9] These sexual incidents came to light in October, 2002, when the Complainant and her grandfather were watching television program about sexual assault. At this time she confessed what had happened to her grandfather. [10] Consequently and subsequently the Respondent was tried and acquitted of sexual assault in criminal court. [11] Her mother and grandfather confirm that the Complainant told them what had taken place. [12] The Respondent testified that he was lonely, just him and his dog, and the Complainant’s company was great and that she came over almost every weekend. He denies any sexual contact with her. He says she spent lot of time with the dog, and one time he caught her with the dog’s penis out and on top of her. “I told her not to do this because she would ruin the dog.” [13] The first night she came he slept in the same bed as her but only this one time because her mother called and said, “Don’t sleep with her.” [14] The Respondent does admit that the Complainant would grab his crotch on occasion but “I told her this had to stop.” [15] There is evidence that on July 29, 2002, the Respondent was severely beaten by home invader. He was ill for considerable period of time and had three operations. His memory has suffered since and friend would drop by there three to four times day. This witness gives evidence that the Complainant did not visit after this beating (confirmed by the Respondent’s evidence as well). [16] The Complainant says she visited with the Respondent on two occasions after the assault and he was bruised and had bad headaches and was falling lot. Her mother confirms these visits took place. [17] This evidence is relevant according to the Respondent’s Counsel as it goes to the credibility of the Complainant. [18] Whether the Respondent has abused child within the meaning of the Children and Family Services Act. [19] The relevant sections “abuse” defined: 62 In Sections 63 to 66 “abuse” of child by the person means that the child (b) has been sexually abused by the person or by another person where the person, having the care of the child, knows or should know of the possibility of sexual abuse and fails to protect the child; or Child Abuse Register 63(1) The Minister shall establish and maintain Child Abuse Register. Entry of information (2) The Minister shall enter the name of person and such information as is prescribed by the regulations in the Child Abuse Register where (a) the court finds that child is in need of protective services in respect of the person within the meaning of clause (a) or (c) of subsection (2) of Section 22; (b) the person is convicted of an offence against child pursuant to the Criminal Code (Canada) as prescribed in the regulations; or (c) the court makes finding pursuant to subsection (3). 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) 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. [20] Although the standard of proof is “on a balance of probabilities” courts have considered the standard of proof elevated with the seriousness of the allegations and its implications (considerably less, however, than proof beyond a reasonable doubt). See MCS v. K.F., 2002, NSSF, 28 (CanLII). [21] In CAS v. R.G., F.H. C92-17 at p. the Court stated: The Court must determine, on balance of probabilities, whether R.G. committed the alleged offence. It is the civil burden of proof. However, given the gravity of the application and its implications, the standard of proof is considered to be high, but not as high as the standard of proof in criminal cases, where the proof must be beyond reasonable doubt. This, although the standard is still the civil standard, considering (a) the nature of the allegation and the moral capability attached thereto and (b) the consequences of finding; that is, publication of the name in the Child Abuse Registry, then the Court must adopt the position that was adopted in J.L. v. CAS of Halifax v. Attorney General of Nova Scotia, 44 R.F.L. (2d) 437. Jones, J.A. discusses extensively the burden of proof at pp. 449 to 451, and specifically states that although the civil rule applies, “... court must have regard to the gravity of the consequences of the finding.” (page 449 to 450) His Lordship goes on to quote Cartwright, J., Laskin, C.J.C., and Lord Dennings. Laskin, C.J.C. in Continental Insurance Company v. Dalton Cartage Company Limited 1982 CanLII 13 (SCC), [1982 S.C.R. 164] refers to “... proof commensurate with the gravity of the allegations ...” Laskin, J. goes on to quote Lord Dennings in Bater v. Bater [1952 All E.R. 458, at p. 459.] It is true by our law there is higher standard of proof in criminal cases than in civil cases but this is subject to the qualification that there is no absolute standard in either case. In criminal cases, the charge must be proved beyond reasonable doubt but there maybe degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous so ought the proof to be clear, so also in civil cases. The case may be proved by preponderance of probability, but there may be degrees of probability within that standard. The degree depends upon the subject matter. civil court, when considering charge of fraud, will naturally require higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high degree as criminal court even when it is considering charge of criminal nature but still it does require degree of probability which is commensurate with the occasion. CONCLUSIONS/DECISION: [22] The Complainant gave specific detailed evidence of sexual relations with the Respondent all of which is denied by him. There are very serious allegations and the Court will consider this within the standard of proof. At the time the sexual contact she describes took place the Complainant was child within the meaning of Section 3(1)(e) of the Act, “a person under sixteen years of age”. [23] In determining whether or not the allegations of the Complainant are probable peripheral evidence should be looked at. [24] The Respondent is now seventy-seven years old and would have been approximately seventy-two or seventy-three at the time of the alleged sexual contact. He lived alone and was very happy to have this little girl visit. The first night she was there he slept on her bed, maybe not all night and not under the covers. This fact came to her mother’s attention and he was told not to do this. [25] He admits seeing her playing with the dog’s penis but instead of telling her how bad this was and reporting it to her mother, he told her not to do this anymore. “It would ruin the dog.” [26] There were occasions, not denied by the Respondent, that she would grab his crotch. He told her this had to stop but there is no evidence that this was reported by him to her mother. This would have been the most reasonable and logical thing to do. [27] The Complainant’s credibility has not been impeached. [28] On “balance of probabilities” the Court finds that the evidence of the Complainant that she was sexually assaulted by the Respondent has more probability of truth than disbelief. [29] The Court finds that the accused has abused a child within the meaning of Section 62(b) of the Children and Family Services Act. John D. Comeau Chief Judge of the Family Court of Nova Scotia

The Agency brought an application for a finding that the Respondent had abused a child, for the purposes of entering his name in the Child Abuse Register. The complainant described certain incidents that amounted to sexual assault when she was under the age of 16. The Respondent had previously been acquitted of charges based on the same allegations in criminal court. The Respondent has abused a child within the meaning of the Act. Although the standard of proof is on the balance of probabilities, it is elevated with the seriousness of the allegations and their implications. However, it is considerably less than proof beyond a reasonable doubt.

4_2004nsfc6.txt

Docket No. 2788 THE COURT OF APPEAL FOR SASKATCHEWAN Bayda C.J.S., Cameron and Sherstobitoff JJ.A. GRAIN SERVICES UNION (INTERNATIONAL LONGSHORE AND WAREHOUSE UNION- CANADIAN AREA) AND LAVERN CHYPISKA APPELLANTS, -and- SASKATCHEWAN WHEAT POOL COUNSEL: Larry W. Kowalchuk, for the appellants. Robert G. Richards, for the respondent. DISPOSITION: On appeal from: Q.B.G. No. 290 of 1997 J.C.R. Appeal Heard: 10 February 1998. Appeal Dismissed: 10 February 1998 Oral Reasons By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Mr. Justice Sherstobitoff Written Reasons By: The Honourable Chief Justice Bayda (in dissent) CAMERON J.A. (orally) [1] Mr. Justice Sherstobitoff and I are not convinced Madam Justice Hunter erred in concluding that the majority decision of the Board of Arbitration in the grievance of Lavern Chypiska was "patently unreasonable": Canada (Attorney General) v. Public Service Alliance of Canada, 1993 CanLII 125 (SCC), [1993] S.C.R. 941. We are of the view it was open to her to come to this conclusion on the footing the majority decision rested upon an interpretation of the collective bargaining agreement that the words of the agreement could not reasonably bear: Shalansky v. Regina Pasqua Hospital Board of Governors, 1983 CanLII 117 (SCC), [1983] S.C.R. 303 at 307; [2] To begin with, we can find no material error in Madam Justice Hunter's analysis of the majority's approach to the interpretation of the provisions in question. She was of the view their approach was fundamentally flawed, noting in effect that the majority had brushed aside basic grammatical conventions; had proceeded upon a bad principle of construction obviously weighted in favour of Mr. Chypiska's grievance; had disregarded the ordinary meaning of some words; and had violated the terms of the agreement precluding alteration of its provisions, including alterations wrought by changing the ordinary meaning of any of the words of the agreement in the course of interpreting its provisions. The resulting interpretation was not necessarily unreasonable, though this points in that direction, and we do not take Madam Justice Hunter to have thought otherwise, for her analysis extends beyond the majority's approach to the interpretation of the provisions. [3] Nor can we find any material error in the remainder of her analysis, including that concerned with the phrase "pursuant to Article 28 ... or 26 ... as the case may be," appearing in Article 16. She held, in effect, that one cannot ignore the phrase, nor read it out of existence, nor re- write it, and that if the words of the phrase be given their ordinary meaning the interpretation of the majority could not withstand analysis. [4] Finally, we can find no error in Madam Justice Hunter's identification or application of the governing standard of review. She noted at the beginning that she was not empowered to interfere with the decision of the Board of Arbitration unless it was "patently unreasonable." And she concluded at the end, having analyzed the matter as she did, that the decision was patently unreasonable. In the circumstances we think it was open to her to come to that conclusion, and so we would dismiss the appeal. [5] BAYDA C.J.S. (dissenting) There is no dispute between the parties that the award under scrutiny was made by consensual board of arbitration interpreting collective bargaining agreement. Given that circumstance, there is no dispute that the central issue placed before the Chambers judge and before this Court, namely, the reviewability of the board's interpretation, requires an application of the test prescribed by Shalansky v. Regina Pasqua Hospital Board of Governors, 1983 CanLII 117 (SCC), [1983] S.C.R. 303. The test is set out in these words by Laskin C.J.C. speaking for the Court: Bayda C.J.S. himself concluded that the Board was presented with two reasonable constructions and hence was entitled to choose the one it did rather than the one preferred by the Chief Justice. In the result, he dismissed the appeal. In my opinion, this is the correct approach. Once it is accepted that there are two reasonable interpretations, the suggestion of reviewable error of law in consensual arbitration disappears ... The decision of the arbitrator can be set aside only if it involves an interpretation which the words of the agreement could not reasonably bear. Earlier he said that there is "no significant difference" in the meaning of the three terms "outrageous", "patently unjustifiable" and "patently unreasonable" and concluded, "[i]ndeed, it would be my view that, apart from question of emphasis, the test of unreasonableness or test of clearly wrong is also no different". [6] Ten years later the Court, speaking through Cory J. in Canada (Attorney General) v. Public Service Alliance of Canada, 1993 CanLII 125 (SCC), [1993] S.C.R. 941 defined "patently unreasonable" at 963: It is said that it is difficult to know what "patently unreasonable" means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly". "Unreasonable" is defined as "[n]ot having the faculty of reason; irrational ... Not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was loss of jurisdiction. This is very strict test. It is this same "very strict test" court must apply in determining whether an interpretation placed by board of arbitration upon collective agreement falls into the category of "a interpretation which the words of the agreement could not reasonably bear." [7] In my respectful view the interpretation advanced by Saskatchewan Wheat Pool, the respondent, and favoured by the Chambers judge and my colleagues in the majority, is reasonable one. It may even be "more reasonable" than the interpretation advanced by Ms. Chypiska, the appellant. Indeed it may even be the correct interpretation. That, of course, would make the Chypiska interpretation wrong. But for the purposes of determining the reasonableness of the Chypiska interpretation the reasonableness, greater reasonableness or correctness of the Pool interpretation or the wrongness of the Chypiska interpretation are, strictly speaking, irrelevant. Proof of one or more of those four things does not automatically prove or disprove the reasonableness of the Chypiska interpretation. It is still necessary to specifically examine the Chypiska interpretation from the prospective of its reasonableness. conclusion respecting its unreasonableness must stand on its own, as it were, without being propped up by the reasonableness or correctness of the Pool interpretation or, for that matter, by its (the Chypiska interpretation's) own wrongness. That is the approach prescribed by Shalansky. Despite her words to the contrary, the Chambers judge, in my respectful view, did not follow that approach. She appears to have concluded that because the two interpretations could not stand together the reasonableness of the Pool interpretation, which she preferred, wiped out the reasonableness of the Chypiska interpretation. [8] My reasons for deciding that the Chypiska interpretation is reasonable were reflected in my discussion with counsel during the hearing. now elaborate those reasons. [9] The pivotal article in the collective agreement is Article 16: ARTICLE 16 SEVERANCE ALLOWANCE When an employee's position is eliminated as result of technological change, reorganization resulting from technological change, normal permanent closure, rail line abandonment or consolidation, then pursuant to Article 28, Technological Change Adjustment, or Article 26, Norman Permanent Closure, Rail Line Abandonment and Consolidation as the case may be the employee shall be entitled to two (2) weeks' pay for each year of service, pro-rated for part years. The crucial words are "pursuant to." Most lawyers have seen and used these words in legal contexts innumerable times. The words commonly mean "according to." The Shorter Oxford Dictionary, 3d ed. (Oxford: Clarendon Press) defines them "[f]ollowing upon, consequent on and conformable to; in accordance with." One definition offered by Black's Law Dictionary, 6th ed. (St. Paul: West Publishing Co., 1990) of "pursuant" is "by reason of something." Using only the material words of the article and using those definitions instead of "pursuant to" Article 16 reads: When an employee's position is eliminated as result of technological change... [or] normal permanent closure ... then [according to] [consequent upon] [by reason off Article 28 ... or Article 26 ... as the case may be the employee shall be entitled to two (2) week's pay for each year of service pro-rated for the part years. [10] It is perfectly rational for reader of this version of Article 16 to conclude that if one were to look up either Article 28 or Article 26, as the case may be, one would find that that particular article provides to an employee who fits one of the several descriptions contained in Article 16 what Article 16 says it does, namely, that the employee shall be entitled to two (2) weeks pay for each year of service, pro- rated for part years. When the reader examines Article 28, however, he is surprised to find that although the article contains 10 sub- articles and covers in excess of one page in the agreement neither the italicized words nor reference to Article 16 are anywhere to be found. Sub-article uses the word "severance" and this may be reference oblique as it might be to the italicized words. But that is all. Therefore, to say that "according to" or "by reason of" Article 28 an employee who fits one of the several descriptions contained in Article 16 is provided with the entitlement that Article 16 in the italicized words say it provides, is simply wrong. That entitlement may be provided to the employee "by reason of" some other article but not "by reason of" Article 28. [11] An examination of Article 26 does not bring about much better result. The italicized words are nowhere mentioned in the Article but there is reference to Article 16. Article 26 deals with only four categories of senior employees whose positions are eliminated as consequence of normal permanent closure, rail line abandonment or consolidation. (Where these employees are entitled to severance pay it is limited to "a maximum of twenty-six (26) weeks pay"). The Article clearly does not concern itself with all of the employees whose positions are eliminated by any one of those three developments as they are described in Article 16. Therefore to say that "according to" or "by reason of" Article 26 those employees have the entitlement that Article 16 in the italicized words says they have is simply not right. That broad entitlement may exist "by reason of" some other article but not "by reason of" Article 26. [12] So what is our rational reader to think? Is it irrational for him to conclude that "pursuant to" as the phrase is used in Article 16 does not mean "according to" or "consequent upon" or "by reason of" but means something else as it did for example in R. v. Melford Developments Inc., [1981] F.C. 627 (F.C.A.) referred to by the Chambers judge? It is clearly rational to 50 conclude in my respectful view. [13] The next question, therefore, becomes: What is that something else? What do the words "pursuant to" mean in this context? In my view they could mean two opposites: "for the purposes of" and "subject to". Once the ordinary or normal meaning of "pursuant to" is set to one side because the context does not fit, then, in my respectful view, it is as rational to adopt "for the purposes of" as it is "subject to" as the meaning of that phrase. Later will return to the rationality of adopting one meaning over the other. [14] shortened version of Article 16 using only the material words of the Article and using the phrase "for the purposes of" instead of "pursuant to" is this: When an employee's position is eliminated as result of technological change ... [or] ... normal permanent closure ... then [for the purposes of] Article 28 ... or Article 26 ... as the case may be the employee shall be entitled to two (2) weeks pay for each year of service. This is in essence the Pool interpretation which the Chambers judge adopted as the only interpretation which the words of the Article can bear. The effect of this interpretation is to vest in Articles 28 and 26 the role of conferring the right of entitlement upon only the employees described in those Articles and to vest in Article 16 the subsidiary role of describing the details of the entitlement. [15] shortened version of Article 16, again using only the material words and using this time the phrase "subject to" instead of "pursuant to" is this: When an employee's position is eliminated as result of the technological change ... or ... normal permanent closure ... then [subject to] Article 28 ... or Article 26 as the case may be the employee shall be entitled to two (2) weeks pay for each year of service. This in essence is the Chypiska interpretation favoured by the majority of the Board in its award (but described in the majority's reasons with less succinctness). The effect of this interpretation is to vest in Article 16 the role of conferring general right of entitlement upon all employees whose positions are eliminated for the reasons described and to vest in Articles 28 and 26 the role of limiting, modifying or circumscribing that general entitlement. [16] Although the context of the words "pursuant to" in the Melford case cited by her is very different from the context in the present case, the Chambers judge heavily relied on that case to buttress her conclusion that the Pool interpretation is the only one which to words of the collective agreement can reasonably bear. Ironically, close analysis of the decision in that case reveals that insofar as it ascribes to the phrase "pursuant to" the meanings "as circumscribed by" or "within the limits of" it supports not the Pool interpretation but the Chypiska interpretation. Mr. Justice Urie's holding for the Court may be paraphrased for our purposes as follows: Where one paragraph of an agreement confers right and another paragraph prescribes that the right can be altered "pursuant to this Convention", the words "pursuant to" in that context mean "within the limits of" or "as circumscribed by". [17] To substitute the Melford meanings for "pursuant to" where that phrase occurs in Article 16 has the effect of assigning to Articles 28 and 26 the distinct role of "limiting" or "circumscribing". The question arises: "limiting" or "circumscribing" what? The answer, of course, is limiting or circumscribing the general entitlement conferred by Article 16 upon all of the employees encompassed by that Article. It reasonably follows that Article 16 confers an entitlement upon the employees encompassed by that Article, and Article 26 modifies, Innits or circumscribes that entitlement for four classes of senior employees in certain circumstances but leaves untouched the entitlement insofar as it relates to employees who do not fall into those four classes. Similarly Article 28 modifies limits or circumscribes the entitlement by giving the employer the right to provide alternative employment and subjecting the employees to lay-off procedures in certain circumstances before the severance allowance becomes available to the employees. That in my respectful view is perfectly rational interpretation to put on the words in Article 16 in the context of Articles 28 and 26 as well as in the context of the whole agreement. Two related things follow: one, the Chambers judge was wrong to use the Melford decision to buttress her conclusion that the Pool interpretation was the only one which the words of the collective agreement could reasonably bear; and two, based on the Melford meanings of "pursuant to" the Chypiska interpretation is reasonable. [18] return briefly to the issue of the rationality of choosing the phrase "pursuant to" to mean "subject to" even though it is reasonable to choose "for the purposes of." [19] consideration of the issue immediately raises these questions: Is it "clearly irrational" (to use Cory J's phrase) for the parties to collective agreement to provide right to severance allowance to every employee whose position is eliminated as result of technological change through reorganization or otherwise (Article 16) and then to limit that right by giving the employer the right to provide the employee with alternative employment and failing that by giving the employee an option to exercise his right to severance allowance or be laid-off subject to recall (Article 28)? Is it "clearly irrational" for the parties to provide right to severance allowance to every employee whose position is eliminated as result of normal permanent closure, rail line abandonment or consolidation (Article 16) and then in the case of four categories of senior employees to first require them to bid for an alternative position and if unsuccessful to elect either to be placed on lay-off or to receive the severance allowance limited however to maximum of 26 weeks pay (Article 26)? In my respectful view the answer to both questions is an unequivocal "no". [20] am inclined to the view that once the normal and ordinary meaning of the words "pursuant to" must be set aside by reason of their context in Article 16 then the decision by an adjudicator to choose as the replacement for those words either "for the purposes" of or "subject to" is motivated more by the result he or she desires to obtain rather than by the fine legal principles of interpretation. In the end, the choice is more policy decision than decision driven by law. In my respectful view such policy decisions are better left to arbitrators in the field than to judges. [21] It is for these reasons that would allow the appeal and restore the arbitrators' majority award. [22] In the result the appeal is dismissed with costs on the usual scale.

The decision of the Board of Arbitration was held by the chambers judge to be fundamentally flawed in that the majority brushed aside basic grammatical conventions; had proceeded upon a bad principle of construction obviously weighted in favour of the grievance; had discarded the ordinary meaning of some words; and had violated the terms of the agreement precluding alteration of its provisions. She also held that one cannot ignore the phrase 'pursuant to Article 28 or 26', read it out of existence nor re-write it and that if the words were given their ordinary meaning the interpretation was patently unreasonable. HELD: The appeal was dismissed. 1)The trial judge did not err in concluding the majority decision of the Board of Arbitration was patently unreasonable. Its decision rested upon an interpretation of the collective bargaining agreement that the words of the agreement could not reasonably bear. 2)No material error was found in her analysis in finding that the decision was fundamentally flawed or in her analysis of the phrase 'pursuant to Article 28'. Nor in her identification or application of the governing standard of review. DISSENT: The appeal would have been allowed. 1)There was no dispute that the central issue, the reviewability of the board's interpretation, requires an application of the test prescribed by Shalansky. The Chambers judge did not follow that approach. Once it is accepted that there are two reasonable constructions, the suggestion of a reviewable error of law in consensual arbitration disappears. The decision can only be set aside if it involves an interpretation the words of the agreement could not reasonably bear. The patently unreasonable test is a very strict test. 2)The judge was wrong to use the Melford decision to support her conclusion that the Pool interpretation was the only one which the words of the collective agreement could reasonably bear. 3)Once the ordinary meaning of the words 'pursuant to' must be set aside by reason of their context in Article 16, the decision by an adjudicator to choose either 'for the purposes of' or 'subject to' is motivated more by the result desired rather than by fine legal principles of interpretation. Such policy decisions are better left to arbitrators in the field than to judges.

c_1998canlii12367.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 426 Date: 2012 10 22 Docket: Q.B.J. No. 15/2009 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and ALBERT TREVOR PETERS Counsel: Kimberly R. Humphries for the Crown Nicholas J. Stooshinoff for the offender JUDGMENT POPESCUL C.J.Q.B. October 22, 2012 I. Introduction [1] Albert Trevor Peters (the “offender”) pled guilty to committing an aggravated assault on his common‑law partner contrary to s. 268 of the Criminal Code. The Crown has applied under Part XXIV of the Criminal Code to have him declared a dangerous offender. The offender is 52‑year‑old man with significant criminal record. The Crown contends that the offender fits the criteria for dangerous offenders and should be declared to be one and sentenced to an indeterminate sentence. [2] The offender, on the other hand, argues that he fits neither within the dangerous offender nor the long‑term offender category but should merely be sentenced to standard determinate sentence for the crime that he has committed. [3] There is no doubt that the offender meets the dangerous offender criteria set forth in the relevant Criminal Code provisions in force at the time. The real issue is whether there is reasonable possibility that the offender can eventually be controlled in the community so as to justify the imposition of long‑term offender designation rather than the more serious dangerous offender designation. If found to be long‑term offender, it is then necessary to impose an appropriate determinate sentence to go along with the long‑term supervision order. II. Preliminary Matters A. Jurisdiction [4] This Court has jurisdiction to entertain the dangerous offender application because it is both the court which entered the conviction against the offender and is superior court of criminal jurisdiction. [5] The application was made following the conviction of the offender and prior to him being sentenced. C. Notice of application [6] Notice of the Crown’s intention to seek dangerous offender designation, and the grounds upon which it was made was given to the offender and filed with the Court on September 9, 2011. [7] An amended notice of application was provided to the offender and filed with the Court on September 20, 2011. D. Assessment order [8] By order dated January 4, 2011, the offender was remanded for period not exceeding 60 days to be assessed by Dr. Roger Holden (“Dr. Holden”). Dr. Holden filed his report with the Court less than 15 days after the assessment period as required by s. 752.1(2) of the Criminal Code. E. Consent by the Attorney General [9] On August 31, 2011, the Acting Deputy Attorney General for Saskatchewan signed consent authorising the Crown to make dangerous offender application as contemplated by s. 754(1)(a) of the Criminal Code. III. Background of the offender [10] The offender is 52‑year‑old male (born […], 1960). He was raised in Vancouver, British Columbia, and has one sibling. His parents are both deceased. report generated in 1995 and referred to in Dr. Holden’s Forensic Assessment Report (the “Forensic Assessment Report”) indicates that the offender was born to stable “traditional Austrian family ... where no drugs, alcohol or violence were prevalent.” [11] The offender has serious health problems. As result of congenital heart disease, he required surgery as child to have heart valve repaired. In 2008 he had stroke. As consequence, he has left‑side paresthesia and requires the use of cane for stability and for walking lengthy distances. He has active hepatitis C. [12] The offender has completed Grade 12 and has taken some university classes. He appears to have been steadily employed during his adult life although there is some suggestion that he may have exaggerated his employment history. He has been employed as truck driver and worked for several years as an apprentice mechanic. The majority of his adult work life was spent as scaffolder and journeyman scaffolder. While working as scaffolder, he also supplemented his income by doing auto repairs and home renovations on the side. He is certainly employable. [13] The offender has “history of tumultuous relationships” (Forensic Assessment Report, page 10). He has been married more than once and has had number of “on again, off again” relationships. He has several children. He is not close to any of them. However, since the offender has been incarcerated, his daughter in British Columbia, who has significant health‑related issues, has expressed desire to have more contact with her father. [14] The offender has lengthy criminal record. Although his record, compared to many of the offenders who are sought by the Crown to be designated as dangerous offenders, is relatively modest, it nonetheless must be properly characterized as serious. The record reveals history of violence and an inability to abide by court orders. The record, as agreed to by the Crown and the defence, is as follows: 2000‑01‑19 NEW WESTMINSTER (1) ASSAULT SEC 266 CC (2) UTTERING THREATS SEC 264.1(1)(A) CC (1‑2) DAY PROBATION YRS ON EACH CHG 2000‑01‑20 NEW WESTMINSTER (1) OBSTRUCT PEACE OFFICER SEC 129(A) CC (2) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (1‑2) DAY ON EACH CHG 2001‑05‑22 NEW WESTMINSTER BC FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1 CC (2 CHGS) 21 DAYS PROBATION YR 2002‑02‑22 BREACH OF RECOGNIZANCE SEC 145(3) CC 2002‑03‑19 NEW WESTMINSTER BC FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1 CC (1) ASSAULT SEC 266 CC (2) ASSAULT CBH SEC 267(B) CC (2) 15 MOS CONDITIONAL SENTENCE ORDER PROBATION 18 MOS MANDATORY PROHIBITION ORDER SEC 109 CC 2002‑08‑30 PORT COQUITLAM (1) SEXUAL ASSAULT (2) CRIMINAL HARASSMENT (3) UTTERING THREATS SEC 264.1(1)(A) CC (4) ASSAULT SEC 266 CC (1) 15 MOS (2‑4) MOS ON EACH CHG -PROBATION YRS DISCRETIONARY PROHIBITION ORDER SEC 110 CC FOR 10 YRS SURREY BC BREACH OF CONDITIONAL SENTENCE ORDER SUSPENDED 2004‑12‑08 POSSESSION OF PROHIBITED WEAPON SEC 117.01(1) MOS 18 MOS PROBATION 10 YRS PROHIBITION 2006‑04‑04 BREACH OF CONDITIONAL SENTENCE ORDER SEC 742.6(9)(D) CC (ENTRY DATED 2002‑03‑20) ORDER TERMINATED 2010‑09‑24 AGGRAVATED ASSAULT SEC 268 SENTENCE PENDING [15] The offender’s first recorded conviction was in 2000 when he was 40 years of age. His last conviction, the predicate offence, occurred on November 4, 2006, when the offender was 46 years of age. During that six‑year span, the offender has been convicted of committing 17 Criminal Code offences, including the predicate offence and two breaches of conditional sentences that were registered in 2004 and 2006. [16] There are two additional events that are also germane to the consideration of his criminal history. On January 1, 1995, the offender was charged with common assault on his wife contrary to s. 266 of the Criminal Code. That matter was apparently resolved by having the offender enter into s. 810 recognizance wherein he was required, for period of one year, to report to probation officer, have no contact with his wife and attend and accept drug, alcohol and anger management programming. [17] The other conduct, criminal in nature, but for which the offender was never charged, relates to somewhat bizarre set of circumstances involving the dumping of corpse on the banks of the Fraser River in British Columbia. previously ruled, in voir dire, that the Crown’s allegation of uncharged criminal conduct was admissible. See R. v. Peters, 2011 SKQB 419 (CanLII), 389 Sask.R. 14. found that the Crown had established beyond reasonable doubt that the offender had stored his former girlfriend’s corpse in his elderly mother’s British Columbia residence for several months before dumping it, wrapped in plastic and carpet, on the banks of the Fraser River in the early morning hours of October 4, 2005. [18] The Crown, as part of its case, provided details respecting number of the criminal convictions. summary of the most relevant circumstances are as follows: January 19, 2000 assault (s. 266 CC); and uttering threats (s. 264.1(1)(a) CC) one day plus two years probation on each count. The offender was convicted of assaulting E.J. contrary to s. 266 of the Criminal Code and to uttering threats to cause death or bodily harm to E.J. contrary to s. 264.1(1)(a) of the Criminal Code. brief reference in the Forensic Assessment Report simply states, “He also assaulted [E.J.], [female] renter in his parent’s home”. March 19, 2002 assault (s. 266 CC) 60 days. assault causing bodily harm (s. 267(b) CC) 15‑month conditional sentence order, plus three years probation. The offender committed two assaults upon female person, C.D., with whom he was living. On May 15, 2001, the offender, while under the influence of alcohol, grabbed an ashtray and hit C.D. on the left side of her head, causing cut and bruise. He was convicted of common assault and sentenced to 60 days in jail. On June 8, 2001, police and fire officials attended to C.D.’s residence as result of mattress fire. Upon arrival, the police found C.D. covered in bruises. C.D. also had an open sore, believed to be stab wound, on her left thigh. C.D. refused to provide the police with any information at the time but subsequently told police that the bruises resulted from “number of assaults” committed upon her by the offender and that the offender had stabbed her with steak knife. The offender was convicted of assault causing bodily harm and was sentenced to 15‑month conditional sentence order, followed by 18 months probation. Alcohol, once again, was contributing factor. The offender did not abide by the terms of his conditional sentence order, which was terminated when the offender was found to be in breach. August 30, 2002 sexual assault (s. 271 CC) 15 months plus three years probation. criminal harassment (s. 264 CC) two months plus three years probation. uttering threats (s. 264.1 CC) two months plus three years probation. assault causing bodily harm (s. 266 CC) two months plus three years probation. On August 30, 2002, the offender was sentenced for offences committed between June and June 7, 2000, that involved his then common‑law partner D.C. The sentencing judge characterized the time between June and June 7, 2000 as “reign of terror” by the offender against D.C. The victim was physically assaulted and received an injury to her chin and mouth. D.C. was also sexually assaulted in manner characterized by the sentencing judge as “brutal and repugnant”. The offender held his hand over D.C.’s mouth and nose so she could not breath. He attempted anal intercourse and then had vaginal intercourse with her, ignoring her pleas to stop. After the physical assault and the sexual assault had taken place, the offender attempted to intimidate the victim and threatened to shoot her. The offender was sentenced to 15 months in jail, after the sentencing judge took into account that the offender had spent considerable time on remand. November 4, 2006 aggravated assault (s. 268) the predicate offence. The circumstances of the predicate offence that precipitated the within dangerous offender application also involves female partner with whom the offender was intimately involved. On November 4, 2006, the offender was living in Radisson, Saskatchewan, with D.M. After consuming considerable amount of alcohol, the offender and D.M. began to argue. The offender became angry and began to hit and kick D.M. multiple times. She fell to the floor and lay in the fetal position while the offender repeatedly kicked her while wearing steel‑toed work boots. When the offender relented, D.M. went to her closet and began to pack some clothes. The offender then grabbed an axe and struck D.M. on the head and buttocks area several times. The assaults resulted in two deep cuts to D.M.’s left posterior thigh and left buttocks. D.M. also had lacerations on her head, cuts on her upper lip and bruising on her face and body. Incredibly, although D.M. was physically and psychologically scarred, her injuries were not life‑threatening. [19] As result of the incident on November 4, 2006, the offender was charged with attempting to murder D.M. and was arrested. On December 18, 2006, the offender elected to be tried by judge and jury and was released from custody after bail hearing on number of conditions, including that he not contact the victim, D.M. The preliminary inquiry was set for March 19, 2007. [20] On March 19, 2007, the offender failed to appear, and warrant for his arrest was issued. Further, it was alleged that the offender breached the non‑contact clause by contacting the victim D.M. The offender remained at large until he was arrested on March 24, 2009. He has been in custody since that time. [21] On July 20, 2009, the offender was committed to stand trial. The Crown preferred three‑count indictment charging the offender with attempting to murder D.M. (s. 239(b) of the Criminal Code), aggravated assault on D.M. (s. 268) and breaching the non‑contact provision of his recognizance by contacting D.M. (s. 145(3)). [22] On September 27, 2010, the offender re‑elected to be tried by court comprised of Queen’s Bench judge sitting without jury. The offender then pled guilty to the aggravated assault count, which is the predicate offence, and the Crown stayed the other two counts. [23] The Crown then launched this dangerous offender application. IV. Forensic Assessment Reports [24] The Court has had the benefit of two assessment reports, together with testimony of the authors of those reports. Dr. Roger Holden, Ph.D., R.D. Psych., R.Psych., B.C.F.E., consultant and clinical psychologist, prepared comprehensive 52‑page Forensic Assessment Report that was initiated following court order. Additionally, Dr. Terry Nicholaichuk, Ph.D., R.D. Psych., clinical and forensic psychologist, prepared “psychological assessment” at the request of the defence. [25] Both experts conclude that the offender should not be declared to be dangerous offender because his risk to reoffend could be reasonably managed by supervision in the community. Dr. Holden concludes that the offender “fits the criteria for designation of long‑term offender” (emphasis in original), while Dr. Nicholaichuk concludes that: period of supervision in the community is probably the best prospect for [the offender’s] successful reintegration. ... [T]he conditions can constitute very powerful supervision tool and should allow for reasonable level of protection for the public as the conditions of supervision can be quite stringent. A. Dr. Holden’s Forensic Assessment Report [26] Dr. Holden’s Forensic Assessment Report concludes that the offender is high risk to reoffend violently and sexually in the future but that there is reasonable possibility of the eventual control of that risk in the community. Some of the most pertinent conclusions reached by Dr. Holden are: ... Mr. Peters does have history of previous violence and on the basis of this variable, believe he is high risk to re‑offend violently in the future. [p. 29] ... Since [1995] ... Mr. Peters has accumulated several violence related convictions and conclude that his age has some bearing on his potential to commit violent crimes in the future. [p. 29] ... ... Mr. Peters has history of relationship instability and on the basis of this factor, believe that he is high risk to commit violent crimes in the future. [p. 30] ... ... Mr. Peters has chronic and untreated alcohol abuse problem at this time and on the basis of this factor, believe his potential to commit violent crimes in the future is high. [p. 32] ... ... Mr. Peters is suffering from personality disorder at this time and on this basis of this factor, believe that he is high risk to re‑offend violently in the future. [p. 35] ... ... Mr. Peters has incurred some serious supervision failure in the past and on the basis of this factor, believe that his risk for future violence is high. [p. 35] ... ... Mr. Peters has little insight into the aetiology of his violent offending behaviour. He tends to project responsibility for the behaviour onto others, in my opinion. He appears to be in denial regarding his alcohol abuse problem. On the basis of this factor believe that Mr. Peters is high risk to re‑offend violently in the future. [p. 36] .. Mr. Peters has significant negative attitudes, and on the basis of this factor, believe that he is high risk to re‑offend violently in the future. [p. 37] ... ... there is significant impulsivity in Mr. Peters’ past, and on the basis of this factor, believe he has high risk of behaving violently in the future. [p. 37] ... ... up to this time Mr. Peters has been entirely unresponsive to treatment and in considering this factor his potential for violence in the future is high. [p. 40] ... In reviewing Mr. Peters’ release plan, do not find it to be feasible, and on the basis of this factor, believe that he is high risk to re‑offend violently. [p. 41] ... ... Mr. Peters is likely to be exposed to destabilizers in the community, and on the basis of this factor, believe he is high risk to re‑offend violently in the future. [p. 42] ... ... Mr. Peters has not, up to this point, been at all compliant with remediation attempts and on the basis of this factor, believe he is high risk to re‑offend violently in the future. [p. 43] ... would predict that Mr. Peters will have multiple areas of distress in the future and on the basis of this factor, believe that he is high risk to re‑offend violently in the future. [p. 43] [27] At pages 44‑46 of his report, Dr. Holden asks, and answers, what he calls “The Five Basic Questions”, as follows: 1. What is the likelihood that the individual will engage in violence if no efforts are made to manage risk? have no doubt that unless measures are taken to manage Mr. Peters’ risk, he will continue to perpetrate acts of both physical and sexual violence. note that file information suggest that Mr. Peters has been considered high risk to re‑offend violently in the past. 2. What is the probable nature, frequency, and severity of any future violence? It is obviously speculative to try to predict the nature of any future violence perpetrated by Mr. Peters. On the basis of his past, he will perpetrate acts of violence and sexual violence against female victims. note that file information suggests that Mr. Peters has used knives, glass ashtrays, and an axe in addition to his fists and feet to perpetrate his assaults. It is again speculative to try and predict the frequency of such acts. He has amassed series of convictions over sixteen year period, so one might speculate that his frequency of such behaviour will be relatively frequent. Regarding the severity of such behaviour: one might speculate that he will continue to perpetrate acts of significant violence against his victims which will result in severe, physical injury to them. In considering his physical assaultiveness, his index offence, in my opinion, is considerable escalation of violence perpetrated against his victim in comparison to previous assault convictions. Of significant concern also, in my opinion, is Mr. Peters’ apparent total denial in interview that he inflicted the injuries that the victim received and instead suggested that she must have sustained the injuries by brushing against table or cutting herself with glass shelf. In doing so, in my opinion, Mr. Peters minimizes his culpability and projects responsibility for the injuries onto the victim herself. 3. Who are the likely victims of any future physical violence? As far as can tell, all of Mr. Peters’ victims have been females, primarily females with whom he has established an intimate relationship. Therefore, it seems logical to predict that victims of future violence perpetrated by Mr. Peters will be females, likely female partners. 4. What steps could be taken to manage this individual’s risk of future violence? Obviously, one way to manage Mr. Peters’ risk to commit violence in the community would be to incarcerate him. If he were to be incarcerated in federal institution, Mr. Peters would be, almost certainly offered programs regarding his violence and sexual violence, his substance abuse, and programs relating specifically to spousal assault. have no doubt that he should be encouraged to involve himself in such programming while in an institution and to continue such programming upon release. am not at all sanguine regarding Mr. Peters’ potential for success in such programming given his apparent denial of his culpability and lack of interest in most of the programming he has been ordered to attend in the past. However, it seems to me that he should be given the opportunity to more thoroughly investigate his functioning via such programming. 5. What circumstances might exacerbate the individual’s risk for violence? In my opinion, Mr. Peters is a high risk to re‑offend violently and sexually violently [sic] in the future and this risk will be mitigated only if he conscientiously applies himself to learning alternative ways of venting his frustration and anger. If he continues to deny his culpability and sabotage attendance in programming then his risk to continue to perpetrate crimes of violence in the community will continue to be high, in my opinion. He appears to be in denial regarding his potential to abuse alcohol and does not appear to have seriously addressed the role alcohol plays in his life and also, in his potential to commit violent crimes. Therefore, it is, in my opinion, an absolute necessity that he seriously addresses his apparent alcohol abuse problem and makes a commitment to sobriety for the remainder of his life. If he refuses to do so, in my opinion, his risk for committing acts of future violence is high. He appears to predate upon intimate partners for reasons which are not clear to me. However, there seems to be pattern of offending in this way, which needs serious attention, in my opinion. If Mr. Peters is unwilling or unable to find alternative ways of expressing frustration within intimate relationships, he either should not engage in such relationships in the future (which given his age is unlikely, in my opinion) or any such relationship should be closely monitored by supervisors if he is released into the community. If he does not learn more pro‑social ways of relating to intimate partners, his risk to continue to perpetrate acts of violence will continue to be high, in my opinion. [28] Finally, at page 46 of his report, Dr. Holden offers the conclusion that the offender should be found to be long‑term offender. The synopsis of his conclusion is as follows: In considering Section 752(a)(i) and 752(a)(ii) of the Criminal Code of Canada, it seems to me that Mr. Peters certainly has been convicted of behaviour, which is likely to endanger the life or safety of another person, and also has inflicted severe psychological damage on that person. In considering Section 753(a)(iii), have no doubt that Mr. Peters has been convicted of behaviour that is of such brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint. In considering Section 753.1(1)(b), believe there is substantial risk that Mr. Peters will re‑offend violently. In considering Section 753.1(1)(c), while am not optimistic regarding Mr. Peters [sic] treatability, given his background, he did perform well in the original Alternatives to Violence Program he took in the middle 1990's. He does not appear to have every [sic] taken the kinds of programming available via the Federal Penitentiary System and therefore, cannot conclude that there is no possibility of eventual control of his risk to re‑offend in the community because he has not taken the kinds of programs which may teach him how to understand and control his potential for physical and sexual violence. Therefore, believe that Mr. Peters does not fit the criteria for the designation of dangerous offender, as understand it, but certainly fits the criteria for designation of long‑term offender. [Emphasis in original] B. Dr. Nicholaichuk’s Psychological Assessment [29] Dr. Nicholaichuk’s Psychological Assessment report (the “Psychological Assessment”) is more or less consistent with Dr. Holden’s Forensic Assessment Report, although there are areas where the two experts disagree. Most significantly, Dr. Nicholaichuk disagrees with Dr. Holden on whether the offender is high risk to commit sexual offence and also whether the offender has presented reasonable release plan. [30] Dr. Nicholaichuk disputes Dr. Holden’s conclusion that the offender is at high risk to commit sexual offence because the offender was only convicted of one previous sexual offence and that was over decade ago in 2002. In light of the single, dated conviction, the medical problems that cause degree of infirmity and that he is now in his fifties, Dr. Nicholaichuk disputes Dr. Holden’s finding on this point. However, for the purpose of this proceeding, it may be distinction without difference. At page 18 of his Psychological Assessment, Dr. Nicholaichuk concedes that there is “no question that [the offender] would score as high risk, high need offender on most scales used for this purpose.” (However, at page 17 of that report, Dr. Nicholaichuk opines that the risk should be reduced to the “medium to high range” to take into account age and ill health.) Accordingly, while both experts conclude that the offender is likely to reoffend violently, they disagree on whether he is high risk to reoffend in sexual way. [31] Dr. Nicholaichuk also points out that the offender is at an age where his risk to reoffend can be expected to decline rapidly and that, therefore, his risk assessment should be downgraded. Although it is well know that, generally speaking, the risk of committing new offences significantly declines as men age, the offender has bucked the trend by significantly adding to his criminal record while in his forties. [32] The two experts also disagree on the viability of the offender’s discharge plan. Dr. Nicholaichuk was prepared to be quite positive about the offender’s plan to take up residence in small Saskatchewan town, repair house that he owns there and operate salvage business. Conversely, Dr. Holden determined that the release plan of the offender was not “feasible”. The offender suggested to Dr. Holden that he would move to Calgary to live with friend who was recovering from brain injury and then move to Vancouver to live with his daughter, who has special needs. It is noteworthy that the release plan the offender related to Dr. Holden was considerably different than that related to Dr. Nicholaichuk. [33] The only real conclusion that can be drawn is that the offender has changed his release plan for some reason. Whether it was to attempt to construct release plan that was more palatable to the authorities without any real intention of following through, or whether the offender legitimately re‑thought his plan, remains to be seen. [34] In the end result, Dr. Nicholaichuk’s assessment is not that markedly different from that of Dr. Holden. Admittedly, Dr. Nicholaichuk’s assessment is more favourable to the offender than that of Dr. Holden. Dr. Nicholaichuk emphasized the offender’s age (older offenders are less likely to reoffend), that the offender had never served time in federal penitentiary (he has not been exposed to federal programming) and that the offender has been well behaved since incarcerated and while at large between 2007 and 2009. Nonetheless, in the end result, Dr. Nicholaichuk concludes that the offender would benefit from close supervision in the community. V. The general legislative scheme A. Predicate offence committed prior to July 2, 2008 [35] The predicate offence occurred on November 4, 2006. Significant amendments to the Criminal Code respecting the dangerous offender provisions came into force on July 2, 2008. Both the Crown and defence agree that the 2008 amendments to the dangerous offender legislation set forth in the Tackling Violent Crime Act, S.C. 2008, c. 6, do not apply to these proceedings because the offence date predates the amendments. agree. logical application of s. 11(i) of the Canadian Charter of Rights and Freedoms requires that the offender be entitled to the lesser punishment if the punishment has been varied between the date of the commission of the offence and the date of sentencing. The 2008 amendments clearly make it easier for the Crown to obtain dangerous offender designation and, therefore, the offender is entitled to the lower threshold set forth in the pre‑amended legislation. Accordingly, the “old” legislation in force at the time the offence was committed will be applied. B. General legislative scheme [36] In R. v. Daniels, 2008 SKQB 349 (CanLII), 321 Sask.R. 40, summarized the general pre‑amendment legislative scheme as follows: [34] Generally, dangerous offender or long‑term offender applications follow the conviction of serious personal injury offence (s. 753(2)). [35] If the court is satisfied, upon application by the prosecutor, that the offender might be found to be dangerous or long‑term offender, it may order an expert assessment report (s. 752.1). [36] Once the assessment is filed, the Crown may apply to have the offender declared to be dangerous offender (s. 753(1)), or long‑term offender (s. 753.1). The Provincial Attorney General must consent to the application (s. 754(1)(a)). [37] The court thereafter is required to hear and determine the application without jury (s. 754(2)). [38] The court may find the offender to be dangerous offender if it is satisfied that: (a) the offence for which the offender has been convicted is serious personal injury offence (as defined by s. 752); and (b) the offender constitutes threat to the life, safety or physical or mental well being of other persons on the basis of evidence establishing the offence for which he was convicted forms part of: (i) pattern of repetitive behaviour showing failure to restrain his or her behaviour and likelihood of causing death, injury or inflicting severe psychological damage on other persons through failure to restrain his behaviour (s. 753(1)(a)(i)); or (ii) pattern of persistent aggressive behaviour showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other people of his behaviour (s. 753(1)(a)(ii)); or (iii) behaviour that is of such brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint (s. 753(1)(a)(iii)). [39] In the event that the court is satisfied that the dangerous offender criteria have been met, the court must nonetheless consider the appropriateness of declaring the offender long‑term offender. If the sentencing judge is satisfied that the long‑term offender sentencing options are sufficient to reduce the threat to life, safety or physical or mental well being to an acceptable level, the sentencing judge ought not declare the offender dangerous offender, notwithstanding that the dangerous offender criteria set forth in the Criminal Code have been met. See R. v. Johnson, [2003] S.C.R. 357, 2003 SCC 46 (CanLII), 13 C.R. (6th) 205. In such case the court is obliged to impose either determinate sentence or determinative period of detention followed by long‑term supervision order. If the sentencing judge determines that determinate sentence or long‑term supervision order is not appropriate, it shall impose sentence of detention in penitentiary for an indeterminate period (s. 753(4)). Issues [37] The issues to be decided in this case are: A. Is the predicate offence (the triggering offence) a serious personal injury offence as defined by s. 752 of the Criminal Code? B. Is the offender a threat of the kind contemplated by s. 753 of the Criminal Code and, thus, a danger to society? C. If so, should the Court exercise its residual discretion and impose a fixed‑term sentence or resort to the long‑term offender provisions, even though the statutory criteria for declaring Mr. Peters a dangerous offender have been met? D. If a long‑term offender designation is warranted, what determinate sentence and long‑term supervision order should be imposed? Analysis A. Is the predicate offence (the triggering offence) a serious personal injury offence as defined by s. 752 of the Criminal Code? [38] One of the criterion the Crown must establish in order to have the offender declared dangerous offender is that the predicate (triggering) offence is “serious personal injury offence” within the meaning of s. 752 of the Criminal Code. That section states in part: 752. In this Part, ... “serious personal injury offence” means (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, 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, and for which the offender may be sentenced to imprisonment for ten years or more, or (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with weapon, threats to third party or causing bodily harm) or 273 (aggravated sexual assault). [39] The offender has pled guilty to aggravated assault. The offence of aggravated assault is clearly a “serious personal injury offence” in that it is an indictable offence and involves the use of violence against another person in which the offender may be sentenced to imprisonment for more than 10 years. [40] The Crown has proven that the offender committed “serious personal injury offence” on November 4, 2006, within the meaning of s. 752(a) and, accordingly, this threshold requirement has been met. B. Is the offender a threat of the kind contemplated by s. 753 of the Criminal Code and, thus, a danger to society? [41] The next step in the process is to determine whether the offender constitutes threat to the life, safety or physical or mental well‑being of other persons on the basis of evidence establishing specific kinds of behaviour outlined in the Criminal Code. The pertinent parts of s. 753, in force at the relevant time, read: 753. (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be dangerous offender if it is satisfied (a) that the offence for which the offender has been convicted is serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes threat to the life, safety or physical or mental well‑being of other persons on the basis of evidence establishing (i) pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing failure to restrain his or her behaviour and likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; ... (4) If the court finds an offender to be dangerous offender, it shall impose sentence of detention in penitentiary for an indeterminate period. [42] The elements of ss. 753(1)(a)(i) and (ii) can be categorized and compartmentalized as follows: Section 753(1)(a)(i): (a) pattern of repetitive behaviour; (b) the predicate offence must form part of that pattern; (c) the pattern must show failure by the offender to restrain his behaviour in the past; and (d) the pattern must show likelihood of death, injury or severe psychological damage to other persons through failure to restrain his behaviour in the future. Section 753(1)(a)(ii): (a) pattern of persistent aggressive behaviour; (b) the predicate offence must form part of the pattern; and (c) the pattern must show substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of that behaviour. See R. v. Neve, 1999 ABCA 206 (CanLII), 237 A.R. 201, [1999] 11 W.W.R. 649, and R. v. Kakakaway, 2003 SKQB 205 (CanLII), 58 W.C.B. (2d) 310, [2003] S.J. No. 362 (QL). [43] find that s. 753(1)(a)(iii) does not apply because the actions of the offender do not fit the criteria of being “brutal”. Although the actions of the offender against the victim were most definitely reprehensible and criminal, they were not brutal in the sense that the actions were so heinous, barbarous or inhumane as to compel the conclusion that his future behaviour is unlikely to be inhibited by normal standards of behavioural restraint. [44] do not accept Dr. Holden’s conclusion that the offender is at high risk to offend sexually in the future. While the possibility exists, the evidence falls short of establishing likelihood given the fact that there was only one sexual incident, the offender’s age and his health issues. [45] Further, find that the evidence that the offender callously disposed of corpse on riverbank does not form part of the pattern of the offender’s violent aggressive behaviour. Such an act, while despicable and highly disrespectful, is not part of his aggressive violent behaviour, of which the predicate offence is part. That act, while instructive as to the type of person the Court has before it, is not part of the violent or aggressive behaviour. Accordingly, do not rely upon that act as being conduct that falls within the ss. 753(1)(a)(i) and (ii) definitions. [46] Nonetheless, I find that the offender clearly fits within the definition set forth in ss. 753(1)(a)(i) and (ii). The offender has demonstrated a repetitive and persistent pattern of aggressive behaviour culminating in serious assaults on women. The predicate offence is part of that pattern, and the pattern shows complete failure by the offender to restrain his behaviour. The offender has demonstrated, through his actions, that he has little ability to control his violent impulses, and his behaviour shows substantial degree of indifference respecting the reasonably foreseeable consequences of that behaviour. He lacks insight, has not been compliant with remediation attempts, has an anti‑social personality disorder and has serious alcohol issues that remain untreated. accept Dr. Holden’s conclusion that the offender is high risk to reoffend violently in the future, and that therefore there is likelihood that he will cause death, injury or severe psychological damage to other persons through his failure to restrain his behaviour in the future. [47] Accordingly, have no difficulty in concluding that the Crown has also proven the criteria for designating person to be dangerous offender as set forth in ss. 753(1)(a)(i) and (ii) on the basis of the violent behaviour alleged and established. C. If so, should the Court exercise its residual discretion and impose a fixed‑term sentence or resort to the long‑term offender provisions, even though the statutory criteria for declaring Mr. Peters a dangerous offender have been met? [48] The Supreme Court of Canada in R. v. Johnson, 2003 SCC 46 (CanLII), [2003] S.C.R. 357, confirmed that there is residual discretion under s. 753(1) not to designate person dangerous offender even though the statutory criteria have been met. Iacobucci and Arbour JJ. wrote: 44 As we have discussed, sentencing judge should declare the offender dangerous and impose an indeterminate period of detention if, and only if, an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level. The introduction of the long‑term offender provisions expands the range of sentencing options available to sentencing judge who is satisfied that the dangerous offender criteria have been met. Under the current regime, sentencing judge is no longer faced with the stark choice between an indeterminate sentence and determinate sentence. Rather, sentencing judge may consider the additional possibility that determinate sentence followed by period of supervision in the community might adequately protect the public. The result is that some offenders who may have been declared dangerous under the former provisions could benefit from the long‑term offender designation available under the current provisions. 45 It thus follows that the Court of Appeal was correct to conclude that the sentencing judges were required to consider the applicability of the long‑term offender provisions. If the respondent satisfies the long-term offender criteria and there is reasonable possibility that the harm could be reduced to an acceptable level under the long‑term offender provisions the proper sentence, under the current regime, is not an indeterminate period of detention, but, rather, determinate period of detention followed by long-term supervision order. If this is the case, s. 11(i) of the Charter dictates that the respondent is entitled to be sentenced to period of determinate detention followed by long-term supervision order. [49] The long‑term offender criteria is set forth in s. 753.1(1) of the Criminal Code as follows: 753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be long‑term offender if it is satisfied that (a) it would be appropriate to impose sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is substantial risk that the offender will reoffend; and (c) there is reasonable possibility of eventual control of the risk in the community. [50] Accordingly, having found the offender to have met the dangerous offender criteria, I must, nonetheless, consider the application of the long‑term offender provisions and utilize that option if the offender meets the long‑term offender criteria and there is a reasonable possibility that the offender’s risk to reoffend could be acceptably managed within the meaning of s. 753.1(1)(c). [51] In R. v. Daniels, 2011 SKCA 67 (CanLII), [2011] W.W.R. 605, the Saskatchewan Court of Appeal set aside dangerous offender designation and declared Mr. Daniels long‑term offender. In Daniels, the offender: [2] ... concedes that he constitutes threat to the life, safety or physical or mental well‑being of other persons, within the meaning of s. 753(1)(a)(i) and (ii) of the Criminal Code, and that without intervention he will remain high‑risk offender. While Mr. Daniels admits he meets the criteria under those provisions, he does not agree that he is dangerous offender, in light of the long‑term option. ... In accepting Mr. Daniel’s position, Jackson J.A. refers to R. v. Lyons, 1987 CanLII 25 (SCC), [1987] S.C.R. 309, 44 D.L.R. (4th) 193, where the Supreme Court of Canada stated that the dangerous offender legislation applies narrowly to offenders who are highly dangerous and, at page 347, stated: ... the legislation narrowly defines class of offenders with respect to whom it may properly be invoked, and prescribes quite specifically the conditions under which an offender may be designated as dangerous. ... [T]hese criteria ... are anything but arbitrary in relation to the objectives sought to be attained; they are clearly designed to segregate small group of highly dangerous criminals posing threats to the physical or mental well‑being of their victims. [52] Jackson J.A. also referred to the comments of Cameron J.A., speaking for the Court in R. v. Lemaigre, 2004 SKCA 125 (CanLII), 189 C.C.C. (3d) 492, where he stated that sentencing judges must “bear in mind that Parliament intended the sentence reserved for dangerous offenders to apply only to that very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of indefinite preventive detention.” (See paragraph 15.) [53] In Daniels, the Court of Appeal majority decisions concluded that the dangerous offender designation had been expanded beyond what was intended and narrowed the dangerous offender net that catches repeat offenders by declaring Mr. Daniels to be long‑term offender, rather than dangerous offencer. The majority concluded that Mr. Daniels was not one “of the small group of criminals” targeted by Parliament to be dangerous offender. [54] am mindful that my task is to consider the particular offender before the Court and not be unduly distracted by other decisions relating to other offenders. Each case is unique. As stated by Jackson J.A. in Daniels at paragraph 19: ... The determination of whether long‑term offender designation is merited is so fact‑specific as to render direct case‑by‑case comparison of little value. However, it was acknowledged by Jackson J.A. in Daniels that prior case law can be used to serve as check on one’s result to the extent that it can confirm whether an offender is safely within the realm of persons who should receive an indeterminate sentence. In each case, the focus must remain on the offender’s own record and personal characteristics and on the availability of treatment and rehabilitation programs for that particular offender. [55] Looking at the prior case law, including Daniels and the numerous cases referred to by Jackson J.A. in paragraphs 40 and 41 of her judgment, which include R. v. Redwood, 2009 SKCA 113 (CanLII), 337 Sask.R. 148; R. v. Watech, 2009 SKCA 52 (CanLII), 331 Sask.R. 11, aff’g 2006 SKQB 503 (CanLII), 288 Sask.R. 1; R. v. Moosomin, 2008 SKCA 169 (CanLII), [2009] W.W.R. 608, 239 C.C.C. (3d) 362; R. v. Goforth, 2007 SKCA 144 (CanLII), 302 Sask.R. 265; R. v. Otto, 2006 SKCA 52 (CanLII), 279 Sask.R. 182; R. v. R.H.L., 2005 SKPC (CanLII), [2005] S.J. No. 70 (QL); R. v. J.L.A.G., 2004 SKCA 126 (CanLII), [2005] W.W.R. 20, 189 C.C.C. (3d) 512; R. v. K.R.S., 2004 SKCA 127 (CanLII), [2005] W.W.R. 82; R. v. Lemaigre, supra; and R. v. Weasel, 2003 SKCA 131 (CanLII), [2004] W.W.R. 59, 181 C.C.C. (3d) 358, find that the totality of the circumstances of this case falls far short of the point where the offender should be placed within the dangerous offender category, given the availability of the long‑term offender option. [56] Based upon the jurisprudence in this jurisdiction, the offender’s situation is nowhere near that of what is required to justify conclusion that the public could not adequately be protected by the imposition of lengthy determinate sentence followed by long‑term supervision order. In Daniels, for example, an offender who was continually involved in the criminal justice system for over 25 years, amassed criminal record comprised of 67 convictions and who spent the vast majority of his adult life incarcerated and taking programs, was found by the majority of the appellate court to not qualify for dangerous offender status because he did not fit within the profile reserved for “small group of highly dangerous offenders”. The majority of the appellate court concluded that there was “a reasonable possibility of eventual control of the risk in the community”, as contemplated by s. 753.1(1)(c). [57] The offender has never been sentenced to periods of incarceration which resulted in him being placed in a federal penitentiary and thus, has not been offered the kind of programming available via the federal penitentiary system. cannot conclude that there is no reasonable possibility of the eventual control of his risk to reoffend in the community when he has not taken the kinds of programs which may teach him how to understand his problems so as to reduce the potential for physical violence and substance abuse. also accept that the offender’s age and ill health will make it less likely that he will reoffend and that his record, albeit serious, does indicate that he is capable of living life without criminal convictions. The offender has not been problematic inmate, which does demonstrate that he is capable of living within the rules. Furthermore, accept the opinions of the two experts that the risk can be reasonably managed by the imposition of conditional sentence which has significant personal deterrence effect and could serve as the impetus to lead law‑abiding lifestyle. The evidence before me, including that of the two expert witnesses is that there is real likelihood that the offender will eventually be controllable in the community by the imposition of long‑term supervision order. The pattern that have found to exist is not substantially or pathologically intractable. Accordingly, it is appropriate to decline to find the offender to be dangerous offender. In all of the circumstances conclude that the public will be adequately protected from the offender by the imposition of determinate sentence followed by lengthy period of supervision in the community. In the end result, find that the offender falls within the long‑term offender criteria set forth in s. 753.1(1) and that the risk he poses can be reduced to an acceptable level under the long‑term offender provisions. D. If a long‑term offender designation is warranted, what determinate sentence and long‑term supervision order should be imposed? [58] Section 753.1(3) of the Criminal Code states: (3) Subject to subsection (3.1), (4) and (5), if the court finds an offender to be long‑term offender, it shall (a) impose sentence for the offence for which the offender has been convicted, which sentence must be minimum punishment of imprisonment for term of two years; and (b) order that the offender to be supervised in the community, for period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act. [59] Both the Crown and defence set forth their positions should the offender be found to be long‑term offender. The Crown submits that the offender should be sentenced to determinate period of incarceration of seven years followed by the maximum ten‑year long‑term supervision order. [60] The defence contends that the period of incarceration should be six years and that the long‑term supervision order should be limited to seven years. [61] Both Crown and defence agree that the offender should be credited for time spent on remand, on one‑for‑one basis. (1) What is the appropriate sentence to be imposed upon the offender for the aggravated assault charge? [62] The fundamental concept of sentencing is set forth in s. 718.1 of the Criminal Code, which reads: 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [63] The other principles of sentencing stated in s. 718 and s. 718.2 must also be applied: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with criminal organization, or (v) evidence that the offence was terrorism offence shall be deemed to be aggravating circumstances; (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. [64] The offence of aggravated assault is serious one. This is reflected by the fact that Parliament has set the maximum term of imprisonment at 14 years. However, the offence of aggravated assault has many degrees of moral culpability, which results in large range of sentences for this offence that can vary anywhere from suspended sentence to 14 years in federal penitentiary. [65] One of the principles that must apply is that sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The Crown relies upon the following decisions to support its request for seven‑year sentence: R. v. L.M., 2008 SCC 31 (CanLII), [2008] S.C.R. 163; R. v. Moosomin, 2008 SKCA 169 (CanLII), 239 C.C.C. (3d) 362; R. v. Ochuschayoo, 2004 SKCA 16 (CanLII), 241 Sask.R. 284; R. v. Weasel, supra; R. v. Keepness, 2011 SKQB 293 (CanLII), 379 Sask.R. 68; R. v. Jiang, 2011 ABQB 182 (CanLII), 518 A.R. 76; R. v. Desjarlais, 2008 ABQB 365 (CanLII), [2008] A.J. No. 721 (QL); R. v. Furi, [2006] S.J. No. 26 (QL) (Q.B.); and R. v. Lemaigre, 2005 SKQB 238 (CanLII), [2005] S.J. No. 358 (QL). [66] The defence submits the following case authorities to substantiate its request for six‑year sentence: R. v. Keepness, 2010 SKCA 69 (CanLII), [2010] 10 W.W.R. 13; R. v. Sayazie, 2010 SKCA 14 (CanLII), 346 Sask.R. 147; R. v. Keshane, 2005 SKCA 18 (CanLII), 257 Sask.R. 161; R. v. Dufault (1995), 1995 CanLII 3915 (SK CA), 128 Sask.R. 235, [1995] S.J. No. 110 (QL) (C.A.); and R. v. Key, 2010 SKQB 95 (CanLII), 351 Sask.R. 211. [67] find that the six‑ to seven‑year range submitted by counsel is, indeed, the appropriate range given the case authority in this jurisdiction, the facts of this case and the circumstances of the offender. [68] Given all of the circumstances and all of the principles of sentencing that I must apply, I conclude that a seven‑year sentence is a fit and proper sentence for the determinate portion of the sentence. gravitate to the higher end of the sentence recommendations because of the existence of so many aggravating factors. The offender, in drunken rage, launched an unprovoked assault on his common‑law partner. He punched and kicked her and then, while in vulnerable position on the floor, struck her several times with an axe. The degree of moral culpability is high. [69] The fact that the victim was common‑law partner is statutory aggravating factor as stipulated by s. 718.2(a)(ii). This circumstance, compounded by the offender’s record of spousal violence on other female partners, makes the situation more serious. The Saskatchewan Court of Appeal in R. v. Ochuschayoo, supra, reiterated that domestic violence is serious matter and must be so recognized, and referred to the following passage with approval in the headnote of R. v. Brown (1992), 1992 ABCA 132 (CanLII), 73 C.C.C. (3d) 242, 125 A.R. 150 (Alta. C.A.): Domestic violence is profound problem and when cases of beatings of wife by husband result in prosecution and conviction, then the courts have an opportunity, by their sentencing policy, to denounce such offences in clear terms and attempt to deter its recurrence by the accused and by other men. The starting-point in sentencing in such cases would be to determine what would be fit sentence if the man had assaulted woman on the street or in bar. The court must then examine circumstances which are peculiar because of the relationship. When man assaults his wife or other female partner, his violence toward her constitutes breach of position of trust and is an aggravating factor. Such an assault constitutes an abuse of power and control. The vulnerability of such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape. The paramount considerations in imposing sentence must be general deterrence and denunciation. Rehabilitation and individual deterrence are of secondary importance. In imposing sentence, the court must consider whether the assault is relatively minor in nature, is an isolated incident, and whether there are circumstances which make it desirable that the sentence not be such as to be counter-productive to the possibility that the family relationship will be preserved. However, with respect to this last point, the desire of the victim that the accused be returned to her and that she not be further victimized by being deprived of his income should not readily prevail over the general sentencing policy that requires imprisonment of man not only as an instrument of deterrence of other persons, but to break the cycle of violence in the accused’s home. [70] It is also troubling, and an aggravating factor, that the offender has little or no remorse for what he has done. [71] Given all of the circumstances, find that fit and appropriate determinate sentence is seven years in prison. (2) What reduction in sentence should be allowed to take into account the time the offender has spent on remand? [72] The offender was arrested shortly after the commission of the offence. The precise date is not clear from the record. However, by November 7, 2006, the offender appeared in Provincial Court, in custody, and was not released until December 18, 2006, period of 41 days. As mentioned previously, the offender breached his recognizance by failing to appear on March 18, 2007, for his preliminary inquiry. [73] The offender remained unlawfully at large until he was arrested on March 24, 2009. He has been on remand since that date, period of 1,309 days (three years six months 29 days). Adding in the original remand time of 41 days increases the total time spent on remand to 1,350 days, which is approximately three years eight months. Both the Crown and defence agree that the offender should be given credit for the time he has spent on remand on one‑for‑one basis. [74] The Criminal Code directs that sentence commences when it is imposed and that the Court may take into account pre‑sentence incarceration. The relevant version of s. 719(3) reads: 719 (3) In determining the sentence to be imposed on person convicted of an offence, court may take into account any time spent in custody by the person as result of the offence. That subsection was amended by adding the phrase “... but the court shall limit any credit for that time to maximum of one day for each day spent in custody.” However, the amendment has no application here because it applies only to persons charged after February 22, 2010, the day the amendment came into force. [75] Section 719(3) is permissive, rather than mandatory, although it is generally recognized that credit for pre‑sentence detention should be given unless there is some sound reason for not doing so. See R. v. Wust, 2000 SCC 18 (CanLII), [2000] S.C.R. 455; and R. v. Mills, 1999 BCCA 159 (CanLII), 133 C.C.C. (3d) 451. I am prepared to go along with the submission of counsel and provide a one‑for‑one credit for the time that the offender has spent in pre‑sentence custody. Giving more than one‑for‑one credit would have the effect of releasing the offender to the public without him benefiting from completing the significant rehabilitative interventions that he so badly needs. [76] The offender has spent approximately three years four months in pre‑sentence custody. Giving the offender three years eight months credit towards his seven‑year sentence results in a further period of incarceration of three years four months. Accordingly, the offender is sentenced to an additional three years four months in penitentiary. (3) What is the appropriate length of the long‑term supervision order? [77] Where an offender has been designated long‑term offender, the Court is obligated to impose sentence for the offence for which the offender has been convicted and order that the offender be subject to long‑term supervision order “for period that does not exceed 10 years.” [78] The Crown has recommended the maximum period of supervision, while the defence submits that seven‑year supervision order would be sufficient to accomplish the sentencing goals. [79] The court‑appointed assessor, Dr. Holden, points out that one of the biggest obstacles to the offender’s rehabilitation is his failure or refusal to address some of the underlying problems that contribute to his criminal behaviour. At page 46 of the Forensic Assessment Report, Dr. Holden states: He appears to be in denial regarding his potential to abuse alcohol and does not appear to have seriously addressed the role alcohol plays in his life and also, in his potential to commit violent crimes. Therefore, it is, in my opinion, an absolute necessity that he seriously addresses his apparent alcohol abuse problem and makes commitment to sobriety for the remainder of his life. If he refuses to do so, in my opinion, his risk for committing acts of future violence is high. [80] In my view, lengthy long‑term supervision order is appropriate. The longer that the offender can be closely monitored in the community, the better. It is essential that he learn alternative ways to express frustration and seriously address alcohol issues. see no rational basis to “reduce” the length of the supervision from the maximum of ten years, requested by the Crown, to the seven years submitted by the defence. In addition to protection of the public, the supervision order is in place for the well‑being of the offender. The interests of all concerned require the maximum supervision available under the law. [81] Accordingly, order that the offender be supervised in the community for period of ten years following his release in accordance with s. 753.2 of the Criminal Code and the Corrections and Conditional Release Act, S.C. 1992, c. 20. Conclusion [82] I find the offender Albert Trevor Peters to be a long­‑term offender. The appropriate determinate sentence for the charge of aggravated assault in these circumstances is seven years in prison. He ought to get credit for time spent on remand of three years eight months, which results in a sentence of three years four months in prison. [83] The period of the long‑term supervision order is set at ten years. [84] Because the predicate offence is an offence in which violence against person was used, threatened or attempted, and for which person may be sentenced to imprisonment for ten years or more, s. 109 of the Criminal Code, pertaining to weapons prohibitions, has application. Accordingly, the offender is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for life. [85] The predicate offence of aggravated assault, for which the offender was convicted, is primary designated offence within the meaning of s. 487.04 of the Criminal Code. am satisfied that an order allowing the taking of bodily substances for DNA analysis would not be grossly disproportionate to the public interest, protection of society and the proper administration of justice. Accordingly, such an order in Form 5.03 shall issue. [86] Mr. Peters has been in custody since March 2009 and does not have any obvious means to pay any victim surcharge. Accordingly, the victim surcharge is waived pursuant to s. 737(5) of the Criminal Code. [87] Section 760 of the Criminal Code provides: 760. Where court finds an offender to be dangerous offender or long‑term offender, the court shall order that copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and any observations of the court with respect to the reasons for the finding, together with transcript of the trial of the offender, be forwarded to the Correctional Service of Canada for information. [88] Accordingly, order that my reasons for sentencing, together with all exhibits, assessments, required transcripts and documents be forwarded to the Correctional Service of Canada. “M.D. Popescul” C.J.Q.B. M.D. Popescul

The Crown applied under Part XXIV of the Criminal Code to have the accused declared a dangerous offender after he pled guilty to committing an aggravated assault on his common-law spouse contrary to s. 268 of the Code. The application is based on the Code provisions in effect before the danger offender legislation set forth in The Tackling Violent Crime Act was passed. The accused is 52 years old and in poor health. He has a significant criminal record thatreveals a history of violence and an inability to abide by court orders. The offences occurred between the time he was 40 and ended in 2006 with his last conviction, the predicate offence. Two psychologists prepared psychological assessments both of which concluded that the offender should not be declared a dangerous offender because his risk to re-offend could be reasonably managed by supervision in the community. The issues before the Court were: 1) whether the predicate offence is a serious personal injury offence as defined by s. 752 of the Code; 2) whether the offender is a threat of the kind contemplated by s. 753 of the Code and thus a danger to society; 3) if so, whether the Court should exercise its residual discretion an impose a fixed-term sentence or resort to long-term offender provisions, even though the statutory criteria for declaring the accused a dangerous offender have been met; and if a long-term offender designation is warranted, what determinate sentence and long-term supervision order should be imposed? HELD: 1) The Court held that the aggravated assault committed by the offender was a serious personal injury offence because it was an indictable offence involving the use of violence against his spouse. 2) The Court found that the Crown had proven the criteria required that the offender clearly fits within the definition set forth in ss. 753(1)(a)(i) and (ii), in that this offender had shown a repetitive and persistent pattern of aggressive behavior, especially against women. 3) The Court decided to exercise its residual discretion not to designate the offender as a dangerous offender and found that the he met the long-term offender criteria and that his risk to re-offend could be managed within the meaning of s. 753.1(1)(c). The offender has never been imprisoned in a penitentiary and thus had never had the benefit of programming offered in that system. The appropriate sentence should be 7 years. As the offender has spent approximately 3 years and 4 months in pre-sentence custody, the Court gave him credit in that amount on a one-to-one basis. The Court ordered that the appropriate length of time for a long term supervision order is the maximum of 10 years since the offender needs to learn alternative ways to express his frustration and address his issues with alcohol.

c_2012skqb426.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 52 Date: 20040414 Between: Docket: 473 Health Sciences Association of Saskatchewan (Applicant) Appellant and Saskatchewan Association of Health Organizations (Respondent) Respondent Coram: Tallis, Gerwing Sherstobitoff JJ.A. Counsel: Neil R. McLeod, Q.C. for the Appellant Leah Schatz for the Respondent Appeal: From: QB 2412/01, J.C. of Saskatoon Heard: April 14, 2004 Disposition: Dismissed (orally) Written Reasons: April 14, 2004 By: The Honourable Madam Justice Gerwing In Concurrence: The Honourable Mr. Justice Tallis The Honourable Mr. Justice Sherstobitoff GERWING J.A. (orally) [1] This is an appeal from a dismissal of an application to quash the decision of Arbitrator Ish interpreting an agreement entered into between the appellant and respondent. [2] The judgment centered on clause governing retroactivity of pay: NOTE ON RETROACTIVITY All employees on staff at September 3, 1999 shall be eligible for retroactive wage adjustments based on all paid hours with any employer. Employees who have retired from any employer during the term of the agreement shall be eligible for retroactive wage adjustments based on all paid hours up to and including the date of retirement. [Collective Agreement January 1, 1998 to March 31, 2001 at p. 67] The respondent suggested, and the arbitrator accepted, that the phrase “any employer” referred to the employer for whom the employee was working on September 3, 1999. On the other hand, the appellant had argued that the employee was entitled to retroactive pay from every employer for whom he had worked during the period. [3] The arbitrator found the phrase in question to be ambiguous and outlined the reasons why each of the competing interpretations might be chosen. He then concluded, in his ratio, as follows: As result of these competing aids to interpretation, do not find that the phrase “any employer”, in the context of this collective agreement, is an unambiguous one. am unable to resolve the ambiguity by reference to the evidence of negotiation history, which was minimal and, in my view, not persuasive. As result, am left in the position of an equal balance between the competing interpretations, which would lead me to the conclusion that the grievance fails because the burden is placed upon the union to convince the arbitrator on balance of probabilities that its interpretation is the correct one. Alternatively, the other provisions of the collective agreement would suggest that total provincialism was not intended by the parties, also lead one to the determination that the grievance fails because the balance has shifted in favour of the employer’s argument. On either view, have come to the conclusion that the union has not met the burden of proof placed upon it on the balance of probabilities test. Therefore, in conclusion, the grievance is dismissed. [Award of Arbitrator Dan Ish, Q.C., July 4, 2001 at p. 5] [4] We note that if the arbitrator was of the view, in the first portion of the paragraph, that analysis of one clause, using one tool, extrinsic evidence, and onus would have been sufficient ratio to support his conclusion he was in error and indeed patently unreasonable error. This is an incorrect proposition of law. [5] However, he then went on, in the alternative, to rely on the other provisions of the agreement; that is, he used one of the appropriate, and, indeed, first tools of statutory interpretation for an ambiguous phrase, that is to interpret it in the context of the entire agreement. [6] For this alternate ratio we agree with the conclusion of the chamber judge in the Court of Queen’s Bench. That is, this interpretation was a possible interpretation as evidenced by the earlier analysis of Arbitrator Ish. While it may not be the one that any of us would have chosen had we been given his choices at first instance, it is a possible interpretation on the analysis, legal and grammatical, of the entire agreement, and accordingly we cannot find that it is patently unreasonable. Accordingly, the appeal is dismissed with costs in the usual way on double Column V.

This was an appeal from a dismissal of an application to quash the decision the arbitrator interpreting an agreement entered into between the appellant and the respondent. HELD: The appeal was dismissed. The interpretation of the arbitrator was a possible interpretation on a legal and grammatical analysis of the entire agreement, and was not patently unreasonable.

5_2004skca52.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 70 Date: 2009 02 09 Docket: Q.B. No. 671 of 2001 Judicial Centre: Prince Albert BETWEEN: ERNEST MONTGRAND and SASKATCHEWAN GOVERNMENT INSURANCE Counsel: P. V. Abrametz for the appellant J. A. Bailey for the respondent JUDGMENT ROTHERY J. February 9, 2009 1) In judgment rendered April 14, 2004, and cited as 2004 SKQB 156 (CanLII), determined the income replacement benefit (the “IRB”) for Ernest Montgrand as non-earner as defined by The Automobile Accident Insurance Act, R.S.S. 1978, c.A-35 (the”Act”). Pursuant to s. 117 of the Act, and s. 24 of The Personal Injury Benefits Regulations, c.A-35, Reg. (the “Regulations”), found that Montgrand’s IRB for the 181st and subsequent days following an accident should not be less than the IRB calculated for the first 180 days after the accident, as determined pursuant to s. 116 of the Act. 2) This interpretation of the Act and Regulations was upheld by the Saskatchewan Court of Appeal, cited at 2007 SKCA 103 (CanLII). Klebuc, C.J.S. stated the following at para. [19] SGI maintains the hearing judge erred in holding that the income replacement benefit payable during the post 180 day period pursuant to s. 117(1) and (3) of the Act is not to be less than the income replacement benefit payable during the 180 day period. It argues that the Act is intended to correlate victim's income replacement benefit with his or her earning reality. Therefore, the 180 day income replacement benefit against which s. 117(4) "is designed to be measured is that of 'weighted average' calculation." It also submits the hearing judge's interpretation conflicts with the provisions of s. 117(3) of the Act and otherwise renders meaningless several sections of the Regulations, particularly s. 24(1) thereof. [20] The hearing judge raised no concern with respect to the "weighted average approach" used by SGI in calculating the income replacement benefits for the post 180 day period, beyond noting that the income replacement benefit payable for the post 180 day period could not be less than the amounts Montgrand received pursuant to s. 116(1) of the Act. At paras. 20 and 21, she states: [20] Ensuring that the IRB [income replacement benefit] is not less than the amount received for the first 180 days is in keeping with the purpose of the legislation [ss. 117(4)]. It strives for one's earning reality. non-earner in the past may well become someone whose employment income, but for the accident, would be more than the "weighted average approach". If claimant has proved on balance of probabilities that the promised employment reflects his or her earning reality, poor past record ought not to preclude the claimant from an IRB that reflects his earning reality. [21] Whether Montgrand's IRB in the first 180 days, based on the court's finding of facts, is greater or less than the IRB as prescribed by s. 117 of the Act for the subsequent days, is matter of mathematical calculation. If it is greater, Montgrand has the benefit provided by s. 117(4) of the Act ... [21] Montgrand likewise never questioned the validity of the "weighted average approach" employed by SGI beyond advancing an interpretation of s. 117(4) of the Act that, on it face, is inconsistent with the "weighted average approach" used by SGI. As result, there is no true lis regarding the efficacy of using SGI's "weighted average approach" to calculate the income replacement benefit for the post 180 day period. Consequently, leave the applicability thereof for determination in another case. [22] reject the argument that s. 117(4) conflicts with s. 117(3) of the Act, for the latter is expressly subordinated to the provisions of the former. Nor is there any uncertainty as to the meaning of s. 117(4) or s. 116. The intention reflected there is to provide two forms of income replacement benefits: short-term income replacement benefit during the 180 day period pursuant to s. 116, and long-term income replacement benefit during the post-180 day period pursuant to s. 117(1), (3) and (4) of the Act. [23] In my view, s. 117(1), (3) and (4) of the Act were designed to provide non-earner with long-term income replacement benefit based on the greater of: (i) the highest gross yearly employment income earned by the victim by means of employment in any one of the five calendar years preceding the date of the accident; or, (ii) the income replacement benefits payable or paid pursuant to s. 116(1), subject to prescribed maximums that do not apply in this case. It therefore follows that if any Regulation provides otherwise, including the imposition of the "weighted average approach" on s. 117(4) of the Act, it is either ultra vires, or of kind that may be read down to comply with ss. 116 and 117 of the Act. 3) The Saskatchewan Court of Appeal referred the matter of determination of the calculation of the IRB for both the first 180 day period and the post 180 day period to me. Counsel for Montgrand and SGI have agreed that the calculation of the IRB as provided by s. 117 of the Act is the annualized sum of $28,889.75. 4) The parties brought the matter back for further determination because SGI is paying Montgrand an amount less than that. Counsel for Montgrand took the position, which he abandoned at this hearing, that the disability benefits pursuant to the Canada Pension Plan should not be taken into consideration to reduce Montgrand’s IRB. Section 207 of the Act states: 207. If, as result of an accident, victim is entitled to an income replacement benefit and disability benefit pursuant to the Canada Pension Plan or any similar program in jurisdiction outside Saskatchewan, the insurer shall reduce the income replacement benefit by the amount of the disability benefit payable to the victim. 5) Obviously, SGI is correctly deducting the amount of Canada Pension Plan benefits Montgrand is receiving. However, counsel for Montgrand takes issue with SGI’s reduction of the amount determined in accordance with s. 117 of the Act by calculating Montgrand’s net income in accordance with ss. 135 - 138 of the Act. Counsel for Montgrand takes the position that once the annualized sum of $28,889.75 was set in accordance with s. 117, the provisions of ss. 135 138 do not apply to Montgrand as non-earner defined in the Act. 6) Counsel for SGI submits that once the IRB is calculated for the various types of earners as defined in Division 4, and itemized in s. 111, that IRB must be used to determine the victim’s net income. The further calculations to determine net income are set out in ss. 136 138 of the Act. In summary, SGI argues that once the net income is calculated on formula of the gross yearly employment income (“GYEI”) less deductions under the provincial and federal income tax acts, premiums under the Unemployment Insurance Act (Canada), and contributions to the Canada Pension Plan, then the final IRB is equal to 90% of the net income, calculated on yearly basis. 7) Sections 135 137 of the Act, which are the relevant sections for claims made in 2001, state: 135 In this section and in sections 136 to 138: (a) “gross yearly employment income”, with respect to victim, means the gross yearly employment income of the victim’s employment that the insurer is required to use or that the insurer determines pursuant to this Division; (b) “maximum yearly insurable earnings” means the maximum yearly insurable earnings calculated pursuant to section 138; (c) “net income” means net income calculated pursuant to section 137. 136 (1) Subject to the other provisions of this Division, the amount of an income replacement benefit that victim is entitled to pursuant to this Division is equal to 90% of the victim’s net income, calculated on yearly basis. (2) Subject to sections 139 and 140, the income replacement benefit of full-time earner or of victim for whom the insurer determines an employment pursuant to section 131, 132, or 133 is to be not less than the amount of an income replacement benefit calculated on the basis of gross yearly employment income determined on the basis of: (a) the minimum wage established pursuant to The Labour Standards Act; and (b) except in the case of part-time employment, the number of hours of work per week set out in subsection 6(1) of The Labour Standards Act. (3) Notwithstanding any other provision of this Division, no claimant is entitled to an income replacement benefit for the first seven days from the date of the accident. (4) Subsection (3) does not apply to an income replacement benefit payable pursuant to section 143. 137 (1) victim’s net income is equal to the amount calculated in accordance with the following formula: where: NI is the victim’s net income; GYEI is the lesser of the victim’s gross yearly employment income and the maximum yearly insurable earnings; and is an amount calculated by the insurer in accordance with this section and the regulations for income tax pursuant to The Income Tax Act and the Income Tax Act (Canada) premiums pursuant to the Unemployment Insurance Act (Canada) and contributions pursuant to the Canada Pension Plan. (2) For the purposes of calculating pursuant to subsection (1): (a) the insurer shall use the Acts mentioned in sub-section (1) as they exist on December 31 of the year before the year for which the insurer is making the calculation; and (b) the insurer shall take into account the number of dependants of the victim at the time of the calculation. (3) For the purpose of determining net income pursuant to this section, the gross yearly employment income of victim includes any benefits pursuant the Unemployment Insurance Act (Canada) or the National Training Act (Canada), or any other prescribed benefit, to which the victim would have been entitled at the time of the accident. 8) In support of his position that Montgrand’s IRB ought not to be reduced beyond the calculation of $28,889.75 made in accordance with s. 117 of the Act, his counsel argues that s. 136(1) of the Act states: “Subject to the other provisions of this Division, ...” Therefore, s. 136(1) is subservient to s. 117, and no further reduction ought to be made. 9) The provision of section 117, in effect at the relevant time, states: 117(1) Subject to subsection (5), if on the 181st and subsequent days following an accident non-earner is unable to hold the employment he or she could have held at the time of the accident, the non-earner is entitled to an income replacement benefit calculated pursuant to this section. (2) For the purposes of calculating an income replacement benefit pursuant to this section, the insurer shall determine an employment for the non-earner pursuant to section 131. (3) Subject to subsection (4), the insurer shall calculate the income replacement benefit on the basis of the gross yearly employment income that the insurer determines the non-earner could have earned from the employment mentioned in subsection (2), considering the following factors: (a) whether the non-earner would have held the employment on full-time or part-time basis; (b) the work experience and earnings of the non-earner in the five years before the accident; and (c) any prescribed factors. (4) An income replacement benefit pursuant to this section is not to be less than the income replacement benefit the non-earner received pursuant to section 116. (5) If non-earner is entitled to weekly benefit for the care of others pursuant to section 159, the non-earner is not entitled to an income replacement benefit pursuant to this section. 10) Section 131 is also important: 131(1) Where the insurer is required pursuant to this Division to determine an employment for victim from the 181st day after an accident the insurer shall consider: (a) the education, training, work experience and physical and intellectual abilities of the victim immediately before the accident; and (b) any other prescribed factors. (2) An employment determined by the insurer must be an employment that the victim could have held: (a) on regular and full-time basis immediately before the accident; or (b) if it would not have been possible for the victim to hold employment on regular and full-time basis, on part-time basis immediately before the accident. 11) As stated by s. 117(2), the employment for the non-earner shall be determined in accordance with s. 131. Section 136(2) incorporates the IRB for non-earner by reference to the non-earner, that is, reference to the calculation of IRB made pursuant to s. 131. Thus, the provisions of ss. 135 138 of the act apply to non-earners such as Montgrand. 12) The phrase, “subject to”, may mean “subservient to” or “subordinate to”, but that is too restrictive definition of the phrase. In R. v. F. Peters Excavating (1996) Ltd., 2005 SKQB 399 (CanLII), at para. [8] First of all, to define the phrase "subject to" as meaning "subordinate to" or "subservient to"is restrictive definition. Black's Law Dictionary, 6th ed. (St. Paul, Minn.: West Publishing Co., 1990) defines the phrase as follows: SUBJECT TO: Liable, subordinate, subservient, inferior, obedient to; governed by or affected by; provided that; provided; answerable for. [9] When one interprets the phrase "subject to" as "provided that", s. 13 of the Regulation functions as whole. That is, not only is the maximum gross weight for tandem axle group on primary highway 17,000 kilograms, but at the same time, the maximum gross weight for any tire on that vehicle is 10 kilograms per millimetre of tire width. As stated in Sullivan and Driedger on the Construction of Statutes, 4th ed. (London, Butterworths, 2002) at pages 262 and 263: Governing principle. It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of functioning whole. The parts are presumed to fit together logically to form rational, internally consistent framework; and because the framework has purpose, the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal. The presumption of coherence is also expressed as presumption against internal conflict. It is presumed that the body of legislation enacted by legislature does not contain contradictions or inconsistencies, that each provision is capable of operating without coming into conflict with any other. 13) As stated in Korpess v. Saskatchewan Government Insurance (1998), 1997 CanLII 9807 (SK CA), 163 Sask. R. 227 (Sask. C.A.) at para. 8, “the interpretation of statute which produces the greatest harmony and least inconsistency is the construction which ought to prevail”. 14) Thus, interpreting the phrase “subject to the other provisions of this Division” as meaning “governed by” or “affected by” the other provisions of this Division, logical framework develops for calculating the net income of all victims, whether they be full-time earners, temporary earners, part-time earners, or non-earners, such as Montgrand. It would be neither a rational nor fair interpretation to reduce a full-time earner’s IRB by 90% and not the other types of earners. It would be neither a rational nor fair interpretation to deduct income tax, employment insurance premiums and Canada Pension contributions from only full-time earners. All earners are subject to these payments being deducted from their income but for their inability to earn an income because of an automobile accident. The further deductions to obtain the non-earner’s IRB is in keeping with his earning reality. And, as stated in the previous Montgrand judgment, the legislation attempts to find the non-earner’s earning reality. 15) Therefore, I must conclude that SGI has correctly calculated Montgrand’s IRB when it made the requisite deductions as set out in s. 137 to find Montgrand’s net income, and then reduced the net income to 90% to determine his IRB. 16) Counsel for Montgrand also appealed SGI’s calculation of interest on monies owed to Montgrand on the basis of pre-judgment interest. Counsel now concedes that SGI was correct in applying Regulation 102 which states, “Interest payable pursuant to Part VIII of the Act is to be calculated in accordance with The Pre-judgment Interest Act.” 17) Counsel for Montgrand seeks solicitor and client costs for this proceeding. It is agreed between counsel that Mr. Abrametz’s fee on solicitor and client basis have been paid up to the conclusion of the appeal. 18) Section 198 of the Act and Regulation 101 contemplate the payment of claimant’s solicitor and client costs if the claimant is successful on appeal. Because Montgrand has not been successful in this proceeding, he is not entitled to any more costs from SGI. J. A. R. ROTHERY

At issue is the amount of Income Replacement Benefits (IRB) payable to the appellant by SGI. The parties agree that the calculation of the IRB as provided by s. 117 of the Act is the annualized sum of $28,889.75. The appellant takes issue with SGI's reduction of the amount determined in accordance with s. 117 of the Act by calculating the appellant's net income in accordance with s. 135 to s. 138 of the Act. HELD: SGI has correctly calculated the appellant's IRB when it made the requisite deductions as set out in s. 137 to find the appellant's net income, and then reduced the net income to 90% to determine his IRB. It would be neither a rational nor fair interpretation to reduce a full-time earner's IRB by 90% and not the other types of earners. It would be neither a rational nor fair interpretation to deduct income tax, employment insurance premiums and Canada Pension contributions from only full-time earners. All earners are subject to these payments being deducted from their income but for their inability to earn an income because of an automobile accident. The further deductions to obtain the non- earner's IRB are in keeping with his earning reality.

d_2009skqb70.txt

J.C. W. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF WYNYARD BETWEEN: CURTIS BRENT SHRADER and HER MAJESTY THE QUEEN A. Kapoor for the accused Darryl Bode for the Crown JUDGMENT HALVORSON J. August 28, 1995 The accused seeks to overturn his conviction forfailing to attend court by arguing that the trial judge oughtto have accepted his excuse for not appearing. At issue iswhether the accused advanced a "lawful excuse". This is what happened. The accused was charged withan impaired driving offence. He attended court and indicated he would be retaining lawyer. The judge set return date and informed the accused he must appear personally because the Crown was proceeding by indictment. On the return date the accused did not show up, so the present charge was laid. At his trial the accused offered an explanation for his absence. Apparently, he was working on an oil rig which was an 11 hour drive from Foam Lake where his case was to be heard. His plan was to complete his shift the day before the trial and then drive to court. However, the crew for the next shift did not arrive, so he was obliged to continue working or risk losing his job. When he finally got off, it was too late to drive to Foam Lake. He therefore tried to reach his lawyer by telephone. When he was unsuccessful he called friend who eventually got in touch with the lawyer. The lawyer did not appear for the accused. According to the accused he had previously informed the lawyer of the court date. The accused's feelings are further bruised by the fact that the original impaired driving charge was eventually stayed by the Crown. In her reasoned decision, the trial judge rejectedthe accused\'s submission that he had a "lawful excuse" for notattending court. This finding is challenged on appeal. Counsel for the accused relies on comments of the Supreme Court of Canada in R. v. Holmes (1988), 41 C.C.C. (3d) 497 which indicate that "lawful excuse" includes all defences the common law considers sufficient reason to excuse person from criminal liability. Dickson C.J.C. put it this way at p. 508: "Lawful excuse" is very general term. It normally includes all of the defences which the common law considers sufficient reason to excuse person from criminal liability. It can also include excuses specific to particular offences. The word "excuse" is used in this broad meaning in s. 7(3) [now s. 8(3)] of the Criminal Code, which provides that all common law justifications and excuses continue to be available under the Code. This provision has been interpreted to mean that the common law defences are not frozen in time. They can be developed and tailored to fit changes in the law and new offences. There is no doubt that Parliament can redefine the meaning of "excuse", for example by expanding it to provide new excuses or excuses specific to particular offence, or by narrowing it to include only certain excuses. The important point is that parliament should give some indication, express or implied, that it has changed the meaning of "excuse" when it uses it in statute. Otherwise, the word will be understood to have the meaning of "excuse" under the common law and as used by s. 7(3) [now 8(3)], broad term that allows for the development of defences in relation to changes in the law and in the context of particular offences. If Parliament does not give some indication that it has assigned particular meaning to "excuse", the word will be taken to have the same meaning as "excuse" under the common law and in s. 7(3) [now s. 8(3)]. In my view Holmes does not assist the accused. Essentially, the issue of lawful excuse is fact driven. The guidelines in R. v. Andres (1982) 1979 CanLII 2238 (SK CA), W.W.R. 249 apply. To paraphrase Andres, I cannot say the finding by thetrial judge that the accused had no lawful excuse for failingto attend court, was not supported by the evidence; nor can Isay her conclusions were clearly wrong so as to make thedecision unreasonable. The appeal against conviction is dismissed. The accused's appeal against sentence was abandoned.

The accused was charged with failing to appear at his trial on a charge of impaired driving. The impaired driving charge was subsequently stayed. When the charge of failing to appear came on for trial the accused claimed a 'lawful excuse' for his failure to appear on the impaired driving charge. His excuse was that the next shift at work had failed to arrive on time and that this had made it impossible for him to get to court on time. This excuse was rejected and he was convicted. He appealed. HELD: Appeal dismissed. 1)Whether an accused has a lawful excuse is determined with reference to common law principles. It normally includes all of the defences which the common law considers sufficient reason to excuse a person from criminal liability. 2)The Court was unable to say that the finding by the trial judge that the accused had no lawful excuse for failing to attend court, was not supported by the evidence; nor could it say her conclusions were clearly wrong so as to make the decision unreasonable.

3_1995canlii6053.txt

MAGNES V. MAGNES QB99059 Date of Judgment: January 11, 1999 Number of Pages: 11 Q.B. No. 015964 J.C. R. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: JANIE MAGNES PETITIONER (RESPONDENT) and HOWARD MAGNES RESPONDENT (APPLICANT) AND D.I.V. A.D. 1996 No. 669 J.C. R. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: D.A.L.(F.)PETITIONER (RESPONDENT BY COUNTER-PETITION) and D.A.L.RESPONDENT (PETITIONER BY COUNTER-PETITION) Ronald J. Miller for Howard Magnes and D.A.L.(F.) David A. Gerrand for Olive, Waller, Zinkhan Waller law firm JUDGMENT DAWSON J. January 11, 1999 [1] This is an application for a determination as to whether the law firm of Olive, Waller, Zinkhan & Waller is in a position of conflict of interest with respect to the matrimonial files of Magnes v. Magnes and L. (D.A.F.) v. L. (D.A.) and whether the firm may remain as counsel for Janie Magnes and D.A.L. in those proceedings. [2] Fred Zinkhan of the Olive, Waller, Zinkhan Waller law firm (hereinafter referred to as "Olive Waller") acts as counsel for Janie Magnes and D.A.L. with respect to their matrimonial disputes. Prior to September 8, 1998, Sherri Fitzsimmons was lawyer practising law with the law firm of Hunter Miller. Hunter Miller acts as counsel for Howard Magnes (the previous spouse of Janie Magnes) and D.A.L.(F.) (the previous spouse of D.A.L. ). While employed at Hunter Miller, Ms. Fitzsimmons was involved in working on the matrimonial files for Howard Magnes and D.A.L.(F.). [3] On August 17, 1998, Ms. Fitzsimmons received telephone call from Fred Zinkhan. Mr. Zinkhan inquired as to whether Ms. Fitzsimmons would be interested in interviewing for lawyer`s position with his firm. The conversation lasted approximately two minutes on this topic and no other topic was discussed. On August 18, 1998, Ms. Fitzsimmons received telephone call from Victor Dietz, another lawyer at the Olive Waller firm. He called to arrange an interview date. On August 26, 1998, Ms. Fitzsimmons interviewed with Victor Dietz and Pat Quaroni also lawyer at the Olive Waller firm. Then on August 28, 1998, Victor Dietz called Ms. Fitzsimmons and made verbal offer of employment. The terms of the offer were confirmed in writing on that same date. The written offer of employment was identical to the verbal offer of employment and contained the following provision for conflicts: 5. Conflicts:A listing of potential conflict files will be provided with the requirement that you not access, review or in any way have any connection with those files. On September 2, 1998, Ms. Fitzsimmons called Mr. Dietz and verbally accepted the offer of employment. She agreed to commence working on Tuesday, September 8, 1998, which was the first office day after the September long weekend. [4] On Friday, September 4, 1998, Ms. Quaroni sent several intra-office e-mail transmissions regarding the measures to be taken by Olive Waller to ensure that Ms. Fitzsimmons not have any access to the files in which she had potential conflict. The e-mail confirmed that all potential conflicts had to be identified by the end of the work day on September 4, so that screening measures could be taken before September 8. On that same day, September 4, the conflicting files were identified. memorandum was sent to all members of the firm, lawyers and staff, noting the conflicting files and instructing them to ensure that Ms. Fitzsimmons not be privy to these files, not work on these files, and not have access to these files. Fred Zinkhan responded by e-mail to Ms. Quaroni, on that same date, with respect to the Magnes and L. files and identified that he was concurrently instructing his legal assistant, Diane Van Drunen, to place the Magnes and L. files in secure location, not accessible to Ms. Fitzsimmons. Mr. Zinkhan concurrently e-mailed Ms. Van Drunen with these instructions. Ms. Van Drunen received the e-mail on the morning of Tuesday, September 8, 1998 and she immediately moved the two files to locked filing cabinet. This filing cabinet remains locked at all times. [5] On September 4, 1998, Ms. Quaroni prepared memorandum addressed to Ms. Fitzsimmons. The memorandum identified all potential conflicts and requested Ms. Fitzsimmons' acknowledgment that she was not to work on or have any access to those files. On September 8, 1998, when Ms. Fitzsimmons arrived at the Olive Waller firm she received the memorandum listing all potential conflict files. This memorandum included the Magnes and L. files. On that same date she had meeting with Pat Quaroni with respect to the conflict files. Ms. Quaroni again confirmed that Ms. Fitzsimmons was to have no contact with those files. Ms. Fitzsimmons confirmed to Ms. Quaroni that she would not participate in representing Ms. Magnes or Mr. L., nor would she disclose any information to Olive Waller respecting her former clients, Howard Magnes and D.A.L.(F.). She also confirmed that she would not disclose confidences of clients of her former firm nor would she disclose any confidences of clients of her new firm. [6] In addition, the firm instituted procedure to ensure that the Magnes and L. files are only removed from the locked filing cabinet when absolutely necessary. If either file is up for review in the diary system, Ms. Van Drunen simply advises Mr. Zinkhan that such file is up for review, in order to avoid the files being removed from the locked filing cabinet. In the event that Mr. Zinkhan is going to work on either the Magnes or L. file, Ms. Van Drunen removes the file from the locked filing cabinet and places it in Mr. Zinkhan`s office. Upon completion of the work, the file is returned to the locked cabinet. The Magnes and L. files are only on Ms. Van Drunen`s desk when she is actually working on them. Again, upon completing any work, the file is returned to the locked cabinet. Ms. Van Drunen controls access to the keys to the locked filing cabinet. Ms. Van Drunen is also under direct instructions to refer any questions with respect to this file to Mr. Zinkhan only. The only individuals within the firm who work on these two files or who have any knowledge on these two files are Fred Zinkhan, Dianne Van Drunen, Pat Quaroni and Patrice Krueger, lawyer. [7] On Friday, September 11, 1998, at 9:35 a.m. Fred Zinkhan sent an e-mail to Ms. Quaroni regarding computer security. In particular, he wanted to ensure that Ms. Fitzsimmons` assistant, Sharon Don, not have any computer access to the Magnes and L. files. Prior to sending the e-mail, Mr. Zinkhan confirmed that Sharon Don had not in fact done any work in relation to the Magnes and L. files and confirmed there had been no inadvertent access. Mr. Zinkhan requested that Ms. Van Drunen secure all data files in relation to the Magnes and L. files on the firm`s computerized network environment. That is, he instructed her to either encode or remove all work product from the system with respect to the files. Ms. Van Drunen received the e-mail on the morning of Monday, September 14, 1998. She immediately moved all documentation with respect to these two files to secure directory on the computer network. Ms. Van Drunen and the firm`s network administrator are the only persons within the firm who have the ability to access the data on these files. [8] Ms. Fitzsimmons swore an affidavit in this application that she has not had any conversations with anyone associated with the Olive Waller firm concerning the Magnes and L. matters, nor has she had any conversations with Ms. Magnes or Mr. L.. She also swore that she has not had access to those two files, nor has she had computer access to information on these files. She attested as well that she took no documents, notes, computer disks or any other documents relating to the Magnes or L. files from the Hunter Miller firm upon leaving. Ms. Fitzsimmons also provided an undertaking in her affidavit that she will not discuss the Magnes or L. matters with anyone within the Olive Waller firm or the Hunter Miller firm. Mr. Zinkhan`s affidavit indicates that his firm advised both Janie Magnes and D.A.L. that if either of them felt any objection to Olive Waller`s continued representation on their matter as result of Ms. Fitzsimmons joining their firm, the firm would withdraw. [9] The Supreme Court of Canada in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1991] W.W.R. 705, enunciated the standards to be applied in determining whether disqualifying conflict of interest exists. The court stated it is concerned with three competing values. There is first of all, the concern to maintain the high standards of the legal professional and the integrity of our system of justice. Secondly, there is the countervailing value that litigant should not be deprived of his or her choice of counsel without good cause. And thirdly, there is the desirability of permitting reasonable mobility in the legal profession. The test that is to be applied to determine whether there is such disqualifying conflict must be such that the public, represented by the reasonably- informed person, would be satisfied that no use of confidential information would occur. The court went on to say that two questions must be answered: (1) Did the lawyer receive confidential information attributable to solicitor and client relationship relevant to the matter at hand? and, (2) Is there risk that it will be used to the prejudice of the client? The Supreme Court noted in MacDonald Estate v. Martin that there is strong inference that lawyers who work together share confidences. The court should therefore draw this inference, unless satisfied on the basis of clear and convincing evidence, that all reasonable measures have been taken to ensure that no disclosure will occur by the "tainted" lawyer to the members of the firm who are engaged against the former client. [10] It must be noted that the Law Society of Saskatchewan in response to the decision of the Supreme Court of Canada in MacDonald Estate v. Martin, amended The Law Society of Saskatchewan, Code of Professional Conduct (adopted by The Benchers of The Law Society of Saskatchewan in Convocation on September 26, 1991, effective October 1, 1991 [updated April 4, 1997]) (the "Code") in 1995, to provide for rules relating to conflicts of interest when member transfers from one firm to another. The relevant portions of the Code are: Chapter VA, Conflicts of Interest Firm Disqualifications (4) Where the transferring member actually possesses relevant information respecting the former client which is confidential and which, if disclosed to member of the new law firm, may prejudice the former client, the new law firm shall cease its representation of its client in that matter unless: (a)the former client provides written consent to the new law firm`s continued representation of its client, or (b)the new law firm establishes, in accordance with subrule (8), that: (i)it is in the interests of justice that its representation of its client in the matter continue, having regard to all relevant circumstances, including: (A)the adequacy of the measures taken under (ii), (B)the extent of prejudice to any party, (C)the good faith of the parties, (D)the availability of alternative suitable counsel, and (E)issues affecting the national or public interest, and (ii) it has taken reasonable measures to ensure that no disclosure to any member of the new law firm of the former client`s confidential information will occur. (8) Anyone who has an interest in, or who represents party in, matter referred to in this Rule may apply to the Society or to court of competent jurisdiction for determination of any aspect of this Rule.... Due diligence (9) member shall exercise due diligence in ensuring that each member and employee of the member`s law firm, and each other person whose services the member has retained: (a)complies with this Rule, and (b)does not disclose: (i) confidences of clients of the firm, and (ii) confidences of clients of another law firm in which the person has worked. [11] The Code also provides Guidelines for the members respecting the "reasonable measures" that should be taken to ensure that no disclosure to any member of the new law firm of the former client`s confidential information will occur. Those guidelines include the following: 1. The screened member should have no involvement in the new law firm`s representation of its client. 2. The screened member should not discuss the current matter or any information relating to the representation of the former client (the two may be identical) with anyone else in the new law firm. 3. No member of the new law firm should discuss the current matter or the prior representation with the screened member. 4. The current client matter should be discussed only within the limited group which is working on the matter. 5. The files of the current client, including computer files, should be physically segregated from the new law firm`s regular filing system, specifically identified, and accessible only to those lawyers and support staff in the new law firm who are working on the matter or who require access for other specifically identified and approved reasons. 6. No member of the new law firm should show the screened member any documents relating to the current representation. 7. The measures taken by the new law firm to screen the transferring member should be stated in written policy explained to all lawyers and support staff within the firm, supported by an admonition that violation of the policy will result in sanctions, up to an including dismissal. 8. Affidavits should be provided by the appropriate firm members, setting out that they have adhered to and will continue to adhere to all elements of the screen. 9. The former client, or if the former client is represented in that matter by member, that member, should be advised: a.that the screened member is now with the new law firm, which represents the current client, and b.of the measures adopted by the new law firm to ensure that there will be no disclosure of confidential information. 10.The screened member should not participate in the fees generated by the current client matter. 11.The screened member's office or work station should be located away from the offices or work stations of those working on the matter. 12.The screened member should use associates and support staff different from those working on the current client matter. [12] These Guidelines were adopted from the Canadian Bar Association`s Task Force report entitled: "Conflict of Interest Disqualification: Martin v. Gray and Screening Methods (February, 1993). The Code points out that they "are intended as checklist of relevant factors to be considered. Adoption of some of the guidelines may be adequate in some cases, while adoption of them all may not be sufficient in others.". [13] In the present case, the first question to be determined is whether Ms. Fitzsimmons received confidential information from her clients, Howard Magnes and D.A.L.(F.), attributable to solicitor and client relationship relevant to the matter at hand while at the Hunter Miller firm. There is general presumption that such confidential information passes between lawyer and client by virtue of the solicitor and client relationship, unless the lawyer satisfies that there was no such receipt of confidential information. Ms. Fitzsimmons worked on both of these files while at the Hunter Miller firm and was, by the time she left that firm, solicitor for Mr. Magnes. am satisfied that she received confidential information from both clients. [14] The second question then to be determined is whether there is risk that the confidential information will be used to the prejudice of the clients, Howard Magnes and D.A.L.(F.)`? must be satisfied on the basis of clear and convincing evidence, that all reasonable measures have been taken to ensure that no disclosure will occur by Ms. Fitzsimmons to the members of Olive Waller firm. That is, must be satisfied on clear and convincing evidence that the screening measures taken by Olive Waller ensure that no disclosure will occur. [15] Ms. Fitzsimmons and the Olive Waller firm have put in place many of the screening measures suggested by the Guidelines in the Code. Ms. Fitzsimmons has indicated that she has not had any conversations with anyone associated with the Olive Waller firm concerning the Magnes and L. matters, nor has she had any conversations with Ms. Magnes or Mr. L., nor has she had access to those two files. She has attested that she has had no computer access to information on these files. She attested as well that she took no documents, notes, computer disks or any other documents relating to the Magnes or L. files from the Hunter Miller firm upon leaving. Ms. Fitzsimmons also provided an undertaking in her affidavit that she will not discuss the Magnes or L. matters with anyone within the Olive Waller firm or the Hunter Miller firm. She has indicated that the only discussions she had with Olive Waller regarding the two files involved identifying the conflicting files and the discussions involving the screening procedures. accept that no information has been shared. These undertakings, while necessary to the screening measures, are not enough. There must be independently verifiable procedures which have been taken to ensure there is no prejudice to Ms. Magnes and Mr. L.. [16] Here, there are numerous independently verifiable steps which have been taken by the Olive Firm to implement screening. The members of the Olive Waller firm, both lawyers and support staff, have been instructed in writing not to discuss either the Magnes or L. matters or Ms. Fitzsimmons` prior representation of those clients with her. The Magnes file and the L. file are physically segregated from the Olive Waller`s regular filing system in locked cabinet. The files are specifically identified, and accessible only to those lawyers and support staff in Olive Waller who are working on the matter. Only four members of the firm, three lawyers and one support staff, work on either of these files. The computer files are encoded and segregated on the firm's network and access is limited to two persons, neither being Ms. Fitzsimmons or her secretary. The members of the Olive Waller firm were instructed not to discuss the matters or share with Ms. Fitzsimmons any documents relating to the two files. Ms. Fitzsimmons` assistant, Sharon Don, is not an individual who was or will be working on either of the files, or who has access to either the physical files or the computer files. [17] Affidavits have been provided by Ms. Fitzsimmons, Fred Zinkhan, Pat Quaroni, Victor Dietz and Sharon Van Drunen, the appropriate and relevant firm members, confirming that they have adhered to and will continue to adhere to all elements of the screen. Mr. Magnes and Ms. L., Ms. Fitzsimmons` former clients, have been advised through their solicitors, Hunter Miller, that Ms. Fitzsimmons is now with the Olive Waller firm. They have also been advised, through their solicitors, of the measures adopted by the Olive Waller firm to ensure that there will be no disclosure of confidential information. Ms. Fitzsimmons has had no involvement in the representation of either Janie Magnes or D.A.L. since the date she started her employment at Olive Waller. [18] The Hunter Miller firm is concerned that the screening measures were done so quickly that they may have not actually occurred by the time Ms. Fitzsimmons commenced employment on September 8, 1998. Hunter Miller also points out that the segregation of the computer files on the firm`s computer network took place four working days after Ms. Fitzsimmons started her employment. In addition, Hunter Miller points out that although all Olive Waller firm members were advised, in writing, of the measures being taken to screen Ms. Fitzsimmons and were advised they were to adhere to the screening policy, the written instructions were not supported by specific written admonition that violation of the policy would result in sanctions, up to and including dismissal. [19] am satisfied on the basis of the evidence filed that all the screening measures, with the exception of the computer file segregation occurred prior to the arrival of Ms. Fitzsimmons. am also of the opinion that the instructions to firm members of the restrictions being placed on all firm members regarding the conflicting files carried with them the implicit notice of sanctions in the event the policy was not adhered to. Further, despite the fact that the computer segregation occurred few days after Ms. Fitzsimmons` arrival, neither Ms. Fitzsimmons nor her assistant had any access to the computer files in question during that time or since. [20] I am satisfied that the screen is sufficient in the circumstances of this case. There is not a risk of real mischief in this case. While Hunter Miller`s concerns are legitimate and should be taken seriously, on behalf of their clients, on balance, I find no real risk to Mr. Magnes nor Mrs. D.A.L.(F.) that either would be prejudiced if Mr. Zinkhan, Ms. Quaroni and Ms. Krueger of the Olive Waller firm, continue to act, so long as the screen is in place and is adhered to. In my view, having regard to all of the relevant circumstances, including the good faith of the parties, the adequacy of the measures taken to avoid disclosure of any confidential information and the extent of prejudice to the respective parties, Olive Waller has met the legal test enunciated by Mr. Justice Sopinka. A reasonable member of the public, in possession of the facts and aware of the screening procedures set in place, would conclude that no unauthorized disclosure of confidential information had occurred or would occur. [21] In the circumstances, Olive Waller may continue to represent Janie Magnes and D.A.L.. There will be no order as to costs.

In issue was whether the law firm was in a conflict of interest with respect to two matrimonial files and whether the firm could remain as counsel for the spouses. HELD: 1)A lawyer with Olive Waller acts as counsel for Janie Magnes and Daniel L'Heureux. The lawyer who recently joined the law firm of Olive Waller had worked on both files of the opposing spouses while practicing law with another firm. At the time she left she was the solicitor for Mr. Magnes. She had received confidential information from both opposing spouses. 2)The screen was sufficient and there was not a risk of mischief in the circumstances of this case. There was no real risk that either would be prejudiced if the law firm continued to act. A reasonable member of the public, in possession of the facts and aware of the screening procedures set in place, would conclude that no unauthorized disclosure of confidential information occurred or would occur. There were numerous independently verifiable steps taken by the subsequent firm to implement screening. Both lawyers and support staff were instructed in writing not to discuss either matters or the lawyer's prior representation of those clients with her. The files were physically segregated from the regular filing system in a locked cabinet. The files were specifically identified and accessible only to those lawyers and support staff who were working on the matter. The computer files were encoded and segregated on the firm's network and access was limited to two people. 3)There was no order as to costs.

c_1999canlii12484.txt

Q.B.C. A.D. 1994 No. 1040 J.C.M. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF MELFORT BETWEEN: HER MAJESTY THE QUEEN and WILBERT DAVID HEAD APPELLANT R.N. Saretzky for the appellant D.W. Dahl for the respondent JUDGMENT GROTSKY J. October 6, 1994 INTRODUCTION On June 1, 1994, the accused (hereafter the appellant) was charged in an Information that he, on or about the 29th day of May, A.D. 1994, at Red Earth, in the Province of Saskatchewan, did commit an assault on Janet Head contrary to s. 266 of the Criminal Code. On June 1, 1994, the appellant appeared before judge of the Provincial Court of Saskatchewan. The Crown elected to proceed against the appellant by way of summary conviction. The appellant entered plea of guilty to said charge. The matter of sentencing was then adjourned to July 7, 1994, and on said latter date was further adjourned to August 4, 1994, pending the receipt of the pre-sentence report directed to be prepared on June 1, 1994. On August 4, 1994, the then presiding judge ofthe Provincial Court of Saskatchewan sentenced the accused toserve a term of six months\' imprisonment and to enter into aprobation order for a term of 18 months on certain specificconditions. As well, a ten-year firearm, ammunition andexplosive substance prohibition order was made against theappellant pursuant to the provisions of s. 100(1) of theCriminal Code, R.S.C. 1985, c. C-46. NATURE OF PRESENT APPLICATION This is an appeal against (1) said six-month termof imprisonment and (2) said s. 100(1) prohibition order. RE: TERM OF IMPRISONMENT APPEAL Following the imposition of said sentence on him on August 4, 1994, the appellant was immediately taken into custody. He, on that date, commenced serving the noted sentence imposed upon him. On August 18, 1994, the accused's application for release from custody pending the hearing and determination of his present appeal was granted by member of this court pursuant to the provisions of s. 81(1)(a) of said the Criminal Code. The subject appeal came before me on September 29, 1994. Counsel for the appellant, after reviewing, inter alia, the circumstances surrounding the commission of this offence, and particularly that this was in effect the accused's first offence, his only previous conviction having occurred in 1989 when he was convicted of an ".08" offence at time when he was only about 20 years of age, submitted that in the particular circumstances the term of imprisonment imposed on the appellant at trial was too severe. He submitted that as the appellant had now served 15 days' of said sentence, in the particular circumstances, the sentence imposed ought to be reduced to the time already served. Counsel for the Crown candidly advised that he could not seriously oppose reduction of said sentence to time already served. In these circumstances, having regard for theapplicable sentencing principles of protection of society,punishment, general and specific deterrence, reformation andrehabilitation, and the need to maintain the public\'sconfidence in the administration of justice, and, afterapplying thereto the various applicable factors as discussedby and with both counsel during the hearing of this appeal, Iallowed the appeal against sentence and reduced the termimposed at trial from six months\' imprisonment to "timeserved" and maintained the 18 month probation order (againstwhich no appeal was taken) subject only to amending the timewithin which the appellant was to report to the chiefprobation officer as therein provided. RE: SECTION 100(1) PROHIBITION ORDER As earlier observed the appellant was charged andon his plea of guilty thereto was convicted of an offencecontrary to s. 266 of the Criminal Code which provides asfollows:266. Every one who commits an assault isguilty of(a) an indictable offence and is liable toimprisonment for a term not exceeding fiveyears; or(b) an offence punishable on summaryconviction. Here, as earlier observed, the Crown elected toproceed against the appellant by way of summary conviction. In these circumstances, following his conviction, the appellant was subject to the penalties prescribed by s. 787(1) of the Criminal Code which provides as follows: 787.(1) Except were otherwise provided by law, every one who is convicted of an offence punishable on summary conviction is liable to fine of not more than two thousand dollars or to imprisonment for six months or to both. Section 100(1) of the Criminal Code, the material portions of which read as follows, provides that: 100.(1) Where an offender is convicted of an indictable offence in the commission of which violence against person is used, and for which the offender may be sentenced to imprisonment for ten years or more ., the court that sentences the offender shall, ., in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from possessing any firearm or any ammunition or explosive substance for (a)in the case of first conviction for such an offence, ten years, and (b). (emphasis added) As will be observed from detailed examination of said s. 100(1) of said the Criminal Code, supra, before its provisions can be invoked there must exist two pre-conditions: FIRST:the offender must be convicted of an indictable offence in the commission of which violence against person is used; and SECONDLY:on said conviction the offender may be sentenced to imprisonment for ten years or more. In the particular circumstances, as the requisitetwo pre-conditions did not exist, the Provincial Court judgeerred in making the noted s. 100(1) prohibition order. On September 29, 1994, the appeal against saidprohibition order was allowed and it was set aside.

The Crown elected to proceed summarily and the accused entered a plea of guilty to a charge of assault under S.266 of the Code. He was sentenced to 6 months imprisonment, 18 months probation and a 10 year fire arm prohibition was imposed. He appealed his sentence. HELD: Appeal allowed. 1)Because the accused had no related record and given the circumstances of the assault, the sentence of imprisonment was reduced to time already served (15 days). 2)The trial judge erred in imposing the 10 year fire arm prohibition under S.100 of the Code. S.100 requires a conviction on an indictable offence involving violence against a person where the maximum sentence available is 10 years imprisonment or more. 3)The maximum sentence for assault under S.266 is 5 years if the Crown proceeds by indictment and 6 months if, as here, the Crown proceeds summarily.

4_1994canlii5048.txt

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Crewe v. Crewe, 2008 NSSC 113 Date: 20080418 Docket: 1201-058924, SFHD-033944 Registry: Halifax Between: Thomas Gordon Crewe v. Lavada Leslie Crewe Respondent Judge: The Honourable Justice Beryl MacDonald Heard: April 3, 2008, in Halifax, Nova Scotia Written Decision: April 18, 2008 Counsel: Thomas Crewe, Self Represented Lavada Crewe, Self Represented By the Court: [1] Thomas Gordon Crewe and Lavada Leslie Crewe divorced on February 7, 2006. Corollary Relief Judgment was issued on this same date. Their children Matthew Crewe born March 7, 1993 and Mitchell Crewe born September 30, 1994 remained in their joint custody with Ms. Crewe to have day to day care and Mr. Crewe reasonable access on reasonable notice. [2] On August 17, 2006 Thomas Crewe signed variation application in which he sought access with his children. His application alleged that Lavada Crewe refused to provide access and communication with the children. Ms. Crewe responded to that application and filed her response on September 10, 2006. In her response she sought an immediate change to the custodial and access provisions of the Corollary Relief Judgment. [3] On September 27, 2006 conciliator met with these parties. Ms. Crewe acknowledged she did not require the children to visit their father. She did so because she was concerned about their personal safety. The boys had expressed their concern about Mr. Crewe’s medical condition and its effect on his driving, (Mr. Crewe had been diagnosed with Multiple Sclerosis since 1998). They also expressed their concern about his use of marijuana to treat his condition. In addition Mr. Crewe and Mitchell had an argument that also resulted in the boys’ decision not to visit their father. [4] Mr. Crewe sought to specify access with the children and requested that they be in his care two days per week at lunch time, two evenings per week from 3:30 p.m. until p.m. and every Friday from 3:30 p.m. until Saturday at p.m. He was prepared to agree that these access times should be arranged in accordance with the children’s wishes. Ms. Crewe did not want access to be specified but to be arranged as and when the children requested to be with their father. In addition she wanted: 1. Mr. Crewe’s access to take place in the presence of his mother; 2. provision prohibiting Mr. Crewe from transporting the children at any time in his vehicle; 3. An assessment of the children’s wishes in respect to access with their father; 4. The right to remove the children from the province of Nova Scotia for the purpose of traveling on her vacation for period of 21 days or less without the written consent of Mr. Crewe. She was prepared to obligate herself to provide Mr. Crewe with written details of her travel plans including departure and return dates with contact information while she was outside of the province. [5] No agreement was reached at conciliation. [6] On October 31, 2006 Ms. Crewe amended her response to include her request for review of the child support to be paid pursuant to the table amount of the child support guidelines. [7] An organizational pretrial was held on November 27, 2006 before Justice Cody. Both parties were self represented. The variation application was set for one day trial and two hour settlement conference. [8] Justice Williams conducted settlement conference on January 15, 2007. As result of this conference the Corollary Relief Judgment was varied by consent with respect to the table amount of maintenance to be paid, the trial date was removed from the docket, an assessment by the IWK assessment clinic was agreed upon and the matter was adjourned to March 6, 2007 for continuation of the settlement conference before Justice Williams. [9] On March 6, 2007 Ms. Crewe did not appear and she was contacted by the court. She indicated she mistakenly thought the settlement conference was for March 16, 2007. Justice Williams decided that the factors before the court were of considerable importance and because the assessment would not be available until the end of August 2007 he determined it appropriate to set the matter for hearing to be held before September on the issue of what access, if any, would be exercised by Mr. Crewe until the assessment was completed and the report available. Because he was the Settlement Conference Justice this matter would not and could not be heard before him and it was scheduled on my docket for an organizational pre-trial on March 16, 2007 with the trial to be held on April 3, 2007. [10] An organizational pre-trial was held before me on March 16, 2007. On April 3, 2007 hearing was held in this matter. At this hearing determined it was in the best interest of these children to have specified contact with their father, with some restrictions on his driving and marijuana use, until the access assessment conducted by the IWK was completed and the matter returned to this court. The Varied Corollary Relief Judgment was issued dated April 3, 2007. One provision of that Judgement required Mr. Crewe to consider the wishes of his children in respect to changes in the access arrangements and their unwillingness at any time to be passenger in his vehicle. The parties were to return for pretrial conference to be held September 12, 2007 by which time it was expected the access report from the IWK assessment team would be available. [11] On July 24, 2007 this court received letter from Ms. Crewe requesting cancellation of the assessment to be conducted by the IWK assessment team. The situation between the children and their father had improved. The children were able to make informed decisions about access with their father and were able to deal with him directly about their willingness to be passengers in his vehicle. At that time Ms. Crewe also sought cancellation of the organizational pretrial to be held on September 12, 2007. Court staff contacted Mr. Crewe since his consent would also be required if the assessment was to be cancelled. Mr. Crewe was contacted on July 24, 2007. He informed court staff he agreed the assessment should be cancelled for the same reasons that had been expressed by Ms. Crewe. He confirmed this information in documents he provided to this court on September 7, 2007 in which he advised “the access assessment report has been canceled as agreed by both parties (Thomas and Lavinia)”. However he informed staff that he still expected review in respect to the restrictions placed upon him by the terms of the Varied Corollary Relief Judgment dated April 3, 2007. As result the organizational pretrial was held on September 12, 2007. [12] At the organizational pretrial one hour hearing date was set for November 5, 2007 and explicit instructions were given to each party in respect to the filing of his and her affidavits. These instructions required Mr. Crewe to file his affidavit and provide copy to Ms. Crewe no later than three weeks before the hearing date which was on or before October 15, 2007. By October 25, 2007 Mr. Crewe had not filed his affidavit and he was called by court staff reminding him of his obligation. [13] Both parties appeared on November 5, 2007 and as result of the late filing of documentation and review of the allegations contained in that documentation was not satisfied that the hearing could be held and completed in the one-hour that had been set. was also concerned because much of Ms. Crewe’s information came solely from the children. Mr. Crewe was accusing Ms. Crewe of “lying” about what the children were saying. advised each party that it may be appropriate to request the preparation of “Children’s Wish Assessment” ordered that the matter be set over for further organizational pretrial to be held in November 26, 2007. strongly recommended that each party seek legal counsel to be advised about the structure and purpose of “Children’s Wish Assessment”. [14] On November 26, 2007 at the pretrial conference heard submissions from each of the parties in respect to the upcoming hearing and whether an independent “Children’s Wish Assessment” should be conducted. Mr. Crewe requested that there be full access assessment with psychological component to be conducted by the IWK assessment team. He did not accept that his children expressed any concern about his medical condition, his marijuana use or his driving. Further if they did so he argued these were not independent statements but were created and promoted by Ms. Crewe in an attempt to alienate the children from him. Ms. Crewe was prepared to agree to “Children’s Wish Assessment” but not to psychological component which she considered unnecessary and too costly. In addition there would be further substantial delay to obtain this report. She was not objecting to access, in fact she informed the court that the present access arrangement was working well. She merely wished to keep the restrictions in place to ensure the children’s safety. After hearing from each of the parties was satisfied that the limited issues to be resolved did not require the more expensive and time consuming report that would be prepared by the IWK Assessment Team, but they did require an experienced individual to speak with the children and these parents about the children’s wishes. ordered the preparation of the “Children’s Wish Assessment” and scheduled further pretrial conference for February 27, 2008. [15] Both parties appeared on February 27, 2008. The “Children’s Wish Assessment” had been completed. Mr. Crewe did not have copy because he refused to pay for the report. Ms. Crewe had paid for the report and had expected, as result, that the matter could be concluded on the basis of the report. She requested that Mr. Crewe’s application be dismissed but did not do so. ordered that the report be released to Mr. Crewe and scheduled the matter for two hour hearing which occurred on April 3, 2008. took note of the fact there were number of affidavits and other material in the file since the commencement of this proceeding. ordered that should Mr. Crewe intend to file any additional material he should do so by way of an affidavit filed no later than four weeks before the hearing date. Ms. Crewe was to file her response no later than two weeks before the hearing date. This hearing was originally scheduled for April 9, 2008 which meant that Mr. Crewe should have filed his affidavit on or before March 12, 2008. Mr. Crewe did not file his affidavit in this matter until March 28, 2008. By way of phone contact and follow up letter both parties were notified on March 17, 2008 that the hearing to be held on April 9, 2008 was re-scheduled to April 3, 2008 because the assessor was not available to give evidence on April 9, 2008. ISSUES AT THE APRIL 3, 2008 HEARING [16] On April 3, 2008 the parties appeared before me, self-represented. Ms. Crewe requested a change to the Varied Corollary Relief Judgment datedApril 3, 2007. She asked that Mr. Crewe only be permitted to drive, with the children as passengers in his car, within the boundary of the Halifax Regional Municipality and when driving within that Municipality he drive only on those streets and highways for which the speed limit is under 80 kilometers per hour. She requested that the remaining provisions of the Varied Corollary Relief Judgment continue in effect and that she receive a cost award. [17] Mr. Crewe requested that all restrictions on his transport of the children be removed including the provision restricting his marijuana use to eight hours prior to his driving with the children in his vehicle. He considered these restrictions to be discriminatory. He did not acknowledge that his sons’ concerns about his ability to drive were independent expressions of their wishes. He suggested they merely mimicked their mother’s concerns and suggested she has been “lying” and had attempted to alienate the children from him. He did not think it appropriate that Ms. Crewe should be permitted to obtain passport for the children. MEDICAL DISABILITY [18] In reaching my decision cannot help but be aware of the impact multiple sclerosis has had on Mr. Crewe’s life. Because of it he can no longer be employed in the workforce and his income is derived from disability pensions. am satisfied the effect of his condition did contribute to the breakdown of this marriage. recognize he is now faced with the prospect that this condition will slowly take away his mobility. Being able to drive in our society is banner of freedom for many and to lose the right to drive wherever one wishes can be considered to be an attack on one’s independence. However, my role in this proceeding is not to protect Mr. Crewe’s independence. must decide what is in the best interest of his adolescent children. Their best interest may require the imposition of restrictions on Mr. Crewe’s driving. USE OF MARIJUANA [19] Mr. Crewe, based upon the material he has provided to me, would have me conclude his medicinal use of marijuana presents no risk to his children. He does not smoke marijuana in their presence and so, he argues, they cannot be anxious about his use of this substance. He states that he would not smoke marijuana prior to driving when transporting his children. As result he argues there is no requirement for restriction upon his marijuana use in the Corollary Relief Judgment. [20] Mr. Crewe was prescribed medical marijuana by his physician, Dr. Gibbon, in March 2006 at Mr. Crewe’s request. In letter from Dr. Gibbon dated February 15, 2007, attached as Exhibit “B” to Mr. Crewe affidavit sworn October 26, 2007, Dr. Gibbon states: Mr. Crewe himself requested this prescription and provided research and data from Health Canada to support the request. All information regarding dosage, efficacy, safety, etc. can be obtained from Health Canada. As physician, cannot vouch for the long-term effectiveness of medical marijuana, nor am convinced that the benefits outweigh the risks (especially if smoked). In terms of safety, refer to Health Canada’s warnings to users of marijuana, in relation to driving and operating machinery. [21] In the material from Health Canada the following appears: This authorization does not constitute and opinion from Health Canada on the safety, effectiveness, or quality of marihuana within the meaning given to those words under the Food and Drugs Act and the Food and Drug Regulations..... There has only been limited research into the safety of marihuana. The use of marihuana carries with it number of potential health risks including impaired immune system, interaction with other drugs, dysphoria, depleted energy, impaired short term memory, drug dependence and lung damage (smoked form)..... The use of marihuana may have an effect on your motor skills. Consequently, you should not operate motor vehicle,...... while under the effects of marihuana.... .......you should not expose others to any effects related to the inhalation of secondary smoke while you are using the controlled substance.... [22] Mr. Crewe did provide document Cannabis and Multiple Sclerosis” attached as Exhibit “D” to his affidavit sworn October 26, 2007. However the document does not indicate its pedigree. Whether it has come from credible source is unknown and as result give it little weight. assign more value to the information provided by Health Canada. [23] In his affidavit sworn October 26, 2007, Mr. Crewe states he is “....authorized to consume up to three grams of dried marijuana per day.” He provides no supporting information to support this statement. He states he consumes, on average, less than one gram per day. [24] am satisfied Mr. Crewe uses marijuana daily in smoked form. am satisfied that he is convinced his abilities are improved by the use of this drug. am satisfied he will continue to use this drug and that he does not understand why others are concerned about his use of marijuana. He testified that he uses marijuana “three to four times day after dinner at night not during the day except occasionally on Saturday but never when the boys are in his care”. He has tried to use vaporized marijuana but finds it unsatisfactory. It does not alleviate his symptoms as effectively as does the smoked form. If he does not need to drive his children he admitted he would, two to three hours before driving, take “couple of puffs” of marijuana to alleviate his leg spasms. He only uses marijuana at night when he knows he must drive his children. Mr. Crewe requests that accept his evidence about his use of marijuana and that decide his use constitutes no risk to his children. However his own evidence raises questions about that drug use and whether he has been open and frank with this court about that use. [25] In his letter, by way of brief, to this court dated March 4, 2007 Mr. Crewe stated: continue to use marijuana with therapeutic benefits but have reduced my consumption and have not renewed my prescription/ registration. All consumption is done discreetly at night. do not drive impaired by marijuana. do not drive within two hours of consuming marijuana. [26] In his letter, by way of brief, to this court dated September 7, 2007 Mr. Crewe states: As long-term treatment, marijuana helps alleviate my leg spasms caused by multiple sclerosis. This does not hinder, but improves my ability to drive safely. [27] Therefore, it appears, except when he must drive his children, he will likely use marijuana or at the very least take “a couple of puffs” of marijuana two or three hours before driving because to do so improves his ability to drive safely. If he doesn’t use this marijuana before driving then perhaps he drives less safely Also he must have renewed his prescription to use marijuana because he admits to present use. This suggests he may have been trying to mislead the court in March 2007. do not know how many grams he does smoke in day but am satisfied from his description that he smokes more than one gram. find it unlikely that smoking marijuana more than hours before driving would provide him the benefits he seeks from this drug and the logical conclusion may be that if he believes he needs it he will smoke it. The question is what amount, if any, will provide the benefit without the side effects of dysphoria, depleted energy, impaired short term memory, drug dependence. This do not know. The evidence before me does not answer this question. In evaluating the safety risk to his children consider it in their best interest that be cautious. ABILITY TO DRIVE SAFELY [28] Mr. Crewe’s driving ability is evaluated yearly. It may be evaluated at other times at his request or upon request by his physician. In the Driving Evaluation Report prepared by Capital Health Occupational Therapy Services dated February 27, 2008 attached as Exhibit “A” to Mr. Crewe’s affidavit sworn March 28, 2008 the following appears: “As well the client has hypertension and an anginal condition.... He has undergone an angioplasty within the last year. He does report decline in his lower extremity function over the last year.” [29] In similar report dated March 2, 2007, attached as Exhibit “A” to Mr. Crewe’s affidavit sworn October 26, 2007, the assessors noted: Mr. Crewe acknowledges that his gait and balance have been affected by his medical condition however he does not feel this compromises his driving safety and client does not anticipate any difficulties driving.” [30] The assessors in the 2007 and 2008 reports concluded there were no observed deficiencies in his driving. However, in each report the following appears: Please note, the results and recommendations included in this report are based on the client’s performance during the period of the evaluation and should not be relied on as absolute predictors of future performance. The conclusions reached and the recommendations made are based, in part, upon the medical information available at the time this report was written. [31] In addition each report reviewed the medications Mr. Crewe informed them he was taking. In the 2007 report the following appears Client reported he is taking the following medications. It is the physician’s responsibility to determine any impact the following prescription medications will have on driving. [32] In the 2008 report the following appears: Client reported he is taking the following medications. It was explained to the client that some medications could impact his driving ability. Please note it is the physician’s responsibility to determine any impact the client’s current medications will have on driving. [33] Most of the drugs reported to be used by Mr. Crewe had significant side effects and words such as the following appear, “may cause dizziness, drowsiness, tiredness, weakness, trembling, shaking, light-headedness, blurred vision, caution should be use before driving” [34] In neither assessment does Mr. Crewe’s use of marijuana appear. He suggests this is an error because the report was “cut and pieced” and he orally informed the assessors about his use of marijuana. Mr Crewe testified that the drugs he uses do not cause him the side effects mentioned in the reports. [35] The most recent assessment report indicates that he has sufficient strength in his legs to stop his vehicle in an appropriate time frame. However, the assessment was conducted “in residential area of the city to best reflect this client’s typical driving patterns (February 27, 2008 Report As result do not know whether lengthy drive on highways where the traffic exceeds 80 km per hour would result in the discovery of deficiencies due to leg fatigue, requirement to take medications while driving, or other cause. do accept that the latest report suggests he is able to drive safely in the city. [36] have viewed Mr. Crewe’s loss of mobility caused by his tragic affliction with multiple sclerosis and that loss is obvious to anyone observing him. It certainly would be obvious to his children. At the time he was denied access with his children during the spring and summer of 2006, Matthew was 13 years of age and Mitchell was 12. Mr. Crewe does not accept that his sons had and still have concerns about his driving ability and his use of marijuana. THE ASSESSMENT [37] Elizabeth Simms, M.A. is the assessor who prepared the “Children’s Wish Assessment” as ordered by this court. She received her Masters in Family and Marriage Therapy from the University of Ottawa in 1990. She has been in private practice as Family Therapist since that time. She has been on the panel of persons qualified to provide assessment services to courts in Nova Scotia for at least the past years. In this time she has prepared 10 to 15 “Children’s Wish Assessments” all of which have been accepted without question about her qualification to prepare these reports. determined that she did have the training, skill, and experience to prepare the assessment requested. [38] In her report entered as Exhibit “1" in this proceeding entitled “Children’s Wishes Regarding Access Report”, Ms. Simms clearly states that both boys enjoy their time with their father and benefit from their relationship with him. However, they do have reservations about his ability to drive. Matthew informed her: It’s the unknown with MS and marijuana. I’m probably comfortable in the city but there is slow deterioration. There is no way to know if we are safe. It’s horrible feeling. [39] Mitchell’s response was similar: It’s the overall picture I’m not comfortable about. It’s his judgment that adds to all the anxiety with the marijuana. It’s trust issue. He forgets things, gets frustrated. [40] When Ms. Simms asked both boys about possible solutions to their discomfort with their father’s driving, both boys insisted they didn’t want their mother, “.... caught in the middle”. They were prepared to accept the responsibility to make their own decisions about when to drive with their father. [41] The assessor was required, by the Order for assessment, to form and report on her opinion about the independence of the children’s wishes as expressed. In answer to this question Ms. Simms commented on page of her report: found Matthew and Mitchell Crewe to be adjusted and sensible teenagers. Both children were able to sustain strong eye contact and spoke confidently and independently about their feelings and opinions. It was evident to me that these young teenagers have had time to think through their own perspectives resulting from their experiences over the past three and half years since their parents separation...... Both boys express the fact that they value their relationship with their father and desire to continue the existing parent schedule.... believe that the difficulties between the boys and their father, including their discomfort with driving result from an accumulation of personality and communication problems. do not believe that these problems have been negatively influenced or magnified by their mother’s opinions or actions. [42] The assessor did recommend that Mr. Crewe’s current annual driving tests be extended to semi- annual schedule which specifically evaluates his highway driving. Having made this statement she comments on page 9: Despite the anticipated reassurance of these tests, it is critical that, Tom appreciate the overwhelming feeling of vulnerability experienced by others who effectively surrender control to another who appears disabled behind the wheel of car. It is human nature for the children to be reluctant and these feelings need to be respected. It is imperative to note that both young teenagers have expressed the desire to make their own decisions regarding their personal safety. Therefore, recommend that, with the assistance of counseling, Matthew and Mitchell be encouraged to make their own decision at any given time as to whether or not they drive with their father. It is critical that Tom respect and support the boys decisions, as their comfort depends largely on the level of safety, trust and rapport they share with their father. [43] The children have expressed reasonable concerns about their father’s use of marijuana and its possible effect on his driving. am satisfied they have developed this concern on their own as result of their direct observation of their father. It is possible their reaction has been heightened by their mother’s reaction to their information but this an understandable family dynamic and is not an indication of her attempt to “alienate” the children from their father. Ms. Crewe wanted to protect her children from potential harm. I am not satisfied that Mr. Crewe’s use of marijuana is benign and without potential risk for his children. I am not satisfied he is able to drive safely on routes that permit speeds of over 80km per hour if the drive is lengthy. I am not satisfied it is in the best interest of Matthew and Mitchell to ignore these risks or to place the entire responsibility for monitoring their safety on their young shoulders. [44] Mr. Crewe does not consider it appropriate that his good judgement should be questioned by the imposition of restrictions in respect to his driving with the children. While understand his outrage, the best interest of his children requires recognition of their concern in written form. [45] The information provided during this hearing satisfies me that Mr. Crewe did take into account and accept responsibility for some of the circumstances that resulted in the failure of the children to visit with him in the spring and summer of 2006. He admits he had conflict with his 12-year-old son Mitchell in July of 2006 and recognized that he had hurt his feelings and insulted him. Mr. Crewe has worked very hard on this aspect of his relationship with his children and everyone reports that their relationship is now positive, warm ,and loving. It was in recognition of this reality that Ms. Crewe was prepared to consent to continuing the access terms of the Varied Corollary Relief Judgment granted which reinstated Mr. Crewe’s contact with his children although he did not consent to the conditions imposed. [46] am satisfied that concerns relating to Mr. Crewe’s medical condition and his use of marijuana can be managed to some extent if the children continue to have, as they do in the present varied Corollary Relief Judgment, the right to decide whether or not they will at any given time be driven by their father. However, that right is more easily exercised within the confines of the Halifax Regional Municipality then it is to transportation to places outside of the Municipality. In the Municipality they can merely refuse to drive with their father and make their way home by buses, by walking, or by calling their mother. Returning from a trip outside of the Municipality would require a request that their mother transport them or a requirement that they stay where they are until their father was sufficiently recovered to drive safely. I find that this would be too much responsibility to put upon these adolescents and I find it to be in their best interest that there be restrictions on their father’s driving while they are passengers in his vehicle. [47] Ms. Crewe has requested cost award. She is the successful party in this proceeding. Restrictions have been imposed upon Mr. Crewe. Costs are in the discretion of the Court but they generally are awarded to the successful party. The amount of cost award should “represent substantial contribution towards the parties’ reasonable expenses in presenting or defending the proceeding, but should not amount to complete indemnity” (Landymore v. Hardy, 1992 CanLII 2801 (NS SC), 1992 CarswellNS 90). In Kaye v. Campbell (1984), 65 N.S.R. (2d) 173 (NSCA) it was held that the ability of party to pay cost award is factor that can be considered. [48] Success at trial is reason enough to justify cost award. Ms. Crewe as a self-represented party does not have the expense of legal counsel. However, she has lost considerable time from her work because of these proceedings. Mr. Crewe’s late filing of his documents in contravention of explicit instructions must also be censured. In one instance it contributed to the rescheduling of hearing. His explanation for late filing is that the notice at the filing desk said All documents must be filed by noon (12:00) the day before the Court Date”. This notice is for those who have not had judicial direction in respect to filing dates. Mr. Crew is not entitled to ignore judicial direction. am satisfied Mr. Crewe can pay cost award. I award Ms. Crewe costs in the amount of $800.00. [49] Because it is desirable to have one order to reflect custody and access provisions there will be Varied Corollary Relief Judgment issued in this proceeding that will contain consolidation of the terms about custody and access contained in previous Judgments and those am ordering as result of the hearing before me on April 3, 2008. The provisions of this Varied Corollary Relief Judgment shall be: 1. Thomas Gordon Crewe and Lavada Leslie Crewe shall have joint custody of Matthew Ross Crewe, born March 7, 1993 and Mitchell Thomas Crewe, born September 30, 1994. with Lavada Leslie Crewe having day to day care and control. 2. In exercising his opportunity to have his children in his care pursuant to the terms of this order, Thomas Crewe shall consider the wishes of his children if they or one of them requests change to the date and length of time for access or if they or one of them is unwilling at any time to be passenger in his vehicle. 3. Matthew and Mitchell are to be in the care of Thomas Crewe (a) every Tuesday and Thursday evening from after school until they are returned to the home of Lavada Crewe on or before p.m. (b) every Friday evening from after school until they are returned to the home of Lavada Crewe on or before p.m. on Saturday afternoon. c) at such other reasonable times as shall have been agreed upon by the parties and each is to recognize reasonable requests by the other for additional time or change in time. 4. When the children are to be in vehicle driven by Mr. Crewe, he shall only drive within the confines of the Halifax Regional Municipality. Mr. Crewe may take the children outside the confines of the Halifax Regional Municipality but when doing so must have other persons drive his or another vehicle or he must use public transportation. 5. Mr. Crewe shall provide Ms. Crewe with copy of his annual “Driving Evaluation” conducted by Capital Health Occupational Therapy Services on or before March 30 of each year 6. Each parent when traveling outside the Halifax Regional Municipality with the children for more than day, shall inform the other of his or her departure and return dates and, in the event of trip lasting more than four days, an itinerary with contact telephone number or an address for the children. 7. Matthew and Mitchell are to be in the care of Thomas Crewe for period of five consecutive days each summer. The days chosen by Mr. Crewe shall not conflict with Ms. Crewe’s summer vacation. Ms. Crewe shall inform Mr. Crewe about the dates of her summer vacation on or before June 1st in each year. Mr. Crewe shall inform Mr. Crewe about the dates for his consecutive days on or before June 30 in every year. 8. Thomas Crewe shall not use marijuana for medicinal or any purpose for at least an hour period prior to time when he intends to transport his children in his vehicle. 9. Thomas Crewe and Lavada Crewe shall have the right to remove the children from the Province of Nova Scotia and from Canada for the purpose of vacationing and the children’s passports shall be made available to the vacationing parent for this purpose. Each parent shall inform the other of departure and return dates and provide an itinerary with contact telephone number or an address for the children. 10. Lavada Crewe shall have the right, to apply for and receive passports for the children. If Mr. Crewe’s consent is required he shall provide that consent and sign any required documents for that purpose. 11. Thomas Crewe shall pay costs in the amount of $800.00 to Lavada Crewe. The Varied Corollary Relief Judgement dated January 18, 2007, which orders payment of child support shall remain in full force and effect. Beryl MacDonald, J.

The mother of two boys, ages 12 and 13, applied to vary access to add a condition that the father only be allowed to drive with the boys in the HRM, on roads with a speed limit of 80km/hr and under. She asked the Court to continue conditions that prevented him from consuming marijuana less than 8 hours before driving, and required him to consider the boys' wishes regarding access and transportation. The father argued that all restrictions relating to the transport of the children should be removed. The father had MS, and a medical marijuana licence. His driving was evaluated yearly, and the report arising from the latest evaluation did not appear to address his marijuana use. An independent assessment of the children's wishes showed they enjoyed time with their father, but worried about his ability to drive under the influence of marijuana. The unrepresented mother sought costs. Conditions continued; variation granted. If he leaves the HRM, the father is to arrange for public or other transportation. Costs awarded to the mother in the amount of $800. In terms of the driving issue, it was not fair to place the entire burden of the transport issue on the children. The Court was not satisfied from the evidence that the father's marijuana use was benign, and there was also a concern about the symptoms of his MS, especially on long trips. While in the HRM, if the boys became concerned about driving with their father, they could take a bus home or call their mother. If outside of the HRM, it would be more difficult for them to get home. In terms of costs issue, the mother was the successful party. Although she was unrepresented, she did have to take considerable time off work. She was also inconvenienced because the father was late in filing documents, despite having been given clear time-lines by the Court.

5_2008nssc113.txt

1990 S.H. NO. 72667 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DONALD FRANK RIPLEY, and PAUL POMMIER, GEORGE DUNN and RENE JARRY and THE INVESTMENT DEALERS ASSOCIATION OF CANADA, Respondents HEARD: At Halifax, Nova Scotia, before The Honourable Madam Justice Elizabeth Roscoe, Supreme Court of Nova Scotia, Trial Division, in Chambers, on May 24, 1990. DECISION: May 29, 1990 COUNSEL: George MacDonald, Solicitor for the Applicant Robert Barnes and A. David MacAdam, Solicitors for the Respondents ROSCOE, J.: This is an application by Donald Frank Ripley for an interim injunction restraining the respondents from further proceedings against the applicant in respect of charges prosecuted against the applicant pursuant to the constitution, by‑laws and regulations of the Investment Dealers Association of Canada (I.D.A.). The application for the interim injunction is made pending the outcome of an application for certiorari quashing the decision of the disciplinary panel of the I.D.A. which application will be heard in the Supreme Court Trial Division on September 6, 1990. The application for certiorari is joined with an application for an order in the nature of prohibition restraining the I.D.A. from taking any further proceedings against Mr. Ripley. The history of the proceedings leading up to this application is lengthy and is contained in the affidavits of Douglas Caldwell and Mary Margaret Fox, which were filed on this application. Further details of the background to the proceedings are found in the decision of Nathanson, J. in Ripley v. Investment Dealers Association of Canada et al (1988), 86 N.S.R. (2d) 437, arising from similar application made in May, 1988. In January, 1988 the I.D.A. brought six charges of professional misconduct against Mr. Ripley, in his capacity as an investment dealer and member of the association. In accordance with its by‑laws, Business Conduct Panel was eventually appointed to hold hearings to determine the validity of the charges against Mr. Ripley. The application for an interim injunction heard by Nathanson, J. in May, 1988 was made by Mr. Ripley for the purposes of restraining the I.D.A. from proceeding with the disciplinary hearing on the basis of apprehension of bias on behalf of the I.D.A. and the disciplinary panel. The interim injunction was granted by Nathanson, J., who concluded his decision by saying at page 442: "Ought an injunction issue to restrain the occurrence of future event? The point is dealt with in Sharpe on Injunctions and Specific Performance (Canada Law Book, 1983), at para. 481 on p. 244 where the learned author expresses the opinion that plaintiff should be granted the protection of an injunction to enjoin litigants before an inferior tribunal where those proceedings are 'abusive or vexacious'. In McFetridge v. Nova Scotia Barristers' Society (1981), 45 N.S.R. (2d) 319; 86 A.P.R. 319, MacKeigan, C.J.N.S. at p. 322, stated that the court should not interfere by interim injunction except in 'very special circumstances, e.g. where it is necessary to obtain time for the court to adjudicate the issue and where the consequences of not staying the lower proceedings would be serious and irreversible'. am bound by Chief Justice MacKeigan's test. Although the hearing before the tribunal might result in the charges being either substantiated or rejected, find on balance of probabilities arising from the facts of this most unusual case that it is necessary to obtain time for the court to adjudicate the issues arising from the special circumstances of the case, and that the consequences of not staying the proceedings of the tribunal until after trial would be serious and irreversible. Although the court is reluctant to enjoin the I.D.A. from holding the hearing, that finding overcomes its natural reluctance to enjoin such future event. The court has not judged the merits of the principal action. But, the court is willing to exercise its discretion in favour of the application of the plaintiff being granted. An interim injunction will issue restraining the I.D.A. pending trial from holding disciplinary hearing with respect to the charges laid against the plaintiff." The decision of Nathanson, J. was reversed by the Appeal Division of the Supreme Court of Nova Scotia in decision reported at 86 N.S.R. (2d) 434. In his decision, Hart J.A. noted the similarities between the Ripley case and McFetridge v. Nova Scotia Barristers' Society and quoted the same portion of the decision as Nathanson, J. had. However, Hart, J. A. went on to say at p. 436: "We are unanimously of the opinion that Mr. Justice Nathanson erred as did Burchell, J. in the granting of the injunctive relief that he did. This court should be reluctant to interfere with the affairs of domestic tribunal such as the I.D.A. It should be permitted to carry on with the procedures adopted by its members. Should it fail to follow the course of natural justice, the respondent has his remedies to pursue. It would be premature to say at this stage that the respondent would not receive fair hearing under the Constitution of the Association of which he is member." (emphasis added) After the injunction was set aside by the Appeal Division, the I.D.A. appointed two substitute members to the disciplinary panel and proceeded with lengthy hearing on the charges against Mr. Ripley. Numerous witnesses were called on seventeen days spanning several months. The hearings ended in June, 1989 and on February 5, 1990 the decision of the panel was rendered, finding Mr. Ripley guilty of four of the charges against him. The by‑laws of the I.D.A. authorize the panel to impose various penalties for each of the offences including reprimand, fine of up to $100,000.00, suspension of approval as member and revocation of approval as member. After its decision, Alan Stern, counsel for the disciplinary panel, after correspondence with Mr. Ripley's counsel and counsel for the I.D.A., scheduled hearing with respect to the penalties to be imposed upon Mr. Ripley for May 4, 1990, that being date convenient to all counsel. By letter dated March 12, 1990 Mr. Stern wrote to each of the counsel confirming the date of the hearing and asking if any of them intended to call witnesses at the penalty hearing. By letter dated April 9, 1990 Douglas Caldwell, Mr. Ripley's counsel, advised Mr. Stern that he did not have any instructions to call witnesses at that point. Then on April 26, 1990, Mr. Caldwell wrote to Mr. Stern advising that Mr. Ripley "is medically unable to attend at the I.D.A. hearing on May 4th according to the opinion of his doctor" and requested that the hearing be adjourned until such time as Mr. Ripley was medically able to attend. In his letter Mr. Caldwell enclosed two medical opinions, one dated June 12, 1989 (which was prior to the conclusion of the first hearing) and which indicated that it would be detrimental to Mr. Ripley's mental and physical health if he were required to attend the I.D.A. hearings because of state of "anxiety and depression". The second letter, from the same doctor, was dated February 7, 1990 and was addressed to Mr. Ripley's new employer. That letter indicated that Mr. Ripley should take time off from his work for an indefinite period because of the stress and demands of his work. On April 30, 1990 Mr. Stern wrote to all counsel involved indicating "that the Panel wishes to proceed on May 4, 1990, if at all possible. If it is the wish of Messrs. Caldwell and MacDonald not to proceed with submissions at that time, the Panel would like to have the matter of penalty done by written submissions to be received by May 31, 1990 at the latest." Mr. Ripley's counsel then sent to Mr. Stern on May 2nd letter of the same date from another doctor of Mr. Ripley's, which indicated Mr. Ripley had been advised to "stay out of the investment business for an indefinite period of time until he has sufficiently recovered to cope with the daily stresses of the business. Under no circumstances should he be expected to attend hearings or be involved in the investment business until either Dr. Shane or myself have advised him to do so." The response of the disciplinary panel was to cancel the hearing scheduled for May 4th. Counsel were advised that the panel would consider written submissions to be filed by May 31, 1990. The letter from Mr. Stern indicated "the submissions may include any material related to appropriate penalties, including declarations or letters from individuals who may wish to make statements in support of Mr. Ripley." The by‑laws of the I.D.A. that deal with the imposition of penalties on one of its members are as follows: 7.6 District Council shall not refuse approval of an applicant for approval as partner, director or officer or impose any of the penalties provided for in By‑law 7.5 unless the partner, director or officer shall have been given the opportunity to be heard at meeting called and held in accordance with the provisions of By‑law 18.6 and the provisions of By‑laws 18.6 to 18.11, inclusive, shall apply mutatis mutandis with the substitution of partner, director or officer for applicant for approval as registered representative or registered representative, as the case may be, and the substitution in such By‑laws of references to the appropriate sections of By‑law for references to the sections of By‑law 18, as the context requires. 7.7 Business Conduct Committee having jurisdiction in District in which partner, director or officer is acting as such shall have the right to impose any of the penalties referred to in By‑law 7.5(c) at meeting of the Business conduct Committee (in lieu of the applicable District Council at meeting held pursuant to By‑law 7.5) and the provisions of By‑laws 18.6 to 18.8, inclusive, shall apply mutatis mutandis with the substitution of Business Conduct Committee for the applicable District Council, as the context requires. 18.6 District Council shall not refuse approval of an applicant for approval as registered representative or the transfer of registered representative, or impose any of the penalties provided for in By‑law 18.5 with respect to registered representative unless it shall have summoned the applicant for approval or the registered representative, as the case may be, before meetingof such Council, of which at least forty‑eight hours' notice shall be given to the applicant for approval or the registered representative, as the case may be, and to the Member concerned, which notice shall be in writing, state the time and place of the meeting, specify the purpose of the meeting, state the statutory authority, if any, pursuant to which the hearing is held and state that if the registered representative does not attend at the meeting the District Council may proceed in his absence and he will not be entitled to any further notice. The applicant for approval or registered representative, as the case may be, the Member and the Director of Compliance, his staff or other person designated by the Board of Directors shall be entitled to appear and be heard at the meeting and shall be entitled to be represented by counsel or an agent and to call, examine and cross‑examine witnesses. If the applicant for approval or registered representative, as the case maybe, fails to appear at such meeting when summoned, the applicable District Council may exercise any of its powers pursuant to By‑law 18.5 in his absence. The District Council may in any case in its discretion require that the applicant for approval or registered representative pay the whole or part of the costs of the proceedings before the Council and of any investigation relating thereto. (emphasis added) The argument of Mr. Ripley, in support of his application for an interim injunction, is that the disciplinary panel, if it is allowed to proceed in the manner they have chosen, will be acting in contravention of the I.D.A. by‑laws that provide that Mr. Ripley is entitled to be present, to be heard and to call and examine and cross‑examine witnesses. They argue that, because of Mr. Ripley's poor health, he is unable, at this time, to instruct his counsel and his counsel stated at the hearing of this application that if the injunction is not granted, no submissions will be made by Mr. Ripley to the disciplinary panel with respect to penalties. In his oral argument on the application, Mr. Ripley's counsel reviewed some of the documents and exhibits, that have been filed on the application for certiorari and prohibition to be heard in September, for the purpose of proving that there is serious issue to be tried at the September hearing. They will be arguing, in September, that the apprehension of bias that they claimed existed at the time of the hearing before Nathanson, J. has turned out to be actual bias. In addition, they will submit that the disciplinary panel acted without jurisdiction and that there was denial of natural justice illustrated by several examples of unfair procedures, both before and during the hearings. Mr. Ripley's counsel submits that this is one of the "very special circumstances" referred to in McFetridge v. Nova Scotia Barristers' Society because "the consequences of not staying the lower proceedings would be serious and irreversible". They further submit that the normal test in interim injunction cases established by American Cyanamid Company v. Ethicon Limited, [1975] A.C. 396 has been met in that the applicant has established that there is serious question to be tried, that Mr. Ripley will suffer irreparable harm if the injunction is not granted and that, on the balance of convenience test, the disciplinary panel would not suffer any damages if the interim injunction is granted. The argument presented by counsel for the I.D.A., in opposition to the application for an interim injunction is that the penalty hearing is not new hearing of the disciplinary panel but simply reconvening of the proceeding and that, therefore, the decision of the Appeal Division, in setting aside the interim injunction granted by Nathanson, J., that it is premature to interfere with the affairs of domestic tribunal is still applicable at this time. The I.D.A. argues that this is just one more attempt, by Mr. Ripley, to stall the proceedings. They refer to the Appeal Division's decision in McFetridge v. Nova Scotia Barristers' Society where it is said that the test in American Cyanamid does not apply to these fact situations. They further argue that it is against the public interest and the interest of other members of the I.D.A. to allow person, who has been convicted of serious charges, to indefinitely postpone the imposition of penalty. It is further submitted, on behalf of the I.D.A., that the medical evidence presented by Mr. Ripley to the disciplanary panel and to the court on this application is flimsy. They point out that the first medical opinion was in existence at the time Mr. Ripley's counsel presented their final argument to the disciplinary panel in June, 1989 and further that none of the medical opinions even mentions that Mr. Ripley is not able to instruct counsel. It is further submitted, on behalf of the I.D.A., that the by‑laws, quoted above, permit the hearing with respect to penalties to take place in the absence of the member, if the member elects not to appear at the hearing. Mr. Ripley was given the opportunity to present oral evidence and attend at the hearing, but he is electing not to do so. It is further submitted that it is "preposterous" that Mr. Ripley is unable to give instructions for the penalty hearing when he was presumably able on May 3, 1990 to give instructions to his counsel to file the application in this Court for certiorari and prohibition and on May 11th to give instructions to bring this application for an interim injunction. With respect to the argument that Mr. Ripley would suffer irreparable harm if the interim injunction is not granted, counsel for the I.D.A. argues that the possibility that Mr. Ripley's approval, to work as an investment dealer, would be suspended or revoked pending the September court hearing, will not harm Mr. Ripley because, according to his medical evidence, he is unable to work in any event. With respect to the publicity and harm to the reputation of Mr. Ripley, if the penalties are imposed, it is argued that it was Mr. Ripley who released the decision of the disciplinary panel to the public and the press. In determining the issues presented in this case, find first of all that if the American Cyanamid test were to be applied that the applicant would have satisfied the requirements for an interim injunction. would not have had any difficulty making the same findings that Nathanson, J. did in the application for an interim injunction before him, that is, that there is serious question to be tried, that the applicant has reasonable prospect of success, that the balance of convenience favors the applicant, that the applicant is likely to suffer irreparable harm not compensable in damages, and that there are very special circumstances involved in this case. However, am bound by the Appeal Division's decisions in McFetridge v. Nova Scotia Barristers' Society and Ripley v. Investment Dealers Association of Canada et al and am unable to distinguish those cases from this. In McFetridge v. Nova Scotia Barristers' Society, Burchell, J., the trial judge, imposed an injunction of the same type which is requested now, that is, restraining the Bar Society from ordering disciplinary action against Mr. McFetridge in the event that he was found guilty of professional misconduct. The Appeal Division found that the American Cyanamid test was not applicable and that the court should not interfere with the proceedings of a quasi judicial or other tribunal by interim injunction or stay except in very special circumstances. Again, in Ripley v. Investment Dealers Association of Canada et al the Appeal Division found that the circumstances that Mr. Ripley was found to be in did not meet that test. Since the hearing, which the Appeal Division found should continue, has not yet been completed, must find that it is still premature to enjoin the disciplinary process prior to its conclusion. For these reasons, the application for an interim injunction isdismissed, without costs. HALIFAX, NOVA SCOTIA J. May 1990 1990 S.H. NO. 72667 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: DONALD FRANK RIPLEY, and PAUL POMMIER, GEORGE DUNN and RENE JARRY and THE INVESTMENT DEALERS ASSOCIATION OF CANADA, Respondents

This was an application for an interim injunction restraining the respondents from further proceedings against the applicant, in particular restraining a sentencing hearing, in respect of charges of professional misconduct. The application was made pending the outcome of an application for certiorari quashing the decision of the disciplinary panel. The Appeal Court had refused to issue an interim injunction restraining the disciplinary hearing, holding that the courts should not interfere with the tribunal's proceedings until its completion except in very exceptional circumstances. In the case at hand, the applicant's counsel had requested an adjournment of the sentencing hearing on the ground that the applicant was medically unable to attend. The respondent's counsel then sought to settle the matter of penalty by written submission. The respondent's by-laws respecting penalty provided that the applicant shall be given the opportunity to appear and be heard. Dismissing the application for an interim injunction, that because the sentencing hearing was merely an extension of the disciplinary proceedings, rather than a new proceeding, the court was bound by the Appeal Court decision which held that the Court should not interfere with the proceedings of a quasi-judicial or other tribunal by interim injunction or stay except in very exceptional circumstances, which requirement, the Appeal Court had concluded, the applicant did not meet.

1990canlii4096.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2018 SKPC 006 Date: January 30, 2018 File: 531/17 Location: Regina Between: Reliable Truck Trailer Ltd. and Super Save Disposal (Saskatchewan) Inc. Shealagh Mooney For the Plaintiff James R. Kitsul For the Defendant JUDGMENT DEMONG, Introduction [1] Reliable Truck Trailer Inc., hereafter referred to as ‘Reliable’, is mobile vehicle and associated equipment repair company situated in Pense, Saskatchewan. In the summer of 2015 it entered into an oral agreement with Super Save Disposal (Saskatchewan) Inc., hereafter referred to as ‘Super Save’, in which it agreed to provide, on ‘call out’ basis, repair services for Super Save’s fleet of trucks and associated equipment. When required, it would also provide shop supplies and parts to effect those services. [2] Between the summer of 2015 and June of 2016, it provided shop supplies, parts, and services on number of occasions. Early in the relationship, Super Save paid Reliable’s invoices as they were presented, but in or about November of 2015 it ceased to pay invoices as they became due. Reliable inquired as to the reasons why its invoices were not being paid, and it received what might best be described as less than clear and cogent explanation, other than that Super Save felt that some of the charges were too high. Some of these invoices were negotiated, reduced, and paid, and others were simply left unpaid without explanation. [3] Eventually Reliable demanded payment of its outstanding invoices and Super Save offered much smaller sum of money in satisfaction of those accounts. Reliable was not prepared to accept the lesser amount and it now brings this action to recover the amount that it says is due. It says that it provided goods and services on 22 separate occasions and invoiced Super Save total of $18,380.42. It was paid only $8,614.17. It seeks to recover the difference, which equates to the principal sum of $9,766.25. It seeks prejudgment interest on that amount and its legal costs for having to bring this action. [4] Super Save has defended the action and maintains that the amount that was charged for some of the goods and services that were provided was greatly in excess of the amounts that it should have been charged, and that, therefore, the amount sought was unreasonable. It argues that in the absence of an express term in the agreement as to the amount that could be charged for each of the goods and services that were provided, Reliable is not free to charge whatever it chooses to charge. It argues that this Court should determine the amount that is due by importing into the contract, an implied term, to the effect that the parties agreed to charge, and pay, reasonable price for the goods and services that were provided. [5] Reliable concedes that there was no overarching agreement on the totality of the prices to be charged for goods and services, but maintains that there had been, for short period of time, convention that had developed whereby Super Save agreed to four things. First, it alleges that the parties, either expressly or by inference, agreed that Reliable could charge minimum three hour call out charge on each occasion that Reliable was called out to provide services. Second, it argues that Super Save agreed to let Reliable charge an hourly rate for travel time to and from any given worksite. Third, it argues that it should be allowed to charge for the time it took to locate and obtain certain parts that it needed to do the repairs, (known as ‘parts call out’), and, that Super Save should also be required to pay for the actual time incurred by Reliable to source and obtain those parts. Fourth, it alleges that by virtue of the fact that Super Save did not originally take issue with Reliable’s practice of charging for each small product that it used in the course of providing mechanical services, it is now estopped from claiming that Reliable was not at liberty to charge for these ‘shop supplies’ at an amount in excess of ten percent of the total invoice. [6] In reply, Super Save adamantly denies that there was ever an express or implied agreement to allow Reliable to charge minimum three hour ‘call out fee’ for the services it provided, or to charge for travel time without express pre-approval. Second, it says that it made it absolutely clear to Reliable that it should, firstly, access Super Save’s own products, and if these were unavailable, it should have contacted Super Save. This would allow Super Save the opportunity to contact supplier to provide part in short order and at reduced cost. It argues that Reliable effectively padded its accounts by purchasing at higher rates and charging for unneeded travel time to obtain those additional products. Third, it says that Reliable has charged it for greater quantity of shop supplies than what was necessary to provide good and reasonable repair services. It argues that the amount it has been charged for these supplies should never have exceeded the industry norm that is to say, an amount not in excess of ten percent of the total services that were invoiced, to maximum of one hundred dollars. Finally, it argues that there were occasions in which Reliable charged for time that it did not expend in the performance of its duties. It argues that Reliable is subject to an overarching principle under this contract one of good faith. Since Super Save could not monitor Reliable’s time on each occasion that it performed services, Reliable had to ensure that the time it charged was accurate, and if it did not, then it has breached its contract with Super Save. The Law [7] I accept that the law demands, that in the absence of an express term in a contract which stipulates a price to be paid for goods, or services, or both, an implied term that the parties agreed to pay a fair and reasonable price for those goods and/or services be imported into that agreement. This Court has dealt with this principle, otherwise known as contractual quantum meruit, on countless previous occasions. Authority for this principle of law can be found by reference to our Court of Appeal’s decision in CH2M Hill Energy Canada, Ltd. Consumers’ Co-operative Refineries Ltd., 2010 SKCA 75 (CanLII), 362 Sask 104. [8] also accept that in ascertaining what might constitute fair and reasonable price to pay for goods and services, court is free to consider, as the litigants have invited me to do, fee which an industry would consider to be customary. [See Generally: Saskatchewan Government Insurance Medynski (Lakeland Towing), 2012 SKQB 157 (CanLII), 396 Sask 104 [Medynski]. Medynski identified other factors for consideration, including the cost to the claimant providing the service, the value placed on the service by the recipient, the contract price, and, what the recipient had previously paid for the same service but because the parties have not founded their arguments, or led evidence on these latter factors, they do not come into play in this decision. [9] also accept that the principles surrounding the law of estoppel by convention have been articulated and summarized by our Supreme Court in Ryan Moore, 2005 SCC 38 (CanLII) at para 59 [2005] SCR 53. Those essential principles demand that before estoppel by convention can be applied, the parties’ dealings must have been based on mutual assumption of fact or law, created by statement, conduct, or implied by silence, whereby one party has conducted itself (or acted) in reliance on that shared assumption so as to change its legal positions. In so doing, the party has suffered detriment, such that it would be unfair or unjust to allow one of the parties to resile or depart from the common assumption. [10] Finally, note that Reliable, as plaintiff in these proceedings, carries the burden of proof, on balance of probabilities, to convince the Court that it is entitled to the quantum of damages that it seeks. The Evidence, Findings of Fact, and Analysis [11] This Court finds itself, once again, embarking on what is, in essence, an accounting, based on an oral agreement, to be undertaken long after the provision of goods and services, based not necessarily on what either party had thought were the respective rights and obligations of the other, but rather, based on the evidence of experts who played no role in the provision of those goods and services. To any erstwhile reader of Provincial Court judgments, would urge you to give some consideration to setting down, in written form, those essential terms that will define any contractual relationship that you may wish to entertain. [12] Before discussing the accounting that is necessary, I wish to deal with the plaintiff’s argument regarding estoppel by convention. While I appreciate plaintiff counsel’s clear and cogent legal analysis of this area of law, I am not satisfied that the plaintiff has provided a sufficient evidentiary foundation upon which that legal argument can be predicated [13] While the parties agreed on flat labour rate of $85.00 per hour, the parties disagree on four significant things. First, the plaintiff says that it understood that it could charge for travel, but the defendant says that this was never part of the agreement (unless discussed beforehand where significant travel was anticipated). Second, the plaintiff was of the view that it could charge for three hour minimum attendance, but the defendant adamantly denies that this was agreed to. Third, the plaintiff maintains that it could charge for miscellaneous, but rather nominal shop supplies, at an identified value per part regardless of whether or not the quantum charged for those parts exceeded ten percent of the total invoice, but the defendant says that it did not agree to this term. Fourth, the plaintiff says that it could, when necessary, source larger but still rather nominal supplies (and charge for the larger retail price) without seeking pre-approval from the defendant, something which the defendant states was absolutely not in the agreement. [14] have heard evidence from each party asserting their respective views on these issues, and each of the parties present credibly. Because the evidence is in direct contradiction, it is incumbent on the plaintiff to lead some additional evidence to meet the burden of proof necessary to show that convention developed whereby the defendant habitually paid on the terms articulated by the plaintiff. [15] There was no evidence led as to precisely when the contract commenced, and therefore, have no evidence as to how much time elapsed, nor do know how many invoices may have been presented by the plaintiff and approved by the defendant, before the defendant started to take issue with the invoices. am, therefore, unable to determine how long the supposed ‘convention’ of paying these assorted costs occurred. Summer in Saskatchewan runs from June 21st until September 21st. When did the contract commence? While the parties both acknowledge that concerns were first raised in November of 2015, had three previous invoices been submitted, or was it ten or fifty or more? The Court has no way of knowing. [16] It is clear that prior to November of 2015 the defendant did not take issue with the invoices that were being submitted. The defendant has given evidence that this is precisely because the defendant thought the prices were within the confines of the agreement that it says it entered into to the effect that they would not take issue with fair and reasonable price. [17] It was only in November of 2015 that the defendants felt that they were being charged too much. None of the pre-November invoices were submitted into evidence. If they had been, and if they confirmed that convention had developed whereby the plaintiff was charging minimum of three hours for job that took less time; or that travel time was being included; or that there was specific charge for miscellaneous parts that exceeded fair and reasonable price; or that retail prices and downtime for obtaining parts were charged without the express authorization of the defendant, then an evidentiary foundation would exist for the plaintiff’s position, but as have said, none of these invoices were tendered into evidence. [18] Any argument advancing estoppel by convention must, at minimum, show the existence of mutual assumption, that is to say, practice or convention that had developed, over sufficient time, to convince court that the plaintiff would have relied upon this practice to its detriment. Unfortunately, while the plaintiff asserts that the convention had developed, the defendant denies it. Where is that additional evidence which would tip the balance in favour of the plaintiff? There is none. There is only an assertion which, in turn, has been denied by the defendant. [19] Nor am satisfied that the defendant’s failure to identify precisely why they were paying some accounts, but not others after November of 2015, would be evidence of the estoppel by convention that the plaintiff seeks to advance. say this because find as fact that the parties did not share the same mutual assumptions. The defendant felt that the charges would, simply put, be fair and reasonable, albeit at stated rate of $85.00 per hour. The plaintiff felt that it could charge differently, and in manner already described earlier in this judgment. Because no evidentiary foundation has been established to satisfy me that there was mutuality of assumption on the manner of invoicing for goods and services rendered, am not prepared to consider the estoppel by convention argument advanced by the plaintiff. [20] Even if this evidence had been led, I would still have reservations in accepting this argument, because I have heard no convincing evidence of detriment reliance. Plaintiff’s counsel has invited me to conclude that had the defendant not complied with its obligation to pay in accordance with these assumptions, then the plaintiff would have turned to alternative and more lucrative work. But there was no evidence presented in court on this point. That is to say, I did not hear any representative of the plaintiff assert that the plaintiff had the opportunity to seek more lucrative work, but declined to accept that more lucrative work, in reasonable reliance of an understanding that the defendant would pay the amount of money that it was seeking on the terms that it thought existed under the agreement. In fact, the evidence leads me to conclude otherwise. Notwithstanding the defendant’s ongoing concerns with the invoices that were submitted, and notwithstanding the defendant’s directions to reduce accounts on occasion, and notwithstanding that many invoices were not paid for an extended period of time, the plaintiff stood ready and willing to continue to work for the defendant. well understand plaintiff counsel’s desire to have me find the existence of detrimental reliance, but cannot find it on the evidence presented, and am not prepared to infer its existence. It would be as simple to draw an inference in favour of the defendant to the effect that the terms of the agreement as posited by the defendant, were being followed by the plaintiff up until November of 2015, when the plaintiff started to charge for goods and services in different manner. [21] Because I cannot, on the evidence, identify the express terms of the contract stipulating the price to be paid for the various goods and services that were provided, I am obligated to import an implied term to the effect that the parties agreed to charge, and pay, a fair and reasonable price. Twenty-two invoices are in dispute. Each of the parties have presented their own reasons why they feel the invoices as presented were either fair or inflated, and each called an expert to speak to what fair and reasonable price would be for each of the goods and services that were provided. Those experts have, in turn, looked to each of the invoices that are in dispute and have provided their opinion as to whether that particular invoice was fair and reasonable, and if not, what the price should have been, and why. [22] Before going through each invoice, wish to make certain findings which will assist in that endeavour. First, find that the parties were in general agreement that parts which would cost significant amount of money would not be purchased by the plaintiff unless it had first discussed the matter with the defendant. This seems to be reasonable industry standard. would expect that mechanic would exercise some discretion and contact client to advise of significant but unexpected cost for particular part. The problem is that no evidence was led as to where that price point would be, and can certainly understand the difficulty on the part of the plaintiff, on each and every occasion, in attempting to contact the defendant to ascertain whether or not he could, or should, source the part himself or seek the assistance of the defendant. While the defendant has offered oral evidence on what might have constituted the discounted price that it could have obtained if it had sourced the part rather than letting the plaintiff source the part, none of this evidence was supported with satisfactory evidence as to what that discounted price would actually be, and, in my view, these discounted amounts were only offered as an estimate. Therefore, am unwilling to discount invoices for this reason alone. That is to say, will not consider the defendant’s argument that reduce one or more invoices simply because the plaintiff incurred additional time and arguably higher retail cost to acquire certain parts what has been identified in the invoices as ‘parts call out’. [23] Second, accept the defendant’s evidence as it relates to those shop supplies that are necessarily included in any repair service. The defendant has led evidence to the effect that incidental goods, identified generally as shop supplies, such as brake cleaner, lubricants, washers, nuts, and bolts and other sundry items are not, in the repair industry, generally charged on piece meal basis, but rather are incorporated into an invoice as constituting the supplies component of the services delivered. These are, invariably, valued at ten percent of the total services charged, to maximum of one hundred dollars. accept the defendant’s expert evidence in this regard and will consider this sensible and practical protocol when assessing fair and reasonable quantum to be assessed for each invoice. [24] Third, am satisfied that in businesses such as the plaintiff’s, the industry anticipates that either travel time to and from the work location is regularly billed and paid for, or alternatively, that minimum period of time is charged for the call out. The evidence does not, however, suggest that both of these are normally charged. Were this so, there would be an element of double recovery. By example, an oil change may only take one hour. To charge three hour minimum charge for this service and then charge an additional one-half hour travel time to and from the vehicle in question, at stated rate of eighty-five dollars an hour, would mean that client is paying the equivalent of four hours, or $340.00 for an oil change, something which the defendant properly points out as completely unrealistic. Similarly, the plaintiff is, think, correct from an industry standard point of view, when it argues that it would be equally unreasonable for defendant to call out service provider to travel one-half hour to vehicle on the road side to change tire, and then drive home for one-half hour, all the while employing not only the plaintiff but his vehicle, and be charged only $42.50 for the time it took to change the tire. This would equate to an effective hourly rate for the employment of person and supporting supply vehicle for rather nominal rate of $28.50 per hour. [25] The evidence before the court suggested that the industry does regularly charge minimum number of hours per call. The defendant suggested that it would be between one and three hour minimum. The plaintiff suggested two to four hour minimum. am satisfied that three hour minimum charge, would, on the somewhat limited evidence provided to this Court, be reasonable industry standard. [26] Finally, where the remainder of the expert evidence conflicts, prefer the evidence provided by the defendant’s expert. The plaintiff’s expert was previous partner of the plaintiff, having sold his share of the company to Mr. Baran year earlier. This caused me concern as to his willingness to be objective. In addition, the evidence that he gave, more often than not, was given in an off-the-cuff manner, often without explanation or clarification. The bald assertion, for example, that an invoice looked ‘okay to him’ or ‘seemed fair’, without any further explanation, was not particularly helpful to the court. By comparison, the defendant’s expert took the time to explain why he felt that particular repair service took particular amount of time. [27] With these considerations in mind, have looked to the calculations and allowed three hour minimum charge out fee. have allowed an additional hour on parts call out and have allowed the actual price paid for those parts obtained. have limited the shop supplies to ten percent of the labour component of the invoice, and where the parties’ evidence conflicts as to the number of hours that should have been charged, have preferred the evidence of the defendant, subject to three hour minimum charge. have reviewed each invoice and make the following adjustments, which are inclusive of taxes: Invoice Amount Charged Adjusted Amount 431 $577.67 $308.55 432 $981.20 $514.25 526 $517.48 $352.55 578 $645.16 $308.55 583 $1,850.20 $1,291.40 595 $1,994.85 $1,131.35 597 $570.63 $359.98 598 $500.50 $361.35 599 $1,466.30 $884.95 600 $639.79 $322.85 601 $505.86 $308.50 605 $1,081.57 $617.10 606 $362.17 $308.55 607 $366.30 $312.68 608 $328.07 $308.55 609 $322.57 $308.55 610 $1,074.22 $529.91 611 $477.70 $308.55 612 $322.57 $308.55 617 $1,502.46 $813.45 622 $617.31 $361.35 623 $845.63 $580.80 Total Charged $18,702.99 Adjusted $10.902.32 [28] I find that a fair and reasonable price to be paid for the goods and services provided by the plaintiff to the defendant for the period of time for which the plaintiff went unpaid equates to the sum of $10,902.32. As it has been agreed between the parties that the sum of 8,614.17 was paid, there remains due and owing the sum of $2,288.15. award prejudgment interest on that sum from June 30th of 2016 in the further sum of $22.70. [29] The results of this trial have been mixed. The plaintiff has received some but not nearly all of the money that it was seeking. The defendant has been successful in reducing the amount of money that was sought, but not entirely. The plaintiff has not quantified its costs, but the defendant asks that this Court grant it out of pocket expenses that it incurred in having to retain an expert to give evidence on the issue of fair and reasonable price to be paid for the goods and services rendered. The defendant properly points out that this trial had to be adjourned on one occasion because the plaintiff had not adequately prepared, and that it had, therefore, incurred the cost of having his expert attend not once, but twice. [30] The defendant has submitted two statements of account from their expert. The first, for his initial attendance, equates to $1,032.30 broken down as $250.00 for travel from Grasswood, Saskatchewan, and eight hours at unit price of $85.00 per hour, for acting as an expert witness for the further sum of $680.00. Taxes were charged in addition to these sums. The second account is in the sum of $1,853.48 which includes $250.00 for travel to Regina and back, and two full eight hour days at $85.00 per hour for trial attendance. [31] While success is mixed, the defendant has properly pointed out that good faith performance of contract is an organizing principle of contract law, and as our Supreme Court noted in Bhasin Hrynew, 2014 SCC 71 (CanLII), [2014] SCR 494 parties to an agreement have common law duty to act honestly in the performance of contractual obligations. The defendant points out that while the accounts rendered by the plaintiff started to feel inordinately high commencing in November of 2015, it was not until sometime later that one of the managers of the defendant watched video recording of the plaintiff work for only couple of hours, and subsequently submit bill for greater number of hours. found that evidence credible, and the plaintiff provided no meaningful explanation. am satisfied that one of the reasons that the parties were unable to resolve this matter, and why this trial had to proceed, was to show that there was compelling evidence of the plaintiff’s failure to comply with its duty of honesty, and its corresponding tendency to pad an invoice. [32] am prepared to award portion of the costs that the defendant is seeking. am prepared to award the cost of the expert’s travel to and from Grasswood (a round trip distance of 500 kilometers) at per kilometer rate of $.42 for each of the two occasions that he was required to attend. disregard the eight hours billed for giving evidence on the first occasion as no trial proceeded at that time. award the further sum of $340.00 to reflect what consider to be reasonable two hours for the expert to prepare to give his evidence, and another two hours for his attendance at trial. In total award the defendant costs in the sum of $760.00 which will be set off against the plaintiff’s damages award. [33] In conclusion, award the plaintiff the sum of $1,550.85, which sum is to be paid immediately. P. Demong,

HELD: On the basis of the evidence presented by the parties’ experts and in absence of an express term in the contract, the court read in an implied term that the parties agreed to pay a fair and reasonable price and awarded the plaintiff such portion of the amount sought as was fair and reasonable. The plaintiff did not provide a sufficient evidentiary foundation to establish estoppel by convention as it did not tender the invoices that were paid. Even if such evidence had been led, there was no convincing evidence of detrimental reliance as the plaintiff presented no evidence that it would have turned to alternative and more lucrative work.

d_2018skpc6.txt

1995 SBW 3096 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: LEI-VALLI DUNHAM-THOMPSON and THE TOWN OF MAHONE BAY and THE ATTORNEY GENERAL OF NOVA SCOTIA REPRESENTING HER MAJESTY THE QUEEN IN RIGHTS OF THE PROVINCE OF NOVA SCOTIA DECISION HEARD: before the Honourable Chief Justice Constance R. Glube in Chambers, Halifax, Nova Scotia, August 28 and September 3, 1996 DECISION: Dated the 6th day of September, A.D., 1996. COUNSEL: M. Dunphy and R. Niedermayer for the Applicant, Town Blair Mitchell for the Respondent/Plaintiff Glube, C.J. This application pursuant to Civil Procedure Rule 12.06, is for an order setting aside the default judgment entered against the Town of Mahone Bay on February 7, 1996. As result of filing the default judgment, the application to assess damages has been set down for hearing in Bridgewater, Nova Scotia on October 26, 1996. The applicant filed the affidavits of Peter A. Flett, insurance adjuster for the Town employed by Lombard Canada Limited; Kyle R. Hiltz, the Town Clerk of the Town of Mahone Bay; and Richard S. Niedermayer, an associate with the law firm Cox Downie, solicitors for the Town in this application. The plaintiff/respondent filed the affidavit of her former counsel, Andrea Smillie. At the commencement of the hearing, counsel for the plaintiff advised the court the plaintiff is making no argument or objection to any delay in the Town bringing this application. accept the position of counsel. By letter dated July 18, 1996, counsel advised the Attorney General would not be making representations on this application. In 1989 or 1990, the Town hired CBCL Ltd., consulting engineers, to do study of the Town's sewer and water systems. CBCL was subsequently hired by the Town as consulting engineers to proceed with tenders for the work. Woodlawn Construction Co. was the successful bidder and entered into formal contract with the Town to do Phase 3. They commenced the work in August of 1993 and completed it in September, 1994. As part of Phase 3, an access road was constructed along side the plaintiff's property leading to the sewage treatment lagoon installed on hill adjacent to the plaintiff's property. The road work started in the fall of 1993, stopped for the winter, resumed on June 6, 1994, and was completed on July 18, 1994, when the road was paved. The plaintiff claims mudslide occurred during the road construction causing extensive damage to her property. She further claims general, special and exemplary damages, pre-judgment interest and costs on solicitor and client basis. The claim is for negligence and nuisance and there are additional claims for lost rentals, emotional upset and anxiety. The history of the pleadings and some of the relevant correspondence and contacts are as follows: October 5, 1994, the Town received notice of intended action. This was forwarded by the Town Clerk, to the Town's insurance agent, Mahone Insurance Agency. November 21, 1994, Mr. Baker, solicitor for the Town, received notice of change of solicitor for the plaintiff to Ms. Andrea Smillie. This was sent to the insurer by the Town Clerk. January 19, 1995, Ms. Smillie sent Mr. Baker draft statement of claim. Mr. Baker replied on the same date specifically stating the Town reserved the right to defend the claim fully and that it would raise all available defences. The draft statement of claim and Mr. Baker's reply were sent to the Insurer. January 26, 1995, Mr. Peter Flett of Continental Canada (the predecessor of Lombard) requested from the Town, copy of the contract and the tender to determine who was the proper insurer. May 16, 1995, the Town was served with the originating notice and statement of claim. May 18, 1995, Mr. Flett received copy of the statement of claim. He contacted Ms. Smillie on the telephone and advised he was trying to find out who the correct insurer was. He requested an indefinite waiver of the need to file defence pending his further efforts. May 19, 1995, Mr. Baker sent the affidavit of service confirming service on the Town to Ms. Smillie. By letter, Ms. Smillie confirmed to Mr. Flett the plaintiff would not proceed to judgment except on 10 days written notice. June 8, 1995, the Prothonotary of the County of Lunenburg informed Ms. Smillie and the Town, the Attorney General of Nova Scotia had filed defence. June 20, 1995, Ms. Smillie received certified copy of the Attorney General's defence. October 23,1995, Ms. Smillie wrote the Town Clerk concerning the matter and about any anticipated difficulties arising from the matters at issue. November 27, 1995, Mr. Flett received letter from Ms. Smillie confirming she would provide 10 days notice before filing default judgment. She also wanted the matter to proceed. At that point Mr. Flett spoke to his supervisor, and since he had received no response from Woodlawn's insurer, suggested and it was agreed, Mr. Flett would refer the file to Cox Downie to file defence on behalf of the Town. December 13, 1995, Mr. Flett spoke to Ms. Smillie on the telephone. She again said she wanted the litigation to move forward, at which time he told her he was forwarding the file to lawyers to have defence filed. December 14, 1995, Mr. Flett again asked for and received from the Town Clerk copy of the Woodlawn contract with the Town. December 18, 1995, Ms. Smillie wrote to Mr. Flett indicating defence must be filed by January 15, 1996. Although this letter is date stamped as received by Continental Canada on December 21, 1995, it does not bear Mr. Flett's initials and he has no recollection of being aware of the date the defence had to be filed. It was his usual practise to put his initials near the date stamp. In his affidavit sworn July 4, 1996, he states in paragraph 20, "I cannot say for certain if reviewed it when received." February 7, 1996, default judgment signed by the Prothonotary was entered against the Town. February 13, 1996, by letter from Ms. Smillie to Mr. Baker and copied to Mr. Flett, they learned of the default judgment being entered. This letter was received on February 16. Mr. Flett immediately phoned Mr. Dunphy of Cox Downie, with instructions for him to take action to have the default judgment set aside. According to Ms. Smillie, Mr. Flett only initiated one call to her, but Guardian Insurance, insurer of the contractor, Woodlawn, was in touch with her by telephone, meeting was held in August and there was an exchange of correspondence to and including October 12, 1995. Mr. Flett who learned Guardian insured the Town from December 1993 to April 1995, wrote to them about the matter in July of 1995, but received no reply and did not follow up with them. Effectively Mr. Flett did little work on this file from January 1995 until default judgement was filed in February 1996. Although Mr. Flett claims he was putting the material together in December 1995 and early January 1996, he did not complete and forward letter to Cox Downie before the default judgment was filed and entered in February. Following the filing of the defence by the Attorney General on June 8, 1995, the only new filing was list of documents by the Town on July 30, 1996. As of June 18, 1996, the plaintiff had not filed notice of intention to proceed. The current application was filed on July 17, 1996. The applicant raises the following issues: Should the default judgment be set aside because:1. there was no notice of intention to proceed filed prior to entering the default order; and/or 2. the court should exercise its discretion under Civil Procedure Rule 12.06; and/or 3. it was granted by the Prothonotary and not by the court contrary to Civil Procedure Rule 12.03. 1. Notice of Intention to Proceed. Civil Procedure Rule 3.04 is requirement for one month's notice of intention to proceed where six months or more have elapsed since the last step in proceeding: "3.04 Where six months or more have elapsed since the last step in a proceeding, the party who desires to proceed shall, unless the court otherwise orders, give to the Prothonotary and every other party not less than one month's notice of his intention to proceed, and a notice on which no order was made is not a step for the purpose of rule 3.04. Neither discontinuance nor an application to dismiss for want of prosecution is step in proceeding." The originating notice and statement of claim were issued on May 4, 1995, served on May 16, and defended by the Province of Nova Scotia on June 8, 1995. The default judgment was filed on February 7, 1996. There had been no intervening step in the proceedings. There is no evidence in the court file of a notice of intention to proceed. No evidence was filed whether or not any notice went to the Attorney General. The applicant submits the decision in Canada v. Kulyk (1994), 88 FTR 211 (FCTD) confirms an application for judgment in default is step in the proceeding requiring notice of intention to proceed if six months or more has elapsed from the last step. It further confirms correspondence between solicitors or the parties without formal notice does not constitute valid notice of intention to proceed. Similarly in Pinard et al. v. Bushell et al (1975), 20 N.S.R. (2d) 317, where default judgment was entered with damages to be assessed and the plaintiff gave the applicant notice of hearing for the assessment of damages more than six months later without having given one month's prior notice of intention to proceed, Cowan, C.J.T.D. held the assessment of damages was "step in the proceeding" and the previous step was the default judgment. Failure to give notice was held to be fatal defect. The plaintiff submits her counsel continuously pressed the Town, directly or indirectly, to file defence which would allow her to get on with the matter. The Court agrees with this allegation. However, sending a letter to an insurer does not satisfy the requirement of the Rule. Mr. Flett denies receiving any verbal indication on the 13th of December of the deadline which, even if given, would also not satisfy the requirement according to Civil Procedure Rule 3.04. do not accept the argument that by not specifically using the word "filing" in Rule 3.04 that filing is not required. The Rule does say the prothonotary is to be given one month's notice. If that occurs, have no doubt in my mind upon receipt of notice of intention to proceed if in written form, it would be automatically filed in the court file for the case. acknowledge Civil Procedure Rule 3.04 does not require the notice to be in writing or in any particular form, although the Nova Scotia practise is formal document. The important aspect is notice to the prothonotary and every other party. The fact the Prothonotary did not object to the request for default judgment without the notice of intention to proceed is immaterial. In granting the order, the prothonotary would generally rely upon counsel and would not necessarily review the whole file before signing the order. The order was in form which the prothonotary was apparently authorized to sign (Civil Procedure Rule 51.05(1)(d)). If the prothonotary's filing systems were automated, the failure to file or notify the prothonotary under Rule 3.04 would be readily apparent. The system is not automated. Should the doctrine of estoppel or waiver apply as was argued by the plaintiff. She relies on Marchischuk v. Dominion Industrial Supplies Ltd. (1991), 1991 CanLII 59 (SCC), 50 C.P.C. (2d) 231, (S.C.C.) at p. 235. '...equitable estoppel, finds its origin in the early case of Central London Property Trust Limited v. High Trees House Limited, [1947] K.B. 130, which determined essentially that where representation is made by one party and relied upon by another to that person's detriment, the party making the representation will be estopped from following contrary course of action. This concept has been modified to mean basic sense of fairness and equity. One should not be able to say one thing, have it acted upon, and then behave differently than first represented.' [Emphasis original.] ... 'The second issue of waiver comes into effect when party knowingly acts in manner where he waives or foregoes reliance upon some known right or defect. It is important that the right or defect, as the case may be, be known, since one should not be able to waive rights of which he was not fully aware or apprised.' In Marchischuk, although liability was admitted during negotiations which carried on past the limitation period and money offer was sent, eventually the insurer denied the claim based upon the Limitation of Actions Act, R.S.M. 1987, c. L150. The Supreme Court found the insurer was not estopped nor had there been waiver. It also held, waiver must relate to known right, but the facts found the parties never discussed whether the statement of claim had been filed. There was no evidence of any promise not to rely on limitation period. In the case at bar, the plaintiff submits the applicant is estopped from raising procedural issue when it had the benefit of not having to file defence in timely fashion on condition the Town would receive 10 days notice which was sent. It is submitted the insurer accepted this condition by its conduct and thus the court can apply Civil Procedure Rule 2.01. Mr. Flett, during cross-examination on his affidavit, denied any knowledge of the purpose of notice of intention to proceed. Thus, there was no "known right" waived by Mr. Flett as expressed by Justice Sopinka in Marchischuk. Also, there is no evidence that former counsel for the plaintiff did not file notice of intention to proceed because she was relying on something said to her by Mr. Flett. In the present case, am unable to find there is any estoppel or waiver. Turning in any event to Civil Procedure Rule 2.01, in Maynard v. Irving Oil Ltd. et al. (1990), 96 N.S.R. (2d) 253 A.P.R. 86, the defendant did not file notice of intention to proceed before filing notice of trial. It was held the failure to file notice was merely an irregularity and there was no prejudice to the plaintiff. In the present case the facts are quite different. Although relying on Civil Procedure Rule 2.01 would be in accord with the Court's view if the facts were as in Maynard, in the case at bar, filing default judgment against the defendant Town causes the Town possible serious injustice. It ends its possibility of filing defence and contesting liability. It also verifies the plaintiff's claims including exemplary damages and solicitor and client costs. In Pick O'Sea Fisheries Ltd. V. National Utility Service (Canada) Ltd. (1995), 146 N.S.R. (2d) 422 A.P.R. 203 (C.A.), the prothonotary had no authority to grant default judgment. Flinn, J.J.A. at p. 214 states: The Rules are an attempt to streamline the process which leads to the ultimate determination of the issues in dispute between the parties. If, in that process, Rules are not complied with, in most cases through inadvertence, the court will invariably allow the noncompliance to be corrected, provided the correction does not cause an injustice to the other party, in order to get on with the determination of the real issues in dispute between the parties. In this case the failure to comply with rule 12.03 is much more serious than an error, or irregularity, in the process leading to the ultimate determination of the real issues in dispute between the appellant and the respondent. The granting of the order for judgment by the prothonotary which the prothonotary had no authority to grant (and to which the respondent was not, at that time, otherwise entitled) was determinative of the proceeding." [Emphasis in the original]. The applicant submits where default judgment is filed, if Civil Procedure Rule 3.04 is not complied with, then there is no discretion in the court and as of right, the default judgment must be set aside. Although Civil Procedure Rule 3.04 is permissive, that is, the court could order otherwise, find the failure to file notice of intention to proceed is not mere technicality in this case. However, in my opinion, this does lead me to examine whether or not there is fairly arguable defence. Without that, setting aside the default judgment would be meaningless and costly exercise. do not read Pick O'Sea Fisheries Ltd. as automatically requiring in every case the default judgment be set aside. 2. Civil Procedure Rule 12.06. Should the Court exercise its discretion under Civil Procedure Rule.12.06. "12.06 The court may, on such terms as it thinks just, set aside or vary any default judgment entered in pursuance of Rule 12. [E. 13/91 ]" From the case law, the two requirements to strike out default judgment are well established. First, the applicant must show the court there is fairly arguable defence or serious issue to be tried and second, there is reasonable excuse for not filing the defence. The position of the applicant is contained in the affidavit of the Town Clerk. the plaintiff submits the applicant has failed to provide the necessary facts on which determination can be made as to whether or not there is fairly arguable defence. First, the plaintiff argues the role of CBCL Ltd., the consultants, as between the Town and the contractor, is missing, and with this lack of evidence, should not find the applicant has fairly arguable defence. In response, the applicant says the whole thrust of the statement of claim relates to the performance and effect of the construction work and in his affidavit, Mr. Hiltz denies there were any servants or employees of the Town who supervised the work. Second, the plaintiff says there is no evidence of an arguable defence on the claim of nuisance. In The City of St. John v. Donald, 1926 CanLII 66 (SCC), [1926] S.C.R. 371, Anglin, C.J.C., discusses the role of contractor who was hired by the City to deepen brook crossing street in the City. Dynamite was stored in shed which also housed tools. There was an explosion and the jury found the contractor was negligent. The judge in turn found the City liable as well. This was upheld by the Supreme Court of Canada. It was found the City had wide powers to interfere and control the contractor, but their mere existence does not make the contractor, or his workmen servants of the City. The person who employs an independent contractor to do work, which generally is not of nature resulting in injurious consequences, is not responsible for the negligence of the contractor or his servants in performing the contract. The case further held, vicarious responsibility will occur where the danger of injurious consequences is so inherent the likelihood of the consequences occurring would be obvious to any reasonably well-informed person unless precautions were taken. That duty cannot be delegated, whether to servant or to contractor, to escape liability for the consequences of failure to discharge it (p.383). On reviewing the affidavit of the defendant, it would appear the Town has fairly arguable defence on the basis that respondeat superior does not apply. On the issue of nuisance, find this will depend upon the facts of the case. It is not my function to decide the case at this stage. The determination of the facts are for the trial judge and whether or not the defendant will be successful depends upon the finding of facts. find the applicant has provided sufficient evidence to show fairly arguable defence. Therefore, the first requirement for setting aside default judgment has been met. Although the applicant, in its written brief, put forward two other possible defences, no submissions were made as the Town determined they were not properly supported by the statement of claim. On the issue of reasonable excuse, although the applicant's submission was that whether or not Mr. Flett was inactive is immaterial, find the main thrust should be whether or not the Town at all times intended to file defence. There is evidence of this fact and that it was known to counsel for the plaintiff as early as January 19, 1995, in letter to Ms. Smillie from the Town solicitor Mr. Baker. Other correspondence and conversations with Ms. Smillie reiterate that position. The Town, through Mr. Baker, and at times through Mr. Flett, always indicated to the plaintiff an intention to defend and this was communicated to Ms. Smillie, counsel for the plaintiff at the time. (See Lewis-Choi Co. Ltd. V. Western Glove Works Ltd. (1990), 1990 CanLII 4098 (NS SC), 98 N.S.R. (2d) 282.) It is my opinion that Mr. Flett's actions or inactions were not necessarily reasonable, and his oversight or inadvertence in failing to read the December 18th letter was not reasonable, but the court should exercise its discretion and not deprive the Town of its right to defend as result of any default by the insurer. Any laxness does not appear to have been on the part of the Town. (See Marissink v. Kold-Pac Inc. et al. (1993), 1993 CanLII 3225 (NS CA), 125 N.S.R. (2d) 203 (C.A.), mistake by counsel and turmoil in solicitors office; Atlantic Rentals Ltd. v. Marine Oil Services Ltd. (1988), 85 N.S.R. (2d) 395 (N.S.S.C.A.D.) laxness of counsel, not of the client; Szczesniak v. Farocan Inc. (1992), 1992 CanLII 4533 (NS SC), 115 N.S.R. (2d) 292 (N.S.S.C.T.D.) difficulties in communication between defendant and counsel.) I find there is a fairly arguable defence and a reasonable excuse for not filing the defence. 3. Granting Order for Default Judgment by the Prothonotary. Should the default judgment be set aside because it was issued by the Prothonotary and not by the court. The applicant submits two possible grounds for claiming the Prothonotary did not have the jurisdiction to sign the order for default judgment. The first is based on the request in the statement of claim for prejudgment interest, and the second, on the claim for exemplary damages. Civil Procedure Rule 51.05(1)(d) allows Prothonotary to make an order where the order is interlocutory or final under Civil Procedure Rule 12.01 or 12.02. Dealing only with the portion which could apply to this case, the Prothonotary may issue the order for judgment if the claim is for unliquidated damages only, in which case the order of the Prothonotary is for damages to be assessed. If this does not apply, then the application for the order must be made to the court. The applicant submits prejudgment interest pursuant to the Judicature Act, S.N.S. 1972, did not exist when Civil Procedure Rule 12.01 came into force, therefore, it is not part of unliquidated damages and it cannot be claimed under 12.01. If it was necessary to decide this issue in my opinion claim for prejudgment interest is included in unliquidated damages. The Interpretation Act, R.S.N.S. 1989, c. 235, s. 9(1) states: "The 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." The applicant's second argument is whether exemplary damages are included in unliquidated damages. Liquidated damages are ones the parties have agreed upon at some time and are claimed in the action. Odgers' Principles of Pleading and Practice (22nd Ed.), at p. 46, defines liquidated damages as follows: "When the amount to which the plaintiff is entitled can be ascertained by calculation, or fixed by any scale of charges or other positive data, it is said to be "liquidated" or made clear ... But when the amount to be recovered depends upon the circumstances of the case and is fixed by opinion or by assessment or by what might be judged reasonable, the claim is generally unliquidated ... But if the claim is in its nature claim for damages at large, it is not in law treated as "liquidated demand" even if the plaintiff puts figure on the damages which he is claiming." As set out in Vorvis v. Insurance Corporation of British Columbia, 1989 CanLII 93 (SCC), [1989] S.C.R. 1085, punitive or exemplary damages are not compensating damages. There must be an actionable wrong causing injury to the plaintiff with malice, fraud, or cruelty involved by the defendant. There must be some harsh, vindictive, reprehensible conduct, requiring condemnation and punishment. Exemplary damages are fundamentally different from general or special damages. Although exemplary damages do not appear to me to fall within the definition of unliquidated damages, which would mean the Prothonotary had no authority to sign the default order, am not satisfied that have had sufficient research on this point and decline to make definite ruling. Since found the default judgment should be set aside based on Civil procedure Rule 3.04, and that there is fairly arguable defence and reasonable excuse for not filing the defence, it is unnecessary to decide whether or not exemplary damages (or solicitor client costs) fall under unliquidated damages. Conclusion As result of finding there is fairly arguable defence, find Civil Procedure Rule 2.01 cannot apply. The failure to file the notice of intention to proceed in these circumstances cannot be saved by Civil Procedure Rule. 2.01. The plaintiff should have taken the matter to court to seek default judgment. This finding is sufficient to set aside the default judgment. Even if am wrong on that issue, find the position of the defendant meets the test for the court to strike the default judgment under the provisions of Civil Procedure Rule 12.06. The application is granted. The defendant Town shall have 10 days in which to file its defence. The plaintiff is entitled to her "throw away" costs of obtaining the default judgment. (See Choi, supra, p. 287). These costs are fixed at $100.00. C. J. S. C. Halifax, Nova Scotia

This was an application by the defendants to set aside a default judgment entered against them by the plaintiff. Although a statement of claim was served on the defendant, it's insurer was advised by the plaintiff's counsel that she would not proceed to judgment except on 10 days written notice. More than six months later plaintiff's counsel sent a letter to the defendant's insurer giving 10 days notice. This letter was not seen by him although he was in the process of putting together material for a solicitor to file a defence. The defendant had always advised the plaintiff that it intended to defend. No Notice of Intention, required for default judgment if six or more months had elapsed since the last step in the proceeding, was ever given to the defendant before the filing of the default judgment. Allowing the application and setting aside the default judgment, that there was a fairly arguable defence and a reasonable excuse on the part of the defendant for not filing the defence. Sending a letter to the insurer does not satisfy the requirement of filing a Notice of Intention to proceed. The fact that the prothonotary did not object to the request for default judgment without the Notice is immaterial.

c_1996canlii5370.txt

J. Q.B. A.D. 1996 No. 209 J.C.S.C. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SWIFT CURRENT IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 45 OF THE ARBITRATION ACT, 1992, S.S. 1992, c. A-24.1 IN RESPECT OF THE ARBITRATION AWARD DATED NOVEMBER 4TH, 1996 IN RESPECT OF RAIL CONTRACTORS LTD. AND N.M. PATERSON AND SONS LIMITED BETWEEN: N.M. PATERSON SONS LIMITED and RAIL CONTRACTORS LTD. and MURRAY WALTER ARBITRATOR K. Bazin for the appellant ("Paterson Sons") R. Hale for the respondent ("A Rail Contractors") JUDGMENT BAYNTON J. May 23, 1997 Paterson Sons appeals an arbitration award respecting contract dispute between it and Rail Contractors. Background Facts The contract in issue concerns the construction of spur rail line by Rail Contractors to Paterson Sons' grain terminal in Swift Current. term of the contract provides that either party can refer any dispute respecting their contractual obligations to arbitration. dispute arose between the parties respecting the performance of the contract and both parties agreed to resolution of the dispute by arbitration. They each retained legal counsel, agreed on an arbitrator, and defined the issues to be resolved. The arbitrator heard two days of viva voce evidence, admitted several documents as exhibits, received written legal briefs from counsel, and subsequently rendered written decision that dealt with all the issues before him. His award was favourable in most respects to the position taken by Rail Contractors. The Arbitration Process court judgment is often the only means by which the parties to contract can resolve dispute respecting its performance. The provisions of The Arbitration Act, 1992, S.S. 1992, c. A-24.1 clearly indicate that it was designed to provide an alternate, more expeditious, and less expensive means of obtaining binding resolutions of contractual disputes. The only condition of its availability to the parties is that they agree to submit to it. Section 38 provides that an award binds the parties unless it is varied or set aside pursuant to s. 45 or 46. Section 18(2) provides that an arbitrator can determine questions of law. Section 22(1) provides that an arbitrator is not bound by the rules of evidence and has the power to determine the admissibility, relevance and weight of any evidence. The Scope of Review of an Arbitration Award Appeal Section 46 enables the court to set aside an award in prescribed circumstances that pertain to excess of jurisdiction, the incapacity of one of the parties, fraud, and other like matters. Section 45 sets out the right to appeal and the scope of review by the court. Almost any matter can be appealed provided the arbitration agreement so provides. But in the absence of an appeal provision in the agreement, no appeal can be brought without leave. Leave can only be granted if the court is satisfied that: (a) the importance to the parties of the matters at stake in the arbitration justify an appeal; and (b) the determination of the question of law at issue will significantly affect the rights of the parties. The scope of review of "leave" appeal is limited to question of law. In the case before me, there is no provision in the arbitration terms of the contract for an appeal. Paterson Sons accordingly was required to obtain leave to bring this appeal and my review of the arbitrator's award is restricted to questions of law. In his fiat grantingleave, Wimmer J. characterized Paterson & Sons' first proposedground of appeal (i.e. whether the arbitrator "applied thecorrect measure of damage") as one of law. He characterizedthe second ground, (i.e. whether "there was any evidence tosupport a finding of fact") as one of law as well. In Canadian Paperworkers Union, Local 1120 v. Prince Albert Pulp Co., 1986 CanLII 3224 (SK CA), [1987] W.W.R. 628 (Sask. C.A.) at pp. 640- 641 the court stated: At common law, the award of an arbitration board could only be set aside for error of law if it was bad on its face, and the court was confined to review of the award itself, together with any document incorporated by reference. In C.N.R. v. C.P. Ltd., 1978 CanLII 1975 (BC CA), [1979] W.W.R. 358 (B.C.C.A.) at p. 367 the court stated: If an allegation of error is to form basis for setting an award aside or remitting it to the arbitrators, it must be established that the arbitrators made an error; that the error was on point of law; that the face of the record shows that the error was made; that the decision on the point of law formed part of the reasoning leading to the answer to the question submitted and that the point of law was not the very question referred to arbitration. The parties do not disagree with these stated principles but they do disagree as to what constitutes an error of law. An error respecting evidence can in some instances constitute an error of law. As set out in the fiat of Wimmer J., it is question of law whether there is any evidence to support the finding of facts. But it is aquestion of fact whether the arbitrator made the correctdecision on the evidence presented. On appeals from decisions of court, unreasonable findings of facts that constitute palpable and overriding errors can be set aside. On judicial reviews of decisions of tribunals, patently unreasonable decisions can also be set aside. But no authority was cited to me by counsel for the appellant to indicate that such findings of fact can be set aside on an appeal under s. 45 of The Arbitration Act, 1992. On an appeal of an arbitration award, the court has only the record before it. The record is comprised of the arbitrator's decision and written reasons, the exhibits, and counsel's legal submissions. It does not include transcript of any of the viva voce testimony that was heard by the arbitrator during the two day hearing. Obviously, the arbitrator's award was based in part on that testimony. It is not available to the court as it would be in the case of an appeal from court judgment. Accordingly, even if some of the findings of fact are not well explained in the arbitrator's reasons, or are not borne out by the exhibits alone, the appeal court is not entitled to "rehear" the case or substitute its own view of the evidence and consider what it would have done had it been the arbitrator. It cannot delve into the evidence in an attempt to determine whether or not the arbitrator's findings of fact are "supported" by the evidence or are "contradicted" by the evidence as it is invited to do by the appellant. It can only vary or set aside the award if the arbitrator has made an error of law. The whole purpose and objective of the arbitration process would be undermined if party who was unhappy with the award could have the dispute reheard in court of law. Parties who want their dispute resolved by the courts should not agree to submit those disputes to arbitration. Analysis of the Arbitration Award I have determined from a review of the record thatthe findings of the arbitrator with which the appellant takesissue, do not involve questions of law but rather involvequestions of fact. As well, the errors complained of are thevery questions that were referred to the arbitrator fordetermination. The appellant's submission refers extensively to the evidence presented to the arbitrator. It constitutes in effect an invitation to the court to retry the case that was heard and determined by the arbitrator. a. The First Ground of Appeal The two grounds of appeal set out in the two notices of motion filed in connection with this appeal and with leave to appeal, each allege errors of law on the part of the arbitrator. But there is significant difference in the wording of the grounds described in the first and second notices of motion. On the leave application before Wimmer J., the first ground alleges that the arbitrator "erred in law in (sic) its application of the law of damages as to construction contracts when assessing damages". On this appeal, the first ground alleges that the arbitrator "erred in law by not awarding damages based on the cost of performance, and/or in the alternative, the difference in cost to the builder". In their written submissions to the arbitrator, counsel cited two lines of case authorities that set out the principles applicable to the determination of the measure of damages in "building cases". The vexing question in such cases is usually whether the measure of loss is to be valued on the basis of cost of performance (i.e. of bringing the system up to the standard originally intended) or in the diminution in value of the building (i.e. the difference between the commercial value of the plant as built and as it ought to have been built). One of the cases cited by counsel to the arbitrator was SEDCO et al v. William Kelly Holdings Ltd., 1990 CanLII 7822 (SK CA), [1990] W.W.R. 134 (Sask. C.A.), case that affirms the above statement at pp 162-63. It also holds that although the cost of performance is the prima facie measure of damages, considerations of reasonableness are capable of displacing it, as for example when the cost of performance is disproportionately high relative to the value of what is or might be achieved through performance. The arbitrator acknowledged that he was bound by the SEDCO case and he purported to apply it to the dispute before him. The ballast supplied and installed by the respondent for the spur line met the standards required by Canadian Pacific Railway and as well met the original tender specifications. But the ballast did not meet the specifications set out in the contract itself. It was on this basis that the arbitrator found the respondent in breach of its contract with the appellant. The cost of replacing the specified higher grade of ballast is substantial. Some estimates placed the cost in excess of $100,000. Applying the law to the evidence, the arbitrator held that the diminution of value option was the appropriate measure of damages. He did so on the basis that the cost of replacing the ballast was disproportionately high relative to the value of what might be achieved through its replacement. He reached this conclusion on his finding of fact that considerations of reasonableness displaced the prima facie cost of performance measure. Although he acknowledged that "there was little evidence tendered in this regard" he did not make his finding in the absence of any evidence. Counsel for the appellant quite properly acknowledged (in his legal brief to the arbitrator) that the considerations of reasonableness were factual and not legal issues. By now adding the phrase"difference in costs to the builder" to the first ground inthe appeal, does not convert the issue from one of fact to oneof law. b. The Second Ground of Appeal The second ground of appeal on the leave application alleges that the arbitrator erred in law "in (sic) its award of damages for winter construction, in that the award is unsupported by the evidence and in direct contradiction to the evidence of the Respondent". On the appeal the wording was changed slightly to read "in his calculation as to damages awarded for increased costs of winter construction, the award being in contradiction of and unsupported by the evidence." (emphasis added). Again, the real complaint here is not an error of law on the part of the arbitrator, but an alleged error in findings of fact made by the arbitrator on the evidence presented respecting the increased costs of winter construction. This is not case where there is an absence of any evidence to support the finding of facts. There was someevidence upon which the arbitrator could make a finding offact. For the reasons stated previously, the appeal court cannot delve into the evidence to attempt to determine whether or not the arbitrator's findings of fact are "supported" by the evidence or are "contradicted" by the evidence. Respondent's Motion for Enforcement of Award Upon being served with the appellant's application for leave to appeal, the respondent replied by bringing notice of motion under s. 50 of The Arbitration Act, 1992 to enforce the arbitrator's award as an order of this court. The fiat of Wimmer J. stayed that motion pending the disposition of this appeal. The appellant does not oppose the enforcement motion as such but questions the award itself by means of this appeal. have now disposed of the appeal. As none of thebars set out in the Act continue to apply, I am required by s.50(3) to give judgment enforcing the award. decline to award costs to the respondent respecting the enforcement application as it was premature in the circumstances and in any event would not likely have been required. Conclusion The appeal is dismissed and the award is confirmed. The respondent's application for costs on solicitor and client basis is denied. Failing agreement between the parties, the appellant shall pay the respondent's taxed costs on this appeal on party and party basis. The respondent'sapplication for enforcement of the award is granted withoutcosts.

The contract for the construction of a spur rail line to the grain terminal provided that either party could refer any contract dispute to arbitration. The Arbitrator's award favoured the A & E Rail Contractor's position. Leave to appeal had been granted. At issue was were whether the arbitrator applied the correct measure of damages and whether there was any evidence to support the findings of fact. HELD: The appeal was dismissed and the award was confirmed. The respondent's application for enforcement of the award was granted without costs. 1)The issues were questions of fact not law. The errors complained of were the same questions referred to the arbitrator for determination. Adding the phrase 'difference in costs to the builder' did not convert the issue from one of fact to one of law. The wording on the second issue was changed slightly to read 'in his calculation as to damages awarded for increased costs of winter construction'. There was some evidence upon which the arbitrator could make a finding of fact. 2)As none of the bars set out in the Act applied the court was required by s50(3) to give judgment enforcing the award. 3)The application for costs on a solicitor and client basis was denied. Failing agreement between the parties, the appellant would pay the respondent's taxed costs on the appeal on a party and party basis.

d_1997canlii11230.txt

nan 2004 SKQB 401 Q.B.G. A.D. 2004 No. 485 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: SASKATCHEWAN VALLEY POTATO CORPORATION RESPONDENT (PLAINTIFF and JAMES STANLEY MASSEY APPLICANT (DEFENDANT) Perry D. Erhardt for the respondent (plaintiff) Monte J. Sheppard for the applicant (defendant) FIAT MALONE J. October 7, 2004 [1] This is an application to set aside a noting for default and the resulting default judgment. The main ground of the application is that the service of the statement of claim on the defendant did not comply with Rule 19(1) of The Queen’s Bench Rules. In support of the application the defendant deposed as follows: 2. That on or about March 16, 2004 received registered letter containing the Statement of Claim in the within action. 3. It was my belief and understanding that the receipt by way of registered mail of the Statement of Claim did not constitute proper service on myself as required by the Queen’s Bench Rules. 4. As such did not take any steps to defend the action believing that proper personal service would be made on me in due course. [2] Queen’s Bench Rule 19(1) provides as follows: 19(1) Service of document shall be effected by personal service of that document on the person to be served except where: (a) statute, regulation or order of the court provides otherwise; or (b) these rules authorize service by an alternate or special mode of service. [3] In my opinion however, this Rule must be read in conjunction with Rule 18, the relevant provisions of which are as follows: 18(1) Subject to the express provisions of any statute or regulation and notwithstanding any rule respecting service, the court has discretion to validate or set aside the service of any document. (2) The primary consideration for the court in the exercise of its discretion is that the person served or to be served: (a) received notice of the document. (3) Where the court is satisfied that the person to be served received notice of the document, the court may: (a) validate any irregular or unauthorized service of document.... (5) The court may set aside the consequences of any default to respond to service of document, or may extend the time to respond to service of document, where the court is satisfied that: (a) the person to be served did not have notice of the document.... [4] Queen’s Bench Rule 18 is new rule and came into effect in December 2002. have been unable to find any authorities that have considered its provisions. Prior to its implementation the procedure to be followed to set aside noting for default and resulting default judgment was as set out by Zarzeczny J. in Schachtel v. Wasmann, 2004 SKQB 120 (CanLII); [2004] S.J. No. 214 (QL) (Q.B.) at para. [17] The circumstances under which court will exercise its discretion to set aside judgment regularly signed are settled. The application should be made as soon as possible after the judgment comes to the knowledge of the defendant, but mere delay will not bar the application, unless an irreparable injury will be done to the plaintiff or the delay has been wilful. The application should be supported by an affidavit setting out the circumstances under which the default arose and disclosing defence on the merits. It is not sufficient to merely state that the defendant has good defence upon the merits. The affidavits must show the nature of the defence and set forth facts which will enable the court or judge to decide whether or not there was matter which would afford defence to the action. Any delay in making the application must be explained. (See First City Capital Ltd. v. Abramson Enterprises Ltd. and Abramson (1988), 1988 CanLII 5106 (SK CA), 68 Sask. R. 281 (C.A.); Fidyk v. Saskatchewan Cycle Assoc. Inc. et al. (1991), 1991 CanLII 7723 (SK QB), 91 Sask. R. 262 (Q.B.); Sanderson v. North Canada Air Ltd., [1988] S.J. No. 80 (QL) (Sask. C.A.)). [5] In my opinion however, Rule 18 now requires the defendant to satisfy the court that he has not received “notice of the document,” being the statement of claim herein, before the circumstances referred to by Zarzeczny J. are considered. [6] The defendant has admitted receiving a copy of the statement of claim by registered mail and the fact that he was under the impression that it did not constitute valid service is, in my opinion, of no assistance to him. [7] Accordingly, I have no alternative but to dismiss the application and validate the earlier service upon the defendant be registered mail. [8] The plaintiff is entitled to the taxable costs of the application.

FIAT: This is an application to set aside a noting for default and the resulting default judgment. The main ground of the application is that the service of the statement of claim on the defendant did not comply with Rule 19(1) of The Queen's Bench Rules. HELD: The application is dismissed and the service upon the defendant by registered mail is validated. 1) Rule 19(1) of the Rules must be read in conjunction with Rule 18. 2) Queen's Bench Rule 18 is new rule and came into effect in December 2002. No authorities were available that considered its provisions. 3) Rule 18 requires the defendant to satisfy the court that he has not received notice of the document. 4) The defendant admits receiving a copy of the statement of claim by registered mail and the fact that it did not constitute valid service is of no assistance to him.

e_2004skqb401.txt

F.L.D. of A.D. 1996 100 J.C. S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: BEVERLY JOANNE BOYKO RESPONDENT (CLAIMANT) and MARK DUPRE MAGINEL APPLICANT (RESPONDENT) V. WATSON for the respondent (claimant) No one appearing for the applicant (respondent) FIAT McINTYRE, J. DATE: MARCH 12, 1996 On the confirmation hearing the Respondent testified that at the time judgment for divorce and corollary relief was granted the Applicant was receiving $880.00 per month in unemployment insurance. Evidence was also lead which suggested that subsequent to the provisional order the Applicant received promotion at Safeway (September). The Applicant may also have source of income as musician. It has been source of income in the past. I am not satisfied that the court has accurateinformation as to the applicant's present income so as to besatisfied there is a substantial change in circumstance such asto warrant variation. I will adjourn the confirmation hearingand remit the matter back for further information as to theapplicants income. note that despite having obtained provisional order and promotion the applicant has not paid any support since obtaining that order.

On the confirmation hearing the Respondent testified that the Applicant was receiving unemployment insurance when the judgment for divorce and corollary relief were granted. Subsequent to the provisional order there was evidence that the applicant had received a promotion and may also have income as a musician. HELD: The confirmation hearing was adjourned and the matter was remitted back for further information. The court was not satisfied that it had accurate information as to the applicant's present income so as to warrant variation.

c_1996canlii6696.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 508 Date: 2006 11 24 Docket: QBCA of 2006 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and BRUCE H. BASKO Counsel: R. D. Ritter for the appellant M. W. Owens for the respondent JUDGMENT ROTHERY J. November 24, 2006 [1] The Crown appeals the decision of the learned Provincial Court judge that found the respondent’s rights under s. 10 (b) of the Canadian Charter of Rights and Freedoms had been violated and, in excluding the certificate of analyses, acquitted the respondent. The Crown argues that the learned Provincial Court judge misapplied the reasoning of the Supreme Court of Canada in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236 in his analysis of the circumstances surrounding the police officer’s demand for the respondent to provide his breath sample. [2] The only evidence led in the voir dire at the trial was that of the police officer who had stopped the respondent in routine traffic stop of vehicles entering Saskatoon from the east. After the police officer determined that he had reasonable and probable grounds to believe that the respondent was operating his motor vehicle while impaired, he arrested the respondent, read the respondent his right to retain counsel and gave the requisite police warning. About twenty minutes later, at 12:27 a.m. on July 30, 2005, Cst. Michael Lerat arrived at the Saskatoon detachment of the R.C.M.P. with the respondent. [3] The testimony in chief of Cst. Lerat, which was uncontradicted in cross-examination, is as follows: Okay. And what did you do when you got to the police station? The accused was booked in, completing our prisoner arrest report. Q. Okay. Once that was complete the phone room was occupied by -with another officer and his, his prisoner. Okay. So advised the accused of that, and asked if he would like to use the phone room to speak with lawyer once the phone room was available, and he said he would like to. Okay. asked him if he had particular lawyer, if he would like to look through the phone book, or if he’d like to speak with Legal Aid, and he indicated he’d like to speak with Legal Aid. Okay. So what did you do then? When did the phone room become free? When recorded in my notes when the phone room became free. We went into the phone room, and dialled Legal Aid. Legal Aid was busy, so hung up, re-tried, it was still busy. gave the phone to the accused, telling him the phone line was busy, and he listened for himself. Okay. We waited short time, went back into the phone room, Legal Aid was still busy. gave him the phone again to show him that the line was busy, at which time the accused told me that he knew what the lawyer was going to tell him anyway, so just that he would call him the next day, or tomorrow. Okay. And did you say anything to him when he said that? asked if he’d like to try possibly calling different lawyer and he indicated no, that he’d like to get it over with. Okay. What happened THE COURT: Just moment, just moment. Sorry, write slow. Okay. MR. RITTER (continuing): Now, this if could just ask you the the times, sir. When you first called Legal Aid, and you said the line was busy? That’s correct. Okay. And what time was that? To be accurate can refer to my notes again? THE COURT: Yes. MR. RITTER: Please. first asked the accused told him the phone room was busy, and asked if once it was available if he would like to speak to lawyer, and that was at 12:32 a.m. on July 30th. He indicated yeah, he’d like to speak to lawyer. Okay. Right after that would ask him, “Do you know the name, or have lawyer?” And he says. “No, don’t.” And asked him at 12:34, “Would you like to look for one in the phone book, or speak with Legal Aid?” The accused’s response was “Yeah, Legal Aid”. So you said, “Would you like to look for one in the phone book or speak with Legal Aid,” after he told you he didn’t have lawyer in mind? That’s correct. Okay. And the time of that again? Was at 12:34 a.m. Okay. At 12:36 a.m. was when first dialled Legal Aid. It was busy. would have hung up immediately and re-tried and it was busy at that time again. Okay. The third time would have tried Legal Aid was at 12:40 a.m., and again it was busy. This is when the accused responds again, at 12:40, “I know what they are going to tell me, so I’ll call one tomorrow.” asked at 12:41, “Would you like to try different lawyer?” The accused’s response, “No, let’s get it over.” So he was removed from the phone room and placed in holding spot until his samples were ready to be taken. [4] On this evidence the learned Provincial Court judge made the following ruling: So if you look at the facts in our case, as I’ve reviewed, I’ve concluded that the case is almost directly on all fours with Prosper. The police did not take the opportunity, as required, to give the additional information to the accused. And that is, where the person has previously asserted the right to counsel and indicates that he or she has changed her mind and no longer wants to give that advice, the police will be required to tell the detainee of his or her right to reasonable opportunity to contact lawyer, and of the obligation on the part of the police during this time to refrain from having them participate in any process that would incriminate him. As result, find that there has been breach of 10(b), and as to the exclusion of evidence, as in Prosper, the breach of the accused’s right to counsel goes directly to his right against self-incrimination. The receipt of the breathalyzer certificate in this case was direct result of the breach, and because of that it must be kept out, as it would be unfair to proceed with the trial with it going in, given the circumstance. So the certificate is excluded. [5] Crown submits that the learned judge erred in his application of Prosper to the case before him, not only because of the conclusion he reached on the evidence, but on the interpretation of Prosper with respect to the case at hand. [6] Counsel for the respondent argues that the ratio decidendi in Prosper required Cst. Lerat to provide the respondent with an additional component of information once the respondent, after first asserting his right to counsel, waived that right. Counsel for the respondent relies upon para. 43 of Prosper, which states: 43 In circumstances where detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter‑protected right to counsel is not too easily waived. Indeed, find that an additional informational obligation on police will be triggered once detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to reasonable opportunity to contact lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up. [7] This additional informational obligation has come to be known as the “Prosper warning.” The learned trial judge concluded such warning was required in this case, and none was given to the respondent by Cst. Lerat. That being so, the trial judge found breach of the respondent’s s. 10(b) rights under the Charter. [8] The issue on this appeal is whether Prosper requires the police in the Saskatchewan jurisdiction, where faced with a detainee that has changed his mind and declined legal advice, to inform that detainee that he has a right to a reasonable opportunity to contact a lawyer and that the police have an obligation not to require the detainee to participate in any incriminating process until the detainee has had a reasonable opportunity to contact a lawyer. The answer is found in the Prosper decision itself. [9] Prosper, along with four other cases, decided the scope of the state’s obligations with respect to duty counsel services under s. 10 (b) of the Charter. Prosper addressed the question of what state obligations exist in jurisdictions where “Brydges duty counsel” is not available to detainees. [10] “Brydges duty counsel” describes the 24-hour duty counsel that is available to all detainees and accessed through toll-free number. This system is in place in certain provinces, including Saskatchewan. As stated by the Supreme Court of Canada in R. v. Brydges, 1990 CanLII 123 (SCC), [1990] S.C.R. 190, the police are required to not only advise detainees of their right to immediate free legal advice, but to advise detainees of the existence and availability of the applicable systems of duty counsel and Legal Aid in that jurisdiction. [11] On May 18, 1991, when Mr. Prosper was arrested for impaired driving in Halifax, Nova Scotia, the police officer advised him that he had the right to retain counsel, could contact any lawyer he wished, and could apply for legal assistance without charge. Unknown to both Mr. Prosper and the arresting officer at the time, the Legal Aid lawyers had advised the Attorney General few days prior that they would no longer take telephone calls outside regular business hours. Thus, Halifax had no established duty counsel system for detainees to receive immediate, although temporary, free legal advice after regular business hours. Thus, as Mr. Prosper attempted to telephone lawyer throughout that Saturday afternoon, he was unsuccessful. Over thirty-seven minute period, Mr. Prosper attempted fifteen calls, without success. He told the police officer he could not afford to retain private counsel, and shortly after, agreed to submit to the breathalyzer test. [12] It is upon this set of facts that the Supreme Court of Canada outlined the requirement of police to “hold off” from trying to elicit incriminating evidence from detainee until reasonable opportunity to reach counsel has been provided to the detainee. At para. 36 37 of Prosper, Lamer C.J. states: 36 In situation such as the one in this case, where duty counsel services are available during regular office hours (although only to those eligible for legal aid) and detainee expresses desire to contact counsel and is duly diligent in exercising that right, but is prevented from doing so due to institutional factors beyond his or her control, s. 10(b) requires that the police hold off from trying to elicit incriminatory evidence from the detainee until he or she has had reasonable opportunity to reach counsel. Similarly, the "reasonable opportunity" provided to detainees in jurisdictions lacking duty counsel might extend to when the local Legal Aid office opens, when private lawyer willing to provide free summary advice can be reached, or when the detainee is brought before justice of the peace for bail purposes and his or her needs can be properly assessed and accommodated. In determining what is reasonable opportunity, the fact that the evidence may cease to be available as result of long delay is factor to be considered. 37 The holding‑off requirement described above flows logically from the two implementation duties. am also satisfied that making the police hold off from trying to elicit incriminatory evidence from detainee in jurisdictions where no duty counsel is available at the time of request, and where the detainee has been sufficiently diligent upon being informed of the right to counsel to trigger and sustain his or her ensuing rights under s. 10(b), is consistent with the underlying purposes of s. 10(b). [13] In answering the question whether governments must provide Brydges duty counsel system, Lamer C.J. stated at para 42: 42 In sum, then, find that s. 10(b) does not impose positive obligation on governments to ensure that free, preliminary legal advice is available on 24‑hour, on‑call basis. However, s. 10(b) does require, in situations where detainee has asserted his or her right to counsel and been duly diligent in exercising it, that the police hold off in order to provide the detainee with reasonable opportunity to contact counsel. It must also be noted that, although there is no constitutional obligation on governments to provide duty counsel services, the non‑existence or unavailability of such services could, in some circumstances which need not speculate on, give rise to issues of fair trial. Thus, in those situations, the state runs the risk of having evidence excluded under s. 24(2) of the Charter. [14] Prosper addresses the issue of the police’s obligation to hold off in jurisdictions where free, preliminary legal advice is unavailable. Oppositely, Saskatchewan has Brydges duty counsel available to detainees and no such obligation exists. Having reviewed the law as stated in Prosper, I must conclude that the learned trial judge erred in finding that this case was analogous to the facts in Prosper, and in finding that Cst. Lerat had an obligation to provide a “Prosper warning” to the respondent once the respondent had changed his mind and declined legal advice. [15] The police in Saskatchewan are required to provide any detainee with information so that detainee may access that legal advice. Once the police are confronted with detainee who changes his mind and declines legal advice, this waiver must be clear and unequivocal. As reiterated in Prosper, the burden is upon the Crown to prove that waiver given by detainee is unequivocal. Lamer C. J. stated at para. 44: 44 Given the importance of the right to counsel, would also say with respect to waiver that once detainee asserts the right there must be clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 11‑12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high: Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] S.C.R. 383, Manninen, and Evans. As said in Bartle, at pp. 192‑94 and 206, person who waives right must know what he or she is giving up if the waiver is to be valid. That being said, it stands to reason that the right to counsel guaranteed under s. 10(b) must not be turned into an obligation on detainees to seek the advice of lawyer. [16] In this case, the lack of Prosper warning does not mean that the respondent’s waiver was not valid. The court must examine the evidence to determine whether the Crown had met the burden of establishing that the respondent gave an unequivocal waiver when he changed his mind about seeking legal counsel. [17] Any review of the evidence on appeal must be in accordance with the role permitted of the appellate court. The standard of review is outlined in R. v. Burns, [1994] S.C.R. 656 and applicable to summary conviction appeals. The Supreme Court of Canada stated at p. 663: In proceedings under s. 686(1)(a)(I), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168; R. v. W. R., 1992 CanLII 56 (SCC), [1992] S.C.R. 122. Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order new trial. [18] The uncontradicted evidence before the learned trial judge in this application was that of Cst. Lerat. Cst. Lerat testified that, over five minute time frame, he telephoned the Legal Aid telephone number for the respondent three times, and each time the telephone line gave “busy” signal. After the third telephone call, the respondent said, “I know what they are going to tell me, so I’ll call one tomorrow.” Cst. Lerat then asked the respondent, “Would you like to try different lawyer?” The respondent replied, “No, let’s get it over.” [19] The learned trial judge characterized the exchange between Cst. Lerat and the respondent in the following way, as stated at p. 104 of the transcript: To me, the accused was obviously frustrated and agreed to provide the sample without first talking to lawyer after these attempts were made. We’re talking about at least three attempts over period of twelve minutes. It is useful to compare those circumstances with the facts in the case that went to the Supreme Court, R. v. Prosper. [20] In reviewing the evidence that was before the learned trial judge, the judge could not have reasonably reached the conclusion he did. Not only does this case have no comparison to the facts in Prosper, the evidence falls far short of proving that the respondent was frustrated. Impatient, probably, but not frustrated. The exchange lasted about five minutes. The evidence shows a detainee who chose to neither wait for the telephone line to be available nor to telephone a private lawyer. [21] The trial judge was required to address the issue of whether the Crown had proved that the respondent had given clear and unequivocal waiver. By equating this situation to the facts in Prosper, the trial judge has failed to address the real issue, and in turn, has reached wrong conclusion. [22] On all the evidence before the trial judge, the Crown has proved that when the respondent changed his mind and decided not to obtain legal advice, the respondent gave an unequivocal waiver. That being so, no breach of s. 10(b) of the Charter exists, and the certificate of analyses is admissible at trial. [23] The Crown succeeds on its appeal. However, it would be incorrect to simply enter conviction on appeal. As advised by counsel for the respondent, if the certificate of analyses is rendered admissible there may be other evidence tendered on behalf of the respondent to challenge the accuracy of the certificate. Therefore, it is ordered this matter be remitted back to the learned trail judge for continuation of the case, according to law. J. A. R. Rothery

The Crown appeals the decision of the Provincial Court judge that found the respondent's rights under s. 10(b) of the Charter has been violated and in excluding the certificate of analysis, acquitted the respondent. The Crown argues that the trial judge misapplied the reasoning of the Supreme Court in R. v. Prosper in his analysis of the circumstances surrounding the police officer's demand for the respondent to provide his breath sample. The issue on this appeal is whether Prosper requires the police in the Saskatchewan jurisdiction, where faced with a detainee that has changed his mind and declined legal advice, to inform that detainee that he has a right to a reasonable opportunity to contact a lawyer and that the police have an obligation not to require the detainee to participate in any incriminating process until the detainee has had a reasonable opportunity to contact a lawyer. HELD: 1) Prosper addresses the issue of the police's obligation in jurisdictions where free, preliminary legal advice is unavailable. Oppositely, Saskatchewan has Brydges duty counsel available to detainees and no such obligation exists. Having reviewed the law as stated in Prosper, the Court concluded that the trial judge erred in finding that this case was analogous to the facts in Prosper, and in finding that the police officer had an obligation to provide a 'Prosper warning' to the respondent once the respondent had changed his mind and declined legal advice. 2) The police in Saskatchewan are required to provide any detainee with information so that detainee may access that legal advice. Once the police are confronted with detainee who changes his mind and declines legal advice, this waiver must be clear and unequivocal. 3) The evidence falls far short of proving that the respondent was frustrated, impatient probably, but not frustrated. The exchange lasted about minutes. The evidence shows a detainee who chose to neither wait for the telephone line to be available nor to telephone a private lawyer.

e_2006skqb508.txt

nan IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Puddifant v. Fraser, 2005 NSSC 340 Date: 20051209 Docket: 1201-51125 Registry: Halifax Between: Eunice Marie Fraser v. Hal James Puddifant Respondent Judge: The Honourable Justice Deborah Gass Heard: June 27, 2005, in Halifax, Nova Scotia Counsel: D. Timothy Gabriel, for the petitioner Terrence R. Cooper, Q.C., for the respondent [1] This is Mr. Puddifant’s application to vary a corollary relief judgment issued August 20, 1998, varied the 20th of August, 2001, amended July 2, 2002 and varied in June 2003. In his amended application dated June 23, 2005, he seeks a termination of spousal support or alternatively a decrease in support with a fixed date for termination. He also seeks costs of the application. [2] The facts are fairly straightforward. The parties were married October 19, 1984. They have one child, Tyler Dean Puddifant, born January 6, 1989. They separated in August 1996, after 12 years of marriage. At the time of the hearing, the applicant and respondent were 46 and 42 years of age respectively. Their 16 year old son has been living with his father since October 1996 except for year (2003 2004) when he lived with his uncle. The parties were divorced in 1998. [3] At the time of the divorce, Mr. Puddifant’s income was approximately $51,000.00 and Ms. Fraser’s was approximately $7,584.00 from Canada Pension Plan disability payments. Paragraph four of the parties’ corollary relief judgment provides for spousal support as follows: 4. The Respondent shall pay to the Petitioner for the support and maintenance of the Petitioner the sum of $600.00 per month which shall be payable in bi-monthly instalments of $300.00 each, the first such payment to be made on July 15, 1998, the second such payment to be made on the last day of July, 1998, and likewise on the 15th and last day of each succeeding month, PROVIDED HOWEVER that in the event the Respondent should elect to apply for and obtain that portion of the Petitioner’s monthly Canada Pension Plan payment in non-taxable benefit payable with respect to the child, then in such an event, the Respondent shall pay to the Petitioner for the support and maintenance of the Petitioner the sum of $800.00 per month, payable in bi-monthly payments of $400.00 each, on the 15th and the last day of each month. All payments shall be made through the Director of Maintenance Enforcement. [4] Before the corollary relief judgment was granted, there was an interim order of $400.00 per month commencing April 1998. [5] Throughout the marriage and continuing to this day, the respondent has suffered from serious mental illness. [6] The applicant retired from the military in July 2004 after 25 years of service. He was in position where he had refused postings outside the province. Although he was not forced to retire, the evidence before me, which is unrefuted, is that if he refused two postings, then he was required to leave. The postings offered were Gagetown with the possibility of deployment to Afghanistan, and Edmonton with potential deployment to Bosnia. His evidence was that his family life came first. His son’s schooling and friends were an issue as his son was then entering high school. His partner was in mid-career as nurse in Nova Scotia. She had child as well to consider. He took the severance package. Mr. Puddifant continues to be solely responsible for the support of the parties’ son. The mother has never been asked or ordered to pay child support. [7] Has there been change in the “... condition, means, needs, or other circumstances of either spouse? [8] The Divorce Act, (1985) provides: 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; (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. (4.1) 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 former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. (7) variation order varying spousal support order should (a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown; (b) apportion between the former 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) relief any economic hardship of the former spouses arising from the breakdown of the marriage; and (d) insofar as practicable, promote the economic self-sufficiency of each former spouse within reasonable period of time. [9] While the recipient’s income has increased to some extent, in all other respects her circumstances are the same as they were at the time of the granting of the divorce. Although the applicant had some employment since retirement, his income is reduced. [10] Although there is no cure for Ms. Fraser’s illness, it is manageable. She has home and could take in boarders. The applicant believes the respondent can work and has made no effort to do so. However, her effort to take one university course resulted in her hospitalization. Her unchanged circumstances are juxtaposed against the applicant’s decrease in income and his responsibility to meet the needs of their son. [11] At the time of the parties’ divorce, MacDonald, ACJ (as he then was) in Puddifant v. Puddifant [1998] N.S.R. (2d) uned. 102 (S.C.) stated at para. 21: She will have Tyler with her lot under the agreed upon access regime. She will require more money to survive. She should not have to turn to the state unless absolutely necessary. [12] The court also found that to lesser extent the respondent was economically disadvantaged by the breakdown of the marriage. He found that Mr. Puddifant was economically advantaged by the marriage, able to be posted away in pursuit of his career while she assisted with the care of their son. [13] In awarding spousal support, MacDonald noted at para. [28] Much has been said about the fact that Mrs. Puddifant is presently unemployed. She has explained why she cannot work at present. accept Mrs. Puddifant’s evidence in this entirety on this issue. She is not able to be gainfully employed at this time. She is slowly improving and must be cautious. She is doing volunteer work. This will be good test. Hopefully she will be employed some day. believe she wants to be employed. do not accept for minute that she is lazy. She is ill. She is afflicted with terrible illness and Mr. Puddifant must be patient. In conclusion, find that she requires ongoing support. [14] Since the granting of the original order, Mr. Puddifant has left the military in the interests of his family. Their son, Tyler, has spent much less time with his mother than was anticipated by the court at the time. [15] Ms. Fraser is now in receipt of income from her share of the pension, which was just over $58,000.00 upon division. [16] Thus conclude that there has been change in circumstances as required by the Divorce Act before variation can be considered. QUANTUM OF SUPPORT: [17] The applicant’s income is now primarily derived from his pension. [18] As general rule, according to the Supreme Court of Canada in Boston v. Boston, [2001] S.C.R. 413, the payor’s pension income stream that has been divided, should not be included as income for spousal support purposes. [19] Here the respondent has converted her equalized property into income. [20] Ms. Fraser now receives income as follows: CPP $10,752.00 $896.75 per month Investment 3,824.00 Income 318.73 per month Spousal 7,200.00 600.00 per month GST Rebate 342.00 28.50 per month Total $22,118.00 $1,843.98 per month [21] The applicant’s income is now $37,823.46. Of that $4,666.92 is his half of the pension which was divided. His income for spousal support purposes is $33,156.54. Her income (without spousal support) is $14,918.00. The disparity in their incomes since the order of 1998 is now $18,439.50 as opposed to $43,404.00. He has continuing and growing financial responsibility for their teenaged son, whose needs demand more monetary resources now than when he was eight or nine years old. [22] I conclude that the maintenance ought to be reduced to $300.00 per month effective September 1, 2005 to take into account his reduced income and her income derived from the pension division. [23] Having found that Ms. Fraser was entitled and continues to be entitled by virtue of her continuing inability to become self-sufficient, the court must be mindful of the other factors set out in the Divorce Act as considered by the Supreme Court of Canada in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.R. 420. There the court ruled that the extent of the spouse’s obligation to meet the other’s financial needs depends on the length of the relationship, the ability to pay, any repartnering of the former spouses, and the other obligations of the parties. [24] Here the applicant has been supporting the respondent for nine years. They were married for 12. He has been the sole provider for their son. [25] Counsel urged the court to consider the Spousal Support Advisory Guidelines. These are not law. The duration of support in 12 year marriage is suggested to be between and 12 years. Exceptions to this “range” have applied where there is disabled spouse. [26] In Coombs v. Coombs (2001) 2001 NSSF 32 (CanLII), 199 N.S.R. (2d) 285 (S.C.) the parties were together for 13 years. On an application to terminate or reduce spousal support, Williams, J. reduced, but did not terminate support after 15 years. The original order was not time-limited and he could find no rationale for doing so, as her need continued, based on her disability. [27] In Bishop v. Bishop [2005] N.S.J. No. 325 (S.C.) LeBlanc, J., in “post guidelines” decision ordered maintenance for 10 years (but total of 11 years) in 13 year relationship where the recipient was unable to work. [28] In Wittich v. Wittich 2005 NSSC 265 (CanLII), [2005] N.S.J. No. 377, 2005 N.S.S.C. 265 (B. MacDonald, J.), the parties were married for ten years but in relationship for six years prior to marriage. They had one child who was in his father’s care. The circumstances of this case were highly unusual. The order was indefinite. [29] In Hamilton v. Hamilton [2002] N.S.J. No. 172 (Hall, J.), the parties were married for five years and the wife was disabled. She had custody of the parties’ son. An order for spousal support was ordered, and although no time limit was placed on the order, it was not indefinite. [30] In Robicheau v. Earle [2004] N.S.J. No. 161 (S.C.) Coady, J. ordered indefinite support in 12 year marriage where the wife was on Canada Pension Plan disability. [31] In all of these cases, except Coombs, supra the orders were in the first instance. It is not unusual for such orders to be indefinite at the outset. This is an application to vary after nine years of continuous support. Each case must be decided on its own facts. [32] The Supreme Court of Canada in Bracklow, supra addressed primarily the entitlement issue. However, the court ruled that even where entitlement is based on “non-compensatory grounds” as is the primary basis here, ongoing need on the part of one spouse, and ability to pay on the part of the other, is not an automatic ground for indefinite support. [33] When the matter was sent back to the British Columbia Supreme Court on November 1, 1999, the result was an order for $400.00 per month for five years resulting in total support paid over eight years for seven year relationship. [34] The other leading case on the issue of spousal support under the Divorce Act is Moge Moge (1992) 1992 CanLII 25 (SCC), 43 R.F.L. (3d) 345 (S.C.C.) L’Heureux-Dubé, J. stated at p. 376: All four of the objectives defined in the Act must be taken into account when .... an order for spousal support is sought to be varied. No single objective is paramount. The fact that one of the objectives, such as economic self-sufficiency, has been attained, does not necessarily dispose of the matter. [35] Likewise, where economic self-sufficiency has not been attained, that does not dispose of the matter either. In other words, the failure to attain self-sufficiency should not automatically result in the continuing obligation of the supporting spouse. [36] This leaves the other considerations set out in subsection (7)(a), (b) and (c). (a) While in this case there was some element of compensatory support at the outset to reduce the economic advantage/disadvantage, that has been more than recompensed by the years of support paid to date and the applicant’s sole responsibility for their child since 1996. (b) When one considers the financial consequences for the care of Tyler, there are not only the hidden costs, but the increased costs as Tyler has moved into adolescence and high school. Those will continue and no doubt increase as Tyler pursues his education. (c) The issue of economic hardship resulting from the breakdown of the marriage was addressed by the lump sum payment referred to in the parties’ agreement at the time of the divorce. [37] am sympathetic to the respondent’s need for support and to the applicant’s need to see an end to this obligation. In considering these four objectives of spousal support, am mindful that none of them holds position of prominence. [38] Notwithstanding the wife’s disability, I cannot conclude that his obligation to her should extend beyond the length of their marriage. conclude this on the basis that he has shouldered the sole responsibility for their son and must balance her need with him having some “light at the end of the tunnel”. [39] The Guidelines are helpful tool at the end of the reasoning process and within the range suggested, there must be basis on which to determine duration. There may well be occasions for support to be indefinite in the case of disabled spouse. Here the original order was indefinite. That does not mean it is permanent. Applying the principles in Moge and Bracklow and considering all four objectives of support it is my view that his responsibility for her maintenance needs to be time limited. It is question of balancing the rights of both parties. Because of her disability, the length of time needs to be at the higher end. The respondent is now 42. She still is relatively young and there is nothing to suggest that it will be impossible for her to earn some income. While she may not be able to become totally self-sufficient, there is no evidence that she is unable to contribute anything at all towards her own support. CONCLUSION: [40] This application was heard in June 2005. The applicant received severance package and his pension was to start in September 2005. [41] There will be an order for maintenance of $300.00 per month effective the 1st of September and payable until August 31, 2008. This represents the duration of their marriage. Should there be change in the parties’ circumstances before then, an application to vary may be warranted, but in any event, the spousal support will end in August 2008.

The husband applied to vary a corollary relief judgment in order to either terminate spousal support or decrease it with a fixed date for termination. The parties were married for twelve years and had been divorced for seven years. The husband had been paying $600 per month in spousal support since the divorce and had recently retired from the military; his current income was now primarily derived from his pension. The wife had serious long-term mental illness and was unable to manage employment. The parties' teenage son was now solely in the husband's care. Spousal support reduced to $300 per month payable for a further three years at which point it will terminate. Notwithstanding the wife's disability, the husband's obligation to her should not extend beyond the length of their marriage; although the wife might not be able to become totally self-sufficient, there was no evidence that she was unable to contribute anything at all towards her own support.

e_2005nssc340.txt

J. IN THE PROVINCIAL COURT OF SASKATCHEWAN CARROT RIVER, SASKATCHEWAN BETWEEN: PETER KORPACH and WALTER KORPACH Carrot River, Saskatchewan PLAINTIFF and CLARENCE KLASSEN Carrot River, Saskatchewan DEFENDANT Brian Fitzpatrick.. .Counsel for the Plaintiff Brendan M.Delehanty, Student at Law. For the Defendant JUDGMENT B.D. HALDERMAN, P.C.J. JUNE 8, 2000 BASIS OF CLAIM: [1] The Plaintiff’s claim against the Defendant is for crop damage sustained as a result of the Defendant’s cattle getting into the Plaintiff’s canola field in late July, 1999. [2] The Defendant admits that his cattle were in the Plaintiff’s canola crop on one occasion. The Defendant says that there is no evidence that his cattle were in the canola on any other occasion, and that such loss as was caused by his cattle is minimal. [3] In his pleadings, the Defendant denies any liability under s.27 of The Stray Animals Act, R.S.S. 1978, c. S-60, and further denies that he was negligent in looking after his cattle. [4] In my view, the law in Saskatchewan is clear that cattle owner is liable for such loss as is caused by the entry of his cattle onto the crop of another. Sections 27 (1) and (2) of The Stray Animals Act, R.S.S. 1978, c. S-60, provide as follows: “27(1) The owner of stray shall be liable to proprietor for any damage caused by the stray to the property of the proprietor.” “(2) No action for damages to property caused by an animal while lawfully running at large shall be maintained.” [5] Section of the Act allows rural municipality to pass by-law permitting animals to lawfully run at large during portion of the year. The parties agree that such by-law is not in effect in their rural municipality. [6] The present s. 27 (1) has been in the Act since 1977, when the Act was substantially re-written, apparently in response to the increasing urbanization of the province. Under both the present s.27 (1) and the pre-1977 statutes, the legal situation was the same -- the cattle owner is strictly liable for damage caused by his straying cattle. As noted by the Saskatchewan Court of Appeal in Osadchuk v. Russniak 1922 CanLII 215 (SK CA), 1922 CarswellSask 50; [1922] W.W.R. 829, the Act was enacted for the protection of crops. At para. (Carswell) the Court said the following with respect to the 1920 Act: “The effect of the Act is that if any animal is found running at large it may be distrained and impounded, whereupon the owner may redeem it by paying the costs and charges and the amount claimed for damages done to the distrainor ....”. (my emphasis) See also McKeen v. McKay 1945 CanLII 190 (SK CA), [1946] D.L.R. 495 497 (Sask. C.A.), where the Court held that once it was established that there was no by-law permitting animals to run at large, the liability of the cattle owner for crop damage was “beyond question”. [7] In fact, under The Stray Animals Act, the cattle owner’s liability for crop damage caused by his cattle may be absolute. As Fleming notes in dealing with cattle-trespass, (the common law predecessor of The Stray Animals Act) it is only an Act of God or some similar involuntary cause which might be sufficient to found cattle-trespass defence. See Fleming on Torts, 8th Edition, at pp. 354 357. No such defences are contained in The Stray Animals Act, nor have such defences been put forward in this case. BACKGROUND AND FACTS: [8] The Plaintiff Peter Korpach saw the Defendant’s cattle in his canola field on only one occasion, at the end of July, 1999. He took photographs of the cattle in the canola, which photos were filed as exhibits. The cattle were still at the edge of the canola some hours later, when the Defendant attended and drove them back to his adjacent pasture land. [9] The pasture in which the Defendant kept his cattle consisted of approximately quarter section, well fenced on the north, west and south. On the east side of the pasture, bordering the Plaintiff’s canola field, single-strand fence between the properties was in poor repair and was partially on the ground. Road access to this fence from the Defendant’s side was blocked by the Carrot River which runs in north-south direction, and bisects the pasture quarter so that approximately 2/3 is to the west of the river and 1/3 is to the east. [10] Because road access was blocked by the river, the Defendant had asked permission of the Plaintiffs some years earlier to cross the Plaintiffs’ land in order to repair the single-strand fence but the Plaintiffs had refused access. In my view, the Defendants were obliged to keep the fence in good repair, and the Plaintiff’s refusal has no bearing on liability in this case. [11] The Defendant Clarence Klassen said that he had been raising cattle for 10 years, and that in that period, he had never previously had cattle escape. His practice, he said, was to check his cattle’s whereabouts minimum of every three days, and that if he was away, he notified neighbour to check. In cross-examination, he said that he worked off-farm as an equipment operator, that he was at times away during the week, and that his wife helped him if he was away. He said that his brother Wilbert did not have any particular responsibilities at the farm, other than driving around. Klassen said that he finished baling at 5:00 a.m. Saturday morning (July 31) and he then drove to Estevan. He was contacted in Estevan concerning his cattle being at large, and he returned and drove the cattle back to his pasture early on Monday morning, August 1. [12] No evidence was put before the court as to whether other cattle were also in the Plaintiffs’ canola during the period in which the damage was caused. The Plaintiffs lived some miles from the canola field. Peter Korpach did not believe that other neighbours’cattle would have been in the canola. He had contacted other neighbours who had cattle, and in his opinion, those cattle were all accounted for and had not been on the Plaintiffs’ land. EXTENT OF CROP DAMAGE: [13] Within few days of the Defendant removing his cattle from the canola field, the Plaintiffs arranged for Larry Kapeller to carry out an assessment of crop damage. For 17 years, Kappeller has carried on mixed farming operation near Arborfield. From 1991 to 1995 he was an adjuster on contract to Saskatchewan Crop Insurance, and carried out many crop damage adjustments, including canola adjustments. Since 1995, he has provided verification audits, on contract, for provincial government farm programs, and has carried out canola seed-vigour assessments for seed companies. found him to be entitled to give opinion evidence with respect to crop damage and assessment of that damage. [14] On August 18, 1999 Kapeller spent to hours in the subject canola field. In accordance with his training, he measured off 28 separate plots throughout the field, of one yard by one yard each. In each plot, he physically counted all broken stems, pods on the ground, number of seeds in each pod, number of pods, and other visible damage. He provided the court with sketch showing the seven plot locations he finally determined as representative of the loss. He also did plant counts in at least undamaged plots. Based on these latter counts he estimated the expected yield for the field at 36 bushels per acre. His calculation of crop loss was as follows: 24 acres 11 bushels/acre damage 264 bushels acres 18 bushels/acre damage 90 bushels acres 29 bushels/acre damage 203 bushels 36 acres 557 bushels [15] Mr. Kapeller also did visual inspection by walking throughout the field. He observed cattle droppings at various locations, some relatively fresh and some apparently older. He also noted number of trails through the canola which in his opinion were made by cattle. His evidence was especially helpful regarding trampled area near tree stand to the north of the point where the cattle entered the land. With respect to damage possibly being caused by elk, he saw droppings and trails which suggested only “slight evidence” of elk. Significantly, he said that in viewing the field from his truck window when parked at the edge of the field, it would not appear that there was much damage. [16] found Mr. Kapeller to most careful and professional observer, whose methodology regarding adjustment procedures was meticulous. He was an independent witness whose evidence is entitled to great weight. [17] Dr. James Dynes was qualified as an expert witness, on behalf of the Defendant, with respect to the cause and extent of crop damage. Dr. Dynes holds Ph.D. in soil science and consults with respect to forensic agrology. [18] Dr. Dynes attended at the canola field on September 3, 1999. He looked at the field from the area of the downed single-strand fence, and proceeded short distance into the field. He did not do any plant counts. It was his opinion that most of the damage caused by the Klassen cattle occurred in an area close to the fence; that the trails he observed were of long standing; that he observed some signs of elk, which suggested that game travelled through the area; and that the crop as he observed it was what he would expect of canola crop in September. [19] Dr. Dynes took numerous photographs of the field, from his position near the fence, which were included in report he had prepared for an insurance company, and which report was filed with the court. [20] It was not suggested that Dr. Dynes was prohibited from going throughout the field. His visual observations, which were essentially “global” view without “hands and knees” look at actual damage throughout the field, must be accorded significantly less weight than the plot by plot count and the roaming of the field that Mr. Kapeller undertook. Based on Dr. Dynes’ evidence and his photographs, find that one of the trails directly east of the cattle entry point was part of an older trail, on which, for few feet, crop did not grow as vigorously as elsewhere. However, with respect to the extent of damage caused by cattle, prefer the evidence of Mr. Kapeller, and accept his specific crop-loss figures, and his estimate of crop yield. [21] With respect to whether other cattle contributed to the crop loss, the onus is on the Plaintiffs to establish the portion of the damage that was caused by the Defendant’s cattle. Subject to what hereinafter set out with respect to damage reductions due to other factors, conclude that the Plaintiffs have established that the Defendant’s cattle caused the entire crop loss which the Plaintiffs sustained. It is mere supposition that other neighbours’ cattle were in the canola during the relevant period. Given the knowledge that neighbours have of each other in rural Saskatchewan, it would be expected that the Defendant would have placed before the court some evidence supportive of his supposition. [22] Despite the Defendant’s opinion that his pasture was in good condition, that he adequately monitored his cattle, and that the cattle showed no signs of moving toward the canola crop, the fact remains that the cattle did move onto the canola field, unbeknownst to the Defendant, his spouse, his brother, or his hired help. This was so even though, as all parties agreed, canola is not crop of choice for cattle. The Carrot River did not prove to be an impediment on this occasion. There is no evidence credibly suggesting that water levels would have hindered the cattle on earlier occasions, any more that it hindered them on the day they were seen by Mr. Korpach in the canola field. As Dr. Dynes said, “cattle like to move around”. [23] In Falardeau v. Church (1973) 1972 CanLII 1063 (BC SC), 30 D.L.R. (3d) 614; 1972 CanLII 1515 (BC SC), [1972] W.W.R. 450 (B.C.S.C.); Mr. Justice Berger, in dealing with defendant’s suggestion that crop damage may have been caused by other herds of cattle, said, in holding for the Plaintiff, that “there was simply no evidence of this”. That is the situation in the present case, and accordingly decide that the Defendant’s cattle were in the Plaintiffs’ canola field on more than one occasion and that other cattle were not in the field. QUANTUM OF DAMAGES: [24] The Plaintiffs combined the canola, except for the plots used by Mr. Kapeller for his calculations, and binned the canola separately from their other canola. They did not measure, estimate or make note of the number of bushels or tonnes the field yielded. They sold load of canola in December, 1999, for which they received $5.48 per bushel. (No evidence was put before the court challenging this price, and accept it as the market value for damage calculation.) In my opinion, the Plaintiffs, having gone through the worthwhile exercise of having an independent adjuster examine the field, ought to have taken the minimal steps necessary to establish the actual yield. As careful as Mr. Kapeller’s evidence was, his estimate cannot displace the best evidence of yield, which is the actual crop harvested. would accordingly reduce the estimated yield, and the subsequent damages, by 5%, to account for this shortcoming. [25] also consider that the damages should be reduced on account of the wildlife trails. Those trails did not suggest extensive wildlife traffic, and Peter Korpach’s evidence was that there was never any wildlife damage to speak of. In all the circumstances, would put the reduction at 2%. [26] Had the Plaintiffs been able to combine the crop in the normal fashion, they would have been assessed dockage at the elevator. Based on the dockage set out on the cash ticket in evidence (5%) further reduce damages by 5%. [27] Finally, there ought properly to be reduction in damages to account for the Plaintiffs’ savings in not having to combine, truck, store, market and transport the canola. Ordinarily, and in the absence of evidence as to this cost, consider that 10% reduction ought to be applied. In this case, where the Plaintiffs had to combine most of the field but were put to the expense and inconvenience of having to combine around the numerous yard-square plots and poor areas, and combine those areas separately, reduce the damages by only 5% for this factor. RECAPITULATION OF CALCULATION OF DAMAGES: [28] Based on the evidence and on the above findings, I find the damages sustained by the Plaintiffs in this matter to be as follows:Total Crop Loss 557 BushelsPrice per bushel $5.48Total Value of Crop Loss $3,052.36Less 5% Reduction re Yield Calculation 152.62Less 2% Wild Animal Damage 61.05Less 5% reduction in Farm Expenses 152.62Less 5% for Dockage 152.62Net Damages Sustained by Plaintiffs $2,533.45 [29] Judgment in the amount of $2,533.45 is therefore granted in favour of the Plaintiffs, together with Pre-judgment interest from January 5, 2000 and costs. Dated at the City of Melfort in the Province of Saskatchewan this 8th day of June, 2000. THE HONOURABLE B.D. HALDERMAN JUDGE OF THE PROVINCIAL COURT OF SASKATCHEWAN

The plaintiffs claim for crop damage caused by the defendant's cattle entering the plaintiff's canola field. The defendant denies he is responsible or negligent, but admits his cattle were in the field.HELD: Damages were awarded in the amount of $2,533.45. The court valued the loss at $3,052.36. It then deducted 2% attributed to wild animal damage, 5% for the plaintiffs failure to calculate actual yield from the rest of the crop, 5% that the plaintiffs would have paid in dockage and 5% for the cost of production. Civil liability for crop damage caused by cattle flows from the Stray Animals Act. A cattle owner is strictly liable for damages caused by his straying cattle. This liability may possibly even be absolute and only an act of god may serve as a defence. The issue here is the quantum of the damage. The fact that the defendant was refused access to the plaintiff's property to repair the fence has no bearing on liability in this case. An independent adjuster assessed the damage at 557 bushels. The court found on the facts that the damage was caused exclusively by the defendant's cattle on several occasions.

3_2000canlii19612.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 35 Date: 20110315 Between: Docket: CACV 2053 George Forrester, Phillip Scott, Keith Bowers and R. Gary Cooper Applicants (Proposed Appellants) (Defendants) and University of Saskatchewan Respondent (Proposed Respondent) (Plaintiff) Before: Richards J.A. (in Chambers) Counsel: Timothy P. Ryan for the Appellants Michelle J. Ouellette, Q.C. for the Respondent Application: From: 2011 SKQB 55 (CanLII) Heard: March 9, 2011 Disposition: Leave to appeal granted Written Reasons: March 15, 2011 By: The Honourable Mr. Justice Richards Richards J.A. I. Introduction [1] The Applicants, George Forrester, Phillip Scott, Keith Bowers and R. Gary Cooper (the “Applicants”) are defendants in an action commenced by the Respondent, University of Saskatchewan. They applied to have the University’s claim against them dismissed for want of prosecution but were unsuccessful. They now seek leave to appeal that decision. II. Basic Background [2] The relevant background facts are set out in the decision of the Queen’s Bench Chambers judge now reported at 2011 SKQB 55 (CanLII). will outline only their key features. [3] The Applicants were partners in an architectural firm that provided design drawings and specifications for the construction of the Education Building on the University of Saskatchewan campus. The building was substantially complete by 1970. [4] In 1985, some of the stone panels on the exterior of the building fell to the ground. [5] In 1986, the University commenced an action against its insurer for coverage of the loss. In 1991, in order to preserve the University’s right to relief, the insurer commenced an action against the Applicants as well as against Cana Construction Co. Ltd., Haid Construction Ltd. and Con-Force Structures Limited. With respect to the Applicants, the University alleged that its loss occurred as result of their negligent design efforts. [6] The litigation between the University and its insurer moved forward. However, it was not resolved until 1997 when this Court held there was no coverage. [7] As result, the University did not assume control of the action in issue here until 1998. The Chambers judge summarized what happened between 1998 and today in these terms: [7] At that point the insurers no longer had an interest in this action, but the University did. Accordingly, the University assumed control of this action in February of 1998. The following steps took place in 1998 and in 1999: (a) In early March 1998 the University served Notice of Intention to Proceed. (b) Throughout much of the rest of 1998 the parties delivered various defences, cross-claims and statements as to documents. (c) In November 1998 the University's counsel conducted examination for discovery of Cana's proper officer. (d) Through the rest of 1998 and up to March 1999 the parties delivered various particulars, defences and responses to undertakings. [8] Following March of 1999 no progress was made in the action until 2005. The following occurred beginning in late 2005: (a) In November 2005 the University obtained an appointment for the examination for discovery of Phillip Scott, one of the defendants Forrester, Scott, Bowers and Cooper ("the architects"). (b) In February 2006 the University's counsel conducted examination for discovery of Phillip Scott. (c) In April 2006 the University's counsel conducted examination for discovery of Keith Bowers and Gary Cooper. (d) In September 2006 the architects' counsel conducted examination for discovery of the University's proper officer. (e) In 2007 the University and the architects delivered responses to undertakings given at examination for discovery, and the University delivered revised statement as to documents. (f) In 2008 the University and the architects agreed to request that judge of this court preside over negotiation session, for the purpose of exploring settlement. (g) In August 2008 the University and the architects filed "Joint Request for Post-Pleadings/Pre-Trial Conference" that had been completed and executed on behalf of the University and the architects. conference date was set by the local registrar. Before the conference was conducted, the University invited Cana to attend as well. (h) On February 5, 2009 conference was convened by judge of this court. It was attended by representatives of and counsel for the University, the architects and Cana. The conference was adjourned for additional exchange and gathering of information. (i) The conference was reconvened on July 26, 2010, with the same participants. No resolution was achieved. III. The Queen’s Bench Decision [8] In September of 2010, all of the defendants moved to have the University’s claims against them dismissed for want of prosecution. [9] The Chambers judge struck the claims against all of the defendants but the Applicants. [10] In considering the situation of the Applicants, the Chambers judge concluded that the delay from 1991 to 1998 (when the University’s insurer was prosecuting the action) was not problematic. However, he said the delay from 1999 to 2005 was both inordinate and inexcusable. [11] That done, the Chambers judge nonetheless concluded it was not in the interests of justice that the action be struck for delay. In arriving at this result, he emphasized three considerations: (a) the litigation had progressed to late stage, (b) the action had been pursued in timely manner since 2005 and the Applicants had participated in those proceedings, and (c) the lack of availability of people connected with the Applicants’ design work was not overly significant because the University’s negligence claim would be resolved at trial on the basis of documents and expert testimony. [12] The test for determining whether to grant leave to appeal is well known and there is no need to repeat it. See: Rothmans, Benson Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask. R. 121 at para. 6. The test involves consideration of both the merits of the proposed appeal and its importance. [13] As to the issue of merits, the Applicants say the Chambers judge erred in several respects. They stress that (a) he treated them inconsistently by striking the claim against Cana Construction Co. Ltd. even though it too had progressed to a very late stage in the litigation, (b) he improperly discounted the fact that many of their key witnesses would be unable to testify due to death or mental and physical disability and failed to properly assess the prejudice that they would suffer if they are forced to proceed to trial, (c) he improperly discounted the problems they will face in obtaining appropriate expert evidence so many years after the work in issue was done, (d) more specifically, he wrongly discounted the importance of their difficulty in finding expert witnesses by saying the University would face the same problems, and (e) he failed to give sufficient or any weight to the overall delay, i.e. from 1991 to 2010, in considering whether it was in the interests of justice for the case to proceed to trial. With respect to the importance of the appeal, the Applicants say it will be useful for this Court to refine what it said in International Capital Corp. v. Schafer, 2010 SKCA 48 (CanLII), [2010] W.W.R. 407 about dismissing claim for want of prosecution. They stress, of course, that an appeal would potentially be determinative of the claim against them. [14] For its part, the University submits that the proposed appeal has little merit. It says the Chambers judge identified and applied the proper principles of law as set out in International Capital Corp. It submits, as well, that the Chambers judge considered the relevant evidence and acted judicially, arriving at decision which is neither unjust nor clearly wrong. Accordingly, in light of the deferential standard of review applicable to proceedings such as the one in issue here, the University contends the Applicants’ proposed appeal is destined to fail. It also says the appeal is of no general importance and will have no implications beyond the facts of this case. [15] The standard of review applied in respect of decisions such as the one in issue here will present some difficulty for the Applicants on appeal. Nonetheless, I am persuaded there is enough merit in their position to warrant granting leave. As matter of first impression only, arguments (a) and (b), summarized above in para. 13, appear to be of particular interest. Given my ultimate conclusion with respect to this application, will refrain from saying more about the substance of the Applicants’ arguments or about the University’s position in response to them. [16] am also persuaded that this appeal is of sufficient importance to warrant the attention of the Court. Granted, like all cases, it is grounded in its own facts but this does not necessarily mean it will be of no larger jurisprudential significance. The issue of delays in litigation is important and this case appears to present some opportunity for this Court to clarify the legal framework relating to such matters. [17] All of that said, appreciate there is an arguable irony in decision granting leave to appeal in case like this because the appeal itself will cause additional delay. However, this appeal is not particularly complex and it should be capable of resolution within reasonably short timeframe. Having been granted leave to appeal, expect the Applicants to move the proceedings forward with dispatch. V. Conclusion [18] Leave to appeal is granted. Costs will be in the discretion of the panel hearing the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of March, A.D. 2011. “RICHARDS J.A.” RICHARDS J.A.

The applicants applied for leave to appeal from a Chambers decision denying their application to dismiss the respondent's claim against them for want of prosecution. The applicants were partners in an architecture firm that provided design drawing and specifications for the construction of the Education Building at the University of Saskatchewan. The building was substantially completed in 1970. In 1985, stone panels fell off the exterior of the building. In 1986 the respondent commenced an action against its insurer for coverage of the loss. In 1991, the insurer commenced an action against the applicants in order to preserve the respondent's right to relief. In 1997, the Court determined the respondent was not entitled to coverage from its insurer. The respondent commenced control over the litigation against the applicant in 1997. Between 1997 and 2010, documents were exchanged, discoveries were held and an unsuccessful settlement negotiation was held. In 2010 all of the defendants applied to have the respondent's claim dismissed for want of prosecution. The Chambers judge struck the claims against all the defendants except the applicant. HELD: Leave to appeal was granted because there was some merit to the applicant's arguments that they had been treated inconsistently and that key witnesses were no longer available to testify because of death or mental or physical disability, which would prejudice the applicant. Secondly, the issue of delays in litigation is important and the case will present an opportunity for the Court to clarify the legal framework pertaining to such matters.

8_2011skca35.txt

E. J. Gunn NOVA SCOTIA COURT OF APPEAL Citation: Comeau v. Gregoire, 2007 NSCA 73 Date: 20070614 Docket: CA 263772 Registry: Halifax Between: Frank J. Comeau v. Rachel Gregoire and Jeanne Akerley Respondents Judges: Roscoe, Bateman and Oland, JJ.A. Appeal Heard: May 31, 2007, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Oland, J.A.; Roscoe and Bateman, JJ.A. concurring. Counsel: Appellant on his own behalf Respondents on their own behalf Reasons for judgment: [1] At issue in this appeal is the ownership of monies in joint bank account in the names of the late Elizabeth Scott and Jeanne Akerley. At Mrs. Scott’s passing, over $50,000 was held on deposit in that account. The appellant, Frank Comeau, and the respondents, Ms. Akerley and Rachel Gregoire, are children of the deceased. Ms. Gregoire serves as adminstratrix of the estate of her late mother. All parties were self-represented on the appeal. [2] This is the second appeal before this court which pertained to the estate of the late Mrs. Scott. In Scott Estate (Re), 2005 NSCA 135 (CanLII), the court allowed an appeal by Mr. Comeau from an order passing the final account of the adminstratrix, set aside that order, and remitted the matter to the probate court to determine the ownership of two joint bank accounts, one of which is the subject of this appeal. The funds in the other joint account were subsequently turned over to the estate. [3] The late Mrs. Scott’s situation and her family were summarized by Justice Roscoe in that earlier decision as follows: [2] Elizabeth Scott, 90 year old widow, died without will on June 15, 2002. Mrs. Scott was living on her own in house she rented in Saulnierville, Digby County. She was survived by ten children, ranging in ages from 53 to 74. Four of the children lived in Nova Scotia: Helen Comeau and Rose Comeau Jeddry of Meteghan, Claire Comeau of Saulnierville, and Wayne Comeau of Kentville. Two lived in New Brunswick: Mr. Comeau (the appellant) and Jeanne Ackerly [sic]. The respondent, Ms. Gregoire lived in Ontario, Yvonne Comeau in Montreal and Louise Scribner and Jacqueline Donahue lived in Massachusetts. [4] In remitting the matter of the ownership of the joint bank accounts to the probate court for determination, she stated: [21] would however agree with the appellant that the issue of the joint bank accounts was not properly handled by the Probate Court and that further investigation into their ownership is required. Citing several cases as examples, James MacKenzie in Feeney's Canadian Law of Wills, 4th edition, looseleaf, Butterworth's, states at §1.72: The mere deposit of money in bank in the joint names of the depositor and alleged donee with the power of either of them to withdraw funds is insufficient, by itself, to constitute gift. In the absence of convincing evidence of the intention to make gift, there will be resulting trust in favour of the estate of the funds to which the survivor holds only the legal title. [22] Each case is very fact specific, but it is incorrect in law to find, as was done here, that if there is joint account, it is automatically gift to the survivor. In many cases where bank account was held jointly by parent and child, after the death of the parent the funds were determined by the court to belong to the estate. See for example, Edwards Estate v. Bradley, 1957 CanLII 17 (SCC), [1957] S.C.R. 599; Legg v. Nicholson, 2002 NSSC 217 (CanLII); McIntosh Estate v. Kenny, [1989] N.B.J. No. 920 (Q.L.) (Q.B.); Purchase v. Pike Estate, [1991] N.J. No. 199 (Q.L.) (S.C.T.D.). [23] In order to make the determination as to whether there is gift to the survivor or resulting trust in favour of the estate, it is necessary for the court to have evidence to show, at the very least, the date the accounts were opened, what documents were signed at that time, who received the bank statements, who deposited funds, who withdrew funds and wrote cheques and for what purposes, and the balance as of the date of death. [5] Justice Allan P. Boudreau, sitting as probate court judge, heard two days of testimony regarding the ownership of the monies in the joint account in the names of the late Mrs. Scott and Ms. Akerley. The witnesses who gave evidence and were cross-examined were: (a) the respondent, Rachel Gregoire; (b) Mrs. Scott’s daughter, Yvonne Davis; (c) Mrs. Scott’s daughter Rose Comeau-Jeddry; (d) the respondent, Mrs. Akerley; and, (e) Odette Deveau, personal financial services representative with the Royal Bank of Canada (the “Bank”). The probate court judge determined that the monies in the joint account belonged to Ms. Akerley. His oral unreported decision (Scott Estate (Re) (September 13, 2006) Digby Case No. 3135 (Court of Probate)) was delivered on September 13, 2006, the second day of the hearing and his order issued on November 27, 2006. [6] Mr. Comeau appeals, arguing that the probate court judge erred: (a) by making determination when the evidence was not sufficient for him to do so, and based only on speculation and hearsay rather than as required in law; and (b) by not ruling on allegations of breach of trust and conflict of interest against the administratrix of the estate. [7] The appellant challenges the judge’s findings of fact based on the credibility of witnesses. The standard of review applicable for all factual conclusions made by the trial judge is palpable and overriding error. The same standard applies to questions of mixed law and fact, unless question of law is readily extricable when the standard will be that of correctness. See Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235, [2002] S.C.J. No. 31. [8] Before commencing my analysis, it is helpful to observe that the probate court judge did not find that any of the witnesses lacked credibility. The evidence was such that he did not have contradictory testimony before him. He stated: should say that accept the testimonies of all the witnesses; Mr. Comeau and all of the Estate witnesses, as testifying honestly and straightforwardly as best they recall the events and believe everyone was trying to be as truthful as they could as to what took place. Since credibility was not contentious, the judge focussed on assessing the evidence available to the court and applying the appropriate legal principles in order to determine the ownership of the funds in the joint account. [9] The evidence of Yvonne Davis, Rose Comeau-Jeddry and Ms. Gregoire established that the late Mrs. Scott relied heavily upon and regularly spent the winters with Ms. Akerley in New Brunswick, and that each year Ms. Akerley visited her mother in Nova Scotia for extended periods. Mrs. Davis described her mother’s relationship with Ms. Akerley as follows: They were very close. And think it often happens, that older people choose the one person in the family whom they confide in and whom they feel confident with. And this was the case with Jeanne. am absolute [sic] sure about that. She testified that none of the children was closer to Mrs. Scott than Ms. Akerley. [10] According to Ms. Akerley, the account was opened around 1989 and bank employee explained the right of survivorship to her and her mother. The signature card signed by the late Mrs. Scott and Ms. Akerley at that time was not produced before the probate court. Ms. Deaveau, of the Bank, testified that many attempts had been made to find it, all unsuccessful. She was able to present the form of personal deposit account agreement which would have governed, which provided that the survivor would be able to withdraw the funds from joint account. It was undisputed that all the deposits, which consisted of interest earned on the account, (except one, which will be described below) and all withdrawals, were made by the deceased, and that the annual statement of interest income, which showed both names was sent to the late Mrs. Scott who filed it with her income tax return. [11] Ms. Deveau, who closed out the account on Mrs. Scott’s passing, testified that she “was 100 percent sure that the account was joint account.” When she closed it, she had had the signature card for the account and, according to Ms. Deveau, she would not have done so if it had not been joint with rights of survivorship. [12] The probate court judge stated that he had “no doubt, after hearing that evidence [of Odette Deveau], that it was joint account with the right of survivorship.” He also found “on the strong balance of probabilities,” that the late Mrs. Scott intended to make an inter vivos gift to Ms. Akerley. This finding was based on evidence that in 1993, Mrs. Scott withdrew $80,000 from the joint account and placed it in an investment certificate in the sole name of Ms. Akerley, rather than her own name or in their joint names. The interest was to be paid to the joint account and, on maturity, Ms. Akerley was entitled to the funds. The judge accepted that Ms. Akerley put those monies back into the joint account because she wanted her mother to have the benefit of those monies, if needed, as well as the interest from those monies. [13] Finally, the probate court judge stated that even if his finding of an inter vivos gift was wrong, then “certainly the evidence of Ms. Ackerley [sic] and the other witnesses and the documentary evidence rebuts any presumption of resulting trust” in favour of the late Mrs. Scott or her estate. He noted that witnesses, other than Ms. Akerley, testified that it was her mother’s intention that Ms. Akerley be the beneficiary of that account, and pointed out that if the account was only for the convenience of the deceased, it could have been set up with one of her other children who lived closer to her and in Nova Scotia, rather than Ms. Akerley who resides in New Brunswick. [14] The appellant argues that the evidence before the probate court judge was not that as required by this court and thus, is contrary to law. In this regard, he relies on the comments in 23 of our earlier decision, which he interprets as stipulating that, unless all the evidence described therein is put forward, the ownership of joint account cannot be determined. He points out that the signature card signed when the account was opened was not presented to the probate court judge, and that neither Ms. Deveau nor Ms. Akerley produced signed documents showing that Ms. Akerley was entitled to the amount remaining in the account on Mrs. Scott’s passing. [15] The comments by this court in its earlier decision at 23 upon which the appellant bases his central argument do not establish the types nor the extent of the evidence that must be tendered in every case where the ownership of joint account is in dispute. As Justice Roscoe indicated in 22 of that decision, every case is very fact specific. There will be instances, as here, where witnesses may not be available or able to testify as to every aspect of an account or its history, and where, for acceptable reasons, not all the documents are available. After all, financial institutions generate multitude of records, may not keep them indefinitely, and through inadvertence or otherwise may lose records or place them beyond retrieval. [16] The hearing in probate court was neither lengthy nor complex. The probate court judge heard all the witnesses under direct and cross-examination, and asked probing questions of the witnesses and counsel. At the conclusion of the hearing, based on the evidence before him, the judge had to decide the question of ownership. Having reviewed his decision, the written arguments provided by the parties and their oral submissions, I cannot say that the judge misapprehended the evidence, lacked an evidentiary basis for his findings, relied upon incorrect legal principles, or failed to apply or misapplied the law. His decision which dealt with joint bank accounts and the presumption of resulting trusts follows the principles set out in Pecore v. Pecore, 2007 SCC 17 (CanLII), [2007] S.C.J. No. 17 and Madsen Estate v. Saylor, 2007 SCC 18 (CanLII), [2007] S.C.J. No 18, both of which were decided after its release. In summary, see no grounds for appellate intervention in his decision regarding ownership of the joint account. [17] As to the probate court judge’s failure to rule on the appellant’s allegations during the hearing of breach of trust and conflict of interest against the adminstratrix, this was not before the probate court. The matter had been remitted by this court for determination only of the ownership of the joint account. By not addressing this matter, the probate court judge did not err. [18] I would dismiss the appeal, and order the appellant to pay costs of $500 to Ms. Gregoire. The estate has not yet paid the costs of $500 to each of the parties as ordered by the probate court judge. If she wishes, the administratrix may apply the $500 the appellant was to receive there against the costs he is here ordered to pay Ms. Gregoire. Oland, J.A. Concurred in: Roscoe, J.A. Bateman, J.A.

At the time of the deceased's death, she held a bank account jointly with her daughter. Although the signature card signed when the account was opened could not be found for the hearing, the probate court relied on the evidence of the bank representative (who testified that she had the card when she closed the account and she was 100% sure that the account was a joint account and who was able to present to the court the form of the applicable account agreement) in determining that the monies in the joint account belonged to the daughter. It was also found, on a strong balance of probabilities, that the deceased intended to make an inter vivos gift to her daughter and, alternatively, that the evidence rebutted any presumption of resulting trust in favour of the deceased or her estate. Another of the deceased's children appealed. Appeal dismissed; the probate court judge did not misapprehend the evidence, lack an evidentiary basis for his findings, rely upon incorrect legal principles or fail to apply or misapply the law.

6_2007nsca73.txt

Q.B. A.D. 1993 No. 3294 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: DONRIC ENTERPRISES LTD., DONALD CLARK and RICHARD CLARK PLAINTIFFS (DEFENDANTS BY COUNTERCLAIM) and NORTHCO FOODS LIMITED and SUNBAY FOODS INC. DEFENDANTS (PLAINTIFFS BY COUNTERCLAIM) L. G. Greenhorn for the plaintiffs M. A. Dynna for the defendants FIAT GEREIN J. September 30, 1994 In this matter must deal with three interlocutory applications. The first is brought by the plaintiffs who seekan order for production of documents by the defendants. Thesecond and third are brought by the defendants who seek a likeorder in respect to the plaintiffs\' documents and in addition,an order that the plaintiffs provide further and betterparticulars. BACKGROUND FACTS The plaintiffs, Donald Clark and Richard Clark, are the sole shareholders and directors of the plaintiff corporation, Donric Enterprises Ltd. The defendant, Sunbay Foods Inc., is wholly owned subsidiary of the defendant, Northco Foods Limited. In 1984 Donric Enterprises Ltd. and the defendant, Sunbay Foods Inc., entered into franchise agreement in respect to operating Robin's Donuts outlet in Prince Albert, Saskatchewan. The personal plaintiffs guaranteed performance of that agreement. In 1989 Donric Enterprises Ltd. decided to sell the franchise and so advised the defendants. Thereafter Donric Enterprises Ltd. entered into negotiations with several parties, but in the end was never able to sell the franchise and has suffered the loss of its initial investment. The plaintiffs allege, in statement of claim issued on October 27, 1993, and amended in March, 1994, that the defendants wrongfully interfered with the various negotiations and wrongfully withheld approval of the sale or transfer of the franchise agreement. In consequence the plaintiffs claim to be entitled to damages from the defendants on the basis of breach of contract, intentional interference with contractual relations and breach of fiduciary relationship. Upon being served with the statement of claim, the defendants demanded particulars and they were provided in reply dated March 30, 1994, and amended April 21, 1994. statement of defence and counterclaim were served and filed. While it is of some length, the defence essentially denies any wrongdoing. In the counterclaim the defendants claim $31,800.12 by way of royalties, advertising fees, repairs to leased premises and loss of rent. There also is claim for damages arising from an alleged defamation of the defendants. In their defence to the counterclaim the plaintiffs deny owing any monies and alternatively claim set-off of certain monies allegedly owing by the defendants. They further assert that any dispute in respect to the lease was settled. Finally, they admit letter was written to newspaper in Prince Albert, but deny responsibility for its publication; assert that the claim is statute barred; and, in any event, allege that no damages were sustained by the defendants. In the defence to counterclaim, para. way. 3.The Plaintiffs (Defendants by Counterclaim) put the Defendants (Plaintiffs by Counterclaim) on notice in late 1991, and early July, 1992, of number of shortfalls and deficiencies relating to the franchise agreement, lease, advertising, signage, etc., all of which exceed three folios in length, and advised the Defendants (Plaintiffs by Counterclaim) that no further payments would be made until such time as these deficiencies were rectified. That paragraph gave rise to this demand for particulars: 1.Particulars of the shortfalls and deficiencies relating to the Franchise Agreement, Lease, advertising, signage, etc. referred to in paragraph of the Statement of Defence and Counter-Claim including description of the deficiency and dollar value relating to the deficiency. The reply to that demand for particulars is dated July 4, 1994, and is as follows. 1.Queen's Bench Rule 14 has no application as the Statement of Defence and Counterclaim are not documents prepared or filed by the Plaintiffs (Defendants by Counterclaim) and as such the demand is not made to "any other party". 2.That insofar as the Statement of Defence and Counterclaim were served and filed by the Defendants (Plaintiff by Counterclaim), they have full knowledge of all particulars. subsequent reply to demand for particulars states this. 1.Particulars of the shortfalls and deficiencies relating to the franchise agreement, lease, advertising, signage, etc. referred to in paragraph of the Statement of Defence to Counterclaim do exceed three folios in length, which are matters of evidence and not matters of pleadings. The Plaintiffs (Defendants by Counterclaim) have provided disclosure of their documents as outlined in the Statement as to Documents filed on June 2, 1994, with this Honourable Court, which documents outline the details sought. The defendants are not content with either reply and hence the one part of their application seeking further and better particulars. The final matter is that of documents. Each party has served and filed statement as to documents. Each party has sought production of certain documents and the other has refused to comply. As result, there are respective applications for production of documents. PRODUCTION OF DOCUMENTS Rule 212 of the Queen's Bench Rules of Saskatchewan (1) defendant or party in the position of defendant shall, before the expiration of ten days after the time when his defence shall have been delivered, and plaintiff or other party in the position of plaintiff shall, before the expiration of two days after the time when his reply shall have been delivered or if there is no reply within ten days after the defence or the last of the defences shall have been delivered, without notice file statement as to the documents which are or have been in his possession or power relating to any matter in question in the action. The use of the phrase "relating to any matter in question" strongly and clearly indicates that the rule is broad and extensive in its application. As well, the rule should be read as being part of the disclosure and discovery process and in recent years the Saskatchewan Court of Appeal has clearly stated that discovery "has wide scope". See: Cominco Ltd. v. Phillips Cables Ltd., 1987 CanLII 200 (SK CA), [1987] W.W.R. 562; Wasylyshen v. C.B.C., (1989) 1989 CanLII 4472 (SK CA), 73 Sask. R. 295; Soke Farm Equipment Ltd. and Soke v. New Holland of Canada Limited et al., 1990 CanLII 7811 (SK CA), [1990] W.W.R. 762. There is an underlying test which governs the production of documents and it was set out in Newbery Energy Ltd. v. Amok Ltd., 1987 CanLII 4935 (SK QB), [1988] W.W.R. 424 (Sask. Q.B.) at p. 437. As observed by Lord Justice Brett inPeruvian Guano, the test to be applied is"may", not "must", in relation todocuments which may contain informationwhich either directly or indirectlyenables the party requiring the affidavit(here production) either to advance hisown case or to damage the case of hisadversary. The learned justice then goes on at p. 438 and says this. The general rule respecting discoveries is that defendant is bound to produce all documents in his possession, and to disclose all facts within his knowledge which are material to plaintiff's case. One object of the rule is to permit plaintiff access to documents and information by which relevant facts might be manifested. It does not follow that because plaintiff is, upon discovery, given access to documents or information that they will, of themselves, constitute admissible evidence. More recently the courts have spoken of relevancy as being the criteria whereby one determines whether production must be made. Yet it is broad relevance as opposed to narrow or strict relevance which is the applicable test. See: Steier v. University Hospital, 1988 CanLII 215 (SK CA), [1988] W.W.R. 303 (Sask. C.A.); Potash Corporation of Saskatchewan Mining Ltd. v. Saskatchewan Government Insurance, (1990) 1990 CanLII 7499 (SK QB), 83 Sask. R. 19 (Sask. Q.B.); Abbas-Hasani v. City of Regina, (1991) 89 Sask. R. 196 (Sask. Q.B.); and Viczko v. Saskatchewan Power Corporation, (1991) 1991 CanLII 7572 (SK QB), 90 Sask. R. 128 (Sask. Q.B.). In the instant case the plaintiffs seek production of numerous documents which are described in 13 paragraphs. will deal with each in turn. (1)A variety of documents relating to prospective purchasers of Robin's Donuts franchises. Robert Keeper, the secretary-treasurer of the defendants, swears in his affidavit that the defendants have no such records. There is nothing to contradict this assertion. It would be inappropriate to order production of something that does not exist and therefore decline to do so. (2)Original contracts with suppliers of various products to the Prince Albert franchise. In the franchise agreement it is stipulated that the defendants will provide products to the plaintiffs and are entitled to earn commissions from the suppliers of the products. The plaintiffs claim that the defendants represented that they would obtain discount prices, but in fact they did not. It is then alleged that the defendants obtained secret commissions. The defendants say that as the commissions were expressly provided for in the agreement, there could be no "secret commissions" and the contracts are not relevant. The use of the description "secret commissions" is inaccurate and unfortunate. When read the pleadings have no difficulty in understanding the plaintiffs to be making the allegation that the defendants paid excessive and therefore improper prices for product and this in turn resulted in excessive and improper commissions. It should also be mentioned that clause 6.1 of the agreement stipulates that the defendants "shall not charge more than reasonable amounts for the products and materials." Accordingly, the plaintiffs may have valid claim and the requested documents, insofar as they pertain to the Prince Albert outlet, are relevant and should be produced. (3)Originals of certain documents. In their statement as to documents the defendants disclose and are prepared to produce copies of four documents. The plaintiffs want the originals. The originals of two of the documents have been located and will be produced. The originals of the other two documents cannot be located. In these circumstances decline to order production of the originals. (4)All original contracts with respect to advertising as it relates to the Prince Albert franchise. The franchise agreement stipulates that the operator will pay certain fees for advertising and the defendants have claimed the same. Mr. Keeper suggests the requested documents are not relevant because the plaintiffs have alleged money was in the advertising fund and alternatively the plaintiffs are estopped from claiming such fees. It may well be that in the end the defendants have no accountability for the advertising fees collected. They may simply be source of income for the defendants based on mathematical calculation with sales as its base. However, the question of advertising has been raised and at this stage of the proceedings any documents pertaining to advertising are relevant and must be produced. (5)Original contracts between the defendants and present operators of franchise outlets in Prince Albert. These documents pertain to matters subsequent to the dealings between the parties herein. At this juncture am not persuaded that they are relevant and therefore they need not be produced. (6)Business records of an extensive variety as they pertain to the franchise in Prince Albert as well as all other franchises. It is not clear whether the request pertains to the period when the plaintiffs were operating the franchise or whether it pertains to the period prior to that. In any event, the request is so broad and general that it would require the defendants to literally produce every piece of paper in their possession. Much of that would be irrelevant. Accordingly, refuse to order production of these documents; but this refusal is without prejudice to the plaintiffs to renew their application for specific documents should they be so advised. (7)All agreements between the two defendants as they relate to the franchises in Canada and Saskatchewan. The defendants have undertaken to produce these documents so need say no more. (8)Income tax returns of the defendants. The plaintiffs have abandoned this request for the present time. (9)Corporate minute books of the defendants. The plaintiffs have also abandoned this request for the present time. (10)Original documents relating to leasehold improvements and fixtures installed since July, 1992. The defendants have agreed to produce these documents and that ends the matter. (11)Original letters, memoranda or other correspondence as it relates to the seeking of another franchise operator in the City of Prince Albert. Mr. Keeper views this request as being the same as (1) above and suggests it be treated in the same way. find myself in disagreement for view this request as being focused on particular types of documents, which presumably would not ordinarily be destroyed, and documents which relate to specific franchise operators, either potential or actual. Central to the law suit is the allegation that the defendants breached fiduciary duty and interfered with contractual relations. Documents which pertain to dealings with other persons who were potential operators in the Prince Albert area or who actually became such operators are relevant and must be produced. (12)Original records, including accounts, vouchers, receipts and bank records of commissions received by the defendants from the sale of products. Here again am confronted with the allegation of improper charges. As earlier stated, in respect of (2), documents which pertain to this allegation are relevant. Accordingly, the requested documents should be produced. (13)Any price lists or quotes provided to the defendants by supplier, manufacturer or distributor of commodities required to be purchased by the plaintiffs. Mr. Keeper attests that they have no such documents and accordingly no order will be made in respect of them. That concludes the matter of production of documents by the plaintiffs. turn now to the like application by the defendants. They seek production of these documents which are set forth in the plaintiffs' statement as to documents. 4.Videotape of CKBI News re: closing of Robin's Donuts. 5.Copies of invoices from KHK Foods Inc. (Marks Foods), namely: invoice nos. 293765, dated October 25, 1991; 307925, dated April 3, 1992; and 315072, dated June 2, 1992. 6.Copy of Thomas C. Rowe's SaskTel phone bill, page of 2. 7.Letter from Patrick Boland to whom it may concern, dated May 6, 1992. 8.Copy of Patrick Boland's SaskTel phone bill, page of 2. 9.Memo from Alain R. Verville, dated May 6, 1992. 10.Copy of Alain Verville's SaskTel phone bill, page of 2. 11.Affidavit of Alain R. Verville, dated May 20, 1992. 12.Affidavit of Patrick Boland, undated. 13.Affidavit of Tom C. Rowe, dated May 19, 1992. 14.Index as to audiotape of memo listing president Harvey Cardwell, the vice presidents, etc. 15.Audiotape of Pat Boland, Al Verville, Norm Tarsoff, and friend of Don Clark talking to Ron Whitehead. 1.Ten pictures of the Robin's Donuts premises in Prince Albert. While the documents are disclosed, the plaintiffs object to producing them on the ground that they are privileged, although such is not stated in the statement as to documents. Rather, the plaintiff, Donald Clark, in his affidavit swears that the documents above listed were either made or obtained for the purpose of litigation. It is necessary to digress and discuss the admissibility of certain letter. The position of the defendants is that the documents were not prepared in anticipation of litigation. In support of this there has been filed an affidavit of Robert Keeper to which is annexed two- page letter dated July 9, 1992, addressed to him by the plaintiff, Richard Clark. Both pages of the letter bear the endorsement "without prejudice" and the letter contains an offer of settlement. It then concludes with this paragraph. If reply is not forecoming within two weeks, we will assume that our interests are of no matter to you. If this is the case, we will take the affidavits, tapes, licensee agreement, and our books to the public for their scrutiny and judgement. This includes going to the press not only in Saskatchewan but also across Canada. Even though no illegal act or breach of contract has been committed, we feel that it will be of great interest to those who may have been considering the purchase of Robins and those also trying to sell. It is submitted on behalf of the defendants that this paragraph conclusively proves that as of July 9, 1992, the plaintiffs had no intention of initiating litigation and therefore all of the subject documents are not privileged because they precede the letter. Counsel for the plaintiffs took the position that the letter was privileged and therefore inadmissible. Counsel for the defendants submitted that the letter was not privileged because it contained threat and cited the decisions of Underwood v. Cox, (1912) 1912 CanLII 582 (ON SCDC), 26 O.L.R. 303 (Ont. Div. Ct.) and Greenwood v. Fitts, (1961) 1961 CanLII 368 (BC CA), 29 D.L.R. (2d) 260 (B.C.C.A.). have read the decisions and understand their application to be limited. They do not stand for the proposition that threat destroys all privilege. Rather, it is only the threat itself which loses the protection of privilege and can become admissible evidence. In the instant case, consider the quoted paragraph to be something of threat and as such it may be considered on this application. However, do not read the paragraph as saying the writer has not, is not and will not contemplate or embark on course of litigation. Furthermore, on this application, absent something further, am not prepared to hold the other parties bound by the letter. As understand the law, if privilege is to be sustained two things must be demonstrated. They are: (a) the document must be brought into existence with the dominant purpose of using it in order to obtain legal advice or to conduct or aid in the conduct of litigation, and (b) there must be reasonable prospect of litigation. Saskatoon Drug and Stationery Company Limited v. Anderson, 1990 CanLII 7807 (SK QB), [1990] W.W.R. 144 at p. 146 (Sask. Q.B.). See also Laxton Holdings Ltd. et al. v. Lloyd's Non-Marine Underwriters et al., (1989) 1988 CanLII 5250 (SK CA), 72 Sask. R. 313 (Sask. C.A.). note that in his affidavit the plaintiff, Donald Clark, speaks of documents being "obtained" for the purpose of litigation. have been unable to find any authority which suggests that document not prepared, but simply obtained, in respect to litigation is privileged. do not think it wise to extend privilege to such document in the circumstances of this case and decline to do so. When look at the list of the subject documents, it is clear that most of them were prepared by third parties for their own purposes and without any thought of litigation. The best example is the videotape of CKBI News re: closing of Robin's Donuts. Equally obvious are the phone bills of SaskTel. Accordingly, hold that privilege does not attach to the documents described as 4, 5, 6, 8, 10, and 16 and they must be produced. Next notice that copies of the documents numbered 11, 12 and 13 are listed in the plaintiffs' statement as to documents as being in their possession. This being so, they are not privileged and must be produced. As to the remaining four documents, considering the material filed, am unable to say that they are not privileged and therefore decline to order their production; but without prejudice to the defendants to bring further application if the circumstances so warrant. REPLY TO DEMAND FOR PARTICULARS Rule 14(1) of the Queen's Bench Rules of Saskatchewan provides: (1) party may at any time before the action is set down for trial deliver notice in writing, requiring from any other party further and better statement of the nature of the claim or defence or further and better particulars of any matter of which particulars should properly be given and such notice shall clearly state the particulars required. It is obvious that the rule contemplates demand being made "from any other party". The plaintiffs' original reply that it was not bound by the rule has no merit. Equally, there is no merit to the other statement that because the plaintiffs filed defence and counterclaim they have full knowledge of all particulars. The one proposition does not necessarily follow upon the other. The second reply speaks of evidence as opposed to matters of pleadings. This assertion warrants closer scrutiny and one starts with the proposition that pleadings must be brief and confined to allegations of fact. See Queen's Bench Rule 139 and Meyers and Lee v. Freeholders Oil Company Limited et al., (1956) 1956 CanLII 220 (SK CA), 19 W.W.R. (N.S.) 546 (Sask. C.A.). Bearing that in mind, particulars are appropriate only to enable party to properly plead in response and to eliminate surprise. See: Mathews and Lemon v. Cameron et al., (1964) 48 W.W.R. (N.S.) 12 (Sask. Q.B.) and Levesque Beaubien Geoffrion Inc. v. Vista Mines Inc. et al., (1992) 1991 CanLII 7775 (SK QB), 95 Sask. R. 174 (Sask. Q.B.). As the impugned pleading is contained in the defense to the counterclaim, there is no requirement that the defendants reply to it. That being so, it cannot be said that the defendants require particulars in order to respond to the pleading. On the other hand, the plaintiffs merely plead ". shortfalls and deficiencies relating to the franchise agreement, lease, advertising, signage etc., all of which exceed three folios in length ". In my opinion, it is impossible to know with any certainty what is being claimed, particularly when "etc." is used. The words "shortfalls" and "deficiencies" do not add much more. do not believe that all the details of the claim must be set out. However, the plaintiffs should be able to describe with some clarity the nature and source of the shortfalls and deficiencies along with the dollar value of same. This limited information will likely do much to avoid surprise and should therefore be provided. COSTS Each party has brought an application and has been successful at least in part. This being so, any costs awarded would be off-setting. Therefore, make no order as to costs of the application. On an earlier occasion counsel appeared to speak to an opposed adjournment. In the end the adjournment was granted. The matter of costs was reserved to me. Taking into account the circumstances of the earlier appearance, order that the defendants will have the costs of that adjournment in any event of the cause and fix those costs at $200.00. CONCLUSION It is hereby ordered as follows:(1)that the defendants shall produce to the plaintiffs thedocuments described in paras. 2, 4, 11 and 12 of theplaintiffs\' notice to produce documents;(2)that the plaintiffs shall produce to the defendants thedocuments described as 4, 5, 6, 8, 10, 11, 12, 13 and 16 of thesecond part of the plaintiffs\' statement as to documents;(3)that the plaintiffs shall provide further and betterparticulars in respect of para. 3 of their statement ofdefence to counterclaim by setting forth the nature and sourceof the alleged shortfalls and deficiencies along with themonetary value of same; (4)that the defendants shall have costs in the amount of $200.00 in any event of the cause.

FIAT The Plaintiffs purchased a Robin's Donuts franchise from the Defendants. They later tried to sell the franchise without success. Eventually they turned the franchise back and sued for damages alleging that the Defendants had interfered in their attempts to sell the franchise and had wrongfully refused to consent to a sale negotiated by the Plaintiffs. The Defendants counterclaimed for unpaid royalties and rent. The parties each prepared and served their Statements as to Documents. Both parties then applied for production of additional documents under Rule 212. The Defendant also sought further particulars of certain matters referred to in the Plaintiff's Defence to Counterclaim under Rule 164. HELD: Applications allowed. Both of the parties were ordered to produce some of the documents requested. 1)A party must disclose all documents which may contain information which either directly or indirectly enables the other party to advance his case or to damage the case of his adversary. 2)The test of relevance on discovery is wider than that of admissibility at trial. 3)Documents brought into existence with the dominant purpose of using them in order to obtain legal advice or to conduct or aid in the conduct of litigation which is in reasonable prospect at the time of their creation are privileged. 4)Particulars are appropriate only (i)to enable a party to properly plead in response or (ii)to eliminate surprise. 5)The Court found that further particulars were appropriate in this case on the second ground, given the vague nature of the impugned paragraph in the Plaintiff's Defence to Counterclaim.

8_1994canlii4821.txt

C.J.Q.B. THE JUDGE FEELS THIS DECISION DOES NOT WARRANT PUBLICATION 2001 SKQB 485 Q.B. N.J. A.D. 2001 No. J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and TONI LESLEY SPARVIER Paul Goldstein for the Crown Patricia A. McNeill McCrea for the accused DECISION October 30, 2001 D.H WRIGHT J. [1] The accused is charged with ten counts. They include robbery, aggravated assault, assault causing bodily harm, possession of stolen property, and trafficking in narcotics. They result from violent robbery which took place at Nordon Drugs in Saskatoon on July 27, 2000. The drugs were apprehended by the Moose Jaw Police Service acting on information received from the Saskatoon Police Service on August 3, 2000. [2] The accused was arrested in Moose Jaw on August 3, 2000, at which time the police also seized duffel bag or gym bag containing quantity of narcotics. [3] The accused has objected to her arrest and to the seizure of the duffel bag, relying on ss. 9 and 8 of the Charter of Rights and Freedoms. conducted voir dire as result at the opening of the trial. It occupied five days. great deal of evidence was presented, the majority of which was elicited in very detailed and extended cross-examination. The accused also called evidence on the voir dire, but did not testify. SECTION 9: THE ARREST [4] S. 495(1) of the Criminal Code of Canada reads as follows: peace officer may arrest without warrant (a) person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable office; (b) person whom he finds committing criminal offence; or (c) person in respect to whom he has reasonable grounds to believe that warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. [5] What constitutes "reasonable and probable grounds" was considered by the Supreme Court of Canada in R. v. Storry (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3D) 316 at page 324: In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish prima facie case for conviction before making the arrest. [6] Constable Jesse of the Moose Jaw Police Service was advised on August 3, 2000, by Sergeant Martin, senior officer with the Criminal Investigation Branch of the Saskatoon Police Service, of the Nordon robbery. [7] Sergeant Martin identified the accused as the robber and told Jesse warrant was being obtained for her arrest. Martin instructed Jesse to arrest Ms. Sparvier. He also relayed the fact that Otto Hansen, who lived in Moose Jaw, was reported by an independent and confidential informant to have large quantity of narcotics for sale. Hansen was identified as the accused's boyfriend. [8] Otto Hansen was arrested by the Moose Police on August 3, 2000, near his Moose Jaw home. Constable Jesse was present at the arrest and noted that it took place in clear view of the Hansen residence short block away. He testified he was concerned that Hansen's associates would see the arrest and try to escape or dispose of evidence. [9] Armed with this knowledge, Jesse went immediately to the Hansen residence. He entered the outside porch and knocked at the door to the house proper. He observed female standing inside near the front door. He asked her if she was Toni Sparvier and she confirmed she was. He then opened the door, entered, identified himself as peace officer, and arrested her. He observed dark-coloured duffel bag located on the floor near Sparvier and saw her glance at the bag during their conversation. He concluded from that that he should examine the bag as there was concern that it might contain weapons, given Hansen's criminal history and the character of his associates, [10] I agree with the Crown that the four requirements set out in R. v. Feeney for a warrantless search were satisfied in this case. Those requirements appear at page 144 of the decision, which is reported at (1997) 1997 CanLII 342 (SCC), 115 C.C.C. (3D) 129. It is not necessary that repeat them here as they are set out in the Crown's brief. Section 8: Search and Seizure [11] I have found the arrest of the accused was lawful. The Crown contends that the search of the house and the seizure of the duffel bag was incidental to the arrest and therefore lawful. Jesse testified that he acted promptly when Sparvier attracted his attention to the bag. He also expressed his concern about what it might contain and that the bag might disappear if he did not take immediate action to seize it. [12] S. 529.3 of the Criminal Code reads as follows: (1) Without limiting or restricting any power peace officer may have to enter dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending person, without warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain warrant. (2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer ... (b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence. [13] refer to the comments of the Supreme Court of Canada in R. v. Caslake (1998), 1998 CanLII 838 (SCC), 121 C.C.C. (3D) 97 at page 108: [19] As L'Heureux-Dube J. stated in Cloutier, the three main purposes of search incident to arrest are ensuring the safety of the police and public, the protection of evidence from destruction at the hands of the arrestee or others, and the discovery of evidence which can be used at the arrestee's trial. The restriction that the search must be "truly incidental" to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest. Whether such an objective exists will depend on what the police were looking for and why. There are both subjective and objective aspects to this issue. In my view, the police must have one of the purposes for valid search incident to arrest in mind when the search is conducted. Further, the officer's belief that this purpose will be served by the search must be reasonable one. [20] To be clear, this is not standard of reasonable and probable grounds, the normal threshold that must be surpassed before search can be conducted. Here the only requirement is that there be some reasonable basis for doing what the police officer did. [emphasis in original] And at p. 109: [20]...police would be entitled to search an arrested person for weapon if under the circumstances it seemed reasonable to check whether the person might be armed. Obviously, there is significant difference in the two standards. The police have considerable leeway in the circumstances of an arrest which they do not have in other situations. At the same time, in keeping with the criteria in Cloutier, there must be "valid objective" served by the search. An objective cannot be valid if it is not reasonable to pursue it in the circumstances of the arrest. [22] Requiring that the search be truly incidental to the arrest means that if the justification for the search is to find evidence, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. [emphasis in original]. And at page 110: [25] In summary, searches must be authorized by law. If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. [14] Constable Jesse was fully justified in taking the action he did with respect to the seizure of the bag. [15] There are two other matters must address. Firstly, did Ms. Sparvier have reasonable expectation of privacy? There is no evidence to explain her presence in the Hansen house. She had her own residence in Regina. [16] Counsel cited number of cases. In my respectful view, the one which is most apposite is R. v. Edwards 1996 CanLII 255 (SCC), [1996], S.C.R 128. refer to the following passage from the headnote: Several principles pertain to the s. right to be secure against unreasonable search or seizure. claim for relief under s. 24(2) of the Charter can only be made by the person whose Charter rights have been infringed. Like all Charter rights, s. is personal right. It protects people and not places. The right to challenge the legality of search depends upon whether the accused had reasonable expectation of privacy, and if so, whether the search by the police was conducted reasonably. reasonable expectation of privacy is to be determined on the basis of the totality of the circumstances. The factors to be considered may include: (i) presence at the time of the search; (ii) possession or control of the property or place searched; (iii)ownership of the property or place; (iv) historical use of the property or item; (v) the ability to regulate access; (vi) the existence of subjective expectation of privacy; and (vii) the objective reasonableness of the expectation. If an accused person establishes reasonable expectation of privacy, the inquiry must proceed to the second stage to determine whether the search was conducted in reasonable manner. The accused had no privacy interest in the goods seized as he had denied that the drugs were his. He demonstrated no expectation of privacy in his girlfriend's apartment, which was the only other relevant privacy interest. His girlfriend described him as "just visitor" who stayed over occasionally. He contributed nothing to the rent or household expenses and had no authority to regular access to the premises. [emphasis added] The police conduct did not affect personal right of the accused. It was accordingly not necessary to consider whether the accused could contest the admissibility of the evidence pursuant to s. 24(2) of the Charter or whether the accused's girlfriend did in fact consent to the search of her apartment. The reasonable expectation of privacy concept has worked well in Canada. It has provided to be reasonable, flexible, and viable and should not be abandoned in favour of the discredited rule of automatic standing. [17] Edwards had more justification for arguing privacy in his girlfriend's apartment than the accused did here, and, as the Court noted, his submissions were rejected. In my respectful view, the accused had no expectation of privacy in this case either as to the residence or the bag. [18] In respect to that issue, must consider the question of standing, matter raised by the Crown early in the proceedings. The decision in R. v. Edwards, which have already quoted, is on all fours. [19] In the present case there was no evidence tying the accused to the gym bag. It was of different description than the one used in the Nordon robbery. The accused has never asserted ownership of the bag or made any claim to any interest or right with respect to it. [20] note also that the gym bag constituted non-conscriptive evidence, another factor which must bear in mind in light of the suggestion that the evidence should be excluded under s. 24(2) of the Charter. [21] If there were any violations of the accused\'s rights under the Charter, and I have concluded there were not, they were of a minor nature and certainly not sufficiently egregious to engage the provisions of s. 24(2) of the Charter. To exclude the evidence in question would, in fact, bring the administration of justice into manifest disrepute. [22] The actions of the police were not unlawful with respect to either the arrest or search and seizure.

The accused was charged with ten counts including robbery, aggravated assault, assault causing bodily harm, possession of stolen property and trafficking in narcotics. She raised s.9 and 8 of the Charter in objecting to the arrest and seizure of the duffel bag. The voir dire occupied 5 days. HELD: 1)The four requirements set out in R. v. Feeney for a warrantless search were satisfied. The arrest was lawful. The search of the house and seizure of the duffel bag was incidental to the arrest and therefore lawful. 2)The accused had no expectation of privacy with respect to either her friend's residence or the bag. The decision in R. v. Edwards was squarely on point. There was no evidence tying the accused to the gym bag. It was of a different description than the one used in the drugstore robbery. The accused never asserted ownership of the bag or made any claim to any interest or right with respect to it. The gym bag constituted non-conscriptive evidence. 3)If there were any violations of the accused's Charter rights (and it was concluded there were not) they were of a minor nature and not sufficient to engage the provisions of s.24(2) of the Charter. To exclude the evidence would bring the administration of justice into disrepute.

2001skqb485.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 44 Date: 2009 01 23 Docket: F.S.M. 50 of 2005 Judicial Centre: Regina, Family Law Division IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT, AND IN THE MATTER OF N.S., BORN […] 2005 D.S., BORN […] Counsel: Jill Drennan for the Ministry of Social Services Bruce K. Campbell representing N.O.S. H.H. representing herself JUDGMENT OTTENBREIT J. January 23, 2009 INTRODUCTION [1] H. H. is the mother of two children, N.S. and D.S. N.O.S. is the father of the children. The Ministry of Social Services (the Ministry) seeks a six month order pursuant to s. 37(c) of The Child and Family Services Act, S.S. 1989-90, c. C-7.2 (the “Act”) with respect to the two children. Both H.H. and N.O.S. appeared at the hearing. Although N.O.S. was represented, H.H. was not. N.S. was born […] 2005 as shown on Exhibit P-1-Tab A-1 and is nearly four years old. D.S. was born […] 2007 as shown on Exhibit P-1-Tab A-2 and will soon be two years old. [2] D.S. was apprehended by the Ministry when he was born. Both N.S. and D.S. were the subject of consent order for six months on October 2, 2007. Both children have been in care for most of their lives. The Ministry requests a six month order with a proviso that it be for the purposes of allowing the Ministry to make long term placement plans for both children. [3] H.H., the mother, is not seeking a return of the children to her directly but supports the position of N.O.S., the father, who asks that the children be returned to him in his care. N.O.S. proposes that he will continue living with the mother H.H. and the children while the mother first attends to getting her addiction problems under control and then he proposes to address his own addiction problems. [4] The Ministry filed book of documents marked Exhibit P-1 with each document tabbed therein. References to tabs refer to this exhibit. HISTORY OF THE PARENTS [5] N.O.S. was born on […] 1986 in Regina. N.O.S. presently lives with his father on the […] First Nation. He grew up on the […] First Nation just north of Regina and resided there with his father until he was teenager. He has four brothers and one sister and he is third in the sibling line. N.O.S. is at the present time not working or in school. He has grade nine education and shovels snow for Elders on the reserve. He plans to return to school. N.O.S. has substantial criminal record which was tendered as Exhibit P-3 by the Ministry. This includes 16 offences as youth. His youth offences were primarily property crimes, especially vehicles, and failures to comply with the dispositions made with respect to his offences. The convictions for youth offences are dated between May of 2000 and June of 2004. [6] N.O.S. also has an adult record related to property offences but primarily related to failing to comply with recognizances and probation orders. His last conviction was in January of 2006 for which he received total of seven months incarceration. [7] N.O.S. testified at the hearing and readily admitted that in his past he stole property, took cars and committed break and enters. He indicated that his friends were doing it. [8] Although he met H.H., the mother, at an early age, they did not really establish relationship until late teenagehood when they both started going to Alcoholics Anonymous (A.A.) meetings. They started living together and both were using intravenous drugs. N.O.S. was using once every two weeks. N.O.S. became involved in gang activity when he spent time at the correctional centre and after he was released. He testified that he stopped hanging around with gang members after his daughter N.S. was born and got beat up because he left the gang. He testified he has not been involved in gang activity recently. N.O.S. and H.H. have lived together at various residences on and off since N.S. was born. [9] The Ministry called Staff Sgt. Dave Wyatt who tendered Regina Police Service computer record of police involvement with N.O.S. This shows 64 entires with respect to dealings with N.O.S. These entries include all dealings which the Regina Police Service had with N.O.S. including the times that N.O.S. was arrested and the times he was suspect. His most recent contact with Regina City Police Service was when he was arrested and charged regarding the theft of an auto on June 21, 2008. The Regina City Police Service computer records show number of calls related to domestic violence. There are, however, no charges or convictions respecting domestic violence. [10] N.O.S., on September 16, 2005, signed Parental Services Agreement (PSA) for the period September 16, 2005 to December 16, 2005 respecting N.S.. These included conditions that H.H. and N.O.S. would attend parenting program of their choice and inform the social service worker of which one and that H.H. and N.O.S. would attend Narcotics Anonymous (N.A.) or A.A. once per week. There were additional conditions that they would both find suitable housing and work cooperatively with the Ministry. N.O.S. signed another PSA on April 28th covering the period April 28th to August 28th of 2008. The purpose of this PSA was that the parents would not expose their children, in this case both N.S. and D.S., to drug use or domestic violence so the children would continue to live in safe environment and have appropriate care. This PSA is found at Tab B-27. Additionally, N.O.S. agreed to attend anger management and participate in and complete parenting class and remain drug free and provide all drug screen results as well as work with the KidsFirst Program and attend and complete treatment. [11] Respecting domestic violence, N.O.S. denies that he has ever hit H.H. and indicates that when they argue, he attempts to get away and avoid the argument. N.O.S. says that he took parenting course for approximately two months and went every Wednesday. This happened before D.S. was born. He was not able to provide any certificates that he completed any course of programming although he indicates that on the parenting course he asked for certificates but they did not provide any. He has taken and completed courses on safe food handling and cooking. N.O.S. indicates that he did not take anger management courses because there was no anger management facilitator. [12] N.O.S. has been on the methadone program since at least January of 2007. Records consisting of result report form, patient medication profile and charting records, track sheet and notes from the Harm Reduction Methadone Program are found at Tab B-32. Dr. Harris, medical doctor working at the Harm Reduction Methadone Program in Regina who was admitted as an expert in the analysis and interpretation of toxicology screens for individuals who are using methadone to overcome addictions, testified with respect to both the involvement of N.O.S. and H.H. with their clinic. The tracking sheet respecting the urine screens of N.O.S. show that since January of 2007, N.O.S. has tested positive for opiates only once in January of 2007, ritalin twice in December of 2007 and January of 2008 and cocaine three times in November and December of 2007 and January of 2008. N.O.S. has tested positive for cannabinoids consistently throughout the period between January of 2007 and the first of December, 2008 when the record ends. Dr. Harris testified that N.O.S. has been on the methadone program for some time and compared to other clients of the clinic, N.O.S. is doing very well and above the average. Dr. Harris testified that methadone is substitution therapy to help the craving for those who want to stop using intravenous drugs. Methadone is intended for opioide addictions although other addictions tend to benefit from the interaction. Dr. Harris testified that an indication of stability in the program is an indication that the patient is allowed to carry the methadone medication home. The record with respect to N.O.S. that the program counsellors have consistently trusted him to carry home his methadone medication. However, N.O.S. did have some relapses. Dr. Harris testified that single opioide screen in January and the two ritalin screens did not present any concerns to him. He indicated that N.O.S. provides screens generally twice month and the results are very consistent compared to other patients. Dr. Harris also testified that the cannabis use was not concern and that N.O.S. appears to be stable patient despite relapses. [13] Joe Vandale, who is counsellor at the Harm Reduction Methadone Program and has worked with N.O.S. and H.H., indicated that although N.O.S. has left the program the odd time, he has always come back to restart. He indicated that in March and April of 2008 N.O.S. was doing well since he was allowed to carry further doses and appeared to be given 1-6 carry schedule. Mr. Vandale indicated that N.O.S. had attempted to set up some treatment at the MACSI Centre in Saskatoon in November of 2007 but left the treatment before it was completed. N.O.S.’s explanation was that he had injured his eye and they refused to give him medical treatment. Mr. Vandale indicated that on objective indicators, N.O.S. was doing well apart from his screens. He did not seem to be avoiding dealing with matters. Mr. Vandale indicated that N.O.S. was already addressing his opiate addiction and that the next step would be attending A.A. and anger management. Mr. Vandale testified that the screens are an indicator of how well N.O.S. is doing and that he has progressed. He indicated that relapse is learning experience and not failure. It depends on what triggered it. [14] With respect to the positive screen for N.O.S. for cocaine in May of 2008, Mr. Vandale indicated that he talked to N.O.S. about this and his explanation was that he didn’t use cocaine, it was merely slip not relapse. [15] H.H. has had involvement with the Ministry with respect to the children from the date of birth of N.S. N.S. was born addicted as result of the drug use of H.H. N.S. was apprehended at birth as was D.S. H.H. did not testify and her history can only be gleaned from the documents which have been filed as exhibits and the testimony of others. [16] The registration of live birth for N.S. found at Tab A-1 shows that H.H., the mother, was born on […] 1985 at Regina. H.H. has lived with N.O.S. on and off since the birth of N.S. at various residences. [17] The Regina Police Service record for H.H. tendered by Staff Sgt. Wyatt is found at Tab B-30. This shows 122 entries dating from August of 1991 to the most recent entry in June of 2008. In May of 2008, she was arrested and charged with violations relating to no contact with N.O.S. The Regina Police Service Occurrence Record documents various dealings with H.H. either with respect to charges, arrests, as complainant or as witness. [18] H.H. has entered into number of PSA’s. The first one is dated February 21, 2005 and covered the period February 21, 2005 to May 31, 2005. It related to N.S. and as condition required H.H. to complete detox and treatment, work with the KidsFirst Program and provide drug screens. The next PSA was dated March 14, 2005 and covered the period March 14, 2005 to June 30, 2005. It required H.H. to contact Alcohol and Drug Services to complete an assessment and follow through with their recommendations. H.H. was to reside with N.S. in her mother’s residence and work with Families First and attend parenting classes. The worker at the time, Sharese Cyr, provided an assessment referral for H.H. through the Alcohol and Drug Services Regina Health District. This is found at Tab B-8 and details H.H.’s chemical use history. B-8 indicates that H.H. was 14 when she began smoking pot and doing ritalin and alcohol. She then quit for time between the ages of 15 and 16 and then began using T’s and R’s and then started using morphine then quit until the summer of 2004 when she started using morphine. It also showed that she had number of charges with respect to assault causing bodily harm and robbery and incarceration from August to October 2004. B-8 indicates that H.H.’s previous treatment was in 1992 and 1993. [19] H.H. did provide drug screens from time to time to the Ministry. The drug screen in April of 2005 tested positive for cannabinoids and benzodiazepines [20] The next PSA signed between H.H. and the Ministry is dated April 11, 2005 and covered the period of April 11, 2005 to July 11, 2005. This PSA required H.H. to continue to work with Healthiest Babies and to register and participate and complete an ADS program at an appropriate agency. [21] further PSA was entered into on April 20th covering the period April 20 to July 20. This PSA updated the one done nine days before. H.H. agreed to leave N.S. in the care of her mother when she has to leave the home. H.H. again agreed to work with someone from Four Directions Addiction Counselling. [22] Residential Services Agreement was signed by H.H. whereby the Minister would provide services for N.O.S. and assist H.H. in addressing addiction issues and preparing for family reunification. [23] On September 16, 2005 both the father and H.H. signed another PSA with the provisos that H.H. would attend addictions assessment and that both parents would attend parenting program of their choice as well as submit drug screens and attend N.A. and A.A. once per week. This PSA covered the period September 16, 2005 to December 16, 2005. During that time, H.H. provided drug screen that was positive for opiates as well as cannabinoids on September 26, 2005. [24] H.H. entered into another PSA dated January 10, 2006 with conditions very similar to past PSA’s. This covered the period January 10, 2006 to May 10, 2006. Tab B-20, long term/permanent ward form and annual review, was signed on January 24, 2007. It recommended that the Ministry apply for permanent wardship of N.S. This showed that N.S. had been in care from May 2, 2005 to January 24, 2007. The parents had weekly two hour supervised visits with N.S. at the Ministry. [25] On April 19, 2007 H.H. entered into another PSA promising to participate in parenting classes, continue with the methadone program and take other programming. This was to cover the period April 19 to August 19, 2007. The father also signed PSA dated April 28, 2008 showing the period April 28, 2008 to August 28, 2008 whereby the father agreed to participate in and complete parenting class and attend anger management as well as remain drug free and provide all drug screen results. The father also agreed to work with KidsFirst and attend and complete treatment. [26] Tab B-32 contains the Harm Reduction Methadone Program notes provided by various doctors and workers for N.O.S. These notes cover the period January 8, 2007 to December 3, 2008 and documents the father’s contact with the Harm Reduction Methadone Program. The notes indicate on October 8th that the father refused to provide screen on October 6th and left cold screen on October 7th as well as left cold screen on October 19th. Joe Vandale testified that cold screen is questionable because when the sample for the screen is given it should come out at body temperature and it is provided to the program personnel immediately. cold screen may indicate that it has been sitting too long or that it was not given at the clinic. Between the period November 11, 2007 and November 23rd, the father had number of no-shows and on November 22nd, was officially off the program. By December 11, 2007, the father was back into the clinic wanting to restart and the notes indicate that he advised that he went on binge and reported using 200 mg of morphine daily and also cocaine. There were further no-shows by the father between December 23rd and January 18th as well as various no-shows later in January and in February. [27] The note dated February 29th indicated that the father would be starting anger management and life skills courses on the Reserve on March of 2008. However, by March 3rd, the father indicated that the anger management program was cancelled due to only few candidates and he was asking to be referred to other programs. [28] The notes further indicate that on November 12, 2008, the father called to report that he was going to treatment in Lebret on November 15th. However, on the 14th he called wanting to go to MACSI as the NADAP treatment centre refused him as he was on methadone. Joe Vandale contacted MACSI in Saskatoon and they had cancellation and accordingly arrangements were made for the father to attend on November 18th for the program. [29] The Harm Reduction Methadone Program notes for H.H. can be found at B-31 and covers the period October 4, 2005 to December 17, 2008. The note on January 12, 2005 indicates that the writer arranged to have H.H. attend detox but she declined. The note dated May 24, 2006 indicated that H.H. had been on an alternate methadone program since March of 2006. On September 13, 2006, notes indicate that H.H. wanted to restart the methadone program and was referred to the Parliament Clinic. On January 8, 2007, the note indicated that H.H. came into the clinic and reported that she was using 200 mg of morphine daily. She was six months pregnant at the time with D.S. H.H. reported that she did go to detox the year before but did not manage to stay abstinent. [30] The notes indicate that H.H. had number of no-shows at the clinic in December and November 2007 and went off the program. She went off the program and had to restart. In April of 2008, the notes indicate that arrangements were made to have the parents go to MACSI in Saskatoon for 28 days but they did not go due to babysitting issues. The notes on November 26, 2008 indicate that H.H. advised that she wanted referral to detox, that she had relapsed using cocaine. number of workers had worked with both the parents. The worker who originally worked with the parents was Sharese Cyr. Ms. Cyr attended to the hospital upon N.S.’s birth. At that time, H.H. admitted to using IV ritalin and marijuana prior to the birth. At that time, when H.H. was in the hospital with N.S., Ms. Cyr spoke to her about plan for drug and alcohol treatment and talked about options. At that time, H.H. was noncommital regarding treatment. The Ministry decided that N.S. would be discharged to H.H.’s care under PSA dated February 1, 2005. During the time that Ms. Cyr dealt with H.H., she was concerned about H.H.’s failure to follow through with the parenting services and noncompliance with the PSA’s. Ms. Cyr advises that when she talked to H.H. on March 14th, H.H. indicated she was smoking pot and using morphine the previous week. Ms. Cyr prepared the drug and alcohol assessment referral marked Tab B-8 and did work to facilitate treatment for H.H. but H.H. did not follow through. [31] Holly Murray has been the worker on this matter since July of 2007. During her involvement with this matter, both children have been in the care of foster parents and the natural parents had been visiting the children at the office for unsupervised visits once week. She reported that generally the visits were going well and in August of 2007, there was some overnight visiting. Ms. Murray made the decision to return the children to the parents in September of 2007 on conditions that the parents submit screens and that they continue on the methadone program as well as take anger management in the case of the father and the children attend the Children First Program. This resulted in six month supervision order dated October 2, 2007 for both children. Ms. Murray checked on the children on November 19th and December 17th and the children appeared well. In the month of January of 2008, she had contact with both the father and the mother. The father reported that the mother was using drugs heavily and often did not know where she was. H.H. herself called on January 21st and sounded like she was under the influence speaking slowly and her speech was slurred. N.O.S. reported on February 19th that he did not think that H.H. was on the methadone program at that time. It appears that H.H. left the father for some period in February and March and by March 1st, wanted to come back to him. Ms. Murray informed the father that if the mother were to live with him, then the kids would be apprehended. Ms. Murray testified that in March the father indicated that he would go to anger management class and get treatment. During this time, the children looked well cared for. On March 31, 2008, Ms. Murray received report from Mobile Services through an anonymous caller who indicated that H.H. and N.O.S. were drinking. This raised protection concerns. On April 18 of 2008, Ms. Murray spoke with the SAP worker who indicated that she felt both the father and the mother were trying to avoid her. This raised further concerns with Ms. Murray, however, on April 28th when Ms. Murray visited the family home, the children appeared to be doing well and PSA was signed with the father. [32] On May 28th, Joe Vandale provided drug screens to Ms. Murray. The father had tested positive for cocaine and the mother had had positive screens in April and May for cocaine. [33] When the children were finally apprehended on May 29th, they were quite dirty. During the period of June to the present, both parents visited the children consistently and the visits went generally well. [34] Ms. Murray testified that D.S. seemed delayed in his development but was otherwise doing well and that N.S. had started school. Ms. Murray indicated that her concerns were the drug use of the parents as well as their on and off again relationship. The receipt of positive screens and not following through on programming had led to the apprehension of the children and she felt that the father not attending anger management and other programs was significant. She indicated that there were no objective indicators that they were working on their issues and she recommended that the court order six month order planning for permanent placement. [35] In cross-examination, Ms. Murray confirmed that the children appeared to be well bonded to their parents and that the only time that the children appeared not to be well dressed is when they were apprehended. She also confirmed that both the father and the mother would bring new clothes to the children on their visits. She confirmed that the father indicated he would work with the Ministry with respect to the children. She confirmed that there was no indication of violence by N.O.S. since she had been the worker on the file and also confirmed that since the apprehension, she did not have particularly good working relationship with the parents. Ms. Murray admitted that she basically stopped working with the parents once the long term placement planning started. She advised that she had never been to N.O.S.’s father’s house and that the only contact with the father was at visits. She indicated that the permanency committee had explored resources with the appropriate Indian Band but the Band indicated that there were no resources on the Reserve. She confirmed that the children generally appeared to be happy when they were with the parents. She admitted that the parents need support to beat their addiction problems. [36] The witness Jamie Jones from the Ministry became involved with the matter in April of 2005. She was not able to confirm that in March of 2005 H.H. had attended any programming. Ms. Jones continued on the file until September of 2005 dealing with H.H. During that time, H.H. admitted to using valium, marijuana and morphine. In early May, H.H. brought N.S. in indicating that neither she nor her mother could care for her. [37] Kynan Kindopp was worker on this matter from October of 2005 until May of 2007. During that time, she dealt only with N.S. When she first got involved, N.S. was living in foster home and H.H. was visiting N.S. at her mom’s house. During the time that Ms. Kindopp dealt with the children and the parents, the ups and downs in the relationship between the parents continued. Ms. Kindopp had discussion on October 27, 2005 with H.H. regarding domestic violence since it appeared at visit that she had bruise. H.H. indicated that it was as result of fall. Ms. Kindopp spoke to H.H. about domestic violence. She did not believe it was fall. It looked like she had been hit. On November 10, 2005 the mother of H.H. reported to her that H.H. and N.O.S. “were using”. In March of 2006 Ms. Kindopp saw H.H. at detox centre. H.H. looked good and she had been clean for five days. By March 20th, Ms. Kindopp had been advised that H.H. was no longer in the detox program. In August of 2006 N.O.S. reported that he had broken up with H.H. and that she was using drugs. In 2006, the parents continued to visit N.S. and members of both of the father’s and mother’s family were explored as resources without success. In February of 2007 N.S. was admitted to the Pasqua Hospital because of vomiting and diarrhea. Ms. Kindopp indicated that her recommendation at the end was to pursue permanent wardship for N.S. There were protection concerns she indicated which included domestic violence, addiction, transiency and lack of follow through. She indicated that while she was on the file, no programs were ever followed through by the parents for their addictions, parenting or violence apart from the methadone program. [38] In cross-examination Ms. Kindopp indicated that the father had always indicated his willingness to work with the Ministry. She also indicated that there was time when he was in counselling. She indicated that she never received any certificates of completion but did talk about completing the courses and following through with them with the father. She indicated that sometimes she knew where the father was living and sometimes not. She did attend at the fathers’ father’s house on the […] Reserve and indicated it was nice home. She indicated that she worked with the father to remind him that N.S. was lactose intolerant and that he had to bring appropriate snacks but thereafter the father complied with that. [39] The child N.S. was born addicted to drugs. recent picture of her found at Tab B-33 shows bright and happy child. Tab C-6 is letter dated February 22, 2005 from the Social Worker, Leanne Stefan, to Sharese Cyr and indicates Stefan’s concerns that there were risk factors posing health and safety issues to the child including active disclosed intravenous drug use of ritalin, high risk behaviour by the mother and possible gang involvement and the mother’s limited family supports. Tab C-19 contains Regina Qu’Appelle Health Region Wascana Rehabilitation Centre Psychological Assessment Report. The date of the report is May 14, 2007 and indicates that N.S. was living with her foster parents, J1. and J2. H., and had been living with them since November of 2006. N.S. attended the Y.W.C.A. daycare daily and at that time she was not playing with other children at the daycare and was physically aggressive toward them. However, the foster mother noted recent improvements regarding her ability to get along with other children and increased interaction and play and decreased aggression. summary of the assessment was that N.S. was pleasant and busy girl and her overall cognitive abilities fall within the average range. Her speech and language range also fall within the average range. Adaptively, N.S. is functioning within the high average range of abilities and overall did not present with any significant cognitive attention or adapted deficits. The report indicated that she has separation anxiety which is not surprising given her early history of not having consistent and long term caregiving environment. [40] D.S. was assessed at the Regina Developmental Assessment Clinic physical therapy assessment on August 7, 2007. The report indicated that D.S. was active and alert for the assessment and already handling well. At the time of the assessment, D.S. was 21 weeks old. This report is found at Tab C-20. The report indicates that he is demonstrating appropriate developmental skills for his age and using the developmental references demonstrating most of the skills at 20 week level. He also demonstrated some emerging skills from the 24 week level. On the motor skills level, he scored at the 25th percentile. The report found at Tab C-21 by the neonatalogist indicates that developmentally, D.S. is performing appropriately for his age. His neurological exam was normal. He was doing quite well with excellent growth with development appropriate for his age. [41] The therapy service notes from the Regina Qu’Appelle Health Region found at Tab C-23 are dated July 7, 2008. At this time, he was 16 months of age and had been with the foster family for two months. He was referred for therapy on concerns that there might be some developmental delay. He appeared to be functioning at the 16 to 18 month level on motor skills. His other skills, fine motor adaptive, were mostly at the 11 to 12 month level. It appeared that he may have hearing problem. [42] K.S.K.S. testified that she was the current foster parent for N.S. and D.S. When the children came back into care in May of 2008, she met N.S. Ms. K.S. describes N.S. as challenging girl, not sure of herself and sometimes aggressive. She does report that N.S. has strong personality and that she enjoys playing with age appropriate toys. She indicated that N.S. is not comfortable yet at her home and wants to be with her parents. [43] Ms. K.S. testified that when D.S. first came to her, he was going through withdrawal and was first on morphine and then phenobarbital for period of time. She indicated that the parents visit often and consistently and that the visits with the parents were going well. She indicated that when D.S. first came into her care, he was blank, had little expression or rarely smiled and he needed lot of people to hold him and respond to him. She indicated he was withdrawn. She felt his speech was delayed although his gross motor skills were good. She indicated that D.S. was joy to be with and that he was very busy, loves to take apples and milk and is doing everything he should so at this age. [44] The mother H.H., although present in court and part of the proceedings, declined to testify herself or call any evidence or cross-examine any witnesses. [45] The father testified that he was doing well on the methadone program and was staying away from drugs. He indicated that at the present time he was living in two story house with his father on the […] Reserve. The house has two bathrooms, four to five bedrooms and two living rooms as well as big yard and toys for children. The […] Reserve has approximately 2,000 people and has school, daycare, store and programs whereby he can get his grade 12 equivalency. The father indicated that he wanted an education. He testified that the daycare for the children was near the school and had lots of staff, one staff to two children. The school had grades kindergarten to grade 12. There was also health centre at the Reserve with dentist coming out as well as store and gas station and arcade. The Band Hall runs programs for children and the Southey RCMP is the police force. He hopes to continue in the methadone program and slowly wean himself off the program by taking lower doses. He indicates at the present time he does not have any cravings for drugs and hasn’t had any for long time. The father acknowledged that N.S. was lactose intolerant but indicates that she has gotten over it. He hopes to take the children home with him. He indicates he will not expose them to violence or drugs. He also wants H.H. to get treatment for her addictions and will continue the relationship with her if she is treated but not if she is untreated and using drugs. At the present time H.H. stays with him at the […] Reserve. Exhibit D-1 was filed which is letter dated October 20, 2008 which is letter of support for the father and the children from the Band Chief and Administration. [46] In cross-examination, the father admitted that he agreed to number of temporary orders. He indicated that he did not complete anger management but did Parenting with Focus on Fathers. He also admitted missing some days at the methadone clinic and indicated that he has complied with the court orders not to expose the kids to drug use and has never exposed the children to drug use. He did, however, admit that he tested positive for cocaine after the children were returned to him in September of 2007. He indicated that cocaine could be mixed with marijuana and that he admitted to Joe Vandale that he had slipped up on cocaine. He also admitted missing appointments at the methadone clinic in December. However, he was adamant that he did not use drugs while the children were in his care and indicates that he will not use cannabinoids if the children are returned. The father admitted that his screens for cannabinoids in the past had been positive but indicates that he is not tempted to use drugs if H.H. is using drugs. With respect to treatment, he indicated that H.H. is scheduled to go for addictions treatment and that he would be attending addictions treatment after H.H. completes her program. He confirmed that he has cancelled treatment several times. He also confirmed that he took A.A. meetings couple of times during the last six months but is not regular at N.A. or A.A. He stated that he could stay away from cannabinoids if the children are placed in his care. He also confirmed that he is still in relationship with H.H. who is expecting another child on or about April 17th. He also confirmed that if H.H. fails to go to treatment then he would not live with her and she would have to live with her mom. He denied ever being aggressive toward or assaulting H.H. despite what H.H. said about him. He confirmed that H.H. wanted the children to be in his care. He also said that while the children were in his care from time to time, he cared for them lots. He acknowledged that parenting the children on full time basis was little different that visiting them but that he has the support of his father and grandmother. He indicates that the K.S.’s have put the children on pattern and he is willing to maintain that pattern. He proposes that if he were to receive the children, he would enrol D.S. in daycare and N.S. in school and that he had already made arrangements to enrol N.S. in school. He confirmed that H.H. was to attend at MACSI in Saskatoon at the end of January for 28 day stay. He proposes to go there after that. [47] On re-examination the father indicated that although he had made mistakes in the past and bad choices, he has pushed them to the side and now has supports that he never had before for example from his father. He indicated that he was more focussed now and will do anything he has to do to take care of the children and will work with Social Services in any way. [48] L.S., the father of N.O.S., testified that as single parent he had raised five boys and one girl. His daughter still lived with him at the […] Reserve and was going to school there. He indicated that there were three bedrooms upstairs and two bedrooms downstairs with room for N.S. and D.S. should they be given to their father. He confirmed that at the Reserve there were the facilities mentioned by the father. He indicated that the father was turning his life around and wants his family back and that the Elders on the Reserve would help him do that. He also indicated that the Band supports having the children there and that his sister from Regina works with Aboriginal Family Services and would provide additional support. He indicated that he does not allow any drugs or alcohol in his home. [49] L.S.’s sister testified. She is the father’s aunt. She presently lives in Regina and has been female figure with the father’s family while L.S. was raising his family alone. She works for Aboriginal Family Services as Family Support Worker and Parent Aid. She also worked at safe shelter and for the […] Tribal Council. She indicates that her family is close and she sees the father’s family every week and has on ongoing relationship with him. She indicates that the father is good with the children and would often bring the children to her. She indicated that the […] Councillors have no tolerance policy for gangs and she has no concerns if the children are returned to the father. She confirms that L.S.’s house has no alcohol and drugs policy. She confirmed that parenting classes and treatments would be desirable and as well as developing parenting skills and that she was urging the father to take the programs. POSITION OF THE PARTIES [50] The Ministry takes the view that the children are in need of protection under s. 11 and that an appropriate order should be made under s. 32. The Ministry argues that nothing has changed and raises the concern that nothing will be different if the children are given back to the father. The Ministry indicates that there will continue to be likelihood of physical harm in the family which would affect the children’s mental and emotional involvement. They also point to domestic violence. The Ministry argues that s. of the Act is paramount over s. and that this is case where the care that the father is able to provide to the children falls below the minimal community standard. The Ministry points to N.O.S.’s criminal record and history of police intervention regarding domestic violence and criminal lifestyle on his part as well as his drug dependency. They raised the question of what would be different on this occasion. They questioned H.H.’s ability to act as parent if there is domestic violence and point to the disclosures by H.H. regarding domestic violence and bruising which was observed by the workers. The Ministry argues that there is circumstantial evidence as well as disclosure by H.H. as well as police records that indicates history of domestic violence. The Ministry points to no programming being taken with respect to domestic violence and indicates there would be danger to the children to remain at home. [51] The Ministry also points to the positive drug screens with respect to the father and the parties’ history of intravenous drug use. They point to the fact that H.H. overdosed on methadone in 2008 and both parents binged in September of 2007. They point out that between September of 2007 and May of 2008 this was the longest period of parenting done by the parties and there were difficulties with respect to screens and slips by the parties. The Ministry indicates that the father was defensive about his addictions and made repeated excuses about his failure to complete programming. This included twice attending MACSI but not following through as well as sporadic attendance at N.A. and A.A. The Ministry points out that H.H. has promised to attend programs as well but has not. Regarding the father’s promise that he will not use cannabis, the Ministry indicates that L.S. does not control the father’s behaviour outside of his home. They acknowledge that L.S. has been support for the father but why would this time be any different if he has been support in the past. In short they argue that L.S. cannot guarantee that N.O.S. will not use drugs. [52] The Ministry points to nine PSA’s and several orders all with the goal of keeping the mother and father on the road to taking programming. They point to the fact that Joe Vandale has testified that they do not appear to be following up on their programming and the Ministry feels that their failure to follow through is long standing pattern of behaviour to which they will revert once the children are in their care. The Ministry argues that they had these patterns before and knew the risk of using and went back to it. The Ministry indicates that there must be an indication that the parents have altered their behaviours and that the children will no longer be in need of protection and that reasonable plans exist for change. [53] The Ministry proposes that six month order be granted and that the order include wording that it is for the purposes of long term planning. They make the argument that if this wording is not attached then there would be another trial on more permanent order later on. Social Services indicates that if the children are to be returned to the father that the October 2007 order is starting point for conditions that might be put on the father. [54] Mr. Campbell, on behalf of the father, indicated that many of the problems which the parties had were well known when the children were returned to the care of the parents. This included drug involvement, criminal record and other risk factors which the Ministry now seeks to use for its argument. The father’s counsel argued that everyone who checked on the children said that they were looking good and were dressed well. He indicated that the father did nothing wrong between September of 2007 and May of 2008 other than slip for cocaine. He also indicated that H.H. was not sophisticated woman and that despite the police reports there was no evidence of domestic violence. This report did not provide any details. He indicated that the record for domestic violence ends in 2006 and that under oath, the father denied any domestic violence. He argued further that there was no evidence of domestic violence having any impact on the children. He also pointed out the foster mother who testified indicated that the parent’s home was nice. He argued that the level of parenting did not fall below the minimal standard and that the Ministry had jumped the gun in not continuing to work with the parents. He indicated that Ms. Murray did not work with the parents after the matter went forward and that the Ministry should continue to work with parents. [55] He indicated that the father came to court and should be given lot of credit for being receptive to any direction with respect to the children. He stated that the father has tried to follow through on programming but has an explanation of why he could not; in one case an eye injury and another case lack of funding for daycare. He indicated there was no suggestion that the father was not sincere in attending programming and that this was not case of avoiding. He indicated that the Ministry has an onus of following up on the father to make sure that he attends and completes the programs. Counsel for the father made the further observation that after the order of September 2007 expired, there was no further application to re-apprehend or extend during the time that the children were being parented by N.O.S. until some time later. When the children were finally apprehended it was not because of any domestic violence. The implication is that all was well or something would have been done. He also indicated that the father’s family at the Reserve is supportive and that if an order is made giving the children back to the father that the condition be that he reside in the home of L.S. He indicated that the father is over the hump in terms of his problems. Counsel for the father indicated that any order that is made should not include any reference to long term planning. [56] The mother H.H. declined to make any argument to the court other than that she was supporting the case for the father. She indicated that she loved the children, that she has addictions and that she is dealing with them and learning from them. [57] Counsel for the Ministry asked that draw an adverse inference from H.H. not testifying in that any allegations against her are uncontroverted. [58] Section 11 of the Act defines when child is in need of protection. For the purposes of this matter, s. 11(a)(i), (ii), (v) and (vi) are germane. They read as follows: 11 child is in need of protection where: (a) as result of action or omission by the child’s parent: (i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer serious impairment of mental or emotional functioning; ... (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; ... Additionally, ss. and of the Act are relevant. Additionally, s. 37(1)(a) and (c) are relevant as well as s. 37(4)(a). These sections read as follows: 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. 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. 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; ... (c) remain in or be placed in the custody of the minister for temporary period not exceeding six months. (4) In making an order pursuant to subsection (1), (2) or (3), the court: (a) shall consider the best interests of the child; ... [59] The guiding case in respect of the principles which must apply is found in Saskatchewan (Minister of Social Services) v. E.K.S., D.W. and C.S. (1996), 1996 CanLII 7131 (SK QB), 146 Sask. R. 46 (Sask. Q.B.). Paragraph 41 of this case per McIntyre J. reads as follows: [41] In determining whether child is in need of protection pursuant to any of the grounds enumerated in s. 11, Baynton J., in Saskatchewan (Minister of Social Services) v. S.E. and E.E., 1992 CanLII 8071 (SK QB), [1992] W.W.R. 289 (Sask. U.F.C.), at p. 296 states: “...(T)he issue is not whether the children might be better off, or happier, or obtain better upbringing in the care of other ‘parents’ than with their natural parents. If that were the criterion for protection order, not many children would remain with their natural parents. The issue, however, really is whether the children concerned are receiving level of parenting care that is below the minimal standard that will be tolerated in our society ...” [60] Further paragraphs of this case are germane, namely 43(a) and (b), 44 to 53 as follows: [43] Having determined the children to be in need of protection must move to the second step of determining the appropriate order under s. 37. Section 32 requires the court to approach the task as follows: (a) In determining what is appropriate the court must consider the best interests of the child within the meaning of s. and may consider the recommendations of the officer. These considerations must take place in the context of the objective of the Act as enumerated in s. 3. (b) The court must first determine whether any of the options in s. 37(1) is appropriate, that is: (i) returning the children to the parents with conditions attached if need be, including supervision by the Minister of up to one year; (ii) placing the child in the custody of person having sufficient interest; or (iii) committing the child to the custody of the Minister for up to six months. [44] In determining whether any of the options in s. 37(1) is appropriate number of principles can be taken from various reported decisions and the statute itself, keeping in mind that the decision must be reached in the context of determining what is in the best interests of the children. [45]1.[sic] 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.)) [46]2.[sic] Section 37(4) 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.)) [47]3.[sic] 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.)) [48]4.[sic] The court may consider the recommendation of the officer (representative of the Department) but is not bound thereby. [49]5.[sic] 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 ss. 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, at p. 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. [61] The first issue is whether N.S. and D.S. are in need of protection. am guided by the E.K.S. case (supra) and s. 11 of the Act. am also mindful of ss. and of the Act and the interplay of those principles. [62] In my view, the children, if they are returned to N.O.S., will not receive at this time a level of parenting that is above the minimal standard that will be tolerated by our society. have reviewed the evidence as whole and specifically reviewed the evidence respecting the emotional, social and developmental status of N.S. and D.S. Both children have some difficulties which must be managed carefully to ensure their continued growth and improvement. I am not satisfied that either of N.O.S. and H.H., given their own difficulties, can provide that management based on my comments which follow. [63] The Ministry has tendered substantial evidence of criminal behaviour on the part of N.O.S. and police involvement in the life of H.H. The criminal behaviour of N.O.S. in and of itself would not disqualify him from parenting the children if the children are not exposed to that behaviour. In this case, there is only risk that the children may be exposed to such behaviour in the future. There is no evidence that N.O.S. has done so in the past. [64] The evidence of domestic violence is equivocal. N.O.S. denies domestic violence. am not satisfied that there is significant domestic physical violence between N.O.S. and H.H. The Ministry argues that the failure of H.H. to testify should result in an adverse inference in favour of there having been domestic violence. will not make such an inference. On the evidence of her lifestyle and confirmed relapse into addiction the evidence that N.O.S. inflicted bruises on H.H. is weak. There is evidence, however, of consistent fighting and disruption of their relationship in the past. This has been described as an on and off relationship. I find that the relationship is unstable. This would be considerable stress on the parents and their relational struggles would in my view along with their struggles in other areas detrimentally impact their ability to care for the children and provide minimal level of care. [65] The parents’ addictions continue to loom large in their lives and relationship. While both H.H. and N.O.S. are to be commended for their progress in this area, I am not convinced that the father’s addiction has been stabilized and is fully under control. There have been slip-ups and missed appointments at the methadone clinic. Although Mr. Vandale testifies that each slip-up is learning experience for N.O.S., in my view the cost and effects of such learning should not be visited on the children. H.H. on the evidence is even less advanced in dealing with her addictions than N.O.S. despite her best intentions. [66] The evidence as whole indicates good intentions but not the personal strength to take and complete programming whether offered by the methadone clinic, agreed to on PSA’s or ordered as condition by the court. This is troubling because if the parents don’t have the strength to achieve this, there is question as to whether they have the personal strength to provide the minimal care for these children required by law on day to day basis. [67] Although N.O.S. may be on the cusp of properly managing his addiction problems, find that he is not quite there yet. Further time will tell. Both parents are to be commended for their plans to take treatment immediately. [68] If the children are returned to N.O.S. I find that the children are likely to suffer physical and emotional harm if they continue to be exposed to the present addictions struggles of N.O.S. and H.H. who proposes to live with N.O.S. as they both attempt to get their addictions under control and as well their relational struggles. [69] Although L.S. has offered to provide drug and alcohol free home for N.O.S. and the children, in my view L.S. has, at the moment and it appears has had in the past, limited influence over his son N.O.S. respecting his addictions. Although L.S. can continue where possible to support N.O.S., am not satisfied that at the moment his support will allow N.O.S. to provide the minimal standard of parental care required given the evidence as whole in the absence of N.O.S. having done something further to deal with his addictions. [70] While based on the evidence as a whole the parents have had successful visits with the children while in care and had a period of some months where the children were apparently looked after by them, this does not convince me that they belong with N.O.S. The day to day stress of parenting is substantially different than visits of several hours. As well, at the moment the evidence as a whole does not convince me that the children would receive consistent care month after month despite one past success in doing so. [71] I therefore find that N.S. and D.S. are children in need of protection and should, at this point, not be returned to N.O.S. or H.H. [72] In my view, the evidence as whole indicates that the children should, given my earlier comments, not be placed in the custody of the parent under s. 37(1)(a). On the whole, the children are best placed with the Ministry for six months. [73] Although the Ministry seeks a six month order with the additional notation that it is for the purposes of permanency planning, I am not inclined to make such an order. [74] six month order is premised on reasonable prospect of change by the parents within reasonable time. am hopeful that both parents are sincere in continuing to work on their issues in the near future. In the past, neither H.H. or N.O.S. have followed through with promises and agreements respecting programming to deal with their issues. There has been lots of talk but little or no action. The six month order will give the parents the opportunity to demonstrate that they are serious about changing their lives so that their children can be returned to them. Although admittedly the Ministry has provided or attempted to provide substantial resources to N.O.S. and H.H. in the past these resources have ceased after the last apprehension as result of the Ministry’s decision to do permanency planning. This order will give the Ministry and the parents further opportunity to collaborate to try to bring about positive changes in the parents’ lives. expect that Ministry personnel will work diligently in that regard. It is worth the effort to help this family. [75] There will therefore be an order that the children N.S. and D.S. be placed in the custody of the Minister for period of six months. [76] The parents, H.H. and N.O.S., shall continue to provide drug screens on at least weekly basis or at the request of the Ministry to the Ministry. H.H. and N.O.S. shall each, during the term of this order, attend and successfully complete an addictions program and provide to the Ministry evidence thereof. Additionally, the conditions found at paragraph of the October 2, 2007 supervision order shall be made part of this judgment and the parents shall be subject to those conditions. J. R. K. Ottenbreit

The Ministry of Social Services seeks a 6 month order pursuant to s. 37(c) of The Child and Family Services Act with respect to the two children, NS is four years old and DS is two years old. DS was apprehended by the Ministry when he was born. Both NS and DS were the subject of a consent order for 6 months in October 2007. Both children have been in care for most of their lives. The Ministry requests a six month order with a proviso that it be for the purposes of allowing the Ministry to make long term placement plans for both children. The mother HH is not seeking a return of the children to her but supports the position of NOS, the father, who ask that the children be returned to him in his care. HELD: 1) If the children are returned to NOS, they will not receive a level of parenting that is above the minimal standard that will be tolerated by our society. Both children have some difficulties which must be managed carefully to ensure their continued growth and improvement. 2) Given the difficulties the parents struggle with, they can not provide that management. The Ministry has tendered substantial evidence of criminal activity on the part of NOS and police involvement in the life of HH. The criminal behaviour of NOS in and of itself would not disqualify him from parenting the children if the children were not exposed to that behaviour. There is a risk that the children may be exposed to such behaviour in the future. There is no evidence that NOS has done so in the past. The evidence of domestic violence is equivocal. There is evidence of consistent fighting and disruption of their relationship in the past. The Court finds that the relationship is unstable. The parents' addictions continue to loom large in their lives and relationship. The Court is not convinced that the father's addiction has been stabilized and is fully under control. There have been slip-ups and missed appointments at the methadone clinic. This should not be visited on the children. HH is even less advanced in dealing with her addictions than NOS. The evidence indicates good intentions but not the personal strength to take and complete programming whether offered by the methadone client, or ordered as a condition of the court. This is troubling because if the parents don't have the strength to achieve this, there is a question as to whether they have the personal strength to provide the minimal care for these children required by law on a day to day basis. 3) If the children are returned to NOS, they are likely to suffer physical and emotional harm. While the parents have had successful visits with the children while in care and had a period of some months where the children were apparently looked after by them, this does not convince the Court that they belong with NOS. The day to day stress of parenting is substantially different than visits of several hours. The evidence does not convince the Court that the children would receive consistent care month after month despite one past success in doing so. The children are in need of protection and should not be returned to NOS or HH. 4) Although the Ministry seeks a 6 month order with the notation that it is for the purposes of permanency planning, the Court is not inclined to make such an order. A 6 month order is premised on a reasonable prospect of change by the parents within a reasonable time. The parents have this opportunity to demonstrate that they are serious about changing their lives so that their children can be returned to them.

d_2009skqb44.txt

J. F.L.D. A.D. 1996 No. 299 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: SUSANNE ARNDT APPLICANT (PETITIONER) and DOUGLAS DUNN RESPONDENT Anna M. Crugnale-Reid for the applicant (petitioner) Margot A. Dynna for the respondent JUDGMENT MALONE J. September 19, 1997 The only issue to be determined in this applicationis the amount of monthly maintenance to be paid by therespondent to the applicant as support for their child who wasborn on September 30, 1986. Both parties are medical practitioners and each enjoys significant income. The average income of the respondent over the past three years was approximately $180,000.00. In 1996, the applicant earned approximately $128,000.00, although she claims this was extra- ordinary because she received payment for projects completed during the previous two years. In addition to regular maintenance the applicantclaims pursuant to s. 7 of the Divorce Act Regulations,SOR/97-175 (the "Federal Child Support Guidelines"),additional maintenance to cover special or extra-ordinaryexpenses. These expenses are approximately $1,200.00 permonth to cover nanny and child care costs, approximately$125.00 per month for medication, $250.00 per month forrecreation and $200.00 per month for a university fund for thechild. In the present circumstances s. 4 of the guidelinesis applicable and it provides as follows: 4. Where the income of the spouse against whom child support order is sought is over $150,000, the amount of child support order is (a) the amount determined under s. 3; or (b) if the court considers that amount to be inappropriate, (i) in respect of the first $150,000 of the spouse's income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates; (ii) in respect of the balance of the spouse's income, the amount that the court considers appropriate, having regard to the condition, 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; and (iii) the amount, if any, determined under s. 7. In my opinion, and in the absence of any authority,the significant income enjoyed by the applicant is a factor tobe taken into consideration when determining the amount ofmaintenance to be paid by the respondent, particularly when Iam prepared to recognize a significant portion of theapplicant\'s claim for extra-ordinary expenses. Accordingly, order the respondent to pay maintenance on the basis of an annual income of $150,000.00, or the sum of $1,076.00 per month. With respect to the claims for special extra-ordinaryexpenses I am not satisfied the applicant has established thatthe claims for recreation and a university fund are expensesthat are "special" or "extra-ordinary". However, I amsatisfied that the claim for nanny and child care costs isjustified pursuant to s. 7(1)(a) of the guidelines and theclaim for medication is justified pursuant to s. 7(1)(c) ofthe guidelines. On the basis of their respective incomes, therespondent should be responsible for approximately 2/3 of theseexpenses which I calculate as follows:Nanny costs $1,200.00 x 12 $14,400.00Less income tax benefit availableto petitioner 3,000.00$11,400.002/3 x $11,400.00 = $7,600.00 � 12 = $634.00Medication costs 2/3 $125.00 = 84.00$718.00. The parties agree that any order made shall beeffective as of May 1, 1997 and accordingly the monthlypayments to be made by the respondent from that date untilfurther order is $1,794.00. The respondent of course is entitled to the benefit of any monies already paid since May of this year. make no order as to costs.

The only issue was the amount of monthly maintenance to be paid by the respondent for the one child. The average income of the respondent over the past three years was approximately $180,000. The applicant claimed her 1996 income of $128,000 was extra-ordinary as payment was received for projects completed in the previous two years. The applicant claimed special monthly expenses of $1,200 to cover nanny and child care costs, $125 for medication, $25 for recreation and $200 for a university fund. HELD: 1)The respondent was to pay $1,794 per month. Section 4 of the guidelines was applicable. The significant income of the applicant is a factor to be taken into consideration. 2)The applicant did not establish that the claims for recreation and the university fund were expenses that were 'special' or 'extra-ordinary'. 3)The respondent was responsible for 2/3 of the nanny and child care costs which were justified pursuant to s7(1)(c) of the guidelines.

8_1997canlii10895.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA Date: 20120117 Between: Docket: CACV 2135 Carry the Kettle First Nation and Leila Thompson Coram: Cameron, Jackson, and Herauf JJ.A. Counsel: Philip Gallet for the Appellant Kirk Goodtrack for the Respondent Appeal: From: Q.B.C.No. 1264 of 2010, J.C. of Regina Heard: January 17, 2012 Disposition: Appeal Allowed Reasons: January 17, 2012 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Herauf CAMERON J.A. [1] We have concluded that the order made by the chamber judge striking major portions of the statement of defence and counterclaim of Carry the Kettle First Nation was made in error. The error consists of a failure to address the merits of the application brought by Ms Thompson to strike the impugned portions of these pleadings. Having come to this conclusion, we are left to either set aside the order and remit the application to the Court of Queen’s Bench for appropriate disposition or to address the merits of the application ourselves. In the interests of reducing further cost and delay we have decided to do the latter. [2] Turning to the merits of the application to strike, we note that the principal question is whether the impugned allegations in the statement of defence and counterclaim meet the requirements of Rules 173 and 149 of The Queen’s Bench Rules, particularly in relation to the allegations of fraud. As for the requirements of Rule 173, we are satisfied that, while fraud might have been pleaded more explicitly, having regard for the constituent elements of the tort, the pleading is nevertheless sufficient to answer to the requirements of Rule 173. We are also satisfied, though not without some reservations, that the allegations of fraud are sufficient to answer to the requirements of Rule 149. [3] The pleading furnishes much in the way of particulars of the alleged fraud, specifying the source and purpose of the funds entrusted to Carry the Kettle First Nation that Ms Thompson, while employed in an administrative capacity by the First Nation, is alleged to have diverted to her own use or the use of others, including members of her family. Again, the allegations might have been pleaded more specifically, including more specific identification of the amounts involved and the dates upon which they are alleged to have been diverted. But without at least giving Carry the Kettle First Nation the opportunity to amend its pleadings in these respects so as to be more specific, the allegations cannot fairly be struck out as not answering to the requirements of Rule 149, albeit barely so perhaps. [4] It is, of course, always open to Ms Thompson to apply to the Court of Queen’s Bench for an order requiring Carry the Kettle First Nation to provide further and better particulars should she find herself in the position of not knowing with sufficient certainty of the case she will be expected to meet in the respects under consideration. And discovery, both documentary and oral, lies ahead. [5] On the whole, then, we have decided to allow the appeal, set aside the order under appeal, and dismiss the application to strike. The application is dismissed without prejudice to Ms Thompson’s rights to again turn to the Court of Queen’s Bench, in one context or another, to seek further specifics of the alleged fraud. In the circumstances, we have decided to allow the appeal but without an order for costs in favour of Carry the Kettle First Nations. [6] In leaving the case we want to commend counsel. They presented the case on appeal in keeping with the best traditions of the legal profession, matter their clients should know about and appreciate.

The appellants appealed the order of a Queen's Bench chamber's judge striking out portions of the statement of defence and counter-claim. HELD: The chamber's judge was in error in striking out portions of the statement of defence and counter-claim. The error consists of a failure to address the merits of the application. The Court of Appeal opted to deal with the merits of the application themselves, rather than remitting the matter back to Queen's Bench. While the allegation of fraud might have been pleaded more explicitly, the pleading is nevertheless sufficient to answer the requirements of QB Rule 173. The appellants should have been given an opportunity to amend their pleadings. The appeal was allowed and the application to strike was dismissed without prejudice to respondent's right to seek further particulars.

b_2012skca3.txt

J. 2001 SKQB 185 D.I.V. A.D. 1998 No. 102 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: BLAINE KENNETH COLLINS and GERMAINE MARIE COLLINS RESPONDENT Blaine Kenneth Collins appeared on his own behalf Jill McMahon for Germaine Marie Collins JUDGMENT SCHEIBEL J. April 17, 2001 [1] This matter came before me for trial on June 28, 29 and 30, 1999. written decision was filed on July 9, 1999. The decision was appealed by Mrs. Collins and on April 13, 2000 the Court of Appeal delivered the following judgment: The trial judge's reasons for judgment state that as long as the parties reside in the trailer court, the parties are to share joint custody. On the hearing of this appeal, the parties were agreed that Mrs. Collins is no longer residing in the trailer court. In light of this, the nature of the custody order and its adjuncts such as the order not to remove the children from the jurisdiction have become unclear. To clarify its nature, the matter must be remitted to the trial judge. It is so ordered. There will be no order of costs. [2] Several attempts were made to have the matter brought back before me in accordance with the direction of the Court of Appeal. Each time the matter was further adjourned for various reasons of the parties. [3] Approximately two years have elapsed since my decision of July 9, 1999. In the interval there have been numerous applications which the parties have brought before the Court. In addition, the parties have been involved in pre-trial. [4] From the material on file and from the oral position taken by the litigants it appears that there may have been numerous changes of circumstances which goes far beyond the single issue which the Court of Appeal directed be returned to me. [5] These changes of circumstances involve an application to vary and cannot be dealt with as result of the decision of the Court of Appeal referring the matter back to me on the issue set forth. [6] In addition, Mr. Collins advises that he intends to challenge the legislation dealing with custody and access. He was unaware that he is required to serve the notice under The Constitutional Questions Act, R.S.S. 1978, c. C-29 and as such was not in position to argue that issue before me. [7] In the end the parties agreed that they were not able to bring all of these issues before me and both sides have agreed that this application before me should be abandoned in favour of proceeding with an application to vary which would encompass all of the issues which have arisen since my decision of July 9, 1999. [8] am of like mind. Therefore the parties may proceed by way of an application to vary and the issue raised by the decision of the Court of Appeal will be subsumed in that application. [9] In view of this nothing further need be done by me and no costs are awarded to either party on this issue before me.

The Court of Appeal remitted the issue of custody to the trial judge on April 13, 2000 but the matter was adjourned for various reasons. The parties had brought numerous applications since the July 9, 1999 decision and they had been in a pre-trial. HELD: An application was to be brought which would encompass all of the new issues. There had been numerous changes in circumstances which went beyond the single issue referred back. The petitioner intends to challenge the legislation dealing with custody and access but was unaware he is required to serve notice under the Constitutional Questions Act.

3_2001skqb185.txt

J. 2002 SKQB 508 Q.B. A.D. 2002 No. 1264 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: FOUR STAR MANAGEMENT LTD. o/a TREATS AT THE UNIVERSITY OF SASKATCHEWAN and CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL 1975 and THE SASKATCHEWAN LABOUR RELATIONS BOARD RESPONDENT L.F. Seiferling, Q.C. for the applicant A.R. Engel for the respondent, CUPE W.R. Pelton, Q.C. for the respondent Board JUDGMENT KYLE J. December 12, 2002 [1] This is a motion for judicial review of the decision of the Saskatchewan Labour Relations Board ("the Board"). The Board awarded a wage increase to employees of Four Star Management Ltd., operators of certain food services at the University of Saskatchewan, Saskatoon. The wage increase was part of first collective bargaining agreement concluded by the Board after the normal bargaining between the parties had failed. The governing legislative provision is s. 26.5 of The Trade Union Act, R.S.S. 1978, c. T-17 ("the Act"). Under that provision the Board determined it would conduct hearing to conclude all the outstanding terms of the first contract. It required the employer to list the issues in dispute and after those issues were defined the hearing took place. Wage issues were before the Board. The employer had advised the Board that it was not "prepared to make the agreement retroactive". [2] Following the decision of the Board which concluded contract with wage increase which the employer says would increase the wage costs by 31 percent, the employer refused to sign contract or to implement it and sought clarification of the retroactivity of the wage rates. The Board ruled on that point favouring the union and making the wage increases fully retroactive as regards the employees in service at the time of the Board order, and also in respect of those who had left the employ of the employer during the two year term of the contract prior to the Board's order. As the employees were university students whose term was normally rather brief, this latter concern was of more than usual importance. [3] By its notice of motion the employer seeks an order setting aside the orders of the Board upon the grounds that their decisions are patently unreasonable in that the employer could not afford the wage increases and further because retroactivity would not have been a feature of a replicated contract. The motion claimed that the Board denied the parties natural justice and procedural fairness in respect of the wage retroactivity to employees who had left the employ before the contract was concluded by order of the Board. [4] Appellate courts are unanimous in instructing the reviewing courts to show deference to the expertise of the Board because of its experience in the field, an experience which probably exceeds that of the reviewing judge. That said, if the reviewing court is to have any function at all it must be able to assess the decision by some standard. If it finds the decision unreasonable, then it considers whether that level of error reaches the patently unreasonable level. [5] In this case the Board undertook to replicate first collective bargaining agreement which the parties might have reached had bargaining succeeded. It was required by statute to do so within 45 days. The Board concluded the contract in 14 months, not 45 days. By the time it released its decision the two year term of the contract which it concluded had only three and one-half months to go. [6] Faced with an employer which had lost money consistently in all but one of the years of its operation, an employer which had not paid its owners/operators any salaries for the long hours which they put in, it imposed salary increase which, with attendant "perks", required 31 percent raise in the labour costs of the failing business. Upon further application by the union it ordered that the salary increase would be retroactive for the full two year period and would apply to all of the many student employees who had come and gone during the two year period. [7] In so doing it purported to replicate the contract which the parties would have reached had the collective bargaining process succeeded. It noted that the employer had consistently refused to increase wages because of its precarious financial situation and then proceeded to impose an increase which the employer says it would not have agreed to due to the low bargaining power of the workers. The employer had consistently taken the position that it was prepared to accept strike rather than raise wages above the minimum wage level, which it eventually paid. This preference was specifically rejected by the Board in favour of imposing what it described as "quite modest increase". [8] It is true that in seeking to replicate the contract which the parties would have made it is necessary to mandate compromise. Where it not so, the replication process would only perpetuate the intransigence which brought the matter to deadlock. Once it undertakes to mandate compromise, it is almost certain that one of the parties will see the result as unreasonable. In this case the employer sees it that way and as the above comments may imply, so do I. The issue then becomes was it patently unreasonable. [9] To be patently unreasonable it must be "clearly irrational" (Federal Court of Appeal) "outrageous, absurd, ridiculous, so beyond the bounds of reason as to amount to a 'fraud on the law or deliberate refusal to comply with it'" (Cameron J.A., Saskatchewan Court of Appeal). The Supreme Court of Canada in Southam Inc. et al. v. Director of Investigation and Research, 1997 CanLII 385 (SCC), [1997] S.C.R. 748 held per Iacobucci J. "The difference between 'unreasonable' and 'patently unreasonable' lies in the immediacy or obviousness of the defect if the defect is apparent on the face of the tribunal's reasons then the tribunal's decision is patently unreasonable but if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable". [10] I do not think that the errors made here have been so severe or so obvious as to meet the standard of patently unreasonable as defined by the courts and, accordingly, I find that the motion fails on that point. [11] The question of whether the Board breached natural justice and procedural fairness by awarding retroactive wages depends on whether the issue of retroactivity was one of the points of dispute between the parties. Had the Board complied with the 45 day limit, the retroactivity issue would have been much less important than it later became. The employer had mentioned retroactivity as an issue in letter to the Board prior to the hearing and, of course, retroactivity was quite unimportant had the employer's refusal to increase wages prevailed. I find, therefore, that to set aside the entire process because the retroactivity issue was not front and centre in the preliminary discussions and arguments would seem to be contrary to curial deference and to reason. Had the raise in pay not been retroactive it would, in light of the late decision, have been rather meaningless. The decision to allow the graduated employees to receive their back pay is not, I think, of sufficient import to justify a finding of breach of natural justice. [12] This leaves for the consideration of the court whether the disregard for the 45 day period designated by the legislation deprives the Board of its jurisdiction. It is argued that the right to conclude first contract was limited to the 45 days and that the right of the Board to do so ended with the 45 day period. [13] Among the authorities cited by the Union were Bernauer v. Royal Bank of Canada, [1994] S.J. No. 154 QL (Sask. Q.B.) and Regina (City) v. Newell Smelski Ltd. (1996), 1996 CanLII 5084 (SK CA), 152 Sask. R. 44 (Sask. C.A.). In the Bernauer case, Walker J., in the course of an exhaustive review of the law, stated: 10 Consideration must be given to the entire statute, its nature, its object and the consequence which would result from construing the part in question as imperative or directory. The language of statute, however imperative in form, may be deemed directory whenever legislative purpose can best be carried out by so doing and the legislative intent does not, without more, require an imperative construction. Whether statute is imperative or directory depends on whether the thing directed to be done is of the essence of the thing required or is mere matter of form as, for example, where the directions of statute are given merely with view to the proper, ordinary and prompt conduct of business or where the provision is designed to secure order, system and despatch in proceedings. 11 As general rule, statutes relating to remedies and procedure are liberally construed with view to the effective administration of justice. However, statutes which take away, change, or diminish fundamental rights or statutory remedies for rights unknown to the common law, and statutes which provide new and extraordinary remedies must be construed strictly, both as to the cases embraced within their terms and as to the methods to be pursued. But the doctrine that statute creating rights which were unknown at common law or equity is to be strictly construed is meant to preserve the substantial rights of those against whom the remedy offered by the statute is directed and not otherwise. It was never meant to be applied as pitfall to the unwary, in good faith pursuing the path marked by the statute, or as point from which an adversary can overwhelm him for an immaterial misstep. [14] In the second case cited above, the Saskatchewan Court of Appeal on timeliness issue, stated: [36] But not every failure to observe statutory requirements of procedural nature carries with it such effects. If the legislature does not expressly provide for the effect of imperfect compliance or non-compliance with requirement of this nature, the matter becomes one of implication, having regard for the subject matter of the enactment; the purposes of the requirement; the prejudice caused by the failure; the potential consequences of finding of nullity; and so on. [37] There is great deal of authority for this. By way of example, involving imperfect compliance with time requirement, we might refer to Secretary of State v. Langridge, [1991] All E.R. 591 (C.A.) at p. 595. There Balcombe L.J. drew upon de Smith's Judicial Review of Administrative Action (4th ed., 1980), at pages 142-143, in addressing the principles at work: When Parliament prescribes the manner or form in which duty is to be performed or power exercised, it seldom lays down what will be the legal consequences of failure to observe its prescriptions. The court must therefore formulate their own criteria for determining whether the procedural rules are to be regarded as mandatory, in which case disobedience will render void or voidable what has been done, or as directory, in which case disobedience will be treated as an irregularity not affecting the validity of what has been done (though in some cases it has been said that there must be "substantial compliance" with the statutory provisions if the deviation is to be excused as mere irregularity). Judges have often stressed the impracticability of specifying exact rules for the assignment of procedural provision to the appropriate category. The whole scope and purpose of the enactment must be considered, and one must stress "the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act". In assessing the importance of the provision, particular regard may be had to its significance as protection of individual rights, the relative value that is normally attached to the rights that may be adversely affected by the decision, and the importance of the procedural requirement in the overall administrative scheme established by the statute. Furthermore, much may depend upon the particular circumstances of the case in hand. Although "nullification is the natural and usual consequence of disobedience," breach of procedural or formal rules is likely to be treated as mere irregularity if the departure from the terms of the Act is of trivial nature, or if no substantial prejudice has been suffered by those for whose benefit the requirements were introduced, or if serious public inconvenience would be caused by holding them to be mandatory, or if the court is for any reason disinclined to interfere with the act or decision that is impugned. [15] It will appear to reader of precedents in this area that courts are reluctant to enforce time limits and will, as rule, find that legislatures do not intend time limit to be used as final determinant of rights. However, the comments from de Smith to the effect that there must be "substantial compliance" with the statutory provisions if the deviation is to be excused as mere irregularity, must be considered here, where 45 day limit has been exceeded by ten-fold extension with the effect that the two year contract imposed was almost over by the time it was concluded. [16] The test of "substantial compliance" would, assume, involve consideration of the purpose of the time limit and the probability of prejudice which might arise from failure to comply. In the present case the employer is merchant. His products are presumably priced in such way as to reflect in part the labour costs involved in delivering them to the public. The importance of a wage increase, retroactive and rather substantial if viewed as a percentage, would seem to be prejudicial. [17] As noted by Walker J., supra, the mandatory directory decision is to be based in part on public duties as compared to private rights. Those conferring private rights are, in general, imperative. In this case, the rights affected are private rights and so the scales tip in favour of the imperative. am not prepared to hold that minor deviation from the 45 day limit would deprive the Board of its jurisdiction especially, as here, where the employer was not overly concerned with the time issue at the initial stage. However, to have delayed the conclusion of the contract from June of 2000 until September 18, 2001, contract which was to expire on December 31, 2001, would seem excessive. Walker J. noted that an imperative enactment must be obeyed or fulfilled exactly while directory enactment must be obeyed or fulfilled substantially. Even accepting that the 45 day limit is directory, the Board's actions fall well short of substantial compliance. [18] The Board, in its decision of April 24, 2002, seemed to be unaware or dismissive of its obligation under the Act to conclude the contract within 45 days. While it had chastised the employer for its failure to file list of issues as required by that section, it held [17] Just as there is no magic or design in how long it may take parties to forge an agreement through collective bargaining, ratify and actually sign that agreement, there is no magic in the date that an application to the Board will be heard and decision issued. It is dependent on number of contingencies including general application of first-in-first-out rule to the hearing of applications, availability of the parties, their counsel and of panel members, Board administrative and clerical resources, previous commitments, and intervening priorities, to name few. It would be unsound to base entitlement to retroactive benefits on the serendipitous signing of collective agreement or the signing of Board decision imposing one. [19] note, however, that at no time was the "over 45 days" issue raised in the proceedings before the Board, as has been noted by the union. The employer sought and obtained an adjournment of the hearing in April of 2000 which effectively made compliance with the 45 day limit impossible. The motion which brought this matter before the court for review does not raise the issue and it only came up in the briefs and in the argument before the court at the hearing of the motion. [20] The two year contract has expired, the business has been sold, and to elevate this issue to the point where a rehearing would be required would seem counter productive. Had it been an issue duly raised and argued before the Board, however, it would not have been easily ignored either by the Board or by this Court on review. [21] Accordingly, the motion is dismissed.

A motion for judicial review of a Labour Relations Board decision awarding a retroactive wage increase to employees. The food services operators, alleging a denial of natural justice and procedural fairness, sought to have the orders set aside on the grounds the decisions were patently unreasonable in that the employer could not afford the wage increases and because retroactivity would not have been a feature of a replicated contract. HELD: The motion was dismissed. 1)In undertaking to replicate a collective bargaining agreement that the parties might have reached, the LRB concluded the contract in 14 months by which time the two year term contract had only three and one-half months to go. The two year contract has now expired and the business has been sold. To elevate this issue to a point where a rehearing would be required would seem counterproductive. 2)The LRB's actions fell well short of substantial compliance with the 45 day limit for review. However at no time was the 'over 45 days' issue raised in the proceedings before the Board. The test of 'substantial compliance' would involve a consideration of the purpose of the 45 day time limit and the probability of prejudice which might arise from a failure to comply. The importance of a retroactive wage increase, which was substantial if viewed as a percentage, would seem prejudicial, even accepting the 45 day limit is directory. The employer sought and obtained an adjournment of the hearing in April which effectively made compliance with the 45 day limit impossible as the employees left once they graduated from their university courses. 3)The errors were not so severe or so obvious as to meet the standard of patently unreasonable as defined by the courts (ie. clearly irrational (Federal Court of Appeal), outrageous, absurd, ridiculous, so beyond the bound of reason as to amount to fraud on the law or deliberate refusal to comply with it (Southam)). 4)The decision to allow employees, who had graduated and left their employment to receive back pay, was not of sufficient import to justify a finding of breach of natural justice. Whether the Board breached natural justice and procedural fairness by awarding retroactive wages depends on whether the issue was one of the points of dispute between the parties. To set aside the entire process because the retroactivity issue was not front and centre in the preliminary discussions would seem contrary to reason and curial deference. Had the raise in pay not been retroactive it would, in light of the late decision, been rather meaningless.

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C.A.C. No. 108627 NOVA SCOTIA COURT OF APPEAL Clarke, C.J.N.S., Matthews and Roscoe, JJ.A. BETWEEN: KENNETH MILTON MURPHY and HER MAJESTY THE QUEEN Respondent Philip J. Star for the Appellant Robert C. Hagell for the Respondent Appeal Heard: January 13, 1995 Judgment Delivered: January 13, 1995 THE COURT: Leave to appeal is granted but the appeal is dismissed per oral reasons for judgment of Matthews, J.A.; Clarke, C.J.N.S. and Roscoe, J.A. concurring. The reasons for judgment of the Court were delivered orally by: MATTHEWS, J.A.; The appellant was charged with operating a motor vehicle while impaired by alcohol or a drug: s. 253(2) of the Code. On November 4, 1991, Provincial Court Judge John R. Nichols, after trial, reserved his decision and then found him guilty of the offence. He appealed that conviction. Summary Conviction Appeal Court Justice Charles E. Haliburton, after hearing argument and receiving briefs, reserved his decision and, on August 23, 1994, dismissed the appeal. The appellant now seeks leave to appeal and if that is permitted, appeals that latter decision. Judge Nichols' decision is brief: Again, have reviewed my notes on that matter and on the evidence am of the view that Kenneth Murphy knew or ought to have known that the ingestion of the drug with the alcohol would cause the reaction that he exhibited. He exceeded the required dosage voluntarily and as result the signs of impairment were noted by the constables on the day in question. Clearly his impairment was result of ingestion of both alcohol and drugs. therefore make finding of guilty. On appeal, Justice Haliburton restated the issues as: Issue 1: That the Learned Trial Judge erred in law by entering conviction when the form of Information before the Court was not bilingual in form contrary to Section 841(3) of the Criminal Code. Issue 2: That the Learned Trial Judge erred in law in failing to provide reasons and to enunciate his findings of fact in reaching the conclusion that the Accused "knew or ought to have known of the effects of the drug that he was taking". The same issues were raised before this Court. ISSUE 1: The appellant concedes that this issue has been decided by the majority opinion of this Court in R. v. Goodine (1992), 1992 CanLII 2618 (NS CA), 112 N.S.R. (2d) which held that the failure to comply with s. 841(3) did not render the information nullity. However, in light of the dissent in Goodine he wishes "to keep the issue alive in the event of further appeal or, in the alternative, should decision from higher Court be consistent with the dissent in Goodine, supra, or should this honourable court find reason to overrule its decision in Goodine, supra". We dismiss this ground of appeal. ISSUE 2: There can be no doubt that the appellant was impaired. Haliburton, J. summarized the pertinent evidence: Mr. Murphy's erratic driving attracted the attention of Police Officer Kendall at 9:05 on the evening in question. Officer Kendall was returning from interviewing suspects in another matter when he came up behind Murphy's vehicle travelling at 20 kilometres an hour on the wrong side of the highway. The vehicle failed to respond when he engaged his emergency lights. When he engaged his siren, the vehicle accelerated, travelling at speeds up to 120 kilometres an hour on hilly, twisty, secondary road, occupying both sides of the road and generally behaving erratically. When the driver eventually stopped, Officer Kendall observed him to have very bloodshot eyes, strong odour of liquor on his breath, an unsteady, staggering gait, and slurred speech. The officer promptly gave him breathalyzer demand. Because of the difficulty he had had in stopping the car, Officer Kendall had radioed his detachment for backup and Constable Forbes attended at the scene. When he arrived, Mr. Murphy was already in the backseat of Kendall's vehicle. Constable Forbes' evidence was: .. know Mr. Murphy personally and just from observations of his manner in the back seat of the car, his eyes and just from my observations, made the opinion he was drunk. Later, at the police detachment: .. noticed that his speech was slurred, his eyes were bloodshot and the pupils dilated. He had strong odor of liquor on his breath and his walk was staggered and it confirmed my earlier observation and it confirmed the fact that he was drunk. The appellant does not quarrel with this evidence. However, he says that he adduced evidence through the testimony of friend with whom he had two drinks just prior to his apprehension by the police; his own testimony in respect to his drinking and ingestion of medication; and that of his medical doctor respecting his prescribing the medication to the appellant and its possible effect upon the appellant if taken when drinking. He alleges that Justice Haliburton erred in law:i) by upholding the conviction when the Learned Trial Judge failed to provide reasons for accepting the evidence of various witnesses, failed to make findings of credibility with respect to witnesses, and failed to comment on the credibility and evidence of the witnesses; ii) by upholding the conviction when the Learned Trial Judge did not make decision on all issues of law and fact raised by the Defence; iii) by holding that "the evidence of the Defence witnesses, if believed, does not raise reasonable doubt as to whether the Accused's voluntary consumption of alcohol caused his impairment". In his 15 page decision, Justice Haliburton, after discussing the relevant facts and applicable law, remarked: The bottom line here is that the evidence of the Defence witnesses, if believed, does not raise reasonable doubt as to whether the Accused's voluntary consumption of alcohol caused his impairment. The police constables cited number of indices relating to his appearance and behaviour which prompted them to form the belief that he was "drunk". There is no suggestion in the evidence of Dr. MacDonald that the consumption of Librex alone or in combination with alcohol would cause bloodshot eyes, staggering, or slurred speech. He suggested that there might be bizarre indications if the user was unfamiliar with the drug but his evidence was that Murphy had been using this particular medication for as much as 20 years. Given the hypothetical situation set up by the Accused, the doctor expressed his professional opinion that "you would think that person could handle it". The Trial Judge was certainly entitled, if not obliged, to draw the appropriate inferences from the fact that Mr. Murphy appeared to be coherent at the time of his arrest and sufficiently aware to appreciate that he had right to counsel, to access counsel, to take counsel's advice, to not give sample of breath, and to ultimately refuse the demand. His Counsel was present with him at the police office. These circumstances create further inferences to be drawn from the fact that Mr. Murphy did not think to mention his consumption of Librex to the police at any time before the commencement of the trial and he apparently did not mention it to his Counsel on the night in question. Otherwise, one would assume that it would have been raised at that time by Counsel. While it would have been helpful for appeal purposes and much more satisfactory to the Accused had the Trial Judge spelled out specifically his reasons for ruling out the mens rea defence, his failure to give reasons does not offend the various criteria enunciated in the cases submitted by the appellant. The issue of credibility did not arise and hence determination as to the credibility of various witnesses was unnecessary. The only fact which could possibly be in issue was the actual knowledge of the Accused that consuming liquor in combination with the sedative Librex "could possibly" have an unexpected impact, an impact which, according to the evidence the Defence produced, was unknown to his own doctor except on speculative basis. Dr. MacDonald said in effect that Mr. Murphy "ought to have known" that it was dangerous to combine the drugs with alcohol and that is exactly the finding of Judge Nichols which the Defence now disputes. The appeal is without merit. The decision of Judge Nichols is confirmed. Justice Haliburton was entitled to review this evidence given at trial. The duty of an appellate court was once more commented upon by the Supreme Court of Canada, rendered after the decision of Haliburton, J., in R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.R. 656 at p. 664: The Court of Appeal's main concern was not that there was insufficient evidence to support the verdicts of guilty, nor that those verdicts were unreasonable, but that the trial judge's reasons failed to indicate that he had considered certain frailties in the complainant's evidence. Given the brevity of the trial judge's reasons, they could not be sure that he had properly considered all relevant matters. Failure to indicate expressly that all relevant considerations have been taken into account in arriving at verdict is not basis for allowing an appeal under s. 686(1)(a). This accords with the general rule that trial judge does not err merely because he or she does not give reasons for deciding one way or the other on problematic points: see R. v. Smith, 1990 CanLII 99 (SCC), [1990] S.C.R. 991, affirming (1989), 1989 ABCA 187 (CanLII), 95 A.R. 304, and Macdonald v. The Queen, 1976 CanLII 140 (SCC), [1977] S.C.R. 665. The judge is not required to demonstrate that be or she knows the law and has considered all aspects of the evidence. Nor is the judge required to explain why he or she does not entertain reasonable doubt as to the accused's guilt. Failure to do any of these things does not, in itself, permit court of appeal to set aside the verdict. This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. Trial judges are presumed to know the law with which they work day in and day out. If they state their conclusions in brief compass, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case. After thorough review of the material placed before us it is our opinion that Justice Haliburton did not err in dismissing the appeal. The conclusion of Judge Nichols is supported by the evidence. While we grant leave to appeal we dismiss the appeal. J.A. Concurred in: Clarke, C.J.N.S. Roscoe, J.A. CANADA PROVINCE OF NOVA SCOTIA 1990 155936 IN THE COUNTY COURT JUDGE'S CRIMINAL COURT OF DISTRICT NUMBER THREE ON APPEAL FROM THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus KENNETH MILTON MURPHY HEARD BEFORE: His Honour, Judge John R. Nichols, J.P.C. PLACE HEARD: Yarmouth, Nova Scotia DATES HEARD: February 25, 1991; April 23, 1991; October 23, 1991 and November 1991. CHARGE: That he, on or about the 22nd day of May, 1990 at or near North Belleville, in the County of Yarmouth, Province of Nova Scotia, did operate motor vehicle while his ability to operate the vehicle was impaired by alcohol or drug, contrary to Section 253 (a) of the Criminal COUNSEL: Robert M.J. Prince, Esq., for the Prosecution Philip J. Star, Esq., for the Defence C‑A‑S‑E 0‑N A‑P‑P‑E‑A‑L C.A.C. No.108627 NOVA SCOTIA COURT OF APPEAL BETWEEN: KENNETH MILTON MURPHY and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: MATTHEWS, J.A.

The appellant was convicted of operating a motor vehicle while impaired. His conviction was upheld on appeal to a summary conviction appeal court. This appeal was based on the argument the provincial court judge's decision failed to provide reasons for accepting the evidence of various witnesses, failed to make findings of credibility with respect to witnesses, and failed to comment on the credibility and evidence of the witnesses. The appellant complained the judge did not provide adequate reasons for the decision. Dismissing the appeal, that the decision was supported by the evidence. The court referred to R. v. Burns, [1994] 1 S.C.R. 656 at 664, where the Supreme Court of Canada held that if trial judges state their conclusions in brief, and these conclusions are supported by the evidence, the verdict should not be overturned merely because they fail to discuss collateral aspects of the case.

a_1995canlii4315.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 49 Date: 20040408 Between: Docket: 889 Rhonda Jean Hart and Warren Scott Neufeld Coram: Vancise, Sherstobitoff Jackson JJ.A. Counsel: Diane Ansell for the Appellant Lyle Phillips for the Respondent Appeal: From: DIV/F.L.D./Q.B. 003933 of A.D. 1998, J.C. Moose Jaw Heard: April 8, 2004 Disposition: Allowed (orally) Written Reasons: April 13, 2004 By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Mr. Justice Sherstobitoff The Honourable Madam Justice Jackson Vancise J.A. (orally) [1] The appellant wife appeals the decision of the chambers judge varying the amount of child support and reducing the amount of arrears. She contends that the chambers judge erred in varying the order for maintenance and reducing the amount of arrears in the absence of evidence that there was change in the conditions, means and needs of the respondent or the children as contemplated by s. 17(4) of the Divorce Act.[1] [2] The respondent contends that the amount of child support should be reduced by reason of his reduced income caused by his unemployment or reduced employment over the last four years. The appellant argues that the respondent has failed to satisfactorily explain his unemployment. There is evidence that his change in income is due to his own voluntary action and, as a result, he has failed to establish the threshold “change in circumstances” which could result in a variation of the order. [3] The appeal is allowed and the decision of the chambers judge is set aside. There is evidence from which this Court can impute income to the respondent in the amount of $27,000, and the child support shall be varied to $510.00 per month as of February 1, 2004 in accordance with the Child Support Guidelines. The sum of $1,926.78 currently held by the Maintenance Enforcement Office shall be applied to the arrears. The respondent shall pay the sum of $200.00 per month on the arrears commencing April 1, 2004. [4] The appellant shall have her costs in the usual way. [1]R.S.C. 1985, c. (2nd. Supp.).

Fulltext of judgment follows: [1] The appellant wife appeals the decision of the chambers judge varying the amount of child support and reducing the amount of arrears. She contends that the chambers judge erred in varying the order for maintenance and reducing the amount of arrears in the absence of evidence that there was a change in the conditions, means and needs of the respondent or the children as contemplated by s. 17(4) of the Divorce Act.[FOOTNOTE 1][2] The respondent contends that the amount of child support should be reduced by reason of his reduced income caused by his unemployment or reduced employment over the last four years. The appellant argues that the respondent has failed to satisfactorily explain his unemployment. There is evidence that his change in income is due to his own voluntary action and, as a result, he has failed to establish the threshold 'change in circumstances' which could result in a variation of the order. [3] The appeal is allowed and the decision of the chambers judge is set aside. There is evidence from which this Court can impute income to the respondent in the amount of $27,000, and the child support shall be varied to $510.00 per month as of February 1, 2004 in accordance with the Child Support Guidelines. The sum of $1,926.78 currently held by the Maintenance Enforcement Office shall be applied to the arrears. The respondent shall pay the sum of $200.00 per month on the arrears commencing April 1, 2004. [4] The appellant shall have her costs in the usual way.1R.S.C. 1985, c. 3 (2nd. Supp.).

3_2004skca49.txt

C.J.Q.B. 2004 SKQB 156 Q.B. A.D. 2001 No. 671 J.C. P.A. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: ERNEST MONTGRAND and SASKATCHEWAN GOVERNMENT INSURANCE RESPONDENT P. V. Abrametz for the appellant J. A. Bailey for the respondent JUDGMENT ROTHERY J. April 19, 2004 [1] The appellant, Ernest Montgrand, appeals the calculation of his income replacement benefit made by the respondent, SGI, as provided by Part VIII of The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 (the “Act”). Under s. 198 of the Act, hearing was held to determine certain facts. The parties agree that Montgrand is non-earner as defined by the Act, who was involved in motor vehicle accident on July 25, 1998, and suffered injuries to an extent that he is not able to carry on gainful employment as skidder operator. Montgrand is entitled to an income replacement benefit. [2] Counsel for Montgrand estimates that he ought to receive an income replacement benefit (“IRB”) based on yearly wages in excess of $50,000. This position is based on employment promised to Montgrand which would have commenced during the first 180 days following the accident. Counsel for SGI submits that the weighted average approach in calculating Montgrand’s gross yearly employment income (“GYEI”) sets the IRB much lower. Over the previous three years, Montgrand earned no more than $12,000 per year. [3] The Act provides for calculation of IRB for the first 180 days after the accident, and for the 181st and subsequent days. The provisions of the Act for determining the IRB for the first 180 days that are pertinent in this situation are as follows: 116(1) For the first 180 days after an accident, non-earner is entitled to an income replacement benefit if, as result of the accident, the non-earner: (a) is unable to hold an employment that he or she would have held during the 180-day period if the accident had not occurred; (3) Subject to the regulations, the insurer shall calculate the income replacement benefit pursuant to clause (1)(a) on the basis of the gross yearly employment income the non-earner would have earned from his or her employment. [4] The relevant sections from The Personal Injury Benefits Regulations, c. A-35, Reg are as follows: s. 19(1) An income replacement benefit for non-earner to be calculated pursuant to section 116 of the Act, is to be calculated based solely on the time that the victim would have actually been employed during the first 180 days after the accident. s. 20 Subject to these regulations, victim’s gross yearly employment income not derived from self-employment at the time of the accident is the sum of the following amounts: (c) in the case of non-earner, the salary or wages, excluding benefits or commissions in clauses (d) or (e), from an employment that the non-earner would have held, if the accident had not occurred, during the first 180 days after the date of the accident divided by the number of days the employment would have been held and then multiplied by 365; [5] Counsel for the appellant called Wayne Cowan, president of CLC Logging Ltd., to testify on Montgrand’s behalf and to give evidence of employment that he would have provided for Montgrand but for the intervening accident. CLC Logging Ltd. is logging and milling business in the Meadow Lake area of Saskatchewan. Cowan testified that the business operates all year round. When staff are not in the woods working as skidder operators and operating logging machinery, they are utilized in the mill. Skidder operators are paid $17 per hour and work sixty hours per week, consisting of five twelve-hour days. Logging continues during inclement weather. When the operation moves from one site to another, the employees assist in setting up camp. [6] Cowan stated that Montgrand had worked for him before as skidder operator, and found Montgrand to be capable employee. Cowan recalls personally contacting Montgrand during the summer of 1998 to commence work for him on August 17, 1998. No documents were produced by Cowan pertaining to Montgrand’s employment. But, T-4 statement of remuneration paid prepared for Canada Customs and Revenue Agency for another employee indicated that employee received $50,516 for employment income from Cowan’s company in 1999. [7] Montgrand’s counsel submits that this promise of employment is sufficient to qualify Montgrand to receive an income replacement benefit from August 17, 1998 to January 21, 1999 inclusive based on wages calculated at $17 per hour for 60-hour work week. Counsel concedes that Montgrand was receiving employment insurance benefits at the date of the accident, and did so until October 24, 1998 inclusive. The income replacement benefit at this rate ought to commence immediately thereafter until January 21, 1999 inclusive. [8] Section 116(1)(a) and Regulation 19(1) require that the income replacement benefit be calculated “based solely on the time that victim would have actually been employed during the first 180 days after the accident”. Thus, an assertion by prospective employer that employment was promised may not be sufficient to prove, on balance of probabilities, that the victim would actually have been employed during the first 180 days. It is certainly not sufficient in Montgrand’s case. Other evidence leads to conclusion that Montgrand would not have actually been employed at $17 per hour for 60 hours per week for the entire 180 day period. [9] As stated in Dietner v. Saskatchewan Government Insurance, [2001] S.J. No. 67 (Q.B.), at para. 26, when referring to an IRB for part-time and temporary earners, “these sections [s. 114 and s.115] indicate legislative intent to have the IRB reflect claimant’s earning reality by providing for reduction of the IRB calculation in certain circumstances such as those in which the claimant is capable of part-time work.” [10] While this appeal deals with s. 116 and s. 117 for non-earners, agree that the legislative intent remains the same. The income replacement benefit must reflect a claimant’s earning reality. In Montgrand’s case, his earning reality is far from Cowan’s promised employment. Cowan had previously employed Montgrand from January, 1998 to March, 1998 as skidder operator until Montgrand was laid off. Pay stubs for the time period of January 24, 1998 to March 6, 1998 reflect an hourly wage of $16 paid to Montgrand. Over that six-week period, Montgrand never worked close to 60-hour work week. The average work week was 34.25 hours. [11] In the previous three years, CCRA tax printouts show that Montgrand only worked part of the year. Of Montgrand’s total income of $18,358 for 1995, $11,864 was from employment income and $6494 was employment insurance benefits. Of Montgrand’s total income of $22,450 for 1996, $9388 was from employment income and $11,042 was employment insurance benefits, and $2020 for other benefits. Of Montgrand’s total income of $16,673 for 1997, $5278 was from employment income and$10,870 was workers’ compensation benefits. [12] I find that Montgrand’s earning reality was working for employment income no more than half the time. Working for CLC Logging Ltd. amounted to wage rate of $16 per hour for work week averaging 34.25 hours. Montgrand would have worked, on average, 90 of the 180 days. The IRB ought to be calculated accordingly. [13] SGI submits that reduction in the period of employment be reduced to factor in inclement weather. No reduction for inclement weather is required. accept Cowan’s evidence that his operation continues in inclement weather. The issue is determining the time that Montgrand would have actually been employed and that finding has been made. [14] The relevant provisions of the Act for determining the IRB on the 181st day and subsequent days for non-earner are as follows: 117(1) Subject to subsection (5), if on the 181st and subsequent days following an accident non-earner is unable to hold the employment he or she could have held at the time of the accident, the non-earner is entitled to an income replacement benefit calculated pursuant to this section. (2) For the purposes of calculating an income replacement benefit pursuant to this section, the insurer shall determine an employment for the non-earner pursuant to section 131. (3) Subject to subsection (4), the insurer shall calculate the income replacement benefit on the basis of the gross yearly employment income that the insurer determines the non-earner could have earned from the employment mentioned in subsection (2), considering the following factors: (a) whether the non-earner would have held the employment on full-time or part-time basis; (b) the work experience and earnings of the non-earner in the five years before the accident; and (c) any prescribed factors. (4) An income replacement benefit pursuant to this section is not to be less that the income replacement benefit the non-earner received pursuant to section 116... [15] The corresponding provisions of the Regulations are found in sections 24 -28. These regulations prescribe the calculations for establishing the gross yearly employment income required for s. 117(3) of the Act. Counsel for the appellant submits that the employment insurance benefits that Montgrand received during the first 180 days, up to October 25, 1998, ought to be included in the calculation of benefits mentioned in section 20(c) of the Regulations that affect the calculation referred to in section 24(1) of the Regulations. [16] Section 24(1) of the Regulations states: 24(1) The gross yearly employment income of victim who, at the time of the accident, does not hold the employment determined for him or her by the insurer but who, in the five calendar years preceding the date of the accident, held that employment is the greatest gross yearly employment income earned by the victim from the employment in any of those calendar years, including any benefits mentioned in sections 20 and 21, where the income is annualized, indexed pursuant to section 28 and then adjusted pursuant to section 27. (Emphasis added) [17] The benefits referred to in section 20 of the Regulations are set out in s. 20(d), and include employment bonuses, tips, overtime, and personal use of motor vehicle. There is no requirement to include employment insurance benefits in the calculation required for s. 24(1) of the Regulations. [18] Counsel for the appellant argues that Dietner stands for just this proposition. But, in that case, the court was required to make determination whether the claimant was deprived of an employment insurance benefit in the first 180 days. In Montgrand’s situation, no determination was required to be made under s. 116(1)(b) of the Act as to whether Montgrand was deprived of an employment insurance benefit because he was receiving employment insurance at the time of his accident, and received his full entitlement to employment insurance until it expired on October 24, 1998. The ratio in Dietner is not relevant to this case. Section 117 and the corresponding regulations provide the mathematical formula to determine Montgrand’s IRB and the GYEI from which the IRB is derived. [19] Counsel for the appellant further submits that s. 117(4) of the Act ensures that Montgrand’s IRB as calculated by what SGI refers to as “weighted average approach” for the time period after the first 180 days is not less than the IRB calculated under s. 116 of the Act and received by Montgrand in the first 180 days after the accident. agree with counsel’s position. The wording of s. 117(4) is clear. [20] Ensuring that the IRB is not less than the amount received for the first 180 days is in keeping with the purpose of the legislation. It strives for one’s earning reality. non-earner in the past may well become someone whose employment income, but for the accident, would be more than the “weighted average approach”. If claimant has proved on balance of probabilities that the promised employment reflects his or her earning reality, poor past record ought not to preclude the claimant from an IRB that reflects his earning reality. [21] Whether Montgrand’s IRB in the first 180 days, based on the court’s finding of facts, is greater or less than the IRB as prescribed by s.117 of the Act for the subsequent days, is matter of mathematical calculation. If it is greater, Montgrand has the benefit provided by s. 117(4) of the Act. As agreed by counsel, if they are unable to agree on the calculation of the IRB, the matter may be remitted back to me. [22] Counsel for the appellant is entitled to solicitor-client costs as provided by s. 198(5) of the Act and Regulation 101. If Montgrand is entitled to benefits other than what SGI has paid him, he is awarded interest on the value of those benefits not paid, from June 1, 2001 to date. SGI did not receive information from the appellant regarding promised employment until that date, and could not act on the appellant’s information before that date.

The appellant appeals the calculation of his income replacement benefit made by the respondent, SGI, as provided by Part VIII of The Automobile Accident Insurance Act. Under s. 198 of the Act, a hearing was held to determine certain facts. The parties agree the appellant was a non-earner as defined by the Act, who was involved in a motor vehicle accident and suffered injuries to an extent that he is not able to carry on gainful employment as a skidder operator. The appellant estimated that he should receive an income replacement benefit (IRB) based on yearly wages in excess of $50,000. This position was based on employment promised to the appellant that would have started during the first 180 days following the accident. The respondent submits that the weighted average approach sets the IRB much lower, as in the previous 3 years the appellant earned no more than $12,000 per year. HELD: 1) The IRB must reflect a claimant's earning reality. The appellant's earning reality was far from the promised employment. The Court found that the appellant's earning reality was working for employment income no more than half the time and the IRB ought to be calculated accordingly. 2) The benefits referred to in s. 20 of the Regulations include employment bonuses, tips, overtime, and personal use of a motor vehicle. There is no requirement to include employment insurance benefits in the calculation required for s. 24(1) of the Regulations. 3) Counsel for the appellant was entitled to solicitor-client costs as provided by s. 198(5) of the Act and Regulation 101.

b_2004skqb156.txt

S.C.C. No. 02435 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Jones, Hallett and Chipman, JJ.A. BETWEEN: PAUL WINSTON BOUDREAU and HER MAJESTY THE QUEEN Respondent William Brian Smith and Kevin Drolet for the Appellant Dana Giovannetti for the Respondent Appeal Heard: November 20, 1991 Judgment Delivered: November 20, 1991 THE COURT: Appeal allowed, verdict set aside and new trial ordered on the indictment, per oral reasons for judgment of Hallett, J.A.; Jones and Chipman, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: HALLETT, LA.: This is an appeal from a conviction of first degree murder. We agree with counsel that the trial judge\'s instruction to the jury contained several serious errors; the most serious being the instruction as to the requisite intent for murder. The trial judge failed to instruct the jury that nothing short of the accused\'s subjective foresight of death can found a conviction for murder (R. v. Martineau (1990), 1990 CanLII 80 (SCC), 58 C.C.C. (3d) 353). Furthermore, the instruction given could have left the jury with the impression that the appellant could be convicted of murder if it was proven beyond reasonable doubt that he attacked Smith and was merely careless whether he killed him or not. Secondly, on the evidence adduced at trial, the jury should not have been instructed that they could return a verdict of first degree murder by the application of s. 231(5) of the Criminal Code (see R. v. Pare (1988), 1987 CanLII 1 (SCC), 38 C.C.C. (3d) 97 at n. 108). In addition to the errors already mentioned, the instructions on the defence of drunkenness were not adequate and there were errors in the jury selection process. Because of these errors the verdict cannot stand. The appeal is allowed, the verdict is set aside and a new trial is ordered on the indictment. J.A. Concurred in: Jones, J.A. Chipman, J.A. CANADA PROVINCE OF NOVA SCOTIA 1991 C. R. 11161 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION HER MAJESTY THE QUEEN versus PAUL WINSTON BOUDREAU HEARD BEFORE: The Honourable Justice Robert MacDonald PLACE HEARD: Halifax, Nova Scotia DATES HEARD: January 10, 11, 14, 15, 16, 17, 1991 COUNSEL: D. Martin, Esq., for the Prosecution W. Brian Smith, Esq., for the Defence CASE ON APPEAL VOLUME S.C.C. No. 02435 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: PAUL WINSTON BOUDREAU and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: HALLETT, J.A. (orally)

This was an appeal from a first degree murder conviction. Allowing the appeal and ordering a new trial, that the trial judge erred in (1) failing to instruct the jury that nothing short of the accused's subjective foresight of death could found a conviction; (2) instructing the jury they could return a first degree murder conviction on the basis of s.231(5) of the Criminal Code; and (3) failing to give adequate instructions on the defence of drunkenness. The court also found errors in the jury selection process.

3_1991canlii2459.txt

J. Div. A.D. 1995 No. 003228 J.C.B. IN THE COURT OF QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF BATTLEFORD BETWEEN: JOAN LOUISE KIRKHAM APPLICANT (RESPONDENT) and RANDOLPH GENE KIRKHAM RESPONDENT (PETITIONER) H.A. Knott for the applicant (respondent) S.J. Demmans for the petitioner FIAT NOBLE J. May 27, 1996 The applicant brings this motion for interim spousal maintenance. The parties separated in the summer of 1994. They were divorced by order dated December 21, 1995. Allother issues raised in the divorce proceeding were left inabeyance including the issue of spousal maintenance. The petitioner and the applicant agreed December 15, 1994 that he would pay her $3,000.00 per month which sum included support for their son Michael as well as her. According to the applicant's affidavit the petitioner has since reduced the monthly amounts down to $1,500.00 for each of the months of September through December of 1995. Since then the petitioner has "unilaterally", according to the applicant reduced the monthly support to $1,000.00 per month and even those have been irregular and not on time. Up until April 26 of this year the applicant says she has received only total of $3,000.00. None of these allegations are refuted. The petitioner's income exceeds $80,000.00 annually but it must be noted that the status of his employment is that he is currently suspended with pay. What is going to happen to his employment situation is up in the air and this factor hangs over all of the issues yet to be settled in these proceedings including this application. Should his pay be suspended for period of time or his job lost then both parties would be required to reassess their respective positions. The material filed indicates that the matrimonial home has been sold and it is expected each party will receive approximately $30,000.00 in early June when the net proceeds are distributed. The applicant seeks interim support based on some maintenance guidelines suggested by the Government which when the petitioner's and the applicant's current income is taken into account indicates that the respondent should pay the applicant around $2,400.00 per month. The petitioner contends this in his circumstances is just too high in the interim. For example, he has the two children living with him and while they are old enough to hold down jobs there is, he contends scarcity of jobs to be had. He anticipates one of them hopes to attend university this fall and the other hopes to attend SIAST. The petitioner conceded, if understood his counsel, that the $1,500.00 he was paying up to the end of 1995 should be brought back. In my opinion it is premature on this application tofix the amount of the spousal maintenance that the applicanthas asked for at the suggested guideline figure. There aretoo many unknown factors surrounding the future situation ofeither party to conclude that what the applicant asks for isfair and reasonable. There is the uncertainty of thepetitioner\'s future job and income. There is no evidence asto what the applicant will require if she does go touniversity this fall. There is uncertainty as to what the twochildren are going to do about future education. As result am of the view that in these circumstances and bearing in mind that this is an interim application it would be premature to apply the amount of maintenance the guidelines suggest. On the other hand I am of the opinion that thepetitioner was not entitled to unilaterally reduce the$1500.00 maintenance he consistently paid up to December 1995to $1,000.00 as noted above without at least consulting withthe applicant. Had these payments continued the applicant would have recovered $6,000.00 at this point in time instead of the $3,000.00 she says she got up to April 26, shortfall of $3,000.00. Accordingly I direct that the petitioner pay spousalmaintenance to the applicant commencing June 1, 1996 asfollows:(a)$1,500.00 on the 1st day of each month; and(b)$200.00 on the 1st day of each month towards the shortfallresulting from the reduction in payent from $1,500.00 to$1,000.00 in 1996 until the said shortfall has been paid infull. The applicant shall have costs of this application to be taxed in the usual way.

FIAT. The parties were divorced in 1995 and all issues including spousal maintenance were left in abeyance. The petitioner had agreed to pay $3,000 per month which included child support but the support was reduced to $1,000 and was irregular and late. The two children were living with the petitioner and although old enough to hold jobs, had been unable to find employment. The petitioner's income exceeded $80,000 annually but he had been suspended with pay and the status of his employment was uncertain. HELD: 1)It was premature to fix the amount of spousal maintenance as asked for by the applicant. There were too many unknowns including the future of the petitioner's future job and income and how much the applicant would require should she go to university in the fall and what the children would do about future education. 2)The petitioner was not entitled to unilaterally reduce the maintenance. 3)The petitioner was directed to pay $1,500 plus $200.00 per month until the shortfall was paid in full. 4)The applicant was awarded costs of the application.

1996canlii6881.txt

Information 24148397 2004 SKPC 25 IN THE PROVINCIAL COURT FOR SASKATCHEWAN AT NORTH BATTLEFORD Between: HER MAJESTY THE QUEEN and DANIELLE RENE PARADIS Nicole Leinenweber for the Crown R. Peter Newton for the Accused February 6, 2004 Kaiser, P.C.J. JUDGMENT [1] The accused is charged with driving an automobile with a blood alcohol level exceeding eighty milligrams of alcohol in one hundred millilitres of blood. At approximately 1:50 a.m. on the 1st day of January, 2003, while on patrol, Constables Prince and Rowell of the Unity RCMP observed Chevrolet Cavalier car eastbound on Highway Number 14, short distance east of Unity, Saskatchewan. Over distance of about one-half mile, the vehicle drifted back and forth between the centre line and the shoulder line, within its own lane. They stopped the vehicle, which pulled over in an appropriate manner. The officers found the accused to be the driver. Cst. Prince noted an odour of liquor on the accused’s breath, that the accused’s eyes were “glossy”, and that her cheeks were “flushed”. None of the other usual signs of impairment were present. Her speech was coherent and she was polite and cooperative. [2] Cst. Prince made an approved screening device demand, and at 1:54 a.m. the accused provided sample into an Alcotest 7410 GLC. The result was an “F”. She testified that this meant that the accused had blood alcohol level of at least 100 milligrams. At 2:00 a.m., Cst. Prince made breath test demand with the usual accompanying warning and advice as to the right to counsel. The accused was transported back to the Unity detachment, where she was turned over to qualified technician. Cst. Rowell, who was not qualified technician, observed the accused blowing into something that she described as an “intoxilyzer”. [3] The Crown filed a certificate of analysis pursuant to section 258(1)(g) for the intended purpose of proving the accused’s blood alcohol level. It indicates that the samples were taken at 2:40 and 3:01, with results of 120 milligrams and 110 milligrams, respectively. The document consists of preprinted form and is made up of preprinted words and underlined blanks. There are total of alterations of preprinted material and one alteration of writing contained within one of the blanks. Of the five alterations of preprinted material, four are initialled. Each of these initialled changes consists of changing the expression of the year from 19 to 2003. The change that is not initialled is as follows. The original printed phrase was “That did receive each of the said samples directly into Breathalyzer® model an approved instrument as defined in subsection 254(1) of the Criminal Code (Canada)”. The word and symbol “Breathalyzer®” have line drawn through them and above same is written the word “Intoxilyzer”. There is no symbol with it. In the blank that follows is handwritten the expression “5000C”. The alteration of the handwritten portion concerns the time at which the second sample was taken. It appears to have originally been handwritten as “02:01". “3" has been written in overtop of the “2". Cst. Rowell testified that she saw the technician write the figure “3" in overtop of the “2". There is also an initialled change to the year in the Notice of Intention to produce Certificate. ISSUES AND ANALYSIS 1. Is it a requirement of subparagraph 258(1)(g)(i) that the approved instrument be identified by way of make and model? [4] The pertinent portion of the subject section reads as follows: 258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or in any proceedings under subsection 255(2) or (3), (g) where samples of the breath of the accused have been taken pursuant to demand made under subsection 254(3), certificate of qualified technician stating (i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument, ......... is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate; The legislation requires that the alcohol standard be identified in the certificate, but does not state that the approved instrument needs to be so identified. One might therefore conclude that Parliament did not intend that there should be requirement that the instrument be identified, provided that the qualified technician states in the certificate that an approved instrument was employed. If Parliament had intended the contrary to be the case, it would have specifically stated that the approved instrument needed to be identified, just as it did with respect to the alcohol standard. This seems to be the position taken by the Alberta Supreme Court, Appellate Division in R. v. Gregorwich, (1975), 1975 CanLII 1372 (AB CA), 27 C.C.C. (2d) 267, which case was followed in R. v. Gorman (1976), 1976 CanLII 1412 (NB CA), 32 C.C.C. (2d) 222 (N.B.C.A.). [5] The courts in Saskatchewan have not followed this line of reasoning, but have rather taken the approach set out in R. v. Foley (1975), 1975 CanLII 1445 (SK QB), 25 C.C.C. (2d) 514 (Sask. Q.B.). In that case Mr. Justice MacLeod wrote at page 517: In the certificate, “Borkenstein Breathalyzer” is modified by the words “an instrument approved for this purpose pursuant to section 237(6) of the Criminal code of Canada”. Do these words of modification render the certificate acceptable as proof. think not. The certificate may be used to prove facts, not law. The instrument or type of instrument used is matter of fact; whether such an instrument is an approved instrument is matter of law. If it were otherwise, no reference at all to the name of the instrument would be required, and the proof would be made by stating simply that “the said sample was received directly into an instrument approved for this purpose pursuant to section 237(6) of the Criminal Code of Canada”. By way of general observation, note that Parliament has the power to deem things to have been proven regardless of whether the question is one of fact or of law. [6] The Foley case was specifically not followed in R. v. Gilbert (1976), 1976 CanLII 1307 (ON CA), 31 C.C.C. (2d) 251 (Ont. C.A.). [7] In R. v. Wilkinson [1998] S.J. No. 913, (Sask. Q.B.), Mr. Justice Kreuger dealt with Foley on the basis that it was and is good law, but distinguished it. Matsalla, P.C.J. considered Foley in R. v. Claypool (S.S.), [2003] Sask.R. TBEd. OC.068, and took similar approach to that taken by Mr. Justice Kreuger. [8] While have some reservations as to the correctness of Foley, it is my view that am bound by it. Accordingly I must and do take the law to be that in order for a certificate of analysis under paragraph 258(1)(g) to constitute evidence as set out in that subsection, the make and model of the approved instrument has to be set out in the certificate or be proven by other evidence. 2. Has the alleged approved instrument been identified by make and model? [9] It is not possible to know who made the alteration consisting of the striking out of the word and symbol “Breathalyzer®” and the writing in of the word “Intoxilyzer”. Other alterations, being those as to year were clearly made by the qualified technician in that they bear his initials. While it is probably the case that the same person made the alteration that is not initialled, one cannot adequately be sure of this. “Probably” is rarely, if ever, adequate to meet the burden borne by the Crown in criminal trial. The use of certificate is shortcut afforded to the Crown. If it is to be employed, it must be employed correctly. Under the somewhat unusual circumstances of this case, I find that the approved instrument is not adequately identified as to make and model by means of the certificate. [10] note Cst. Rowell’s evidence that she saw the accused blow into the Intoxilyzer. Cst. Rowell is not qualified technician and accordingly her evidence cannot be given much if any weight when she describes an instrument that she is not qualified to use. Moreover, she did not state the model, and there are three different models of Intoxilyzer that are designated. There may well be other Intoxilyzer models that are not designated. Her evidence does not adequately advance the Crown’s case in this respect. Accordingly, other evidence does not sufficiently identify the approved instrument as to make and model. [11] It follows that the Crown cannot rely upon paragraph 258(1)(g) and accordingly there is no evidence of the accused’s blood alcohol level. [12] Considerable evidence and argument in this matter was directed to issues of evidence to the contrary as contemplated in R. v. Gibson (1992), 1992 CanLII 2750 (SK CA), 100 Sask.R. 88; 18 W.A.C. 88; 72 C.C.C.(3d) 28 (Sask.C.A.), R. v. Simonson [2001] S.J. No. 570 (Sask.Prov. Ct.), and R. v. Fox (2003), 2003 SKCA 79 (CanLII), 238 Sask.R. 271 (Sask.C.A.);. Given my finding with respect to the certificate it is unnecessary and inappropriate for me to comment upon those issues. [13] The charge is dismissed.

The accused was charged with driving a motor vehicle with a blood alcohol level exceeding .08. The Crown filed a certificate of analysis pursuant to s. 258(1)(g) of the Criminal Code for the purpose of proving the accused's blood alcohol level. The word and symbol 'Breathalyzer' had a line drawn through them and above the same was written 'Intoxilyzer'. There was no symbol with it. In the blank that followed was written '5000C'. This change was not initialed. The issue was whether s. 258(1)(g) of the Code requires that the approved instrument be identified by way of make and model. HELD: The charge was dismissed. The Court found the Crown could not rely on s. 258(1)(g) of the Code and there was no evidence of the accused's blood level. 1) The Court found that in order for a certificate of analysis under s. 258(1)(g) of the Code to constitute evidence as set out in that subsection, the make and model of the approved instrument has to be set out in the certificate or be proven by other evidence. 2) It was not possible to know who made the alteration. The use of a certificate is a shortcut afforded to the Crown. If it is to be employed, it must be employed correctly. In the circumstances, the approved instrument was not adequately identified as to make and model.

6_2004skpc25.txt

J. PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #40150972 HER MAJESTY THE QUEEN Ken Hinz T.B. Bekolay, P.C.J J. Morrall, CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. DEFENDANT PRESENT WITHOUT COUNSEL. 1. Ken Hinz stands charged that on or about the 11th day of May, A.D., 1999, at or near Prince Albert, Saskatchewan, did in committing an assault on Don Brown cause bodily harm to him contrary to Section 267(b) of the Criminal Code. 2. The Crown called the alleged victim, Don Brown, his son, Cory Brown, the 15-year-old mascot for the Raider Hockey Club, Timothy Sabo, another fan, Adam Balicki, and rink official, Mark Anderson. The accused testified on his own behalf and called his son-in-law, Richard Schmitt, as witness. 3. The facts as outlined by Don and Cory Brown on the one hand, and by Ken Hinz and Richard Schmitt, on the other are at variance in material ways. Don Brown states that he was standing on the walk-way at the rear of the seats cheering loudly. He never saw Hinz approach. Hinz hit him and they both fell to the concrete floor. Brown hit the wall behind him as they went down. Cory Hinz testified that he saw the accused coming. He thought he was going to go past them to the concession. Instead, he came at his dad knocking him down. Cory testified he grabbed Hinz and they fell to the concrete. Both Brown’s denied using the phrase “kill him, kill #57" in their cheering. 4. In contrast, Hinz testified that he got up from his seat, walked to the Browns to speak to them about the inappropriateness of their cheering “kill him, kill #57" when his son, who wore #57, was laid out on the ice after having been checked from behind. He said he had eye contact with Don Brown as he approached and that Brown came forward at him some eight feet with his arms up. He interpreted this as an invitation to fight. They grappled. Cory Brown jumped on his back and they all fell to the floor. This version was supported by his son-in-law, Richard Schmitt. 5. There were two disinterested witnesses to this event Tim Sabo and Adam Balicki. Neither of them were related to any party nor were either of them involved in the actual incident. The third unrelated witness, Mark Anderson, did not see the event. 6. During his testimony, Tim Sabo stated as follows: “I was approximately half-way up the stairs when saw this gentleman turn around and hop up from his chair and leap at the older person with the painted face and knock him to the ground and then they were sort of wrestling for bit and then the person who got knocked to the ground his son grabbed Mr. Hinz until the security guards came and then left.” Mr. Sabo admitted that some of his vision was obstructed by his mask but he was clear on the observation contained in the testimony have just quoted. 7. In examination-in-chief Adam Balicki testified as follows: “I was watching the play on the ice and there was hit on the ice, some people were screaming. saw heavier set individual and younger man jump over two sets of seats and [they] walked down the top landing. looked back at the ice for second and the next thing see was these people grappling with each other and they fell down.” 8. Later during cross-examination, Mr. Balicki stated that when he saw the accused and the older gentleman (Don Brown) grappling with each other, he stated that the other painted guy (Cory Brown) then grabbed the accused and then the other person (Richard Schmitt) grabbed that guy and then all four of them fell down. The actions of the accused described by both Tim Sabo and Adam Balicki are at variance with what the accused would have us accept. The accused would have us accept that he simply got out of his chair and walked up to the Browns to discuss their inappropriate cheering when in fact he leaped up and leaped over chairs on his way to the Browns. reject the accused’s evidence that is at variance with the evidence of the independent disinterested witnesses. 9. Therefore, conclude from this testimony, that the accused initially assaulted Don Brown and while they were grappling with each other, Cory Brown grabbed the accused and thereafter Richard Schmitt then grabbed Cory Brown. They all fell down on top of each other. It was the pile-up that caused the bodily harm to Don Brown. 10. Did the accused “cause” bodily harm to Mr. Don Brown? 11. Pursuant to Section 267(b) of the Criminal Code, person must cause bodily harm. 12. In R.v. Smithers, (1978), 1977 CanLII (SCC), 34 C.C.C. (2d) 427, on charge of manslaughter where it was alleged that the accused, Smithers, had kicked the victim in the stomach, Smithers’ counsel submitted that the Crown had failed to prove beyond reasonable doubt that kick of Smithers caused the death of the accused. Dickson, J., stated as follows: “In answer to this question it may shortly be said that there was very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least contributing cause of death outside the deminimus range, and that is all the Crown was required to establish.” 13. This reasoning was followed by the British Columbia Court of Appeal in case involving charge of causing death by criminal negligence in the operation of motor vehicle. The court held that the jury must conclude that the accused driving was “contributing” cause of an accident and not just “minimal” or “insignificant” cause. It need not be established that the accused driving was “substantial” cause of the accident. R.v. Pinske, (1988), 1988 CanLII 3118 (BC CA), 30 B.C.L.R. (2d) 114, affirmed [1989] B.C.L.R. 979. 14. It should also be noted that in the R.v. Cribbins, 1989, C.C.C. (3d) 67 decision, the Ontario Court of Appeal held that the deminimus test of causation did not violate Section of the Charter, either on the principles of fundamental justice, or of being too vague. 15. There are other decisions of various courts across the country that deal with analogous situations to the case at bar. 16. In R.v. Brooks, (1988), 1988 CanLII 3018 (BC CA), 41 C.C.C. (3d) 157, the accused became enraged at the way the victim was driving his motorhome and stopped his car in front of the motorhome on the painted median on the highway. After the victim stopped behind him the accused opened the victim’s door and pulled him out by the arm. Both were then immediately hit hard by third vehicle. The accused was convicted at trial of assault causing bodily harm. At trial the judge found: “The accused caught hold of the arm of the complainant and pulled him from the motorhome. It was immediately after that that the two of them were struck and am satisfied that that is sufficient approximate cause that this accused is guilty of the full offence charged ... that is assault causing bodily harm.” 17. On appeal, the British Columbia Court of Appeal found that the trial judge could properly find that the causation factor had been proved. 18. The decision of R.v Samuelson (1991), 1991 CanLII 6905 (NB QB), 120 N.B.R. (2d) 124, is also decision somewhat analogous to the case at bar. In this matter, the accused and five others encountered the victim on the street. One of the others punched the victim and the victim ran away. The accused caught the victim and punched him in the face. The victim fell to the street and remained motionless. Less than one minute later the victim was run over and killed by truck. 19. On the issue of causation, the trial judge stated the following: “If one separates for reasons of analysis only, the assault proper and the unfortunate car accident 45 seconds to one-minute later, one might argue that the assault itself might not fall within the confines of Section 267(2) in that being semi-conscious or unconscious might be transient state, to use one of the words used in Section 267(2). Even if what transpired prior to the motor vehicle accident was found to be only common assault, because of the transient nature of the injury, common assault is an unlawful act and on the facts of this particular case, punching bleeding man in the face in the middle of the street is an unlawful act and that any reasonable person would realize must subject another person to at least the risk of some harm resulting therefrom, albeit not serious harm.” 20. Later on, the judge states as follows: “Prior to the motor vehicle, we may have had, in this case, only common assault, but one that can, in the circumstances support charge of manslaughter for the reasons mentioned above. From causation stand-point, the assault and the motor vehicle accident are one and are so closely related in time and otherwise, that find that the assault caused the death of Robert Reid. The assault from that perspective certainly caused bodily harm in that it caused the death of Robert Reid”. 21. Further the judge stated as follows on the issue of causation: “The half-ton truck passed only 45 seconds to one minute after the assault. Reid was motionless in the middle of the street during that very short period of time. find that, applying the law as it stands to the facts as find them, the accused did cause the death of Robert Reid even though it is the truck that actually killed Mr. Reid. ... the Crown does not have to prove that the accused foresaw or intended the death or serious harm to the victim. The accused is responsible for all of the results of the assault which he committed, no matter how unforeseen or how unintentional.” 22. In reviewing the case law from other jurisdictions, it is very important to note that given the law as it presently stands in Saskatchewan, the Crown does not have an obligation to prove that the bodily harm caused by the assault was objectively foreseeable and that the assault would subject the victim to the risk of bodily harm. In R.v. Swenson, (1994), 1994 CanLII 4683 (SK CA), 91 C.C.C. (3d) 541, the Saskatchewan Court of Appeal reviewed case law from the Supreme Court of Canada and the Ontario Court of Appeal on this very issue. The Saskatchewan Court of Appeal expressly did not follow R.v. Nurse, (1993), 1993 CanLII 14691 (ON CA), 83 C.C.C. (3d) 546, the decision of the Ontario Court of Appeal which found that the Crown did have to prove objective foreseeability. The Saskatchewan Court of Appeal expressly stated that Nurse was incorrectly decided and that the courts in Saskatchewan prefer the approach of the British Columbia Court of Appeal in R.v. Brooks where the court held the elements of assault causing bodily harm consist of: (1) the mens rea to commit the assault, that is the intentional application of force to the person of the victim; (2) that such force resulted in bodily harm. 23. Therefore in the case at bar, two questions must be posed: (1) Would Mr. Brown have suffered bodily harm if the accused had not assaulted him? (2) Was the assault a contributing cause of the bodily harm, in that it was more than an insignificant or trivial cause of the bodily harm? 24. The answer to the first question is easily answered in the negative. It was clearly the accused who initiated the pile-up from which the bodily harm resulted. Without the initial assault, no pile-up would have resulted. 25. I conclude that the second question should be answered in the affirmative. While the bodily harm resulted directly from the effect of third parties falling on top of the accused and Mr. Brown, the third parties involvement was due entirely and as direct result of the actions of the accused. The accused placed the victim in a dangerous position, similar to the accused in the Samuelson and Brooks decisions. As well, similar to those decisions, very short period of time elapsed between the assault and the bodily harm. They are, to quote the Samuelson decision: “closely related in time and otherwise”. 26. Therefore, although I have some empathy for the accused reaction to the Brown’s cheering “kill him, kill #57" while his son was down on the ice, provocation not being a defence, I must find this accused guilty as charged. DATED this 21st day of January, A.D., 2000, at the City of Prince Albert, in the Province of Saskatchewan. T.B. Bekolay, Provincial Court Judge

The accused was charged with assault causing bodily harm contrary to s.267(b) of the Criminal Code. HELD: The accused was found guilty. 1)The case law from other jurisdictions was reviewed. Given the law as it presently stands in Saskatchewan the Crown does not have an obligation to prove that bodily harm caused by the assault was objectively foreseeable and that the assault would subject the victim to the risk of bodily harm. The Court of Appeal expressly stated that R. v. Nurse was incorrectly decided and prefers the approach in R. v. Brooks which held the elements of assault causing bodily harm consist of the mens rea to commit the assault and the intentional application of force which results in bodily harm. 2)The victim would not have suffered bodily harm if the accused had not assaulted him. The assault was more than an insignificant or trivial cause of the bodily harm. While the bodily harm resulted directly from third parties falling on top of the accused and the victim, the third parties involvement was due entirely and as a direct result of the actions of the accused. It was clearly the accused who initiated the pile up. The accused placed the victim in a dangerous position, similar to that in the Samuelson and Brooks decisions. A very short period of time elapsed between the assault and bodily harm.

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2000 SKCA 131 Docket: 105 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Vancise Sherstobitoff JJ.A. HER MAJESTY THE QUEEN and MICHELLE IRENE THORNE COUNSEL: Mr. E. Neufeld, Q.C. for the Crown Mr. W.P. MacIsaac, Q.C. for the Respondent DISPOSITION: On Appeal From: Q.B.C. 55 of 1998, J.C. of Regina Appeal Heard: November 16, 2000 Appeal Allowed: November 16, 2000 (orally) Written Reasons: November 23, 2000 Reasons By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Vancise SHERSTOBITOFF J.A. (orally) [1 Michelle Thorne pleaded guilty to a charge of manslaughter in respect of the death of Milan Kulas and was sentenced to 2½ years imprisonment. The Crown seeks leave to appeal the sentence on the grounds that it is not proportionate to the gravity of the offence and fails to meet the requirements of the law in respect of deterrence, denunciation and separation. [2 Ms. Thorne was an 18 year old single mother of one child and three months pregnant with second child at the time the crime occurred. She had no criminal record, but was at large on bail awaiting trial on other charges. We were never told what the charges were or what happened to them. [3 Ms. Thorne was drug addict. She had on previous occasions purchased drugs at the house in question from Dobra Provanovic, sometimes paying with sexual favours. On January 25, 1998, Ms. Thorne, her friend Charles Key, and third man who was never identified, formed common intention to rob the occupants of the house of either drugs or cash or both. What happened thereafter was described by Mr. Justice Cameron, of this Court, in his judgment rendered on October 19, 2000, respecting the sentence of Mr. Key on his conviction for manslaughter: [2] There were four suites in the block, three on the main flour and one in the basement. Dobra Prodanovic, known drug dealer, occupied main flour suite. His friend, Milan Kulas, who might also have been drug dealer, though that is not clear, lived in the basement suite. At around 3:00 a.m. Michelle Thorne, who was friend of Key's, roused Prodanovic and, when he came to the door she asked him to sell her some drugs. He said he had no drugs, told her to leave, and was about to close the door when she wedged her foot in the doorway and signalled to Key and another man, who were hiding in nearby bushes. The two of them were armed with tire irons, and on receiving Thorne's signal, they headed for the door and forced their way into the apartment along with Thorne. [3] Key and the other man attacked Prodanovic and knocked him down the stairs to the basement, where he and Key then tangled. In the meantime Thorne went to Prodanovic's suite and the other assailant broke down the door to the Kulas suite. Prodanovic got away from Key and fled to his suite, but Key followed and again attacked him with the tire iron, demanding money and drugs. Prodanovic resisted, and with that Key pulled knife, told him he would have to kill him, and attempted to stab him. Prodanovic deflected the thrust with his left hand, grabbed the knife with his right, and wrestled it from Key. Thorne, who had been rifling through the suite, then intervened and told Key to back off. He did so, went across to another suite occupied by Mr. Miller, broke down the door, and told Miller he would kill him if he called the police. With that, Key and Thorne, joined by the other assailant, left the apartment block. [4] Once they had gone, Prodanovic went to check on his friend Kulas. He found him lying on the steps with serious stab wounds, as result of which Kulas died. Apparently the other man with Key and Thorn, whose identity remains unknown, stabbed him to death. [4 Key, who had record of about 40 previous convictions, some for violent offences, was sentenced by the trial judge to four years imprisonment, but in doing so the judge credited him with already have served the equivalent of about four years because Key had spent some two years and three months in prison awaiting trial. The Crown appealed, and this Court, by the judgment referred to above, increased Key’s sentence to seven years imprisonment. [5 The considerations which governed the Crown’s appeal of Mr. Key’s sentence govern this case. [6 To once again use the words of Cameron J.A.: [8] This manslaughter was committed in manner and circumstance that obviously invited substantial penitentiary term. It resulted from common criminal enterprise, planned in advance and expected to be violent. One person was beaten, one was stabbed to death, and another had his door kicked down and his life threatened. This is an extremely frightening occurrence in community, and this type of conduct and level of violence is utterly appalling. [7 The sentence of 2½ years imposed by the trial judge did not comply with the fundamental principle of sentencing that the sentence be proportionate to the gravity of the offence. Nor did the sentence achieve the objective of denunciation of crimes of this nature. [8 The sentence of Mr. Key was increased by this Court to the equivalent of more than ten years imprisonment. The following factors mandate a lesser sentence for Ms. Thorne: (a) she had no criminal record; (b) she did not participate in the actual physical beating and stabbing of Prodanovic and Kulas, and intervened to stop the beating of Prodanovic, albeit only after she seemed satisfied that he had nothing to give the robbers; and (c) she seems to be doing well in all programs in prison. [9 Taking all of these factors into account, it is our view that fit sentence is five years imprisonment. The sentence imposed by the trial judge is set aside, and a sentence of five years imprisonment is imposed in lieu thereof.

The Crown sought leave to appeal the sentence of 2.5 years for manslaughter on the grounds it was not proportionate to the gravity of the offence and failed to meet the requirements of deterrence and denunciation. HELD: A sentence of 5 years of imprisonment was imposed. The sentence was set aside because it did not comply with the fundamental principle of sentencing that it be proportionate to the gravity of the offence nor achieved the objective of denunciation of crimes of this nature. The manslaughter resulted from a common criminal enterprise, planned in advance, and was expected to be violent. The accused pled guilty, had no criminal record, did not participate in the actual physical beating and stabbing of the victim who died from the wounds or of the other victim; she intervened to stop the beating although only after being satisfied the alleged the drug dealer had nothing to give the robbers. The accused appeared to be doing well in the prison programs. The sentence of the co-accused who had a record of 40 previous convictions had been increased to the equivalent of more than 10 years imprisonment.

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Q.B.G. A.D. 1999 No. 341 J.C.R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART FIFTY-TWO OF THE RULES OF THE COURT OF QUEEN’S BENCH AND IN THE MATTER OF AN APPLICATION TO PROHIBIT HEARING OFFICER DIRK SILVERSIDES FROM CONTINUING WITH HEARING IN RESPECT OF DISCIPLINARY CHARGES MADE AGAINST CST. SHAUN YOUNG PURSUANT TO THE POLICE ACT, 1990 BETWEEN: CST. SHAUN YOUNG and CHIEF OF POLICE, REGINA POLICE SERVICE and DIRK SILVERSIDES, in his capacity as Hearing Officer under The Police Act, 1990 RESPONDENT Merrilee D. Rasmussen, Q.C. for the applicant D. Neil Robertson for the respondents JUDGMENT GUNN J. March 24,1999 [1] The applicant, Cst. Shaun Young seeks an order in the nature of prohibition to prevent the respondent hearing officer, Dirk Silversides, from proceeding with the hearing into the conduct of the applicant pursuant to discipline charges brought against him by the respondent police chief, dated October 26, 1998. [2] The applicant also seeks declaration that: 1. member of police service must be informed of any investigation of his conduct prior to the commencement of the investigation, as required by Section 54 of The Police Act, 1990, S.S. 1990-91, c. P-15.01 (the “Act"). 2. The Act does not permit the amendment of the Form discipline notice, since it is statutory form. The relief sought in the motion regarding disclosure has been abandoned by the applicant. [3] The applicant is member of the Regina Police Service. Pursuant to the Act the applicant was charged with discreditable conduct in respect of an alleged offence occurring on May 2, 1998. Cst. Young was served with the Notice of Formal Discipline Proceedings in Form under the Act on October 28, 1998. He received no notice of the investigation pursuant to s. 54(1) of the Act. hearing before Dirk Silversides, hearing officer appointed to hear such matters under the Act with respect to this charge commenced December 10, 1998. [4] The applicant took objection to the prosecutor's request to amend the Form notice of the discipline offence with which Cst. Young was charged and with the failure by the Chief of Police to provide notice to Cst. Young of the discipline proceedings as required by the Act. [5] The hearing officer held that s. 42 of the Act provides complete discretion to the Chief of Police to amend charges without the need to obtain leave to do so from the hearing officer or, in the alternative, that the hearing officer had the discretion to grant leave to amend and leave was granted. The hearing officer held that, although s. 54(1) of the Act requires the Chief of Police to advise the member of the police service who is the subject of discipline proceedings prior to or concurrent with an investigation into the member's conduct, where the required notice is not provided, the validity of any subsequent hearing will not be affected by that failure, unless the failure to give notice affects the member's right to be apprised of the case against him in accordance with the rules of natural justice. [6] The hearing officer held that in the absence of any evidence that the applicant's right to fair hearing was affected, the hearing could proceed, although the hearing officer cautioned the Chief of Police that failure to provide the required statutory notice in future could lead to different result. [7] The applicant seeks writ of prohibition to prohibit Silversides from proceeding with the hearing into the conduct of the applicant on the grounds that there are contraventions of the Act, The Municipal Police Discipline Regulations, 1991, R.R.S., c. P-15.01, Reg. and the rules of natural justice and the duty of fairness which have resulted in the hearing officer having exceeded or lost jurisdiction to proceed with the hearing. [8] The respondent takes the position that this Court should not entertain the application where there is a convenient alternative remedy provided in the Act by way of appeal to the Saskatchewan Police Commission. Further it submits that the Chief of Police was entitled to amend the "Notice of Formal Discipline Proceedings" and in the event that such amendment required leave of the hearing officer, he would be entitled to grant such leave. Lastly, the respondent submits that the hearing officer erred in holding that s. 54(1) of the Act requires notice of an internal investigation to be provided to the member who is the subject of the investigation. THE LEGISLATION [9] The following provisions of the Act and the regulations are relevant: The Act: In this Act: ... (d) “commission” means the Saskatchewan Police Commission continued pursuant to section 3; ... (i) “investigator” means the complaints investigator appointed pursuant to section 16. 4(1) The commission is to consist of not less than three commissioners to be appointed by the Lieutenant Governor in Council. 12(1) Subject to the approval of the Lieutenant Governor in Council, the commission may make regulations; (a) prescribing minimum standards for the selection and training of members; (b) prescribing police training program for members or any category of members; ... (j) establishing uniform disciplinary code for all police services, including the procedure to be followed in hearing and determining breaches of discipline, unsuitability or incompetence; (k) prescribing offences under any code established pursuant to clause (j) and the penalties that may be administered; (l) providing for and prescribing rules respecting appeals with respect to discipline, breaches of conduct, suspensions or dismissals from employment; Complaints COMPLAINTS PROCEDURE 37 In this Part: (a) “internal discipline” means disciplinary proceedings initiated within the police service. ... 42 Where complaint or charge against member or chief pursuant to this Part is expanded or altered as result of an investigation, the chief or board conducting the investigation shall provide that member or chief with written notice of that expansion or alteration. INTERNAL DISCIPLINE 54(1) Where internal discipline proceedings are initiated pursuant to this Part with respect to member, the chief shall immediately: (a) in writing, advise: (i) the member who is the subject of the proceedings; and (ii) where the matter directly relates to member of the public, the investigator; of the substance of the matter; and (b) cause an investigation into the matter to be conducted. 56(1) Where hearing is proceeded with pursuant to section 48, 52, 54 or 55, the rules prescribed in this section apply to the hearing. (5) The rules of evidence for all hearings conducted pursuant to this Part are the same as in civil cases in Her Majesty's Court of Queen's Bench for Saskatchewan. (10) All oral evidence received at hearing conducted pursuant to this Part, is to be taken down in writing or recorded by electronic means. (11) All the evidence taken down in writing or recorded by electronic means and all documentary evidence and things received in evidence at hearing conducted pursuant to this Part forms the record of the hearing. 59(2) hearing officer, after making decision with respect to internal discipline proceedings, shall immediately give notice in writing to: (a) the person who is subject of the proceedings; and (b) the board or the chief, as the case may be; of the findings of the hearing, any action taken pursuant to section 58 and the rights of appeal provided for pursuant to this Act. (3) Within 30 days after the day on which member, chief, board or complainant is given notice of decision of hearing officer pursuant to section 58, the member, chief, board or complainant may apply to the commission for permission to appeal that decision to the commission pursuant to section 69. INCOMPETENCE AND UNSUITABILITY ... 62 Subject to any right of appeal to the commission under this Act, every decision or order of the hearing officer is final, and no order, decision or proceeding of the hearing officer shall be questioned, reviewed, restrained or removed by prohibition, injunction, certiorari, mandamus or any other process or proceeding in any court. ... APPEAL TO COMMISSION 69(1) person entitled to apply to the commission for permission to appeal shall serve on the commission notice of application for permission to appeal all or part of the decision to the commission. (4) The commission shall grant permission to appeal where: ... (b) the decision affecting the member or chief seeking an appeal imposes: (i) dismissal; or (ii) demotion in rank; (c) after considering: (i) the notice of application; (ii) the record; and (iii) any other information the commission considers necessary; the commission has concerns regarding the thoroughness or fairness of the investigation or hearing; (d) in the opinion of the commission, the disciplinary action imposed may not be comparable to disciplinary action imposed with respect to similar proceedings; or (e) there are any other grounds that the commission considers appropriate. 70(1) An appeal to the commission pursuant to this section shall proceed on the basis of the record unless the commission orders otherwise. (2) The commission shall cause all proceedings on an appeal pursuant to this section to be recorded. (9) All evidence heard before the commission or commissioner shall be taken under oath or affirmation. 71(1) On hearing an appeal pursuant to section 70, the commission may: (a) adjourn the appeal from time to time; (b) dismiss the appeal; (c) allow the appeal; (d) vary the decision or order; (e) order new hearing by the hearing officer. ... 72 Subject to subsection 71(5), every decision or order of the commission is final, and no order, decision or proceeding of the commission shall be questioned or reviewed, restrained or removed by prohibition, injunction, certiorari, mandamus or any other process or proceeding in any court. The Municipal Police Discipline Regulations, 1991, R.R.S. c. P-15.01, Reg. 4. 7(1) If the chief or member designated by the chief considers that discipline charge should be laid against member he or she will cause notice to be prepared in Form setting out the offence alleged to have been committed and advising the member that the hearing officer will notify the member of the date, time and place of the first hearing of the alleged offence. (2) Subject to subsection (3), the notice mentioned in subsection (1) is to be served on the member alleged to have committed the offence not less than 10 days before the day of the first hearing, and is to be accompanied by: (a) copies of the statements made by witnesses; (b) copy of the statement, if any, made by the member; and (c) list of the names of those witnesses who will be called. 23(1) Subject to subsections (1.1), (2) and (3), no proceedings to prosecute charge shall be commenced after the expiry of six months from the day on which the alleged charge should have been discovered. (3) Where matter has been referred to the minister or the Attorney General of Canada pursuant to section 47 or 51 or subsections 54(3) of the Act, proceedings to prosecute charge may be commenced within three months after the completion of the investigation by the minister or the Attorney General of Canada. APPROPRIATE REMEDY [10] The respondent submits the Court ought not to entertain the application as there is an adequate remedy, by way of appeal, provided for by the Act. In particular, the respondent argues the Court should decline to hear judicial review applications of interim decisions in discipline hearings. [11] The applicant argues that the fundamental questions to be addressed in this case revolve around issues of statutory interpretation that must be resolved on a standard of correctness. The alternative remedies are not adequate in the view of the applicant. [12] The leading case on this issue is Harelkin v. University of Saskatchewan, 1979 CanLII 18 (SCC), [1979] W.W.R. 676 (S.C.C.) which establishes the doctrine of the “adequate alternative remedy” as bar to judicial review. The existence of an adequate alternative remedy is held to constitute bar because judicial review is discretionary remedy. Thus, if an adequate alternative method of securing justice for the parties is available, it ought to be accessed. [13] Mr. Justice Beetz, writing for the majority, set out the test to be applied in making the determination of whether or not an alternative remedy is adequate in the following manner at 697: In order to evaluate whether appellant's right of appeal to the senate committee constituted an adequate alternative remedy and even better remedy than recourse to the courts by way of prerogative writs, several factors should have been taken into consideration, among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by body which was not professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of previous finding, expeditiousness and costs. [14] In Bayne No. 371 (Rural Municipality) v. Saskatchewan Water Corp. (1990), 1990 CanLII 7675 (SK CA), 90 Sask. R. 102 (C.A.); 46 Admin. L.R. 23, the applicant municipality sought certiorari arguing the respondent had no jurisdiction over roads and had lost jurisdiction by not acting within statutory period. The statute in question contained broad right of appeal to the Water Appeal Board with further right of appeal on questions of law to the court. [15] Cameron J.A. found that even assuming the matter in issue did pertain to the jurisdiction of the Saskatchewan Water Corporation, certiorari is discretionary remedy. Provided right of appeal of sufficient scope and appropriate effect exists, alleged nullities can be challenged by that route. Where an adequate alternative remedy exists, special circumstances had to exist before court would award certiorari. [16] After reviewing the decision of the Supreme Court of Canada in Harelkin, supra, Cameron J.A. stated the following at 105: In light of the foregoing, we took Harelkin's case as standing for the following propositions: 1. Certiorari remains “a writ of grace” to grant or withhold as, in the discretion of the court, circumstances suggest. 2. If, in the circumstances right of appeal of sufficient scope and appropriate effect exists, then an order, even though it be nullity, is nevertheless appealable. 3. If the right of appeal provides an “adequate alternative remedy”, having regard for the considerations bearing upon that matter, the residual discretion in the court will ordinarily be exercised in denial of certiorari. Only if “special circumstances” are present will the courts then exercise their prerogative power and quash on certiorari. [17] In determining whether "special circumstances" exist, reference may be made to Gage v. Ontario (Attorney-General) (1992), 1992 CanLII 8517 (ON SCDC), 90 D.L.R. (4th) 537 (Ont. Ct. Gen.Div.). The court held at 553: The Act provides the applicant, if the board finds against him on the merits, with full right of appeal. It is the practice of this court to discourage premature applications for judicial review where there is an adequate alternative remedy by way of appeal. If there is prospect of real unfairness through denial of natural justice or otherwise, superior court may always exercise its inherent supervisory jurisdiction to put an end to the injustice before all the alternative remedies are exhausted: see, generally, Bell v. Ontario Human Rights Commission (1971), 1971 CanLII 195 (SCC), 18 D.L.R. (3d) 1, [1971] S.C.R. 756; Re Hayles and Sproule (1980), 1980 CanLII 1595 (ON SC), 29 O.R. (2d) 500 (Div. Ct.), per Callaghan J., at pp. 501-2. The board heard full evidence on the jurisdictional facts going to natural justice. That part of the record is complete and there is nothing to add. We are in as good position to deal with that issue as we would be on an appeal from the board. The unfairness in this case is so obvious that it would be inappropriate to put the officer through trial before tribunal that lost jurisdiction through denial of natural justice. Having regard to the prejudice noted above and the fundamental unfairness in the process of the commission, an appeal is not an adequate alternative remedy. This is one of those exceptional cases where the court should exercise its extraordinary jurisdiction at this stage to prevent further denial of natural justice. [18] The Supreme Court re-examined the issue in Matsqui Indian Band v. Canadian Pacific Ltd. 1995 CanLII 145 (SCC), [1995], C.N.L.R. 92. Lamer C.J. at 108-109 set out the factors to be considered in determining whether or not to enter into judicial review as follows: ... [T]he convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). do not believe that the category of factors should be closed, as it is for the courts in particular circumstances to isolate and balance the factors which are relevant. [19] The proposition that the courts should not entertain such an application where there is convenient alternative remedy provided in the Act has been accepted by this court in other challenges to police disciplinary proceedings. (See Romanuck v. Penkala and Henderson (1984), 1984 CanLII 2251 (SK QB), 35 Sask. R. 216 at 217-218 (Q.B.); affd (1987), 1987 CanLII 4911 (SK CA), 56 Sask. R. 27 at 34 (C.A.) and Shykitka v. Regina Police Service (1989), 1989 CanLII 4613 (SK QB), 79 Sask. R. 311 at 316 (Q.B.); affd (1990) 1990 CanLII 7733 (SK CA), 83 Sask. R. 70 (C.A.)). [20] In Selinger v. Chief of Police of Regina Police Service et al. (1998), 1998 CanLII 13967 (SK QB), 173 Sask. R. 40 (Q.B.), affd by the Saskatchewan Court of Appeal, March 9, 1999, McIntyre J. considered the same matters to which the applicant objects in this case as well as other issues. Mr. Justice McIntyre analysed the individual issues raised and held there was an adequate alternative remedy and found there to be no “special circumstances” upon which he would exercise his discretion to determine the merits of the application. am in substantial agreement with the decision of McIntyre J., which has been upheld by the Court of Appeal, and do not find there to be significant differences in the circumstances before me. [21] I find there is an adequate alternative remedy which should be pursued and find there to be no “special circumstances” upon which I would exercise my discretion to determine the merits of the application. In the exercise of my discretion, the application is dismissed.

The constable sought a writ of prohibition to prevent the respondent hearing officer from proceeding with the hearing into his conduct pursuant to discipline charges brought against him by the Chief of Police on the grounds there were contraventions of the Act, the Municipal Police Discipline Regulations and the rules of natural justice and the duty of fairness which resulted in the hearing officer having exceeded or lost jurisdiction to proceed with the hearing. He sought a declaration that a member of the police service must be informed of any investigation of his conduct prior to the commencement of the investigation as required by s.54 of the Police Act.; the Act does not permit the amendment in Form A discipline notice since it is a statutory form. The relief sought regarding disclosure had been abandoned by the applicant. The applicant argued that the fundamental questions to be addressed revolved around issues of statutory interpretation that must be resolved on a standard of correctness and the alternative remedies were not adequate. The respondent took the position that this Court should not entertain the application as there is a convenient alternative remedy provided in the Act by way of appeal to the provincial Police Commission; that the Chief was entitled to amend the notice and would be entitled to grant leave if required; the hearing officer erred in holding that s.54(1) of the Act requires notice of an internal investigation to be provided to the subject member. HELD: The application was dismissed. There is an adequate alternative remedy which should be pursued. There were no 'special circumstances' upon which the court should exercise its discretion to determine the merits of the application.

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/jmj Date: 010329 Docket No. S.K. 1204-001995 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Vermeulen v. Vermeulen 2001NSSC49] BETWEEN: ANDREW GERALD VERMEULEN and JANET FRANCINE MACDONALD (VERMEULEN) RESPONDENT HEARD: At Windsor, Nova Scotia on December 6, 2000 and January 17, 2001 before the Honourable Justice Allan P. Boudreau. DECISION: March 29, 2001 COUNSEL: Jean M. Dewolfe, Counsel for the Petitioner. Caroll Daniels, Counsel for the Respondent. Boudreau, J. INTRODUCTION [1] The parties have made counter applications to vary spousal and/or child support and lump sum spousal support less than two years after being divorced and less than one year after the Court of Appeal decision which settled the support awards of the trial judge. Mr. Vermeulen originally claimed material change in circumstances based on his poor farming results in 1999 and Ms. Macdonald’s improved employment and income situation. Mr. Vermeulen now relies on change in Ms. MacDonald’s income position only. Ms. MacDonald has counter-claimed on the basis that Mr. Vermeulen’s income has improved since the trial in 1998, primarily because better up to date financial information is now available and because of Mr. Vermeulen’s receipt of significant farm aid. She seeks to increase child support and maintain spousal support at the current level, at least to 2002. She also seeks a lump sum support payment of $20,000.00 to reimburse her for the RRSP’s she cashed for the down payment on a home and for moving expenses, etc. [2] This proceeding involves applications to vary the Corollary Relief Judgement dated November 16, 1998, resulting from the trial decision of Justice Hall dated October 1, 1998, and the Court of Appeal decision dated June 4, 1999. will therefore only recite and review the facts outlined in those decisions together with the alleged material changes in circumstances since that time. There are two children of the marriage presently, as was the case in October of 1998, and they continue to reside with Ms. MacDonald. [3] At the time of trial, Mr. Vermeulen was found to have income of $30,000.00 for the purposes of paying child support and he was ordered to pay $438.00 per month in accordance with the Federal Child Support Guidelines. The trial judge also ordered Mr. Vermeulen to pay $562.00 per month spousal support as he found Ms. MacDonald and the children had total support need of $1,000.00 per month. At that time Ms. MacDonald was living in the matrimonial home which was and remains part of the encumbrances to secure debts to the Farm Loan Board. Mr. Vermeulen was making monthly payment to the Board which, in regard to that home, included payment calculated to be $460.00 per month. Mr. Vermeulen was to be credited the amount of that payment against the monthly spousal support as long as Ms. MacDonald remained in the home. Ms. MacDonald moved and purchased her own home in August of 1999. [4] At the date of the Corollary Relief Judgement (November 16, 1998) Ms. MacDonald had gross annual income of $18,000.00 from her employment with the Royal Bank of Canada. She was basically debt free. On that basis, the trial judge found that she and the children had total need of approximately $1,000.00 per month. This determination was in essence accepted by the Court of Appeal. By the time of the hearing on January 17, 2001, Ms. MacDonald was earning $30,800.00 annual salary with the Royal Bank. She had been promoted to personal financial services representative. Last year, 2000, she also received bonus of $2,000.00. She testified that bonuses will be harder to earn in the future because goals have been set very high. She states that the salary range for her position is $30,000.00 to $48,000.00 and that she has room to move up. She also gets minor benefits by way of discounts on loans and mortgages, anywhere from 3/4 to 1%. [5] Ms. MacDonald purchased home in August of 1999 at price of approximately $86,000.00. She paid $13,500.00 down payment by cashing in some of her RRSP’s. She presently has approximately $11,500.00 in RRSP’s with the Royal Bank. [6] Mr. Vermeulen originally filed his application to vary because 1999 had been disastrous year for many farmers in Nova Scotia because of drought. His farming operation originally showed loss of some $108,000.00 for 1999; however, he has since qualified for government farm aid of approximately $112,000.00. This would more than erase his operating loss for 1999. The final figures for the year 2000 were not yet determined at the time of the hearing. At the divorce hearing, the trial judge reviewed the farming income over the years, and also the family’s and Mr. Vermeulen’s standard of living and concluded it would be reasonable to impute or set Mr. Vermeulen’s income at $30,000.00 for support purposes. Mr. Vermeulen takes no real issue with this amount because he readily concedes his net average income over the past eight years or so has been between $28,500.00 and $29,000.00. At the variation hearing, Mr. Vermeulen’s accountant, Mr. Bishop, testified that it would be unreasonable to add some $14,000.00 per year depreciation to Mr. Vermeulen’s farm income, as argued by Mr. Duffet, the accountant who testified on behalf of Ms. Macdonald. accept Mr. Bishop’s evidence that capital payments should also be taken into account in this calculation. Mr. Bishop said he reviewed the depreciation recaptured over the years, which would be indicative of excessive depreciation when assets were disposed of, and that the average recapture was approximately $2,000.00 per year. accept Mr. Bishop’s evidence in this regard and would add $2,000.00 per year to Mr. Vermeulen’s income. [7] There is the often difficult question of what, if any, additional income should be imputed because of the benefits derived from operating ones own business, particularly, farm. There are the more obvious benefits such as the use of motor vehicles and related expenses, and the less obvious ones such as some food and house expenses related to the business such as part of the utilities, etc. Mr. Duffet testified the use of vehicle and related expenses alone would equate some $9,000.00 per year. Mr. Bishop disagreed with that estimation and said it would be closer to $5,000.00 per year. There is no magic formula to arrive at figure of imputed income to account for this aspect of operating farming business. One can look at the financial statements and the person’s standard of living and determine that the amount is material rather than inconsequential. In the present case it is material and should be taken into account. determine that amount to be somewhere between $8,000.00 and $12,000.00 per year and set the benefit amount at $10,000.00 per year. [8] Mr. Vermeulen’s income for support purposes is not an easy thing to determine because he is farmer subject to the ups and downs of that business. Pin point accuracy is not possible. Therefore, one must strive to average or even out Mr. Vermeulen’s ability to pay; otherwise the parties would be before the courts every year, seeking adjustments up or down, depending on the ups and downs in the farming business. This is obviously not desirable and will only serve to further diminish and strain the resources of the parties. There should be stability of payments, both for the recipient and the payor. [9] When one takes Mr. Vermeulen’s acknowledged pattern of net income of $29,000.00, add to that $2,000.00 average excessive depreciation and $10,000.00 of imputed income because of the benefits mentioned above, determine and set his annual income for support payment purposes at $41,000.00 per year. [10] The questions to be decided in this case are the following: 1. Is there material change in circumstances with either party which satisfies the threshold test of applications to vary? 2. If the answer to question is yes; what is the income and ability to pay of Mr. Vermeulen and the reasonable need of Ms. MacDonald regarding continued monthly spousal support? 3. Does Ms. MacDonald qualify for lump sum spousal support award, and if so, should one be ordered? (a) Material Change in Circumstances [11] Both parties argue that there are material changes in their own and the other’s circumstances which should favour their respective applications. Therefore, there is no dispute in this regard. It is what those changes are that is in dispute. However, I would be loathe to entertain applications to vary, simply on the basis of the usual ups and downs of the farming business. This would lead to the undesirable results which mentioned earlier. [12] (b) Question regarding incomes, ability to pay and need is primarily question of fact and will discuss this in my analysis. (c) Lump sum spousal support on application to vary [13] The trial judge at the divorce hearing awarded Ms. MacDonald lump sum spousal award of $10,000.00 on the basis that she planned to buy home in the near future for which she would need $5,000.00 for down payment and on the basis that she would be seeking to expand her career potential so as to obtain greater income and become self-sufficient. The Court of Appeal reversed the trial judge on this issue and said the following at paragraphs 17 and 18 of its judgement (See Vermeulen v. Vermeulen, June 4, 1999, Docket No. C.A. 152546) As to the issue of seeking to expand her career potential, the evidence was that if Ms. Vermeulen took certain training course through the Bank which might be available to her, she would be paid while training and would receive substantial increase in pay. There was no evidence that she required money for retraining. As for the need for down payment for house, there is no evidence of an immediate need. Ms. Vermeulen has not seriously looked for accommodations to purchase, she does not have information on how much she would require to make purchase viable, there was no evidence that she could obtain the necessary mortgage money to complete purchase, nor is there any information on what it would cost her to move. would find that at this time, Ms. Vermeulen has not established an immediate need for lump sum award. If and when she is in that position and can show change in circumstances, she is entitled to apply for variation as provided in the Divorce Act. 17(1) Order for variation, rescission or suspension 17.(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses: 17(4.1) Factors for spousal support order (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 former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration. [14] It would appear the Court of Appeal clearly contemplated that Ms. MacDonald could make an application to vary when she moved and purchased her own home. Does this mean that she had to make the application before moving and cannot make it after the move? think not. To rule otherwise would be to place an undue and arbitrary restriction on the Court of Appeal’s decision. However, one would have to consider the circumstances and reasons advanced for making the request after the move, in this case, approximately one year after the purchase. (i) Child Support [15] Based on my finding and determination that Mr. Vermeulen’s income for support purposes is $41,000.00 he shall pay child support of $ 567.00 per month in accordance with the Federal Child Support Guides, effective April 1, 2001. [16] Ms. Macdonald has advanced claim for several items of extraordinary expenses. find the only ones which qualify as extraordinary expenses in the circumstances are the hockey registration fee for Ben of approximately $435.00 and the Young Driver Course for Andrea. The cost of this course has been estimated at approximately $575.00. Mr. Vermeulen shall pay one-half of these costs upon the fee being payable. Other items such as art supplies, soccer and other hockey costs are not extraordinary expenses unless they are at an elite level and materially more expensive than the ordinary and find they are not. (ii) Lump Sum Spousal Support [17] Ms. MacDonald has claimed the amount of $20,000.00 as lump sum spousal support. As stated previously, the Court of Appeal left the door open for her to make such an application when she moved from the matrimonial home and purchased her own home. The trial judge had apparently accepted Ms. MacDonald’s representation that she estimated at that time that she would require approximately $5,000.00 for down payment on home valued at approximately $80,000.00. She has since purchased home worth approximately $86,000.00 and applied down payment of $13,500.00 obtained by cashing in some of the RRSP’s which assume she obtained on the division of matrimonial assets. She now requests that the court award her lump sum of $20,000.00 to replace those RRSP’s and to pay for moving expenses, etc. She is now asking for approximately three times more than the amount she requested at trial and twice what the trial judge ordered. [18] While there may, in certain circumstances, be some merit to the argument that Ms. MacDonald should not have to use the assets or RRSP’s she received on the matrimonial division in order to re-establish herself, one has to be careful that this claim does not have the result of effecting significant redistribution of the division of matrimonial property, which had apparently been settled. If the division was agreeable to the parties at that time, and have no indication that it was not, then whether those assets remain in the form they were in at the time of division or are transformed to another asset, such as equity in home, should not automatically entitle party to compensation. Otherwise the effect could be a significant redistribution of the matrimonial property division. When one looks at the remaining assets of the parties, especially their RRSP’s, Ms. MacDonald’s request would have precisely that effect. [19] On the other hand, having said that, one should look at the reasons advanced for justifying the request for the belated lump sum. The reasons advanced in this case are to restore Ms. MacDonald’s RRSP’s for the down payment on the home and to pay moving expenses, etc. Certainly moving expenses do not create an asset and could be justifiable expense. Also the income tax consequences of cashing in RRSP’s would to some extent be an expense, although understand the intention of Ms. MacDonald is to reinstate those or part of those. [20] In the circumstances I find there is a current need for a lump sum award to compensate Ms. MacDonald for her relocation expenses for the reasons mentioned above. This was contemplated by the trial judge and the Court of Appeal, but not nearly to the extent requested because to do so would give effect to significant redistribution of matrimonial property. The circumstances do not justify this expanded request. Considering the moving expenses and the tax consequences of cashing some RRSP’s and other expenses such as furniture, etc., I find a lump sum spousal support award of $8,000.00 is warranted. This amount shall be payable on or before October 30, 2001. (iii) Continued Monthly Spousal Support [21] Ms. MacDonald requests that monthly spousal support, as set at the divorce hearing in October of 1998, of $562.00 be continued, at least until 2002, implying that she may be presently self-sufficient. The main reason advanced for continued monthly support is that Ms. MacDonald’s position with the Royal Bank is not secure because she has to continue upgrading her qualifications by taking courses through the Bank, relative to her position. There is no evidence that this is problematic for her. On the contrary, the evidence shows that she has progressed remarkably well since 1998. She has successfully completed her job related courses. She has been promoted and her income has increased by 71% in two years. She is at the bottom of her salary range, having just recently been promoted to her new position. Indications are that Ms. MacDonald is very capable and there is no reason to believe she will not continue to progress. [22] With regard to need, Ms. MacDonald’s present monthly income, including child support will be $3,500.00, or $42,000.00 annually. She now shows total monthly expenses for herself and the children of $3,785.75, plus income tax and other deductions of $732.00 for total of $4,517.75. Included in those expenses are Christmas, birthdays, etc of $100.00; children’s mutual funds $90.00; children’s spending money $80.00; holidays $50.00; savings $50.00; property taxes of $80.00 (included in mortgage payment); loans incurred after separation and legal fees payments totaling $675.00. These monthly expenses total $1,125.00. Most of these are not Mr. Vermeulen’s responsibility. The children of the marriage can work for their father on the farm extensively each summer. They are paid regular wage and Mr. Vermeulen tops up their pay by about 50% which goes towards savings for the children. Nevertheless, the children can certainly earn more than their pocket money. [23] When one looks at Ms. MacDonald’s monthly income with increased child support and reduced income tax consequences without spousal support, find that Ms. MacDonald has no reasonable need for spousal support at this time. She was able to spend most of her $2,000.00 bonus on Christmas last year and to send her daughter, Andrea, on trip to Europe at cost of approximately $2,600.00. While these decisions are clearly up to Ms. MacDonald, it supports the finding that she cannot establish reasonable need at this time. This is also supported by the fact her proposed budget of 1998 has now been increased by 50%. She claims her need for $562.00 spousal support has not diminished since 1998, but her monthly income (including child support) has now increased by approximately $1,200.00 during that period. [24] In the final analysis, I find that Ms. MacDonald has now achieved self-sufficiency. One can understand her concern that she may not consider her income position with the Royal Bank to be secure and that ongoing spousal support may be comfortable cushion for her, but that is not the test for continuing monthly spousal support. also find that Mr. Vermeulen would, in all probability, not have the ability to pay the increased child support ordered above, plus spousal support. While his “pattern of income” has been set at $41,000.00 for the purposes of paying “regular” and dependable child support, the “downs” in the farming operation the last couple of years certainly adversely affect Mr. Vermeulen’s ability to pay. [25] In the present circumstances, find that ongoing spousal support is not justified. have also considered the lump sum spousal support which have ordered. Having said that, I would not terminate spousal support entirely until the $8,000.00 lump sum is paid because that money is required by Ms. MacDonald to meet her immediate requirements created by the need for the lump sum. I would, therefore, order that spousal support of $250.00 per month, effective April 1, 2001, continue until the $8,000.00 lump sum is paid. The $250.00 payments shall not be deducted from the lump sum awarded. It simply provides some time for the parties to adjust and arrange their finances pending payment of the $8,000.00 lump sum. [26] The parties have not addressed the question of costs directly, pending my decision. If the parties can’t agree on the issue of costs, will entertain written or oral submissions, as the parties may prefer. Having said that, it would appear that success has been divided and that accordingly each party should prima facie bear their own costs. will leave it to the parties to decide if they want to make representations on this issue. [27] In any event, it appears to me that great deal of expense has been incurred by both parties on these applications to vary, with experts and much documentation which may be difficult to justify considering the issues which were litigated approximately two years and one and half years ago. There will obviously be need for future adjustments as circumstances evolve with growing children, etc. would encourage the parties to explore some form of mediation if they have difficulty reaching agreement in the future. [28] There will therefore be an order setting child support at $567.00 per month with Mr. Vermeulen contributing one half of Ben’s annual hockey registration and one half of Andrea’s one time driving course. [29] Mr. Vermeulen shall pay $8,000.00 lump sum spousal support to Ms. MacDonald, as indicated earlier. Monthly spousal support shall terminate April 1, 2001, subject to the conditions mentioned earlier. [30] will issue an order accordingly, consented as to form by both parties, and consented as to costs if agreed upon. Boudreau, J.

The parties were divorced two years ago and the matter had been finalized by an appeal decision in June, 1999. Both parties made application to vary child support on the basis of changes (ups and downs) in the farming business. The respondent wife, who recently purchased a house, also applied for lump sum spousal support which claim had been disallowed by the Court of Appeal. Monthly spousal support terminated as wife now self-sufficient; child support increased due to increase in husband's income; lump sum payment of $8,000 awarded to wife to help pay her relocation expenses from move with husband given six months to pay lump sum, but monthly spousal support to continue until the $8,000 was paid in full. Applications to vary should not be entertained simply because of the usual ups and downs of the farming business; the court must strive to average out the individual's ability to pay in such circumstances in order to ensure stability of payments for both parties. Lump sum spousal support payments must not have the effect of a significant redistribution of the division of matrimonial property but the reasons for the belated application must be examined.

7_2001nssc49.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Bemister v. Bemister, 2004 NSSF 15 Date: 20040407 Docket: 1201-57829 SFHD-25827 Registry: Halifax Between: Derrick Crosby Bemister v. Christine Norma Bemister Respondent Judge: The Honourable Assoc. Chief Justice Robert F. Ferguson Heard: February 17 25, 2004, in Halifax, Nova Scotia Written Decision: April 8, 2004 Counsel: Daniel Weir, for the Applicant Steven G. Zatzman, for the Respondent By the Court: [1] Derrick and Christine Bemister were married on November 29, 1991, and separated on June 1, 2001. They entered into Separation Agreement on August 29, 2001. Mr. Bemister petitioned for divorce on June 30, 2003. Ms. Bemister filed an Answer on September 24, 2003. [2] have heard the evidence as to the possibility of reconciliation and determined there is no such possibility. am satisfied all matters of jurisdiction have been fulfilled. The requirements of the Divorce Act have been complied with in all respects and the grounds for divorce as alleged has been proved. The Divorce Judgment shall be granted on the grounds set forth in s. 8(2)(a) of the Divorce Act in that there has been breakdown of the marriage and the spouses have lived separate and apart for more than year immediately preceding the determination of the divorce proceeding and have lived separate and apart since the commencement of the proceeding. ISSUES [3] The issues are:1) Spousal support;2) Ms. Bemister’s allegation that Mr. Bemister has failed to comply with the Separation Agreement requiring him to provide her with an automobile. RELEVANT LEGISLATION [4] The Divorce Act: “Spousal Support Order 15.2 (1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of either spouse. Objectives of spousal support order (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; (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.” SPOUSAL SUPPORT [5] Paragraph of the Separation Agreement states: “7. SPOUSAL SUPPORT (a) The husband shall pay to the wife for Spousal Support the Sum of $1,000.00 per month commencing on the 15th day of October, 2001, and on the 15th day of each and every month thereafter. (b) It is agreed between the parties that maintenance shall be reviewable by the parties and is subject to variation based on the needs and means, capacity, economic circumstances of the parties. The parties agree that the support and maintenance may be reviewed between them personally or through their respective Solicitors to settle what, if any, variation should be made. Failing an agreement between them, the parties seeking variation of the maintenance may apply to Court of competent jurisdiction to have the level of maintenance determined. (c) Spousal support shall be discontinued in the event of the following: (i) death of wife; (ii) the wife becomes economically self-sufficient; (iii) the wife cohabits for more than three months or remarries.” [6] In this instance, the issue is whether Mr. Bemister, in accordance with the Divorce Act, should be required to pay support to Ms. Bemister. The issue is not the enforcement of the spousal support provision in the parties’ Separation Agreement. Nevertheless, much of the evidence and submissions focussed on this Agreement. This is, obviously, because the existence of an agreement requiring spousal support is factor the Court must take into account when considering the awarding of spousal support. [7] Mr. Bemister submits, in spite of the wording of the Agreement, he and Ms. Bemister had agreed that such payment would be for only one year. According to Mr. Bemister, the payment of spousal support arose when Ms. Bemister made an effort to purchase her own home. Although she had received one-half of the proceeds of the sale of the matrimonial home and was employed as waitress, her banker informed her she required more monthly income to acquire the mortgage she needed to purchase her perspective home. Further, according to Mr. Bemister, that required increase of monthly income would need to be in the vicinity of $1,000.00 and be from secure source and available to her for more than one year. It was under these conditions and to help Ms. Bemister to acquire home that Mr. Bemister indicates he agreed to the specific wording of paragraph of the Separation Agreement. [8] Ms. Bemister acknowledges that her banker did indicate to her that she needed additional monthly income in the vicinity of $1,000.00 to require the desired financing. She further admits she discussed her financial predicament with Mr. Bemister. She disagrees, however, there were discussions or agreement that such support would be only for one year’s duration. She stresses the agreement clearly indicates the support is for an indefinite period; further, that the agreement should be considered as total package and she specifically refers to her releasing any claim that she had on her husband’s business ventures. [9] The obligation to pay spousal support as outlined in the Agreement is clearly reviewable by the parties. [10] Ms. Bemister submits she has established an entitlement to spousal support; that such entitlement was acknowledged by Mr. Bemister when he signed the Agreement to pay her $1,000.00 month indefinitely; further, her financial situation clearly demonstrates her need for such support to continue. [11] Mr. Bemister does not acknowledge Ms. Bemister’s entitlement to spousal support and submits further that, if she was so entitled, that time has passed. He asserts she came to the marriage virtually bankrupt and left the marriage with substantial assets. During the course of the ten-year marriage, Ms. Bemister primarily remained at home. Mr. Bemister asserts that was her choice. He acknowledges there were benefits to him because of this decision. However, he suggests her remaining at home was primarily to raise the two young children she brought to the relationship and not to advance his career and business opportunities. He suggests she is able to earn more income by working longer hours than is currently the situation. He finally submits his financial situation is such that he cannot continue to provide such support. [12] Ms. Bemister is currently employed as waitress. Her employment prior to marriage provided her with relatively the same income. She admits, since separation, there may have been more hours available to her than she actually worked. She mentioned some medical problems but there was no evidence to substantiate them or indicate how they would prevent her from working full time. [13] Mr. Bemister testified as to the financial down turn of his business. His father testified as to the numerous occasions he advanced money to Mr. Bemister during the course of the marriage. [14] I conclude Ms. Bemister was entitled to spousal support at separation and that such entitlement continues. Her financial “means” and “needs” require such support. Mr. Bemister made an agreement to provide such support and I do not find the evidence supports a conclusion it was agreed to be only for one year. While I agree with Mr. Bemister that Ms. Bemister has not established any disadvantages arising from the marriage, I find there were disadvantages related to its breakdown. Ms. Bemister’s lifestyle deteriorated as a result of the marriage ending and to a more significant extent than that of Mr. Bemister. [15] Given Mr. Bemister is self-employed, his ability to pay support is somewhat unclear. His personal and company financial statements indicate he is currently struggling financially. However, find his financial situation has not worsened since he made the commitment to pay $1,000.00 per month. [16] Having disagreed with Mr. Bemister with respect to his view that spousal support should not continue, find it necessary to address what perceive to be Ms. Bemister’s belief that such support should continue indefinitely. Her age, the length of the marriage and the matrimonial property provisions related to their separation do not support such conclusion. [17] Section 15.2(3) of the Divorce Act gives the Court latitude in making an order for spousal support. I order that Ms. Bemister is entitled to spousal support retroactive to the date Mr. Bemister ceased paying the $1,000.00 per month; that such payment shall continue for a period of fifteen months from April, 2004, at which time the support payment shall terminate, unless, prior to this termination date, Ms. Bennett commences an application which results in her showing cause why spousal support should continue. further order that the conditions agreed to by the parties in paragraph 7(c) of the Separation Agreement continue in force. PROVISION OF AN AUTOMOBILE [18] Paragraph 11 of the Separation Agreement states: VEHICLES The husband covenants and agrees that the wife’s 1994 Suburban Motor Vehicle shall be replaced by the husband on or before December 31, 2001, with mid-sized motor vehicle of equal value free and clear and registered in the wife’s name. The wife shall have the aforesaid motor vehicle for her own exclusive use and ownership free and clear from any claim by the husband. The wife shall be solely responsible for all expenses associated with this motor vehicle, including but not limited to insurance, maintenance and repairs.” [19] The parties acknowledge that the Suburban motor vehicle mentioned in the Agreement was 1992 and not 1994. Mr. Bemister acknowledges that he did not provide Ms. Bemister by December 31, 2001, with “mid-sized motor vehicle of equal value free and clear and registered in the wife’s name.” [20] At separation, Ms. Bemister had, primarily for her personal use, 1992 Suburban. It was owned by Mr. Bemister’s company. That vehicle was replaced by 1993 GMC Jimmy. Mr. Bemister testified he sold the Suburban (with 300,000 kms.) for $4,500.00 and purchased the Jimmy (with 180,000 kms.) for $5,600.00 which remained registered in the name of his company. Ms. Bemister had exclusive use of this vehicle and drove it for about year an half. Around June, 2003, she approached Mr. Bemister informing him that the Jimmy had “broken down” and she had to purchase another vehicle. Mr. Bemister repaired the vehicle at his garage and had the ownership transferred to Mr. Bemister. He delivered the vehicle to her and she refused to accept it. Ms. Bemister testified she had always made Mr. Bemister aware she wished smaller, more economical vehicle in her name and that Mr. Bemister basically forced her to accept the Jimmy. Mr. Bemister indicated he had initially shown her an Oldsmobile Cutlass which she found unacceptable. He further noted the Jimmy was smaller car than the Suburban and four-wheel drive which was the type of vehicle she was used to driving. [21] Ms. Bemister requests the Court order Mr. Bemister, at this time, to comply with paragraph 11 of the Separation Agreement and purchase her an automobile. [22] Mr. Bemister submits Ms. Bemister was quite accepting of the arrangement which provided her with the exclusive use of the Jimmy. Further, he notes, by having the car in the company’s name, he provided the insurance coverage for the period of time it was available to her which was contrary to the agreement. On being informed it had broken down, he had it towed to his garage and repaired. He put the vehicle in her name and returned it to her in working condition. [23] conclude Mr. Bemister provided Ms. Bemister with the exclusive use of an automobile which could arguably be called mid-sized and of marginally more value than her previous vehicle; that for the time the vehicle was in her care, he paid for he insurance. It is worthy of note that Ms. Bemister testified that, during the time she drove the Jimmy, she and Mr. Bemister had attempted several reconciliations. She stated that possibly one reason she was given the Jimmy was to enhance the possibility of reconciliation. take from that recognition by Ms. Bemister that Mr. Bemister was possibly providing more vehicle than required in the Agreement and that she was accepting of it. Given what transpired up to the vehicle’s breakdown, I find that, on Mr. Bemister’s returning the Jimmy to Ms. Bemister in running order with an up-to-date safety sticker, Mr. Bemister will have substantially complied with his obligation pursuant to paragraph 11 of the Separation Agreement. [24] would request that counsel for Mr. Bemister prepare the order.

The parties were married for 10 years. Contrary to the wording of their separation agreement, the husband argued that they had agreed that spousal support would only be payable for one year as the wife needed extra income from a secure source in order to obtain a mortgage on a new home. Also at issue was the husband's obligation to provide the wife with an automobile pursuant to the separation agreement. Spousal support to continue at the rate set out in the separation agreement for a period of fifteen months from the date of the decision at which time all support shall terminate, unless, prior to the termination date, the wife commences an application which results in her showing cause why spousal support should continue; the husband has complied with his obligations with respect to the provision of an automobile. The wife's financial means and needs required support, the husband had made an agreement to provide such support and the evidence did not support a conclusion that it was agreed to be for only one year. Although the wife did not establish any disadvantage from the marriage, there were disadvantages relating to its breakdown and her lifestyle deteriorated as result of the marriage ending.

d_2004nssf15.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: 3008361 Nova Scotia Ltd. v. Scotia Recycling Ltd., 256 Date: 20130812 Docket: Pic No. 405823 Registry: Pictou Between: 3008361 Nova Scotia Limited v. Scotia Recycling Limited Defendant Revised Decision: The text of the original decision has been corrected according to the appended erratum dated September 30, 2013. Judge: The Honourable Justice N. M. Scaravelli. Heard: August 12, 2013, in Pictou, Nova Scotia Final Written Submissions: May 1, 2013, Jamie MacGillivray May 15, 2013, Matthew G. Williams Oral Decision: August 12, 2013, 2013 Counsel: Katherine O’Coin-O’Blenis, for Jamie MacGillivray for the 3008361 Nova Scotia Limited Matthew G. Williams, for the Scotia Recycling Limited By the Court Orally: [1] This is Motion for Production of relevant documents pursuant to Civil Procedure Rule 14.12. [2] By way of background the defendant, Scotia Recycling Limited operated out of a leased premises in the plaintiff’s building in Stellarton, Industrial Park. The defendant was in the business of sorting and baling facility for recycled materials they collected from households. The building was damaged by fire on October 22, 2007. The plaintiff commenced an action against the defendant seeking damages, alleging negligence. After the fire the defendant moved to another location. In May of 2009 another fire occurred at the defendant’s location resulting in destruction of that building. [3] The Plaintiff seeks production of all documents relating to the second fire. Specifically: a. complete copy of any investigative files prepared by government authorities including but not limited to the Fire Marshall and the Town of Stellarton Fire Department; b. Any photographs of the aftermath of the fire; c. complete copy of any internal investigation, including but not limited to statements by employees or others; and d. complete copy of any of the file of any insurers who carried out investigations. [4] The Defendant submits the Plaintiff has not established the documents are relevant to the present action. [5] Civil Procedure Rule 14 sets out provisions relating to disclosure and discovery. [6] Rule 14.01 provides that the meaning of relevant in Part 5. (1) In this Part, “relevant” and “relevancy” have the same meaning as at the trial of an action or on the hearing of an application and, for greater clarity, both of the following apply on determination of relevancy under this Part: (a) judge who determines the relevancy of document, electronic information, or other things sought to be disclosed or produced must make the determination by assessing whether judge presiding at the trial or hearing of the proceeding would find the document, electronic information, or other thing relevant or irrelevant; (2) determination of relevancy or irrelevancy under this Part is not binding at the trial of an action, or on the hearing of an application. [7] Rule 14.08 contains presumption of full disclosure of relevant documents. The presumption is rebuttable. Rule 15 imposes duty on defendant to disclose relevant documents. [8] Rule 14.01 displaced the former semblance of relevancy test. The range of discloseable documents has been narrowed to relevancy. This requires motions Judge to decide relevancy based on the pleadings and evidence produced on the motion as if the matter were raised at trial. Brown vs. Cape Breton Regional Municipality, Nova Scotia Court of Appeal, [2011 NSCA 32]. [9] The issue in this motion is whether documents relating to the subsequent fire in May of 2009 at another location are relevant documents relating to the fire in this proceeding that occurred in October, 2007, as it relates to the issue of negligence. [10] The party seeking production has the onus of establishing its relevance. Dexter Construction Company Ltd. v. Nova Scotia (Attorney General) [2011 NSSC 92]. The pleadings allege that in the evening of October 22, 2007 Bobcat loader caught on fire, due to paper and cardboard jammed in the engine compartment. The fire then spread to debris scattered about on the floor of the building, then throughout the building resulting in total loss. [11] An affidavit of the plaintiff’s solicitor was filed in support of the motion. Discoveries were held following the filing of the motion and affidavit. The plaintiff’s affidavit merely sets out the occurrence of the two fires as well as the plaintiff’s claim that the defendant’s negligence in the operation of it’s business caused the fire in the present action. On these grounds the plaintiff seeks to disclosure of documents relating to the second fire. [12] motion Judge in these instances is put in the position of the trial Judge at trial. The request for relief must be supported by evidence, unlike Halifax Dartmouth Bridge Commission v Walter Construction Corporation [2009 NSSC 403] relied upon by the plaintiff, there is no evidence before me as to the manner of operation of the defendant’s business in the second location that would establish relevance to the issues of negligence raised in the pleadings. No supplemental affidavits or further evidence have been provided following discoveries. The commonality of a fire in separate buildings two years apart does not, by itself justify disclosure of documents relating to the second fire. [13] To order disclosure of the documents at this stage of the proceedings without further evidence would only serve to sanction fishing expedition, as stated by Justice LeBlanc in Murphy vs. Lawtons Drugs Stores Limited, 2010 NSSC 289 (CanLII). [14] As a result the motion is dismissed. The court awards costs to the defendant in the amount of $750.00, plus disbursements, payable forthwith. IN THE SUPREME COURT OF NOVA SCOTIA Citation: 3008361 Nova Scotia Ltd. v. Scotia Recycling Ltd., 256 Date: 20130812 Docket: Pic No. 405823 Registry: Pictou 3008361 Nova Scotia Limited v. Scotia Recycling Limited Defendant Revised Decision: The text of the original decision has been corrected according to the erratum below dated September 30, 2013 Judge: The Honourable Justice N. M. Scaravelli. Heard: August 12, 2013, in Pictou, Nova Scotia Final Written Submissions: May 1, 2013, Jamie MacGillivray May 15, 2013, Matthew G. Williams Oral Decision: August 12, 2013 Counsel: Katie O’Coin-O’Blenis, for Jamie MacGillivray for the 3008361 Nova Scotia Limited Matthew G. Williams, for the Scotia Recycling Limited Erratum: Page reads: Katie O’Coin-O’Blenis for Jamie MacGillivray for the 3008361 Nova Scotia Limited Page should read: Katherine Aucoin O’Blenis, for Jamie MacGillivray for 30083361 Nova Scotia Limited

Rule 14.01 – Meaning of “relevant” in Part 5 The plaintiff brought a negligence action against the defendant, stemming from a 2007 fire in premises that the defendant had rented from the plaintiff. The plaintiff sought production of documents related to a 2009 fire at another location rented by the defendant. The defendant resisted on the basis that the documents were not relevant. Held, motion dismissed. Under Rule 14.01, the motions judge must decide relevancy based on the pleadings and evidence produced on the motion as if the matter were raised at trial. The party seeking production must establish relevance. Here, the only evidence was regarding the occurrence of the fires; there was no evidence as to the manner of the defendant's operation of the business in the second location that would establish relevance to the action regarding the first location. The commonality of a fire in separate buildings two years apart does not, by itself, justify disclosure of documents relating to the second fire.

6_2013nssc256.txt

nan Court of Appeal for Saskatchewan Docket: CACR2532 Citation: Power, 2016 SKCA 29 Date: 2016-03-07 Between: Her Majesty the Queen And Robert Kenneth Power Before: Ottenbreit, Caldwell and Ryan-Froslie JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Madam Justice Ryan-Froslie In dissent: The Honourable Mr. Justice Caldwell On Appeal From: 2014 SKQB 356 (CanLII), Regina Heard: 16 September 2015 Counsel: W. Dean Sinclair, Q.C., for the Appellant Aaron A. Fox, Q.C., and Matt Schmeling for the Respondent Ottenbreit J.A. I. Introduction [1] The respondent, Robert Kenneth Power (Constable Power), member of the Regina City Police Service, effected an arrest of Edward Stonechild in the process of which he push-kicked Mr. Stonechild in the abdomen causing Mr. Stonechild to fall backwards and injure his head. Constable Power was charged and convicted in the Provincial Court with committing an assault causing bodily harm on Mr. Stonechild contrary to s. 267(b) of the Criminal Code. Constable Power appealed his conviction to the Court of Queen’s Bench sitting as summary conviction appeal court. The summary conviction appeal court judge (appeal court judge) determined that the Provincial Court judge had erred in finding Constable Power guilty, set aside the conviction and entered an acquittal (appeal decision). [2] The Crown now applies for leave to appeal the decision of the summary conviction appeal court pursuant to s. 839 of the Criminal Code. For the reasons hereinafter set forth, leave is granted, the appeal is allowed and the conviction of Constable Power entered in the Provincial Court is reinstated. II. Facts and Background [3] Mr. Stonechild was homeless man. He was chronic alcoholic who habitually consumed hairspray, hand sanitizer or rubbing alcohol. He wandered around downtown Regina usually in state of intoxication. Mr. Stonechild was in extremely poor physical condition and blind in one eye. He was described as having no muscle. He was very frail, slow moving and was small man weighing no more than 120 to 140 pounds. He was also cognitively impaired. [4] Constable Power was 6’1” in height and, at the time of the offence, weighed approximately 215 pounds and was in good physical condition. Constable Power normally patrolled the downtown area of Regina. As consequence, over time Constable Power saw or had dealings with Mr. Stonechild in excess of 100 times. He had arrested Mr. Stonechild many times before. Constable Power knew about Mr. Stonechild’s physical and mental condition from his previous dealings with him. He had arrested him many times for being intoxicated in public place and had taken him to the Brief Detox Unit (BDU) to sleep it off. Although Mr. Stonechild was generally cooperative when he was being arrested or taken to the BDU, he could at times become abusive. Constable Power had seen Mr. Stonechild resist arrest passively and physically on occasion. [5] On May 7, 2012, when Constable Power encountered Mr. Stonechild on patrol, he believed Mr. Stonechild was intoxicated and told him that he should go to the BDU which was nearby or be arrested. To ensure his compliance, Constable Power, who was in his car, followed Mr. Stonechild as he walked towards the BDU. When Mr. Stonechild got to the BDU he did not enter. Rather, he sat on short cement wall nearby. Constable Power parked on the street approximately four or five feet away. He again told Mr. Stonechild that if he did not go into the BDU he would have to go to jail. When Mr. Stonechild made no attempt to enter the BDU, Constable Power informed him that he was under arrest. Mr. Stonechild twice replied, “Fuck you, do you want to fight?” [6] Constable Power exited his vehicle to effect an arrest and began putting on his protective gloves. He did this because he believed Mr. Stonechild to be both HIV and Hepatitis positive. [7] What transpired next between Constable Power and Mr. Stonechild was captured on video by the BDU security camera. The video shows that after Constable Power arrived in his police vehicle, he exited from the driver’s door. He approached Mr. Stonechild and appeared to be putting on some gloves. At this time, Mr. Stonechild took two or three steps towards Constable Power. His hands were at his side as he did so but they were clenched. Mr. Stonechild covered some of the distance between himself and Constable Power. Constable Power took one step forward and push-kicked Mr. Stonechild in the abdominal area. The force of the kick bounced Mr. Stonechild backwards and he fell hitting his head on the cement wall. Constable Power then approached him, rolled him over and handcuffed him. Mr. Stonechild’s head was bleeding as result of the fall. [8] Immediately after the incident Constable Power told Mr. Heathcot, who assisted in attending to Mr. Stonechild after the arrest, that Mr. Stonechild had charged at him, that he had to take him down and that he had kicked him. When Constable Power’s Sergeant arrived at the scene, Constable Power lied about what happened and indicated that he had pushed Mr. Stonechild. He maintained that story until the video of the incident was obtained. Only then did he admit that he had kicked Mr. Stonechild. [9] At trial Constable Power stated that Mr. Stonechild was yelling and came at him rather quickly. He said that his head was down as Mr. Stonechild came towards him because he was distracted by the task of putting on his gloves. He indicated that his first reaction was to kick Mr. Stonechild in the abdomen. He was not expecting Mr. Stonechild to come towards him. Constable Power testified that he kicked Mr. Stonechild to defend himself and he believed Mr. Stonechild was going to hit him. He testified that he believed Mr. Stonechild’s fists were raised in front of his body as he approached. He said all of this happened within one or two seconds. [10] At the trial, Joel Johnston, defence witness, was qualified as an expert to offer opinion evidence about the use of force by police officers and the training of officers in the use of force. He testified the kick was well-executed front kick and that it was intended to repel aggression. He stated that Constable Power’s use of force in this case was proportional to the assaultive behaviour that he faced and was consistent with police training. [11] Mr. Stonechild testified at trial but could not remember the incident. III. Decision of the Trial Judge [12] The question for determination of the trial judge was whether Constable Power used more force than was necessary to either defend himself under s. 34(1) of the Criminal Code or effect the arrest of Mr. Stonechild under s. 25(1) of the Criminal Code. [13] Because s. 34(1) of the Criminal Code had been repealed and replaced by new self-defence provisions at the date of trial, the trial judge addressed the issue of whether the new provisions or the law as it read in May 2012 applied. The trial judge held that the provisions in effect at the time of the offence applied. [14] Before the trial judge, the Crown and defence agreed that the onus was on the Crown to prove that any defences afforded by ss. 25(1) and 34(1) were inapplicable. They agreed that the defence of self-defence has subjective and an objective component, and would fail if the Crown proved (i) Constable Power did not subjectively believe the force used was necessary, or (ii) the level of force used was not objectively reasonable in all the circumstances. They also agreed that when measuring the reasonableness of the force, the Court should not expect an accused person to weigh that force to nicety. [15] After reviewing the jurisprudence regarding self-defence, the trial judge began his own analysis of the circumstances as follows: [59] As mentioned above, for the force to be reasonable, the accused, Mr. Power, must have subjectively believed he was in danger of harm and must have subjectively believed his use of force was reasonable. This subjective belief must be based upon reasonable grounds. have serious reservations about Mr. Power’s credibility and, in particular, whether he regarded Eddy as credible threat. However, chose to assume this subjective belief was present, and determine this case on the basis of whether the accused’s use of force was objectively reasonable in all the circumstances. [16] The trial judge found that the force used by Constable Power was excessive on an objective basis. His reasons for this conclusion included: (a) Mr. Stonechild did not strike blow and had no actual physical contact with Constable Power nor was he close enough to Constable Power to strike him before Constable Power kicked him; (b) Constable Power had options that involved less force: verbal commands, holding his arms up to block blow, pushing Mr. Stonechild backwards, or stepping out of the way; (c) Constable Power was professional police officer acting in the course of his duty and Mr. Stonechild and the public should be able to expect that such officers will look for viable options that do not involve extreme force; (d) the force used was clearly excessive having regard to the physical abilities and/or disabilities of each man; and (e) Constable Power was fully aware of Mr. Stonechild’s disabilities, physical capabilities and that Mr. Stonechild was intoxicated and could not put up much of fight. He knew he was bigger and stronger than Mr. Stonechild and in better shape. [17] The trial judge concluded: [64] In my view, consideration of all of these factors speaks to conclusion that fairly minimal level of force by Constable Power was all that was reasonable and justifiable in the circumstances. In my view, Constable Power’s force was well more than minimal, and was excessive. do not make this determination because Eddy Stonechild suffered an injury from falling backwards, but because, in my view, kicking Mr. Stonechild in the abdomen-chest area, was unreasonable and excessive use of force. [65] In the final analysis, found myself setting out and answering this question. Eddy Stonechild approached, perhaps somewhat quickly, Constable Power after challenging him to fight. His hands were at his side. He is much smaller and much more frail than Constable Power. In addition, he was very intoxicated. In all of these circumstances was Constable Power reasonably justified in kicking Eddy Stonechild in the abdomen, driving him backwards, and causing him to fall and hurt himself? conclude that this level of force was not reasonable in all of the circumstances or justified. The force used was excessive and Constable Power was reckless regarding the consequences to Eddy Stonechild. As result, find Constable Power guilty of the charge of assault causing bodily harm. [18] In the course of coming to the conclusion he did, the trial judge instructed himself to disregard Mr. Johnston’s opinion that Constable Power’s use of force was proportionate indicating that there is difference between whether the force used was consistent with police training and whether the force used was lawful. IV. Decision of the Summary Conviction Appeal Court [19] Before the appeal court judge, Constable Power argued that the trial judge had erred by (i) disregarding the evidence of Mr. Johnston, (ii) inappropriately taking into account certain factors in his analysis of whether the level of force was objectively reasonable, and (iii) measuring the force used by Constable Power to nicety. He submitted, as well, that the verdict was unreasonable and not supported by the evidence. He did not argue that the trial judge had used the wrong test to analyze whether the force used was more than necessary. Indeed, the notice of appeal to the Court of Queen’s Bench assumes that the proper test is whether the level of force used was objectively reasonable. [20] The appeal court judge declined to decide which provisions of the Criminal Code, old or new, applied. He determined that the best approach to s. 34(1) would be to decide the case on the basis of whichever wording of s. 34(1), old or new, was more beneficial to Constable Power. [21] The appeal court judge determined that the video was significant piece of evidence and that the trial judge erred by failing to analyze the timing of the events depicted. As such, the appeal court judge found it was open to him to review the video in detail and draw his own conclusions from it. [22] The appeal court judge determined that the trial judge properly focussed on the only issue to be decided, i.e., whether the force used by Constable Power was no more than necessary for him to defend himself, or, put another way, whether the Crown proved beyond reasonable doubt that Constable Power had used more force than was necessary. He stated that this called for proportional inquiry which was neither strict nor exclusively objective, and that flexible and tolerant approach in applying the relative subjective and objective tests was necessary as opposed to one that is “precisely calculated”. [23] The appeal court judge then determined the trial judge had made number of errors as follows: (a) he transformed the subjective and objective aspects of the proportional inquiry into purely objective test; (b) once he accepted that Constable Power subjectively believed that his use of force was reasonable, the trial judge should have inquired whether the Crown had proven beyond reasonable doubt the absence of any reasonable grounds for that subjective belief or, put another way, whether there was any doubt that reasonable person in the situation of Constable Power might have used the force actually employed; (c) his approach caused him to assess the correctness of Constable Power’s subjective belief in the reasonableness of the force used and, as consequence, no allowance was made for the prospect that his subjective belief might have been mistaken; (d) his objective approach caused him to disregard the evidence of the expert witness, Mr. Johnston, as to whether the use of force was carried out in accordance with police training, given the predicament Constable Power was in and the strategies available to extricate himself; and (e) by considering the distance between Constable Power and Mr. Stonechild, the disparity in their strength, agility, fitness and an array of options with lesser force, he weighed to nicety the force of Constable Power’s response to Mr. Stonechild’s impending attack. [24] The appeal court judge concluded: [72] Having found that the trial judge erred in the approach he took to measure the appellant’s use of force, and in disregarding the evidence of Mr. Johnston, the appeal must be allowed and the verdict of guilty must be set aside. Further, as the facts are not in substantial dispute, find it is open for me to assess the evidence and arrive at conclusion. Much of this assessment has been done in considering the manner in which the trial judge approached the evidence he received. To sum up that assessment here, find that there are certain factors which cannot go unnoticed. They include: a. the history between the parties, including the appellant’s knowledge that Mr. Stonechild suffered from Hepatitis and was HIV positive; b. the limited time the appellant had to react once he apprehended Mr. Stonechild’s attack; c. the potential harm the appellant faced if he was struck or spit upon; d. the training the appellant received; and e. the fact that the force used was in keeping with the training provided to police officers. In my view, these factors raise significant doubt of the appellant’s guilt. In particular, cannot find that the Crown has discharged the burden of proving, beyond reasonable doubt, that the option used by the appellant was not one that reasonable person in the position of the appellant might be expected to employ. It necessarily follows that verdict of not guilty must be entered. [25] The Crown raises the following issues in this appeal: (a) Did the appeal court judge misinterpret ss. 25(1) and 34(1) of the Criminal Code? (b) Did the appeal court judge misapprehend the evidence and the trial judge’s reasons for judgment? (c) Did the appeal court judge err by applying the wrong standard of appellate review? [26] Two preliminary matters warrant mention. Before this Court, both the Crown and the defence accepted that the provisions of s. 34(1) of the Criminal Code as it read prior to May 2012 were applicable. This accords with two recent cases. Both Evans, 2015 BCCA 46 (CanLII), 321 CCC (3d) 130, and Bengy, 2015 ONCA 397 (CanLII), 325 CCC (3d) 22, conclude that the amendments to s. 34(1) of the Criminal Code made effective after March 2013 are prospective in effect. agree with that conclusion. [27] The provisions of the Criminal Code in May 2012 read as follows: 25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (b) as peace officer or public officer, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. nan 34 (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. [28] Additionally, the analysis that follows does not in any way ignore the fact that police officers every day place themselves at risk doing dangerous and demanding work in order to protect the citizens of this country. It is an honourable profession worthy of the respect of all citizens. In carrying out their duties, acknowledge that they often must use force. agree with the longstanding principle that the degree of force used by an officer in effecting an arrest or in defending himself or herself should not be weighed to nicety. Nevertheless, there are principles set out in our law which govern the use of force for defensive purposes or the exercise of powers of arrest and they apply to police officers. turn now to the merits of this appeal. A. Did the summary conviction appeal court judge misinterpret ss. 25(1) and 34(1) of the Criminal Code? [29] The jurisprudence regarding ss. 25(1) and 34(1) is well established and the principles to be applied are fundamentally the same for both provisions. In dealing with s. 25(1), the Supreme Court of Canada in Nasogaluak, 2010 SCC (CanLII), [2010] SCR 206 [Nasogaluak], said: [34] Section 25(1) essentially provides that police officer is justified in using force to effect lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits police officer from using greater degree of force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on subjective-objective basis (Chartier v. Greaves, [2001] O.J. No. 634 (QL) (S.C.J.), at para. 59). If force of that degree is used to prevent suspect from fleeing to avoid lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in less violent manner. [35] Police actions should not be judged against standard of perfection. It must be remembered that the police engage in dangerous and demanding work and often have to react quickly to emergencies. Their actions should be judged in light of these exigent circumstances. As Anderson J.A. explained in R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.): In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [Emphasis added] [30] The Court in Nasogaluak also stated at para 32 that the force used by peace officer in the execution of his duty is constrained by principles of proportionality, necessity and reasonableness. It approved the following statement by the Alberta Court of Appeal in Nasogaluak, 2007 ABCA 339 (CanLII), 2008 WWR 387, of the legal principles involved in deciding whether force is excessive: [21] Section 25(1) of the Criminal Code provides that police officer, if he acts on reasonable grounds, is authorized in using as much force as is necessary for the purpose of making an arrest. The test is whether the application of force was objectively reasonable, having regard to the circumstances and dangers in which the officer found himself or herself: Crampton v. Walton, 2005 ABCA 81 (CanLII), 363 A.R. 216 at para. 42. [31] Turning to s. 34(1), the four components in that defence and the applicable onus of proof have been set out in Piapot, 2014 SKCA (CanLII), [2014] WWR 79 [Piapot]: [28] It is common ground that the elements of successful s. 34(1) defence are: (a) the accused must have been unlawfully assaulted or perceived that he or she would be unlawfully assaulted by the victim; (b) the accused must not have provoked the assault; (c) the force used by the accused was not intended to cause death or grievous bodily harm; and (d) the force used by the accused was no more than necessary to enable him or her to defend himself or herself. See: R. v. Raphael, 2009 SKCA 16 (CanLII), [2009] W.W.R. 611 at para. 12. [29] In order to deny an accused person the defence of self-defence, the Crown must prove, beyond reasonable doubt, that any one of these four elements is not present. See: R. v. Hebert, 1996 CanLII 202 (SCC), [1996] S.C.R. 272 at para. 23. [Emphasis added] [32] In summary, for both ss. 25(1) and 34(1), the force used by police officer or person acting in self-defence must be no more than necessary to enable him or her to defend themselves or effect an arrest. That force need not be measured with exactitude or “to nicety” when considering the question of proportionality. The law provides for flexible or tolerant approach to the objective measure of whether force is proportionate (Piapot at para 46). [33] How to approach the issue of proportionality was explained in Szczerbaniwicz, 2010 SCC 15 (CanLII), [2010] SCR 455 [Szczerbaniwicz]. Although that case dealt with defence of property, Abella J. stated (at para 18) that the defence of property provisions of the Criminal Code dealing with the level of force are similar to other Criminal Code provisions incorporating the words “no more force than necessary”. She stated: [20] The “proportionality” approach has more recently been characterized as an inquiry into whether the force used was “reasonable in all the circumstances”, as Charron J. confirmed in R. v. Gunning, 2005 SCC 27 (CanLII), [2005] S.C.R. 627, at para. 25, case involving s. 41(1). [21] The reasonableness of “all the circumstances” necessarily includes the accused’s subjective belief as to the nature of the danger or harm, but the objective component of the defence is also required: the subjective belief must be based on reasonable grounds. [34] In support of this approach, Abella J. cites the statements of Fraser C.J.A. in Kong, 2005 ABCA 255 (CanLII) at paras 95-100, [2006] WWR 405 [Kong], appeal allowed on other grounds 2006 SCC 40 (CanLII), [2006] SCR 347, the relevant portions of which read as follows: [95] Since the law of self-defence is rooted in necessity, self-defence properly stops where necessity ends. As with the defence of necessity, proportionality is required between the harm inflicted and the harm sought to be avoided. In other words, the responsive force must have been proportionate to the assault threatened or inflicted. [96] Therefore, in assessing whether there is an air of reality to the proportionality requirement, that is whether the responsive force was no more than necessary in the circumstances, judge must also consider the following: 1. the nature and extent of the assault or threatened assault the accused faced (the “threat assessment”); and 2. the nature and extent of the responsive force the accused actually used. [97] In my view, the threat assessment involves modified objective inquiry. After all, in assessing whether an accused’s responsive force meets the proportionality requirement, the situation in which that particular accused finds himself or herself is highly relevant. The fact that the threat assessment by the accused is based in part on trying to infer someone else’s intentions also explains why court must focus first on an accused’s subjective perception of the degree of violence of the assault or threatened assault. Nevertheless, an accused’s belief must also be reasonable on the basis of the situation he or she perceives. Indeed, factors peculiar not only to the accused, but also the alleged victim, have historically been regarded as proper considerations in assessing the nature and extent of the threat. For example, in analyzing the nature of the threat, the relative strength and size of the parties involved will be relevant consideration: R. v. Nelson (1953), 1953 CanLII 432 (BC CA), 105 C.C.C. 333 (B.C. C.A.). So too will be other personal characteristics, for example, gender and age. [100] With respect to the proportionality requirement the responsive force must have been no more than necessary in the circumstances have concluded that this should be assessed using an objective test only. By this, mean that the trial judge is to consider whether, from the perspective of reasonable person in the circumstances of the accused, there is an air of reality to an accused’s claim that the force used was objectively no more than necessary given the nature and quality of both the threat and the responsive force. That reasonable person is to be invested with the characteristics of the accused in terms of size, strength, gender, age and other immutable characteristics. If the responsive force used exceeds that which was objectively necessary, then the protection of s. 34(1) is lost. [Emphasis added, footnotes omitted] [35] On the basis of the foregoing, determination of whether force is reasonable in all the circumstances involves consideration of three factors. First, court must focus on an accused’s subjective perception of the degree of violence of the assault or threatened assault against him or her. Second, court must assess whether the accused’s belief is reasonable on the basis of the situation as he or she perceives it. Third, the accused’s response of force must be no more than necessary in the circumstances. This needs to be assessed using an objective test only, i.e., was the force reasonable given the nature and quality of the threat, the force used in response to it, and the characteristics of the parties involved in terms of size, strength, gender, age and other immutable characteristics. [36] The Crown contends that the appeal court judge fell into error and misinterpreted s. 34(1) of the Criminal Code, and by analogy s. 25(1), by using test that confused proportionate force with reasonable belief about that force. Specifically, the Crown submits that the appeal court judge erred by concluding that once the trial judge accepted Constable Power subjectively believed his use of force was reasonable, the trial judge should have gone on to inquire whether the Crown had proved beyond reasonable doubt the absence of any reasonable grounds for that subjective belief. The Crown argues that, because of this, the appeal court judge wrongly converted the inquiry in this case from one concerned with objective proportionality into one exclusively concerned with Constable Power’s state of mind and the reasonableness of his belief. [37] There is merit to this submission. The error at the crux of the appeal court judge’s decision is that he misunderstood the applicable test and inappropriately focused on Constable Power’s belief. First, he drifted into an erroneous unnecessary discussion of and emphasis on the subjective elements of self-defence. He began by referring to J.K.M.C., 1965 CanLII 720 (SK QB), [1966] CCC 380 (Sask QB), and Baxter (1975), 1975 CanLII 1510 (ON CA), 27 CCC (2d) 96 (Ont CA) [Baxter], as examples of the subjective element of s. 34(1) defence. Both those cases involved defences under s. 34(2) and not s. 34(1), both focused on the reasonableness of the accused’s belief and the application of mistake of fact to that belief. They are distinguishable from Constable Power’s case on that basis. [38] However, those cases led the appeal court judge to focus on the doctrine of mistake of fact which was not argued by Constable Power at trial and did not form part of his grounds of appeal in the Court of Queen’s Bench. As result of that focus, the appeal court judge erroneously found that the trial judge made no allowance for the prospect that Constable Power’s subjective belief might be mistaken. In fact, the trial judge had moved beyond the first two branches of the test as enunciated by Fraser C.J.A. in Kong having accepted that Constable Power’s belief was reasonable and justified using some force. In my view, the appeal court judge’s foray into this area constituted an unnecessary focus on Constable Power’s subjective belief. [39] Second, the appeal court judge focussed on the principle that the subjective and objective parts of the test must be applied flexibly and with tolerance as opposed to precisely calculated application. He suggested that when this principle is applied, the response of an accused must be measured from the perspective of that accused and that the trial judge was wrong to use purely objective test, thus rendering the subjective aspect of the inquiry essentially meaningless. He then wrongly restated the test as it relates to reasonable doubt: [64] Once the trial judge accepted (albeit reluctantly) that the appellant subjectively believed his use of force was reasonable, the correct approach called for an inquiry as to whether the Crown had proved, beyond reasonable doubt, the absence of any reasonable grounds for that subjective belief. If there was any doubt that reasonable person, in the situation of the appellant, might have used the force actually employed, such doubt was to be resolved in favour of the appellant. As result, the appeal court judge concluded the trial judge failed to determine whether there were reasonable grounds for Constable Power’s subjective belief. As previously stated, the trial judge had already resolved that issue in Constable Power’s favour. [40] The emphasis by the appeal court judge on mistake of fact and the tolerant and flexible approach to the use of force in self-defence cases led him to misinterpret Szczerbaniwicz and the applicable test. Of note, he did not deal with the reference in Szczerbaniwicz to Kong and the analysis of Fraser C.J.A. mentioned earlier. [41] As final observation, Constable Power’s position before the trial judge was that although the Court had to assess both subjective and objective components of his use of force, the level of force used must be objectively reasonable. This was consistent with the trial judge’s approach. Objective proportionality, i.e., the third branch of the test, was the only contentious issue which the trial judge had to decide given that he had accepted Constable Power was justified in his belief that Mr. Stonechild posed threat to him to which he needed to respond. Moreover, neither Constable Power’s notice of appeal nor his argument before the appeal court judge challenged the trial judge’s focus on whether the responsive force used was objectively reasonable. [42] The appeal court judge erred by misunderstanding the elements of the applicable test. He wrongly focussed on the reasonableness of Constable Power’s belief rather than an objective inquiry into the necessity of the force used as the trial judge correctly understood it to be. B. Did the summary conviction appeal court judge misapprehend the evidence and the trial judge’s reasons for judgment? [43] The Crown argues the appeal court judge was wrong to find that the trial judge disregarded the evidence of Mr. Johnston. agree with this argument. [44] The trial judge was nuanced in dealing with the evidence of Mr. Johnston. He accepted portions of his testimony but not all of it. He was entitled to do this. The trial judge accepted the evidence of Mr. Johnston with respect to the training police officers receive regarding the use of force in self-defence situations, and that the push-kick used in this case was well-executed and delivered in accordance with police training. However, he did not accept Mr. Johnston’s opinion that Constable Power acted impulsively or instinctively in the circumstances and that he used an appropriate and reasonable amount of force. Mr. Johnston was not qualified as an expert to testify about whether the force used was reasonable or proportional as matter of law and the trial judge quite properly disregarded his opinion on that point which was the ultimate issue he had to decide. In my view, the trial judge made no error in dealing with Mr. Johnston’s evidence. [45] The Crown next argues that the appeal court judge erred by considering the video in detail and drawing his own conclusions from it. The appeal court judge stated the following about the video: [39] In the matter before the court, the appellant and the Crown disagree on the extent to which this Court can review the trial judge’s findings insofar as it is based on the events depicted in the videotape. The appellant submits that, because the videotape is the principal piece of evidence in case where the facts are not in any serious dispute, this Appeal Court is in as good position as the trial judge to assess the significance of the events depicted in the video. On the other hand, the Crown contends that the trial judge’s assessment of the video evidence is entitled to the same deference as it would if the assessment were based on the viva voce testimony of witnesses describing the relevant events. [43] Nonetheless, am inclined to the view that deference must still be accorded. Having said that, the question in this case relates to the manner in which that deference is accorded. In the appeal before the court, there was no actual or substantive dispute on the evidence, and certainly no dispute as to the events depicted in the video. It must further be noted that the trial judge did not make any specific findings of fact based solely on the video. Had the trial judge made such finding, particularly as between disputed interpretations of what was depicted, am satisfied that, absent palpable and overriding error, this court ought not to substitute its findings for his. [44] This, however, is not the situation here. When the trial judge actually referred to the video, he simply narrated the events depicted in it, without specific analysis on the timing of those events, as was described in para. 18 of this judgment. In my view, the timing of the relevant events in the video is crucial to this case. Under the circumstances, it is open to this court, as part of its consideration, to review the video, in detail, and determine whether the evidence from it was reasonably capable of supporting the trial judge’s conclusion that the plea of self-defence should fail. [46] Initially, the appeal court judge purported to review the video for the purpose of determining whether the evidence from it was reasonably capable of supporting the trial judge’s conclusion that the plea of self-defence should fail, i.e., whether the verdict was unreasonable. This was proper, but the appeal court judge never did go on to determine that issue. [47] The events depicted in the video and how they occurred were, as observed by the appeal court judge, not in dispute. The summary of the video found in para 18 of the decision of the appeal court judge, although more detailed, is not substantially different than the trial judge’s summary in para of his decision except that the appeal court judge sets out the timing of the events and suggests that Mr. Stonechild’s right arm is in cocked position. [48] The appeal court judge analyzed the time stamp on the video and when certain events occurred, and concluded that timing was “crucial”. What is clear is that he reinterpreted the video. His justification for doing this was that the trial judge merely narrated the events, did not analyze the timing of events and made no findings of fact based “solely” on the video. Having concluded this, the appeal court judge determined that he need not defer to the trial judge’s treatment of the video. In my view, this was an error. [49] The trial judge had viewed the same video, was aware of the timing of events and took them into consideration when arriving at his decision. He acknowledged that Mr. Stonechild approached Constable Power “somewhat quickly” but considered that as only one factor to be analyzed with others in determining the reasonableness of Constable Power’s response. The appeal court judge, by reinterpreting the video, placed greater weight on the short time that Constable Power had to react. Absent palpable and overriding error, the trial judge is entitled to deference regarding the weight he placed on the speed at which the events unfolded as factor in his final determination. [50] Finally, the Crown submits that the appeal court judge erred in saying that the trial judge weighed to nicety the force used by Constable Power. The principle of not weighing to nicety the exact measure of defensive action is not incompatible with an objective inquiry regarding proportionality as observed by Fraser C.J.S. in Kong (ABCA): [113] Fourth, simply because perfect symmetry between threat and action may not be possible in the heat of the moment is no reason to torpedo the proportionality requirement. agree that defensive force need not be “weighed to nicety”. But not measuring something to nicety cannot be equated with not measuring it at all. Nor does this generous and understandable approach to weighing responsive force convert an objective requirement into subjective one or for that matter, modified objective one. [114] concede that tolerant approach is appropriate in assessing whether the force an accused used was, on an objective basis, no more than necessary to enable the accused to defend himself or herself. It has been suggested that as long as the responsive force is “roughly proportionate to the attack”, the courts will not be inclined to second guess an accused’s decision about the degree of responsive force needed in the circumstances. [115] However, allowing an accused considerable latitude in measuring the degree of responsive force employed was never intended to confer on an accused licence to resort to whatever responsive measures he or she thought justified, no matter how unreasonable or disproportionate those measures might be. To permit an accused to do so would collapse what Parliament intended to be an objective requirement into subjective one. Requiring defensive force under s. 34(1) to meet proportionality requirement discourages unreasonable resort to violent self-help, legitimate goal of any criminal justice system. [Emphasis added, footnotes omitted] [51] The appeal court judge focussed on this issue because of the short timespan during which the incident unfolded. The appeal court judge stated it was unfair to expect Constable Power to (i) gauge if Mr. Stonechild was close enough to punch or spit at him, (ii) consider an array of options with lesser force, or (iii) measure the disparity in strength, agility and fitness between himself and Mr. Stonechild to calculate the minimal level of force required. In my view, the appeal court judge also erred in coming to such conclusions and in finding that the trial judge weighed to nicety the force used. [52] will take these points in turn. First, although Constable Power knew Mr. Stonechild was HIV and Hepatitis positive, he did not testify that he feared he would be spit on. His only concern was that Mr. Stonechild was going to hit him and, in fact, despite the speed of the interaction between them, Constable Power did gauge that Mr. Stonechild was close enough for him to possibly strike him and his belief was that Mr. Stonechild might try to strike him. This point is neither here nor there because the trial judge accepted Constable Power believed Mr. Stonechild might strike him. [53] Second, with respect to the use of force options available to Constable Power, it is significant that he had previously arrested Mr. Stonechild on many occasions in the past. On one occasion, Mr. Stonechild had raised his arms aggressively as if he was attempting to hit Constable Power—arguably more aggressive stance by Mr. Stonechild than he took on May 7, 2012. Constable Power, on that occasion, subdued him with joint lock. Constable Power was familiar with Mr. Stonechild, his capabilities and his condition. Although police officer need not precisely calculate the minimum amount of force necessary, nevertheless, even if somewhat surprised by Mr. Stonechild during the short duration of the incident, Constable Power should have been able to counteract Mr. Stonechild, whose capabilities he knew well, with any one of number of options requiring less force based on the use of force continuum or model for which he had received training. [54] turn now to the third point made by the appeal court judge. Factors such as disparity in strength, agility, size and fitness as well as sobriety must be taken into account by the officer in order to respond properly to perceived threat. These factors are at the core of determining the amount of force to be used. In this case, Constable Power was well aware of these factors because he was familiar with Mr. Stonechild and had dealt with him many times in the past. The short time which he had to react could not have made him less aware. These same factors can be taken into account when determining the objective proportionality of the response without ignoring the requirement that the force used must not be weighed to nicety. In my view, the trial judge did just that. By considering the factors set forth in his decision he was not weighing Constable Power’s use of force to a nicety. Rather, he was determining the objective reasonableness of that force based on those factors. [55] That said, do not wholly agree with the trial judge’s observations of what lesser force might have been used by Constable Power. do not believe that police officer is required to put up his arms or use any other part of his body to block blow as less forceful option when defending himself or herself. In short, police officer is entitled to and must protect himself from an impending assault and is not required to absorb the force of that assault first. Nor must the officer who is effecting an arrest necessarily retreat or step aside. Much will depend on the circumstances. C. Did the summary conviction appeal court judge err by applying the wrong standard of appellate review? [56] The Crown argues that the appeal court judge failed to apply the test set out in Biniaris, 2000 SCC 15 (CanLII), [2000] SCR 381 [Biniaris], and determine whether the trial judge’s finding that the force used was disproportionate was reasonable and supported by the evidence. [57] Under s. 813 of the Criminal Code, which governed Constable Power’s appeal to the Court of Queen’s Bench, there is no appeal on issues of fact per se. Factual issues on an appeal to summary conviction appeal court are subsumed under s. 686(1) of the Criminal Code which allows challenge of verdict on the basis it is unreasonable and cannot be supported by the evidence. The standard of review of conviction appealed on this basis has been summarized in R.P., 2012 SCC 22 (CanLII), [2012] [9] To decide whether verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168, and R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381, at para. 36, determine whether the verdict is one that properly instructed jury or judge could reasonably have rendered. The appellate court may also find verdict unreasonable if the trial judge has drawn an inference or made finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (R. v. Sinclair, 2011 SCC 40 (CanLII), [2011] S.C.R. 3, at paras. 4, 16 and 19-21; R. v. Beaudry, 2007 SCC (CanLII), [2007] S.C.R. 190). Although some re-examination and reweighing of the evidence is allowed to determine if the evidence was reasonably capable of supporting the trial judge’s conclusion (R Burns, 1994 CanLII 127 (SCC), [1994] SCR 656), the appeal court judge cannot substitute his own view of the evidence for that of the trial judge. [58] In this case, the appeal court judge properly instructed himself on the Biniaris standard of review but failed to analyze the decision of the trial judge based on that standard, namely, whether the evidence was reasonably capable of supporting the trial judge’s conclusion based on the evidence as a whole. [59] The Crown argues that the issue of the proportionality of the force used is question of fact and, therefore, the appeal court judge should have deferred to the trial judge’s determination of that issue absent palpable and overriding error. In my view, the issue is one of mixed fact and law. It is one that is, however, heavily fact-laden. In Guay, 2008 NBCA 72 (CanLII), 337 NBR (2d) 252, case involving sections somewhat similar to ss. 25 and 34, Richard J.A. explains this point: [26] adopt Wittmann J.A.’s observation that “[t]he objective measurement of proportionate force in self-defense cases requires tolerant approach” (para. 209) and his reference in the next paragraph to the text Canadian Criminal Law (4th Ed.) (Scarborough, Ont: Carswell, 2001), where Professor Don Stuart characterized, at p. 478, the judicial attitude to self-defense as one of “flexibility”. However, even with tolerant and flexible approach, there will be cases where the force used cannot be considered reasonable in the circumstances. Identifying those cases necessarily involves fact-laden findings that must be made by trier of fact. The model jury instructions commonly used in this country illustrates this. In Ontario Specimen Jury Instructions (Criminal) (Toronto: Carswell, 2003), Justice D. Watt makes clear in Final 68 Justification (Preventing assault), at p. 991, that the answer to the question whether or not an accused used more force that [sic] was necessary to prevent the complainant’s assault is one that “will depend on [the jury’s] view of the evidence” and that all the circumstances must be considered as members of the jury use their “common sense, experience, knowledge of human nature, and [their] assessment of what actually happened.” Similar wording is found in the sample instructions for self-defense under s. 34(1). similar point is made in Canadian Criminal Jury Instructions, vol. 2, loose-leaf (Vancouver: The Continuing Legal Education Society of British Columbia, 2005), at 8.64-8, where the authors recommend jurors be instructed to use their common sense when considering whether the force used was no more than necessary and suggest that the judge review the evidence to be considered in deciding whether reasonable doubt exists on point. [27] Where the objective measurement of proportionate force in assessing either s. 27 or s. 37 defense requires fact-laden determinations, much deference is owed to the findings of the trier of fact. Time and again, the Supreme Court has repeated that determinations of fact, inferences of fact and the interpretation of the evidence as whole in determining questions of mixed law and fact are matters to be decided by the trier of fact, and which ought not be overturned absent palpable and overriding error: Housen v. Nikolaisen et al., 2002 SCC 33 (CanLII), [2002] S.C.R. 235; [2002] S.C.J. No. 31; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33 and H.L. v. Canada (Attorney General) et al., 2005 SCC 25 (CanLII), [2005] S.C.R. 401; [2005] S.C.J. No. 24; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25. agree with this analysis. The decision of the trial judge as to whether more force than necessary was used, based on the evidence as whole, is entitled to deference absent palpable and overriding error. [60] The appeal court judge accepted that, generally speaking, the decision of the trial judge was entitled to deference but he went on to view the evidence afresh. He gave three reasons for doing so, all of which have dealt with earlier: (i) the trial judge had made an error in law, i.e., that he had used purely objective test to measure the level of force, (ii) the trial judge had disregarded the evidence of Mr. Johnston, and (iii) the facts were not in substantial dispute. The appeal court judge, as result of this, improperly drew his own inferences and conclusions from the underlying facts and improperly reweighed the evidence. He wrongly substituted his own view of the evidence for that of the trial judge. [61] turn now to the factors informing the conclusion of the trial judge that the force used was more than necessary. For the purposes of this case, the question can be put as: Can it be said that from the perspective of reasonable person in the circumstances of Constable Power it was necessary for Constable Power to effect an arrest of or defend himself from the advance of Mr. Stonechild using the push-kick assuming that Mr. Stonechild was advancing with clenched hand or fist? The trial judge, by analyzing the factors mentioned by him, including the disparity in the stature and physical abilities of Constable Power and Mr. Stonechild and the condition of Mr. Stonechild, addressed this question on the basis of whether the push-kick used was reasonable in all the circumstances and concluded it was not. [62] The trial judge made no error in considering the factors set forth in his decision which drove his conclusion that more force than necessary was used. The decision of the trial judge is supportable notwithstanding the additional factors listed by the appeal court judge. In my view, there are other additional relevant factors disclosed by the record which are germane to the proportionality analysis: (a) Mr. Stonechild was substantially intoxicated at the time and Constable Power observed that he was unsteady on his feet as he walked toward the BDU; (b) Mr. Stonechild verbally challenged Constable Power to fight; (c) Mr. Stonechild approached Constable Power quickly with fists clenched; (d) Constable Power was still in the process of putting on his gloves when Mr. Stonechild approached him and had only second or two to react; (e) Constable Power reacted with manoeuver that was in accordance with his training; and (f) Constable Power was in the process of effecting lawful arrest of Mr. Stonechild. These factors, together with those mentioned by the trial judge, and the appeal court judge taken as whole, support the conclusion of the trial judge as being reasonable. [63] can see no palpable and overriding error in the trial judge’s interpretation of the evidence as whole in coming to the conclusion he did. In short, Constable Power’s conviction is not unreasonable in the sense of being verdict that no properly instructed trier of fact acting judicially could reasonably have rendered. It is not verdict plainly contradicted by the evidence relied on by the trial judge or by other evidence. Conclusion [64] Leave to appeal is granted. The appeal is allowed and the conviction entered by the trial judge is restored. “Ottenbreit J.A.” Ottenbreit J.A. concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A. Caldwell J.A. I. INTRODUCTION [65] have read the reasons of my colleague, Justice Ottenbreit. While would grant the Crown leave to appeal, must respectfully disagree with the majority’s disposition of this matter. would dismiss the appeal. [66] The only question before the summary conviction appeal court judge [appeal court judge] was whether the trial judge had erred when he concluded the force Constable Power used against Edward Stonechild had been more than what was necessary to defend himself or to arrest Mr. Stonechild, thereby negating the constable’s defence to the charge of assault causing bodily harm contrary to s. 267(b) of the Criminal Code. While acknowledge the appeal court judge erred in his approach to answering this question, find his conclusion that the trial judge had erred is nevertheless correct. II. Scope of Appeal [67] The Crown may take an appeal to this Court from summary conviction appeal court judge’s decision, with leave to do so, on any ground that involves question of law alone: s. 839 of the Criminal Code. In this respect, the Crown first says the appeal court judge misinterpreted ss. 25(1) and 34(1) of the Criminal Code, which alleges an error of law alone. The Crown further says the appeal court judge misapprehended the evidence and the trial judge’s reasons for judgment and otherwise applied the wrong standard of review in the appeal before him. These allegations of error framed as misapprehension of the evidence or the record do not amount to errors of law alone. However, the incorrect identification and application of the appropriate standard of appellate review is an error of law alone. [68] Therefore, as see it, the questions of law alone brought before this Court are: (a) whether the appeal court judge misinterpreted ss. 25(1) or 34(1) of the Criminal Code; and (b) whether the appeal court judge chose and applied an incorrect standard of appellate review in his analysis. And, agree the Crown’s appeal is compelling on these grounds; but, nevertheless, the result of the summary conviction appeal would not have been any different under the correct interpretation of ss. 25(1) and 34(1) and the applicable standards of appellate review, as will now explain. [69] The circumstances of this matter are set forth in the reasons of the majority; but, because this matter is heavily fact-driven, will briefly revisit the narrative. To begin, the Regina Police Service has protocol for its officers to follow when they engage with an intoxicated individual who might be in need of medical attention. Under that protocol, the police summon emergency medical services when necessary; but, if the individual is amenable and capable, the police direct the individual to the Victoria Avenue Brief Detox Unit [BDU]. If the individual is uncooperative, the police arrest the individual for public intoxication. [70] Mr. Stonechild was well-known to the Regina Police Service in this respect. Entries in respect of Mr. Stonechild in the Canadian Police Information Centre [CPIC] database cautioned peace officers that Mr. Stonechild, who had been identified as being HIV and Hepatitis positive, was “contagious” and “violent” and “chronically intoxicated person.” [71] Constable Power had had numerous encounters with an intoxicated Mr. Stonechild. From this, he knew Mr. Stonechild to be generally cooperative, but sometimes aggressive or abusive. In prior encounter, when Mr. Stonechild had become aggressive and assaultive towards him and others, Constable Power had had to physically subdue him, arrest and handcuff him, and transport him to jail. That Mr. Stonechild could behave in this way was confirmed by Jon Heathcot, an emergency medical technician who worked at the BDU. He confirmed Mr. Stonechild could be very cooperative but occasionally, and unpredictably, “abusive in language or uttering threats or stating violent things he’s done. …” [72] On the day in question, Constable Power encountered Mr. Stonechild in downtown Regina. Mr. Stonechild appeared to be intoxicated. The constable spoke to him and directed him to attend the BDU, failing which he warned of an arrest for public intoxication. Constable Power then followed Mr. Stonechild in his cruiser to ensure Mr. Stonechild’s compliance with this directive. Constable Power repeated the directive twice more and Mr. Stonechild ultimately walked to the BDU, but he did not enter it; rather, Mr. Stonechild took seat on pony wall outside its entrance. Constable Power pulled up in his cruiser and parked about ten feet away, curbside, facing the wrong way in the on-coming lane. [73] While still seated in his cruiser, the constable again instructed Mr. Stonechild to enter the BDU. To which Mr. Stonechild replied: “Fuck you, do you want to fight?” At which point Constable Power advised Mr. Stonechild that he was under arrest. The constable then exited his cruiser and began putting on protective gloves preparatory to taking Mr. Stonechild into custody. As he was doing so, Mr. Stonechild began to approach him “somewhat quickly” with his fists clenched. Constable Power reacted to this by kicking out at Mr. Stonechild—with what is apparently known as push-kick or thrust-kick—the effect of which was to halt Mr. Stonechild’s forward momentum and propel him backwards. Mr. Stonechild then stumbled, fell backwards and struck his head on the pony wall. [74] When handcuffing Mr. Stonechild, Constable Power observed that Mr. Stonechild was bleeding from head wound. He called emergency medical services [EMS] and his supervisor. He also asked Mr. Heathcot to assist him. He then secured his first aid kit from his cruiser and he and Mr. Heathcot attended to Mr. Stonechild until an EMS unit arrived. The EMS unit transported Mr. Stonechild to hospital where he was treated and released. Mr. Stonechild returned to the BDU upon release from hospital. Mr. Stonechild has no recollection of any of this. [75] Fortunately, the assault was captured by the video surveillance cameras at the BDU. The video record shows Mr. Stonechild took four steps toward Constable Power—covering just over half the distance between them in about three seconds—while the constable, who had exited his vehicle and was putting on his gloves, had taken one step toward Mr. Stonechild. At this point, the constable looked up and immediately delivered push-kick to Mr. Stonechild’s abdomen. As can be seen from the time frame of the video record and from the trial judge’s findings of fact, the events culminating in this assault occurred very quickly: 0:00 to 0:30 Mr. Stonechild walks past the BDU entrance and sits on the pony wall outside 00:30 to 0:33 Constable Power arrives in his cruiser 0:33 to 0:48 Constable Power instructs Mr. Stonechild to enter the BDU Mr. Stonechild says “Fuck you, do you want to fight?” Constable Power advises Mr. Stonechild he is under arrest 0:48 to 0:53 Constable Power opens the driver’s door of his cruiser and presumably begins to put on his gloves (this is not shown in the video record) 0:53 to 1:05 Mr. Stonechild looks at the sky and around the area 1:05 Constable Power steps onto the sidewalk (only his foot is visible) 1:05 to 1:07 Mr. Stonechild stands and begins to move “somewhat quickly” toward Constable Power with his fists clenched 1:08 Constable Power push-kicks Mr. Stonechild [76] Constable Power did not describe the assault in these terms at first. Rather, he said he had panicked at seeing the blood and then lied to his supervisor by saying he had only pushed Mr. Stonechild. He retold this lie in his formal report on the incident. It was only after the video record surfaced that Constable Power admitted to having push-kicked Mr. Stonechild. Constable Power maintained he had nonetheless acted in accordance with his training by delivering push‑kick to avoid being struck by Mr. Stonechild. He testified he was not intending to injure Mr. Stonechild and did not expect the force he had used would in fact injure Mr. Stonechild. At trial, Constable Power said he had not been paying close enough attention to Mr. Stonechild when exiting his cruiser. He said he only realised Mr. Stonechild was advancing toward him when Mr. Stonechild “would have been almost on top of [him]”. He said he had used the push‑kick to avoid Mr. Stonechild striking him or coming into contact with him. Nevertheless, presumably by reason of Constable Power’s considerable lapse in judgment when reporting the incident, the trial judge understandably had “serious reservations” about his credibility. IV. Decisions Below [77] The trial judge rejected Constable Power’s defence of self-defence under the pre-2012 provisions of the Criminal Code by concluding the constable had used more force than was necessary in repelling the assault from Mr. Stonechild. In this regard, he wrote: [59] As mentioned above, for the force to be reasonable, the accused, Mr. Power, must have subjectively believed he was in danger of harm and must have subjectively believed his use of force was reasonable. This subjective belief must be based upon reasonable grounds. have serious reservations about Mr. Power’s credibility and, in particular, whether he regarded Eddy as credible threat. However, chose to assume this subjective belief was present, and determine this case on the basis of whether the accused’s use of force was objectively reasonable in all the circumstances. [60] In determining whether the force was reasonable in all of the circumstances, have considered the following factors or circumstances. Firstly, note that while Constable Power testified he believed he was under attack, Eddy Stonechild did not strike blow and had no actual physical contact with the accused. Mr. Burge, for the Crown, argued that Eddy did not get physically close enough to the accused to strike him. believe Mr. Burge is correct. Constable Power is considerably larger than Eddy Stonechild. His legs are longer than Eddy Stonechild’s arms. conclude that Constable Power kicked Eddy Stonechild and drove him backward before Eddy got close enough to the accused to actually strike blow. [61] Secondly, considered whether Constable Power had alternative steps with lesser degrees of force that he could have taken. In various cases, such as Szerzerbaniwicz, supra; R. v. Willansky (2012) N.J. No. 469 (Nfld. Prov. Ct.) and R. v. Philpott (2011) N.J. No. 19 (Nfld. S.C.) all considered whether the accused had other options that involved lesser degree of force. In my view, in this case, Constable Power did have other options. think he might have hollered some sort of warning or command to Eddy Stonechild. He might have held up his hands and arms to block blow, or simply have pushed Mr. Stonechild backward. He might have stepped aside. Constable Power appears to be in very good physical condition, and quite agile. believe and conclude that he was capable of stepping out of the way and avoiding any contact. [62] Thirdly, have considered the fact that Constable Power is professional police officer, with professional training, and was acting in the course of his duty. In my view, this bears upon the degree of force that is reasonable in all of the circumstances. In the Szerzerbaniwicz case, supra, and R. v. Underhill, 2013 BCSC (CanLII), the Court took particular note of the fact that the accused and the victim of the assault were in spousal relationship. In the Underhill case, the Court specifically commented that because of the spousal relationship, the reasonable and justifiable force to be used by the accused was relatively minimal. In similar vein, believe that when an individual is involved in an altercation with police officer acting in professional capacity, that individual and the general public should be able to expect that the police officer will look for viable options to the use of extreme force and will use no more force than is reasonably necessary. [63] Fourthly, have considered the relative physical capabilities and/or disabilities of the accused and Eddy Stonechild, and the fact that the accused was fully knowledgeable of Eddy Stonechild’s disabilities. These factors were specifically considered by the Court in R. v. Underhill, supra and R. v. Richter, 2012 BCSC 1995 (CanLII). In this case, Constable Power admitted that he had almost daily dealings with Eddy Stonechild. Further, that this had been the case for years. He estimated that he had well more than one hundred dealings with Eddy Stonechild. He knew that he was much bigger and stronger than the victim and in way better shape. He knew that he could move much more quickly and much more forcibly than the victim. He also knew from his dealings in the minutes before this altercation that Eddy Stonechild was very intoxicated, and really couldn’t put up much of fight. In the words utilised in some of the decisions, Eddy Stonechild was “no match” for the accused. [64] In my view, consideration of all of these factors speaks to conclusion that fairly minimal level of force by Constable Power was all that was reasonable and justifiable in the circumstances. In my view, Constable Power’s force was well more than minimal, and was excessive. do not make this determination because Eddy Stonechild suffered an injury from falling backwards, but because, in my view, kicking Mr. Stonechild in the abdomen-chest area, was unreasonable and excessive use of force. [65] In the final analysis, found myself setting out and answering this question. Eddy Stonechild approached, perhaps somewhat quickly, Constable Power after challenging him to fight. His hands were at his side. He is much smaller and much more frail than Constable Power. In addition, he was very intoxicated. In all of these circumstances was Constable Power reasonably justified in kicking Eddy Stonechild in the abdomen, driving him backwards, and causing him to fall and hurt himself? conclude that this level of force was not reasonable in all of the circumstances or justified. The force used was excessive and Constable Power was reckless regarding the consequences to Eddy Stonechild. As result, find Constable Power guilty of the charge of assault causing bodily harm. [78] Constable Power appealed from the trial decision on the basis that the trial judge had erred in three ways when finding him guilty of assault causing bodily harm: (i) by disregarding expert evidence in respect of police training and the push-kick defence tactic; (ii) by inappropriately taking into account irrelevant factors in his assessment of the reasonableness of the force employed; and (iii) by gauging the force employed to nicety. [79] Before examining the trial judge’s reasons for these alleged errors, the appeal court judge conducted fairly extensive review of the case law under s. 34(1). On this basis, he concluded the trial judge had erred by rendering purely objective test from case law the appeal court judge described as calling for subjective-objective test (at paras 63-69). Notwithstanding this, the crux of the appeal court judge’s decision ultimately rested quite simply on flaws in the trial judge’s approach to the matter: [70] In respect of the other three factors considered by the trial judge, in paras. 60, 61 and 63 of his judgment, it seems the application of the objective test prompted him to do exactly what the decisions in J.K.M.C., Baxter, Kong and Piapot caution against, namely, expecting the appellant to weigh to nicety the force of his response to Mr. Stonechild’s impending attack. In this respect, it must be remembered that, once he was aware that Mr. Stonechild was coming at him, the appellant had less than second or two to react. Under such circumstances, find it was unfair to expect the appellant: 1) to gauge whether Mr. Stonechild was close enough to punch or spit at him; 2) to consider an array of options with lesser force; and 3) to measure the disparity in strength, agility and fitness so as to calculate the minimal level of force required. In my view, to criticize the appellant under these circumstances is to hold him to standard of behaviour developed in the luxury of hindsight and without regard to the training and education that informed his behaviour. [71] In this respect, am mindful of the decision in Chartier Greaves, [2001] OJ No. 634 (QL) (Ont Sup Ct). Although fatal accident action arising from an altercation with police officers, Power J. referenced, in para. 64, applicable comments and principles from earlier authorities which can be properly considered in the context of this case. Included in these references, at para. 64(i) and (k), were comments from Foster Pawsey and Draper, (1980), 28 NBR (2d) 334 (NB QB); Berntt Vancouver, 1997 CanLII 4310 (BC SC), [1997] WWR 505 (BC SC) and Levesque Zanibbi, (March 9, 1992), Sudbury 1930/87 (Ont Gen Div): (i) “Some allowance must be made for an officer in the exigencies of the moment misjudging the degree of force necessary to restrain prisoner”. The same applies to the use of force in making an arrest or preventing an escape. But the driver of vehicle facing sudden emergency, the policeman “cannot be held to standard of conduct which one sitting in the calmness of court room later might determine was the best course.” (Foster v. Pawsey) Put another way: it is one thing to have the time in trial over several days to reconstruct and examine the events which took place on the evening of August 14. It is another to be policeman in the middle of an emergency charged with the duty to take action and with precious little time to minutely dissect the significance of the events, or to reflect calmly upon the decisions to be taken. (Berntt v. Vancouver). ... (k) “It is both unreasonable and unrealistic to impose an obligation on the police to employ only the least amount of force which might successfully achieve their objective. To do so would result in unnecessary danger to themselves and others. They are justified and exempt from liability in these situations if they use no more force than is necessary, having regard to their reasonably held assessment of the circumstances and dangers in which they find themselves” (Levesque v. Zanibbi et al). [80] Having found reversible error that called for him to set aside the verdict of guilt, the appeal court judge turned to address the appropriate remedy for the error and concluded he could substitute an acquittal and, at para 72 of his decision, he wrote: Further, as the facts are not in substantial dispute, find it is open for me to assess the evidence and arrive at conclusion. Much of this assessment has been done in considering the manner in which the trial judge approached the evidence he received. To sum up that assessment here, find that there are certain factors which cannot go unnoticed. They include: a. the history between the parties, including the appellant’s knowledge that Mr. Stonechild suffered from Hepatitis and was HIV positive; b. the limited time the appellant had to react once he apprehended Mr. Stonechild’s attack; c. the potential harm the appellant faced if he was struck or spit upon; d. the training the appellant received; and e. the fact that the force used was in keeping with the training provided to police officers. In my view, these factors raise significant doubt of the appellant’s guilt. In particular, cannot find that the Crown has discharged the burden of proving, beyond reasonable doubt, that the option used by the appellant was not one that reasonable person in the position of the appellant might be expected to employ. It necessarily follows that verdict of not guilty must be entered. [81] The Crown now appeals from this result. V. Analysis [82] To begin, agree with the majority that the provisions of s. 34(1) of the Criminal Code as they stood prior to May 2012 are applicable in the circumstances of this appeal. It is also important to recall that s. 25(1) of the Criminal Code applies in this case because Constable Power had been acting in the lawful execution of his duties as peace officer when effecting an arrest of Mr. Stonechild. That is, s. 25(1) authorised Constable Power to use as much force as was necessary to effect Mr. Stonechild’s arrest. turn now to address the issues at play on that basis. [83] In Piapot, 2014 SKCA (CanLII), 433 Sask 109, Richards C.J.S. explained the practical requirements of the defence under s. 34(1) in these terms: [28] It is common ground that the elements of successful s. 34(1) defence are: (a) the accused must have been unlawfully assaulted or perceived that he or she would be unlawfully assaulted by the victim; (b) the accused must not have provoked the assault; (c) the force used by the accused was not intended to cause death or grievous bodily harm; and (d) the force used by the accused was no more than necessary to enable him or her to defend himself or herself. See: R. v. Raphael, 2009 SKCA 16 (CanLII), [2009] W.W.R. 611 at para. 12. [29] In order to deny an accused person the defence of self-defence, the Crown must prove, beyond reasonable doubt, that any one of these four elements is not present. See: R. v. Hebert, 1996 CanLII 202 (SCC), [1996] S.C.R. 272 at para. 23. [84] Of course, as the trial judge understood, Constable Power: (i) perceived that he would be unlawfully assaulted by Mr. Stonechild; (ii) had not provoked the assault; and (iii) had used force that was not intended to cause death or grievous bodily harm. The sole question for the trial judge was (iv) whether the force Constable Power had used was no more than necessary to enable him to defend himself or to effect Mr. Stonechild’s arrest. And, in his turn, the only question before the appeal court judge was whether the trial judge had erred when he concluded the force Constable Power had used against Mr. Stonechild had been more than was necessary for those purposes in the circumstances. [85] In this respect, under its primary ground of appeal, the Crown says the appeal court judge misinterpreted s. 34(1) of the Criminal Code by confusing the proportionate force principle with reasonable belief about that force. It says the appeal court judge erred by improperly reducing an examination of objective proportionality to an inquiry about the reasonableness of the constable’s subjective state of mind. [86] No doubt Nasogaluak, 2010 SCC (CanLII), [2010] SCR 206, stands for the proposition that peace officers are restricted in their use of force on citizens. At para 32, LeBel J., speaking for the Court, said “police officers do not have an unlimited power to inflict harm on person in the course of their duties”, but rather “the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness.” Moreover, LeBel J. wrote (at para 35), when engaging in an assessment of this nature, police actions “should not be judged against standard of perfection”, noting “police engage in dangerous and demanding work and often have to react quickly to emergencies” and their actions “should be judged in light of these exigent circumstances.” In support of this, LeBel J. quoted from Bottrell (1981), 1981 CanLII 339 (BC CA), 60 CCC (2d) 211 (BCCA) at 218, where Anderson J.A. had said: In determining whether the amount of force used by the officer was necessary the jury must have regard to the circumstances as they existed at the time the force was used. They should have been directed that the appellant could not be expected to measure the force used with exactitude. [87] am persuaded the appeal court judge erred in some respects in his approach to answering the question that was before him, including in his treatment of the findings of fact on appeal. Nevertheless, am not persuaded his answer to that question is incorrect. Although he applied the wrong standard of review and couched his analysis differently than would have, find the appeal court judge correctly identified the fundamental difficulty with the trial decision—and that is this: the trial decision does not take account of important aspects of the evidence and ignores some basic legal principles at play as espoused in cases like Nasogaluak and Piapot. As interpret the appeal court judge’s reasons, at root what he said most particularly is that Constable Power—who was undoubtedly facing an unexpected assault by Mr. Stonechild—cannot be expected to have weighed with nicety the exact nature or amount of responsive force necessary to thwart that assault (see Nasogaluak at para 35; Bottrell at 218; and Piapot at para 46); but, that is exactly what the trial judge expected him to do in this case, which is an error of law on the part of the trial judge. [88] In his analysis, the trial judge quickly strayed into hindsight-reasoning, suggesting “lesser degrees of force” could have been taken ultimately concluding “a fairly minimal level of force by Constable Power was all that was reasonable and justifiable in the circumstances”. For example, the trial judge suggested Constable Power could have “hollered some sort of warning or command”, which ignores the fact the constable had already done that and had already told Mr. Stonechild he was under arrest. He “might have held up his hands and arms to block blow”, which would be to allow the assault to occur—a wholly unreasonable requirement in the circumstances. He might “simply have pushed Mr. Stonechild backward”, which is what the constable in fact did, albeit with his foot and leg. The trial judge also suggested the constable “might have stepped aside stepping out of the way and avoiding any contact”, which is not realistic option in the dynamic of lawful arrest or in the circumstances here, ignores s. 25(1), and is not required in any event (R Piapot at para 47). [89] The trial judge later said that the “general public should be able to expect that the police officer will look for viable options to the use of extreme force and will use no more force than is reasonably necessary”, which is to ignore the dynamics of three second encounter and to require the officer to weigh the niceties of the exact nature or amount of responsive force necessary to ward off an assault. Moreover, this statement inappropriately mischaracterises thrust-kick as extreme force, characterisation would have thought would be reserved for much greater or prolonged physical interaction or one that involved the use of weapon. [90] In simple terms, neither the Crown nor the trial judge identified any realistic option involving lesser force than that used here. One cannot simply say or assume there were number of options of lesser force available to Constable Power when that is not made out on the evidence, particularly when common sense, experience and knowledge of human nature indicate otherwise. To do so is to make palpable and overriding error of fact. [91] Regardless of how he couched it, the appeal court judge properly recognised this kind of reasoning is, in the words of Richards C.J.S. in Piapot: “exactly what the law proscribes, i.e. weighing to nicety the amount of force that was appropriate. …” Just as the accused in Piapot, Constable Power here had to react quickly and instinctively to an evolving situation and he reacted by push-kicking Mr. Stonechild just once. [92] Further, notwithstanding his statement to the contrary in para 64, the trial judge may also have erred in his reasoning by measuring the level of force exerted by Constable Power with undue regard to the injury Mr. Stonechild suffered when he fell backwards. As noted, he characterised the thrust-kick as extreme force. Then, in para 65, he wrote: In all of these circumstances was Constable Power reasonably justified in kicking Eddy Stonechild in the abdomen, driving him backwards, and causing him to fall and hurt himself? conclude that this level of force was not reasonable in all of the circumstances or justified. The force used was excessive and Constable Power was reckless regarding the consequences to Eddy Stonechild. As result, find Constable Power guilty of the charge of assault causing bodily harm. [Emphasis added] If so, this was in error as the extent of Mr. Stonechild’s injuries does not indicate whether more force than necessary was used (R Piapot at para 45). [93] In addition, am unconvinced the trial judge began his analysis of the defence on the correct basis because he said “for the force to be reasonable, the accused, Mr. Power, must have subjectively believed he was in danger of harm and must have subjectively believed his use of force was reasonable” (para 59, emphasis added). He then seemed to question whether Constable Power had acted too pre-emptively (at para 60). The defence of self-defence does not require foreseeable or actual harm from an unlawful assault, it merely requires prospective assault simpliciter (R Piapot at para 28). Nevertheless, the trial judge went on to question whether Constable Power had honestly believed he was in danger of harm given Mr. Stonechild’s physical characteristics, state of intoxication, etc.—ultimately choosing to assume the constable had held this erroneous subjective belief, when it is clear the constable had in fact subjectively believed Mr. Stonechild was about to assault him. [94] Unfortunately, this led the trial judge into further error because, when he gauged the objective component of the defence, he measured the reasonableness of the constable’s response against his own misapprehension of what he had assumed was the constable’s subjective belief. In other words, he used grounds material to the misapprehended subjective belief to gauge its reasonableness; whereas, those grounds were less material to an assessment of the prospective assault as actually perceived by Constable Power. In the course of doing so, the trial judge improperly discounted the nature and extent of the threatened assault faced or perceived by Constable Power, suggesting that man of Mr. Stonechild’s physical stature, health and intoxicated state could not reasonably have harmed large, well-trained peace officer. Whereas, Constable Power subjectively perceived threatened assault from man whom he knew to be violent on occasion and HIV and Hepatitis positive, and who CPIC had also cautioned was “contagious” and “violent”. [95] There is, in my view, difference between the subjective perception of the degree of violence of an assault or threatened assault and the harm done or the potential for harm to be done. The difference may be subtle, but proper threat assessment is nevertheless material to the proper assessment of whether an accused’s responsive force meets the proportionality requirement (see Kong, 2005 ABCA 255 (CanLII) at paras 95-97, 200 CCC (3d) 19, reversed on other grounds 2006 SCC 40 (CanLII), [2006] SCR 347). Moreover, even under his own analysis, the trial judge failed to consider the very relevant circumstance of Mr. Stonechild’s medical status as HIV and Hepatitis positive in his assessment of the potential for harm to be done by the assault. In that the nature of Constable Power’s subjective belief as to the degree of violence (or harm) he faced is relevant to the proportionality inquiry (R Szczerbaniwicz, 2010 SCC 15 (CanLII) at paras 20-21, [2010] SCR 455), the trial judge’s misapprehension of it in this way amounts to palpable and overriding error of fact. [96] Ultimately, as the appeal court judge observed, because the trial judge erred in his approach in these ways, the trial judge failed to see the push-kick as an objectively reasonable and proportionate response in all of the circumstances of this matter. The reality of this incident is made clear by the video evidence. The threatened assault and response to it took place over matter of three seconds at most. In short, Constable Power had to react almost instantly to the threat he felt Mr. Stonechild posed to his person—there can be no question of the constable’s subjective belief in this regard. And, in this proportionality analysis, the fact Mr. Stonechild was intoxicated, frailer, shorter, lighter, slower, less agile, untrained in the use of force, etc., is still quite relevant, but it is less material to the objective determination of the reasonableness of the push-kick given the timeframe in which Constable Power had to assess the threat he faced and to respond to it. [97] When all of the circumstances are properly considered, on the facts as found by the trial judge, it seems not unreasonable to deliver single push-kick—even one as forceful as that delivered by Constable Power—to repel an aggressor who, having repeatedly defied instruction and twice uttered threats, moves unexpectedly and “somewhat quickly” with clenched fists into close proximity with peace officer who has already verbally advised the aggressor that he is under arrest. Add to this the dimension of real threat of HIV and Hepatitis infection if the aggressor is allowed to carry out an assault and push-kick response to maintain distance is all the more reasonable in the circumstances. Pointedly, even with the luxury of months to consider this encounter, no one here has been able to articulate single response of lesser force that would have been reasonable in the circumstances. [98] The defence of self-defence is made out on the proper application of the law to the facts as found by the trial judge. Given this, an acquittal ought to be entered on the charge of assault causing bodily harm contrary to s. 267(b) of the Criminal Code. would, therefore, dismiss the appeal. “Caldwell J.A.” Caldwell J.A.

HELD: The majority of the court granted leave to appeal and restored the conviction entered by the trial judge. The parties and court agreed that the provisions of s. 34(1) as they read prior to May 2012 were applicable. The issues were determined as follows: 1) the appeal court judge erred by misunderstanding the applicable test and inappropriately focusing on the respondent’s belief. The appeal court judge reviewed cases that led him to focus on the doctrine of mistake of fact, which was not argued by the respondent at trial and were not part of his grounds of appeal; 2) the trial judge accepted some but not all of the expert’s evidence, as he was entitled to do. The trial judge also reinterpreted the video evidence, which was found to be an error by the Court of Appeal. The trial judge considered the factors without weighing the use of force to a nicety. He was determining the objective reasonableness of the force based on the factors; and 3) the appeal court judge properly instructed himself on the standard of review but failed to analyze the decision of the trial judge based on that standard, namely, whether the evidence was reasonably capable of supporting the trial judge’s conclusion based on the evidence as a whole. The dissenting judge would have granted leave to appeal but then would have dismissed the appeal. The dissenting judge of the Court of Appeal found that the appeal court judge erred in his approach but reached the right conclusion that the trial judge erred. The trial judge ignored the fact that the encounter was only three seconds long and he mischaracterized the thrust-kick as extreme force. The respondent had to react quickly. The trial judge also erred in questioning whether the respondent honestly believed he was in danger of harm.

e_2016skca29.txt

J. Q.B. A.D.1993 No. 2482 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: DELOITTE TOUCHE INC., as Liquidator of the estate and effects of Saskatchewan Trust Company and COOPERS LYBRAND and GERALD NOREN, EARL DOKKEN, MURRAY ACTON, KENNETH KICKHOFF, HARRY GEMMEL, N. E. (TED) GREENAWAY, R. JAMES TOMKINS, DAVID GRAYSON, FRANK KLASSEN and ALLAN FRASER THIRD PARTIES James S. Ehmann and for the plaintiff and Dianna K. Lee Beaty F. Beaubier and for the defendant Denise S. Smith FIAT GEATROS J. January 14, 1997 This fiat is in relation to the plaintiff's notice of motion initially returnable on October 24th last. was the chambers judge on the return date. Given the nature of the cause of action making it likely that more than the usual interlocutory relief would be sought from time to time by the parties, much of which seeking directions not properly the subject of chambers motion proper, offered the view that counsel should seek the designation of case-management judge in the action. Having been so named, it is in that capacity that heard the plaintiff's motion. The relief sought is as follows: 1. An Order directing Coopers & Lybrand ("C & "L") and ClarenceRoy Krake ("Krake") to respond to the undertakings given inthe examination for discovery of Krake held on June 3-7, 1996; 2. An Order that unless the answers to the undertakings areprovided by October 31, 1996, the Statement of Defence of C &L shall be struck, with costs, without further Order of theCourt; 3. An Order that Krake attend for the resumption of examination for discovery of him and answer questions that he refused to answer or took under advisement, any questions seeking his opinion on audit issues relevant to this action and questions that arise from the undertakings; 4. An Order that make immediate and full disclosure of documents requested by the Liquidator, which documents were not originally disclosed in the Statement as to Documents of and which documents were refused to be disclosed at the examination for discovery of Krake; 5. An Order for an immediate pre-trial conference; 6. For leave pursuant to Queen's Bench Rule 15 to further amendthe Amended Statement of Claim as indicated by the draftSecond Amended Statement of Claim attached hereto; 7. An Order that costs of this application be costs of the Liquidator in any event of the cause. Items 1 and 2 were resolved, item 1 being adjournedsine die as the undertakings are being complied with. Item 5becomes redundant. There is no basis for a pre-trialconference until the action is ready for trial. Leave toamend the statement of claim, item 6, has been granted. have concluded that given the relief have decided to grant there should be no order as to costs on this motion (item 7). There remains items and 4. now turn to the former. The kind of order sought by the plaintiff is in terms that Clarence Roy Krake, the partner of the defendant being examined, is required to answer certain questions outlined by the plaintiff and, ". any proper questions arising therefrom, and proper questions arising from further and better production of documents by Coopers Lybrand (as may be ordered) and any proper questions seeking Mr. Krake's opinions on audit issues arising in the context of Saskatchewan Trust Company records or files, whether or not such records or files were examined by Coopers Lybrand when it performed its audits of Saskatchewan Trust Company". What is raised is the propriety of questions designed to elicit the opinion of witness, Clarence Roy Krake, who happens to be an expert, on his examination-for-discovery as an officer of Coopers Lybrand. The defence put forward by Coopers Lybrand is founded upon its denial of negligence, maintaining that it performed the audits from 1983-86 in accordance with generally accepted auditing standards and the standard of care owed by reasonably competent auditor. It follows, as Davey J.A. stated in Shickele et al. v. Rousseau (1966), 1966 CanLII 646 (BC CA), 55 W.W.R. 568 (B.C.C.A.), at 570: With deference to the contrary judgments of judges of first instance, on principle it is difficult to see why party to an action that raises directly his professional or technical advice or conduct should not be required to give, on discovery, his expert opinion on matters directly connected with the issues raised, where that opinion would be admissible and relevant at the trial. It logically follows, in my view, that Krake's expert opinion may not be sought on matters not raised in the pleadings. As Davey J.A. aptly stated, at p. 570: The examination of party on discovery about his opinion on technical and professional matters presents some dangers, because those opinions in many cases will require an opportunity for reflection and study, which the witness will not have if the matters are not directly in issue, and lie on the periphery of the case, and so may not be foreseen. Where the matters are directly in issue, the witness ought not to be surprised at being asked for his opinion on them, and should be prepared to answer them. [My emphasis]. In Motaharian v. Reid (1989), 39 C.P.C. (2d) 141, (Ont. H.C.), Smith J. said, at p. 142: Hypothetical questions are not per se improper. They invariably seek an opinion, whether general or specific one. They should be permitted where the witness has expertise, when relevant to some issue in the case, provided they are not overly broad or vague. And adopt what Smith J. said later, at p. 143: [T]hat discovery should be expansive in nature rather than restrictive. The approach which that principle commands must be based on candor, openness and cooperation within the realistic confines of the adversarial system. Discovery is not trial. Perfection, of course, will elude use here, as in all other areas of human activity. But counsel should bend all efforts to make the system work with minimum waste of money and of valuable time. So it is that hypothetical questions can be asked of an expert within the limits heretofore alluded to. See Hercules Management Ltd. v. Clarkson, Gordon (1993), 13 C.P.C. (3d) 141 (Man. Q.B.). It is in the context of the principles heretofore alluded to that an answer be found to the question posed by Coopers Lybrand: Is Mr. Krake required to answer questions on discovery about his opinion on audit issues arising in the context of Saskatchewan Trust Company records or files, whether or not such records or files were examined by Coopers Lybrand when it performed its audits of Saskatchewan Trust Company? It is quite plain, in my view, that the questions alluded to in the plaintiff's brief and during the argument, that Mr. Krake refused to answer or took under advisement, are to be answered. It is of no moment that the inquiries concerned records or files that Coopers Lybrand may not have examined when it performed its audits of Saskatchewan Trust Company, so long as the questions broadly touch on the matters in issue. As the plaintiff has pointed out, it has alleged that Coopers Lybrand failed to discover series of fraudulent or irregular mortgage and consumer loans, failed to use and comply with generally accepted audit standards, failed to test sufficient samples to check internal controls at Saskatchewan Trust Company, failed to review properly selected samples of mortgage files and failed to make reasonably adequate loss provisions. As well, hypothetical questions seeking opinion evidence having to do with generally accepted audit standards, for example, are to be allowed as they are within the ambit of the allegations made and the issues raised in the pleadings. In such context there is relevance to such questions. As in the context of discovery of documents, questions are allowed seeking answers to enable party to advance his own case or destroy that of his adversary, or may fairly lead to form of enquiry which may have either of these consequences. Reference here in particular is made to Comico Ltd. v. Phillips Cables Limited, 1987 CanLII 200 (SK CA), [1987] (Sask. C.A.) and Steier v. University Hospital Board, [1988] W.W.R. 303 (Sask. C.A.). As Smith J. stated in Motaharian, supra, ". discovery should be expansive in nature rather than restrictive". Admissibility and weight are matters to be dealt with later in the action, at trial. In the result, grant an order essentially in the terms offered by the plaintiff, as follows: Upon the continuation of the examination fordiscovery of Clarence Roy Krake, he shall answer theparticular questions that he heretofore has refused to answer,any proper questions arising therefrom, any proper questionsarising from further and better production of documents byCoopers & Lybrand as hereinafter ordered and any properquestions seeking Mr. Krake's opinions on audit issues arisingin the context of Saskatchewan Trust Company records or files,whether or not such records or files were examined by Coopers& Lybrand when it performed its audits of Saskatchewan TrustCompany. The questions to be "proper" need only be "broadly" relevant to the issues raised in the pleadings in the sense that they are in some way connected to the issues, and the allegations made. On that basis Mr. Krake may be asked hypothetical questions by way of seeking his opinion consequent upon his professional experience. For the most part this would be where his, and Coopers Lybrand's, conduct is in issue. There remains the matter of the discovery of documents. Coopers Lybrand points out that this litigation involves voluminous documents, hundreds of thousands, many of which are 100 pages in length. Be that as it may, document production is to be focused on what the plaintiff is alleging. No claim of privilege is made by either party. As matter of quality control on national level, Coopers Lybrand was required to maintain particular files for the audit of each client. It is common ground that such files were the permanent file, current file, tax file, financial statement file and correspondence file. It is conceded that such files were kept for each of the 1983-89 year audits. Production of the financial statement file is not sought. It is agreed that it is not in dispute. Only part of the other files have been disclosed. The basis for Coopers Lybrand's refusal to disclose the balance of those files is relevance. Surely, suggest, if those files were kept by Coopers Lybrand for Saskatchewan Trust Company's audits, they are clearly relevant. Coopers Lybrand's audits in general relating to Saskatchewan Trust Company are now in issue. In keeping with the principle that "discovery should be expansive in nature rather than restrictive", the files alluded to, as well as audit working patterns related to investments made by Saskatchewan Trust Company and the requisite part of the document referred to as "matters for attention of partners as at December 31, 1985," must be produced, and it is so ordered. In the end it may well be that parts of the documents to be produced will be of minimal use, even of no relevance, in resolving the issues raised by the pleadings. However, at this stage it is not possible to identify the parts of which it can be said are not related to the matters in question in this action. Such will be resolved at trial, where issues of admissibility and weight will be dealt with. In my judgment,the disclosure and production made herein is justified underthe "broad relevance" test, and comports with the generalprinciple I have already alluded to, that a party is entitledto discovery of a document or record if it directly orindirectly enables him to advance his own case or destroy thatof his adversary, or may fairly lead to a form of inquirywhich may have either of these consequences. See Steier v. University Hospital Board, supra. The production of the documents in question will not hamper the search for truth. Indeed, it should help to isolate the areas of contention for trial purposes. The documents are to be properly described and identified in Coopers Lybrand's statement as to documents. This need not necessarily involve document by document listing of the plethora of documents that will be involved. leave it to the parties to arrive at the format to be used. Should they be unable to agree, they have, of course, leave to return for directions. appreciate that the kind of order have made will likely delay resumption of the examination-for-discovery of Mr. Krake set for January 20. However, it is essential that production be finally in place before any examination is begun, or continued. Finally, there is Coopers Lybrand's application for further and better description of documents. It says there is no substantial complaint concerning lack of production by the plaintiff of any of the files or documents requested. The question is whether the documents are properly described and identified so that Coopers Lybrand will not be subject to trial by ambush. appreciate that the documents are voluminous and that there are parts that may not be even "broadly" relevant to the plaintiff's claim, but here repeat the proposition that admissibility and weight is for the trial judge to assess. The order would make is that there should be sameness in the manner of identification and isolation of the documents in the discovery process undertaken by each party. say that in the context of the ruling have made in the plaintiff's motion desiring the parties to agree to the format to be used. Coopers Lybrand takes issue with two aspects of the plaintiff's disclosure. It says that, (1) the plaintiff has failed to disclose any documents relating to its calculation of damages being claimed, and any documents which have been disclosed by or to the plaintiff in three actions commenced by the plaintiff respecting Saskatchewan Trust Company which would be relevant to its damages claim against Coopers Lybrand and, (2) the plaintiff has failed to disclose documents in the plaintiff's possession or control relating to discussions or conversations with any of the Third Parties to this action. am satisfied that requisite "damage claim documents" have been provided. As regards "discussion or conversations with any of the Third Parties", the plaintiff says it is difficult to do so. That may be so, but memoranda of discussions in that area must be produced as they may not be either privileged or irrelevant as the plaintiff contends. They may turn out to be broadly relevant and so matter for the trial judge. On the question of privilege, such memoranda are privileged only if the dominant purpose for their creation at the time they came into being was for use in litigation. See Standard Machine Ltd. v. Royal Insurance Company of Canada, Sask. Q.B. No. 3513/95, J.C. Saskatoon, November 26, 1996, as yet unreported. Once produced, determination may be made prior to trial whether they are privileged under such principle. accordingly order that they be disclosed. There will be no order as to costs in respect of the applications in view of the divided success in considering both in tandem.

HELD: 1)The officer was to answer any proper questions seeking his opinion on audit issues arising in the context of the Trust Company's records or files. To be proper the questions need only be broadly relevant to the issues raised in the pleadings in the sense that they are in some way connected to the allegations made. Hypothetical questions seeking his opinion consequent upon his professional experience could be asked where his and C&L's conduct were in issue. The officer's expert opinion could not be sought on matters not raised in the pleadings. 2)The disclosure and production of documents was justified under the broad relevance test. A party is entitled to discovery of a document if it directly or indirectly enables him to advance his own case or destroy that of his adversary or may fairly lead to a form of inquiry which may have either consequence. 3)The 'damage claim documents' had been provided. There should be a sameness in the manner and isolation of the documents in the discovery process undertaken by each party. Whether the memoranda of discussions with third parties were privileged or irrelevant was a matter for the trial judge. 4)The issue of compelling a response to undertakings had been resolved. 5)The request for an order for an immediate pre-trial conference was redundant as there was no basis for one until the action was ready for trial. 6)Leave to further amend the statement of claim pursuant to Rule 165 had been granted.

b_1997canlii11386.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 511 Date: 2006 11 30 Docket: F.S.M. No. 3/2004 Judicial Centre: Estevan, Family Law Division IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT, AND IN THE MATTER OF [E.K.], BORN NOVEMBER 8, 1990 [J.S.] BORN OCTOBER 17, 1992 [C.S.], BORN SEPTEMBER 4, 1994 Counsel: Darcia Schirr, Q.C. for the Department of Community Resources [T.K.] appearing for herself [K.S.] not appearing JUDGMENT GUNN J. November 30, 2006 [1] The Department of Community Resources (“DCR”) seeks orders pursuant to The Child and Family Services Act, S.S. 1989-90, c. C-7.2 (the “Act”) placing [C.S.] with the Department until age 18 pursuant to subsection 37(2); and [J.S.] with his grandmother as a Person of Sufficient Interest (“P.S.I.”) pursuant to s. 37(1)(b). With respect to [E.K.], DCR’s initial position was to seek an order placing [E.K.] with the Department until age 18, but in view of [E.K.]’s stated intention to return to his parents’ home on his 16th birthday, which was November 8, 2006, DCR sought an order placing [E.K.] with the Minister until his 16th birthday, which was granted at the trial. [2] The children have the same biological parents, [T.K.] and [K.S.]. [T.K.] does not oppose the applications in respect of [J.S.] and [E.K.], but seeks the return of [C.S.] to her care. [K.S.] did not attend the pre-trial or the trial although he and [T.K.] are cohabiting. He was served with the notice of the application, and the notice of the trial. THE LEGISLATION [3] The following sections of the Act are relevant: 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. 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. ... 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. 36(1) On protection hearing, the court shall determine whether the child is in need of protection. (2) Where the court determines that child is in need of protection, the officer shall present to the court the officer’s recommendations respecting an order to be made pursuant to section 37. (3) If the court determines that child is not in need of protection, it shall dismiss the application and order the return of the child to person who has right to custody of the child. (4) An order pursuant to subsection (3) does not constitute an order for custody of the child. 37(1) Subject to subsection (2), if the court determines that child is in need of protection, the court shall make an order that the child: (a) remain with, be returned to or be placed in the custody of his or her parent; (b) be placed in the custody of person having sufficient interest in the child; or (c) remain in or be placed in the custody of the minister for temporary period not exceeding six months. (2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister. (3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (a) child is in need of protection; and (b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years. (4) In making an order pursuant to subsection (1), (2) or (3), the court: (a) shall consider the best interests of the child; (b) may consider the recommendations of the officer mentioned in subsection 36(2); and (c) may consider the recommendations of chief, chief’s designate or an agency that appears in court pursuant to subsection (11). (5) In making an order pursuant to subsection (1) or (3), the court may: (a) impose any terms and conditions that the court considers appropriate; and (b) include in the order provision respecting access to the child. (6) If the court, in making an order pursuant to clause (1)(a) or (b), orders supervision of the child by the minister as term or condition of the order, the period of supervision shall not exceed one year. (7) In making an order pursuant to clause (1)(b), the court may direct that the order shall terminate after the expiry of period, not exceeding one year, specified in the order. (8) Any order made pursuant to clause (1)(a) or (b) or section 16 that is inconsistent with an existing custody order of superior court shall be considered an interim order that is subject to further order of superior court. (9) The court shall provide to each party to the proceedings written summary of its reasons for determining that the child is in need of protection. (10) Notwithstanding subsection 33(1), where an officer intends to apply to the court for an order pursuant to subsection (2) or (3) and the child who is the subject of the proposed hearing is status Indian whose name is included in Band List or who is entitled to have his or her name included in Band List, the officer shall give 60 days’ notice of the application for the protection hearing to the child’s band or the agency, if any, that is providing family services to members of the child’s band. (11) Where band or an agency has received notice pursuant to subsection (10): (a) the chief of the band, the chief’s designate or the agency may appear in court to make recommendations with respect to the application; and (b) where the chief, the chief’s designate or the agency appears in court pursuant to clause (a), the band or the agency is party to the proceedings. HISTORY OF THE PROCEEDINGS [4] Given the significant passage of time since the apprehension of the children and the trial, think it useful to review the history of the proceedings in the court. The children were apprehended by Christa Dacio, an officer and protection worker under the Act on April 30, 2004. Appearances were made on May 19, 2004 and June 2, 2004 and pre-trial conference was set for June 15, 2004. The pre-trial did not proceed on June 15, 2004 and the matter was spoken to in Chambers on June 16, 2004 at which time the following order was made pursuant to s. 35 of the Act: Having heard the evidence adduced make an Interim Order that the children ... remain in the care of the Minister and it is further ordered that the protection hearing be adjourned to Wednesday, August 18, 2004.... [5] August 18, 2004 the hearing was adjourned to September 14, 2004 for pre-trial conference. An order was made directing that the children remain in the care of the Minister in the home of their grandmother, [S.K.]. [6] September 14, 2004, the pre-trial was adjourned sine die. An order was made that it could be re-convened by either party on 10 days’ notice to the other party. The fiat further provided that consent order may be filed in due course. No order was filed. [7] pre-trial conference set for March 29, 2005 was adjourned to May 24, 2005. It was further adjourned to June 17, 2005. [8] June 17, 2005, an order was issued with the consent of DCR and the mother. The children were found to be in need of protection pursuant to s. 11(a)(i) of the Act and an order was made placing them in the care of the Minister for period of three months on the following conditions: 1. Through the course of the Order, [T.K.] shall have generous and flexible access to the children, [J.S.] and [C.S.] whether they remain in the care of [S.K.] or in Departmental foster home. As to the child [E.K.], [T.K.] shall maintain contact with him and have access to him if and when he returns to Estevan. 2. [T.K.] will encourage and be supportive of all three children receiving counselling services as may [sic] directed by the Department. 3. [T.K.] will co-operate with her mental health professionals and follow all treatment recommendations made. In the event [T.K.] is hospitalized, she agrees she will not voluntarily discharge herself. Further, Mrs. [T.K.] will co‑operate with the Department by providing Release so that the Department might obtain information as to Mrs. [T.K.]s’ treatment compliance from her mental health professionals and mental health facilities. 4. [T.K.] agrees to co-operate and communicate with the Department. [9] The matter was set to be reviewed on September 13, 2005. On that date it was directed that trial date be fixed and that the June 17, 2005 order continue until the completion of the trial. Following this [T.K.]’s counsel withdrew. further order was made on May 8, 2006 designating [S.K.] as person having sufficient interest in [J.S.], pursuant to s. 23(1)(a) of the Act. [10] Accordingly, the children have been in the care of the Department since April 30, 2004, period of approximately 31 months. [11] The trial commenced June 26, 2006 and concluded September 29, 2006. [T.K.] represented herself throughout, although several adjournments were granted at her request for her to take steps to obtain counsel. She ultimately decided to continue representing herself. THE EVIDENCE The Apprehension [12] April 30, 2004, Christa Dacio was called to the children’s school by Linda Henderson, the acting principal of Westview School. Ms. Dacio was advised that [E.K.] had disclosed to an educational assistant, Adrian Sinclair, that [T.K.] had hit him four times with belt the previous evening. [E.K.] had scratches and marks on his neck which were visible. [13] When Ms. Dacio arrived at the school she interviewed each of the children separately. [14] Ms. Dacio spoke to [E.K.] first for about one half hour. At that time he was 13 years of age and in grade 8. He appeared to be quiet, shy and reserved. He did not respond easily to questions. He needed direction. He told her he did not like school, he liked gym and he liked to hang out with his friends. [15] Ms. Dacio could see scratches on the left side of his neck and bruises or red marks on the right side. When he was asked about these marks, Ms. Dacio testified he became defensive and jumpy. He told her he had received the scratches from the cat. He also rubbed his neck and said he did not have any scratches. He did up his bunny hug. Ms. Dacio said she made no assumptions about the cause of the scratches. She did not know what had caused them. [16] Ms. Dacio asked him what happens at home when he gets into trouble and he replied that he was usually sent to his room. When she asked him about what happened on the previous night he explained that his mom asked him to go to his grandma’s to get cigarette tubes. When he asked if he could call her first to make sure she was home, his mother got “mad.” She threw him out of the house and yelled at him. He had pushed her. [17] When he was asked to describe his home life he said his parents fight lot. When asked if he was ever hit, he said no. When he was asked what he would change if he could, he said he had lived long enough to know nothing would change. He said he had lot of anger inside him and he did not want to talk about it. He then refused to participate any further in the interview. [18] Ms. Dacio acknowledged in cross-examination that [E.K.] did not seem angry when he was interviewed by her. He did not seem hateful toward his parents. He did not seem to be scared of his parents. He never told her he was beaten at home, except once by his dad long time ago. He never said [T.K.] was bad mother. He said he fights with his brother and sister all the time, but never explained why. He said this makes his siblings get really upset and cry. [19] Ms. Dacio spent about 10 minutes with [J.S.]. He was very shy and timid. He clapped and rubbed his hands together. He appeared to be nervous, looked at the floor and did not make eye contact. [J.S.] was 11 years old and in grade at the time of this interview. [J.S.] said he liked to play and watch baseball. He said he was sometimes happy at home. [J.S.] said that there were fights at home involving [E.K.] and his mom and dad. He said that if he got into trouble at home he was sent to his room. [20] [C.S.] spent approximately 15 minutes with Ms. Dacio. She was quiet and appeared to be afraid. She started the interview with her bunny hug up over her head so that Ms. Dacio could hardly see her face. Part way through the interview she took it off. [C.S.] was years old and in Grade at the time of the interview. She said she wanted to live with her grandmother because she was not happy at home. She said she was afraid at home because of the fighting and hitting at home involving her mom and dad and [E.K.]. [21] [C.S.] described the events of April 29, 2004. She said she saw her mom and [E.K.] fighting. [E.K.] pushed her mom and then grabbed butcher knife and went outside. She saw [E.K.] put the knife through the door. She saw her mom hit [E.K.] with belt. [C.S.] said she wasn’t ever hit. [22] The children said the fighting referred to by them meant yelling and screaming, not physical interaction. [23] After conducting these interviews with the children, Ms. Dacio made the decision to apprehend the children. She spoke with them together to advise them of this. She told them she was concerned about the hitting and the fighting. [J.S.] and [C.S.] said okay. [E.K.] was upset and said they had better just go home because he would get into trouble. Then all the children said they wanted to go to their grandma [S.K.]’s. Their grandmother agreed to take the children. [24] At this time, [S.K.] told DCR that [T.K.] was unstable mentally and that she was taking anti-depressants. She also said [K.S.] was an alcoholic who was physically abusive to [T.K.]. [25] May 1, 2004, Ms. Dacio observed interviews conducted by the police with the children and [T.K.]. She was not in the room with them but was in position to see, and hear the conversations. [26] [E.K.] spoke with Sgt. Eagles. He said he was hit three days out of seven with belt. On April 29, his mom grabbed him by his neck and threw him outside. He said his dad had not hit him in long time as he was not around very much. [27] [J.S.] just rubbed and clapped his hands and looked at the floor. [28] [C.S.] talked about the events of April 29. She said she saw her mom hit [E.K.] with belt, and that [E.K.] was hit two days out of seven regularly. She said [E.K.] fools around and that is why he gets hit. [C.S.] said they were all hit with the belt. She said her mom and dad fight lot. [29] [C.S.] was also asked what happens when mom gets mad. Her response was that she throws stuff, gets rowdy, hyper and gives warning. After that she did not know. [30] [T.K.] told the police that she had trouble handling [E.K.] that night, even though he is good child. She told the police that number of people had contacted her about [E.K.]. [31] In her evidence [T.K.] denied that [E.K.] was hit three days out of seven as he indicated to Sgt. Eagles. She did acknowledge she was having difficulty with [E.K.] on the night in question. [K.S.] was away and [E.K.] was bothering the younger children. She told him to go out and he did not want to go. He grabbed knife. She said she tried to push him out the door and told him to put the knife down. He said he would not hurt her with it but he did have it in his hand. [T.K.] called her brother [S.] to come over to help her. [E.K.] went outside and cooled down. The next day he was taken away. She denies hitting him with the belt and says his scratches were from the cat. [32] There was no evidence that any criminal charges were laid as result of this information. Post-apprehension [33] The children were placed with [S.K.] on April 30, 2004. Ms. Dacio said she knew that [S.K.] was an alcoholic and that she had previously lived with an abuser. Ms. Dacio acknowledged that DCR did not do any investigation of [S.K.]’s home prior to placing the children. She considered it to be an emergency situation and the children wanted to be there. [34] At the time of the children’s placement, [S.K.] was living in two bedroom apartment with [D.P.]. [S.K.] managed the apartment building in which they lived. [S.K.] describes her relationship with [D.P.] as being platonic. They each had their own bedrooms in the apartment. When the children arrived they all slept in [S.K.]’s bedroom, and [S.K.] slept on the couch. [S.K.] bought bunk beds for the boys and [C.S.] had the bed. There was curtain between the two beds. The children were then 13, 11 and 9. These sleeping arrangements were known to DCR. [35] No home study was done by DCR until November 26, 2004 and the time frame identified in the report is May 2004 to November 2004. It identifies [S.K.] and [D.P.]’s relationship as being common law, which is denied by [S.K.]. The recommendation in the report is that [S.K.] and [D.P.]’s home be approved as an alternate care resource for the children. [36] [E.K.] was disruptive at [S.K.]’s and eventually was admitted to hospital July 12, 2004. He was being very rude to his grandmother and was hitting his siblings. The admitting diagnosis was to examine the possibility of schizophrenia and anti-social behaviour. [E.K.] reported having ongoing suicidal ideation without any definite plans. He also reported hearing voices instructing him to abuse his siblings physically and verbally. [E.K.] was discharged on July 16, 2004. There was insufficient evidence to support finding of schizophrenia. Medication was prescribed. [37] October 20, 2004, [E.K.] was once again admitted to hospital after reporting to school counsellor that he had thoughts of suicide. The reports provided by the school at that time reflected young man with aggressive and disturbing actions involving knives and scissors. He was diagnosed with oppositional defiant disorder and was discharged October 27, 2004. He continued on medication. [38] [E.K.] remained at [S.K.]’s until April 2005 when he was placed at SIGN group home in Yorkton. This was home equipped to handle challenging kids with significant acting out behaviour. In Yorkton, he did very well with his day to day functioning such as daily chores, waking for school and doing laundry. He attended the Yorkton Regional Highschool. He attended counselling at Yorkton Mental Health. He was involved in soccer and started Air Cadets in the fall of 2005. He attended regularly and was very proud of what he was achieving by attending Air Cadets. He returned to [S.K.]’s twice month on weekends. However, due to complaints which were ultimately not substantiated, [E.K.] was removed summarily from this home by Linda Fraser, DCR worker. [E.K.] had no notice that this was going to happen and he was not even given the opportunity to say goodbye to his new friends. This was very upsetting to [E.K.]. No apology or explanation has ever been extended to [E.K.]. [39] [E.K.] was placed in foster home in Estevan just before Christmas in 2005. Until September of 2006 he spent his weekends with [S.K.]. However, [E.K.] took [D.P.]’s car without permission and was in an accident with it and is at present no longer welcome in [S.K.]’s home. [E.K.]’s 16th birthday was November 8, 2006. [E.K.]’s clearly expressed intention was to return home to his parents at that point. [40] [J.S.] has essentially remained with [S.K.] since the apprehension. [41] [J.S.] is attending Hillcrest School and is now in Grade 8. [S.K.] describes [J.S.] as being nervous, anxious, sensitive little boy. She says he has always been shy, but over the past couple of years he has started to become more open and he has lots of friends. [42] [S.K.] says the court proceedings and the involvement of DCR in his life are very difficult for him. Every day that he goes to school he is afraid that DCR will come and take him away again. He wants to be left alone and he is anxious and nervous. In the past he rubbed and clapped his hands when he was nervous. This habit disappeared for while, but reappeared when DCR came and took him away to foster home in December of 2005. [43] [J.S.] loves to watch sports. He is not comfortable participating, but he enjoys watching baseball and hockey on TV. [44] [C.S.] remained with [S.K.], with the exception of one weekend in foster care, until February of 2006 when she was placed by DCR with [T.K.]’s brother [D,]. [D.] lived with his girlfriend [T. 1] at the time. [45] [S.K.] says she has always been willing to care for [J.S.] and [C.S.], and that she did not want the children to be separated. She said they were very emotionally attached to each other. [46] But in about December of 2005, DCR decided that [S.K.]’s apartment was too small for both children. [S.K.] was contacted by Linda Fraser who indicated that they were looking into persons of sufficient interest for [J.S.] and [C.S.]. [S.K.] said she and [D.P.] asked Ms. Fraser for little more time to figure out how they could keep the children together and care for them. They also asked DCR for little more financial help but they were refused. One of the problems for [S.K.] was that her employment was connected to the apartment in which they lived. [47] [D.P.] and [S.K.] begged Linda Fraser to give them little more time and not to tell the children anything before Christmas. But Ms. Fraser refused to delay anything. She told [D.P.] and [S.K.] it would be done and that was it. She gave [S.K.] day to bring the children into the office to meet the foster parents. [48] Ms. Fraser talked to the children and both [J.S.] and [C.S.] were very upset and crying. They were in shock. It spoiled their Christmas. They were taken to foster home for two days, from December 28 to 30 for pre-placement visits and then returned to [S.K.]’s on the understanding that the children would be returning to foster care. [49] Ultimately, [J.S.] remained with [S.K.] and [C.S.] left. [S.K.] said she realized that DCR would not permit her to keep both children, but they would permit her to keep one child. She said she could not make the decision, so [C.S.] made it. [S.K.] said [C.S.] is tough little girl and she said she would be the one to go. But she was thinking it was only for short time. [50] [J.S.] is now even more terrified of social workers. He thinks that if he does something wrong he will have to go to foster home. Each night he says “I was good today, wasn’t I? I’m not going anywhere am I?” [51] [C.S.]’s placement with [D.] was not successful. [C.S.] was not happy at [D.]’s. She reported that she was consistently left alone and that [T. 1] did not permit her to have friends over. [C.S.] overheard [T. 1] telling [D.] that he better send her to foster care or [T. 1] would strangle her. [C.S.] was frightened. [D.] and [T. 1] packed up [C.S.]’s clothes and without notice to anyone, took her over to [T.K.]’s brother [S.]’s house. [S.K.] has not spoken to [D.] since because of their treatment of [C.S.]. [52] This was not placement approved by DCR and they did not know about it initially. When they did know, they were made aware that [C.S.] was sleeping on the floor, because the Department had not approved any funds for [S.] and [T. 2]. This situation continued for some time. [53] [S.K.] says when [C.S.] stayed with her she had concerns about her health. She was very picky eater, was underweight and [S.K.] was concerned. [C.S.] continued to say she wanted to go home to her mom and dad. [54] [S.K.] says [C.S.] is very unhappy, upset, confused and angry inside. [55] Apparently [S.] is not prepared to be long-term resource for [C.S.] either. DCR is currently looking for foster home for her, although she was still with [S.] at the time of the hearing. THE PARENTS [56] [K.S.] did not take any part in the proceedings, so the information about him comes from others, either directly or from reports filed in evidence. [57] [K.S.] is 38 years old. His father is deceased and he has no relationship with his mother. He has five siblings, and is in contact with two of them. Alcohol became problem for [K.S.] when he was teenager. He has nine criminal convictions involving drinking and driving. He has attended some treatment programs in the past for alcohol addiction and according to [T.K.], he is currently not drinking. [58] [K.S.] has Grade education, plus he has all the safety tickets required for work in the oil field. He has extensive experience in the oil field and has, in the past, been good provider for his family. [59] There have been ongoing concerns about domestic violence between [T.K.] and [K.S.]. [T.K.] has testified that [K.S.] did not abuse her. But others report concern in this regard. [60] [S.K.] believes this has been longstanding problem. [S.K.] says there is quite difference in [K.S.] when he is not drinking. She has observed great deal of affection between [K.S.] and the children when he is sober. [61] In December of 2005, [K.S.] came to [S.K.]’s apartment looking for [T.K.]. [S.K.] said she was not there. Later [S.K.] and [D.P.] went to pick up [T.K.], after receiving call from [T.K.]’s brother [S.]t. [T.K.] was outside the motel where she and [K.S.] were staying. She did not have coat, had bag of her clothes with her and was holding her head. She reported that [K.S.] had hit her. [T.K.] stayed with them for the night and went home with [K.S.] the next day. [62] [S.K.] reports that [K.S.] has not been drinking at least since the spring of 2006. She has seen all three children being very close to him. [63] [T.K.] was born April 4, 1971. She describes her own childhood as being unhappy. Her parents separated when she was approximately five years old. Following this her mother [S.K.] began to drink to excess. According to [T.K.], she was subjected to sexual abuse at the hands of [S.K.]’s male companions, and to neglect because [S.K.] was always out drinking. [T.K.] began relationship with [K.S.] which continues to the present. The relationship between [T.K.] and [S.K.] continues to be difficult. [64] [E.K.] was born in 1990 when [T.K.] was 19 years old and [J.S.] was born in 1992. By 1994 [T.K.] was pregnant with [C.S.]. According to Bonnie Brooks, departmental worker, there were problems of domestic violence between [T.K.] and [K.S.] in 1994. [T.K.] was also having some difficulty parenting two young boys, while being pregnant with [C.S.]. parent aide was placed in the home to assist. Ms. Brooks believes her involvement at this time would have come through the police. However, [K.S.] was found not guilty of the charge of assault laid at this time. [K.S.] was drinking at this time. The file was closed in November 1994 because there was no indication of ongoing domestic violence and things appeared to be calmer. [65] [T.K.] was stay-at-home mom at the time of the apprehension. She found the apprehension to be extremely upsetting, as she felt she was good mother and she had devoted herself to caring for her children. She did acknowledge that she was having problems with [E.K.]. [66] When [T.K.] was notified of the apprehension, she was very upset. She said she did not beat her children, she was not drug user and she was not an alcoholic. Her home was bright and clean and the children were well-groomed and well-dressed when apprehended. At this time, [T.K.] stayed in the home to care for the children, and [K.S.] was away from home quite bit working in the oil industry. Mental Health [67] Following the children’s apprehension, [T.K.] had mental health difficulties. There is some conflict in the evidence about whether these problems pre-existed the children’s apprehension. Apparently [S.K.] told DCR when the children were apprehended that [T.K.] had some mental health issues. However in her evidence at the trial, [S.K.] says [T.K.] did not have these problems until the children were taken away from her. The only records filed by DCR concerning mental health admissions for [T.K.] post date the children’s apprehension, although some of the records refer to some pre-existing problems. [T.K.] testified that she had never been admitted to hospital for drug overdose or for self mutilation until after her children were taken away from her. She testified that her children were everything to her and when they were taken away she gave up. She was concerned because nothing was being resolved, and court was being put off again and again. [68] When she first sought help through the mental health system she was told her problems arose from the fact she was an alcoholic. As [T.K.] did not drink, she did not accept this diagnosis and did not continue with mental health counselling for time. [69] The following is history of [T.K.]’s mental health issues presented at the trial: June 9, 2004, [T.K.] saw Dr. Banerjee, who described her having life long problem of short fuse and impulse control. She had previously been advised to take an anger management program and on this occasion she appeared to be very willing to do so. Rod Watson was contacted to set up an appointment; June 25, 2004, [S.K.] called Ida Barnabas, child and youth psychologist to report that [T.K.] had some pills with her and that she had ongoing suicidal thoughts; [T.K.] was admitted to hospital July 10, 2004 having taken 15 Advil Migraine relief medication with alcohol in an attempt to commit suicide. She reported being depressed. She discharged herself and then sought to be admitted to the Regina Psychiatric Unit; August 3, 2004, [T.K.] was brought to hospital by ambulance after taking 24 extra strength allergy and sinus medication. She was reported to have said that she did not want to wake up. [T.K.] was discharged from hospital August 6, 2004 with an appointment to see Dr. Banerjee for follow-up; September 4, 2004, [T.K.] was admitted into hospital as she was agitated and feeling suicidal; October 7, 2004, [T.K.] went to the Emergency Department and locked herself in the bathroom, wanting an admission to the Weyburn Mental Health Centre. She was seen in the Emergency Department and was sedated. At her own insistence she was admitted for brief period to permit her to settle down emotionally. She was discharged October 13, 2004. She was diagnosed with situational stress and borderline personality. At her request she was referred to Mr. Watson for anger management. She saw Mr. Watson twice while in hospital and was then discharged to continue counselling as an outpatient at Estevan Mental Health Clinic; October 18, 2004, [T.K.] was hospitalized reporting insomnia, anxiety, depressive feelings and suicidal thoughts. She remained in hospital until November 1, 2004. [T.K.] presented herself to the Emergency Ward of the hospital on November 3, 2004 with concerns that she may be reacting to the medication prescribed on November 1. This hospital report reflects that [T.K.] is bipolar, however this diagnosis had not previously appeared on any of the documentation submitted. [T.K.] remained in hospital until November 5, when [K.S.] came to get her and she discharged herself; In November 2004, [T.K.] went to the Emergency Department at St. Joseph’s Hospital seeking admission to hospital. [T.K.] made superficial cuts to her wrists, then locked herself in the bathroom and attempted to strangle herself with sheet. She was very agitated; December 1, 2004, [T.K.] was brought to the Emergency Department by the police as she had superficial cuts to her wrist; January 2, 2005, [T.K.] was admitted to hospital with suicidal ideation. She was admitted again on January 12, 2005; [T.K.] was admitted on February 24, 2005, to the Saskatchewan Hospital, North Battleford and was discharged March 18, 2005. [T.K.] had been referred by Dr. Banerjee for intensive psychiatric rehabilitation. While in hospital her most prominent symptom was anxiety, with some minor depression. She showed no self harming behaviours. The final recommendation was that the treatment most likely to stabilize her would be psychotherapy to address relationship issues and past sexual abuse, coupled with an antidepressant/mood stabilizer combination to normalize her affective range; September 19, 2005, [T.K.] was admitted to the Weyburn Mental Health Centre from the Emergency Department of St. Joseph’s Hospital in Estevan. [T.K.] had been taken to the emergency by the RCMP after multiple linear cuts had been inflicted by herself as an act of self mutilation. Apparently she had been drinking and cut herself with broken beer bottle. She was discharged on September 22, 2005. She was assessed as being very noncompliant. She does not want to undergo counselling or any other treatments suggested to her. [70] It appears that [T.K.]’s mental health has stabilized over the past year. She is taking an anti-depressant medication which appears to be working for her. There have been no further hospital admissions. DCR (Linda Fraser) seems satisfied that [T.K.] has dealt with her mental health issues. Living Arrangements [71] There was variety of evidence about [T.K.]’s living arrangements over the past few years. At the time of the apprehension she and [K.S.] were living in an apartment. Later it appears they went to Alberta where [K.S.] was working. They returned and at about that time [K.S.] went to jail for earlier offences. There is evidence that for some time [K.S.] and [T.K.] were living in motel and later in their truck. They also stayed in tent. [S.K.] let them sleep in an empty apartment for while and then in the sauna room of the apartment. [T.K.] worked at motel in exchange for room to sleep in for the night. Now [T.K.] and [K.S.] have an apartment, and [T.K.] is employed. [K.S.] is looking for work. [T.K.] and [K.S.] have been receiving some assistance from Social Services since August 1, 2006. [T.K.] and [K.S.] [72] [T.K.] testified that the relationship between her and [K.S.] has changed. She testified that in the past she instigated arguments with [K.S.] because he was away for long periods of time at work and she was home 24 hours per day. She felt alone, isolated and angry. Even though he was good provider for their material needs, she was not happy. She concentrated on making the home perfect place for the children, but she needed more. [73] Since the apprehension of the children, they have gotten closer to each other. They talk about what they could have done differently. She says they no longer argue about small things. She says he was supportive when she was in hospital. He did not understand her, but he did not judge her and he was there for her. [74] [T.K.] acknowledges that alcohol was problem for [K.S.]. But she says he is no longer drinking and that he has not been drinking for about year. He has taken some alcohol treatment in the past, but he does not feel it is too helpful for him. [75] [T.K.] also acknowledges that domestic violence has been problem in the past. However she takes responsibility for the violence. She says she argued with him. She says there was some name calling, pushing and lot of yelling. She denies that he struck her or that she struck him. She says [K.S.] has gone to anger management counselling, but says he did not stay long. [76] Now, [T.K.] says they do things together. There is no physical violence—no hitting. [77] [T.K.] describes the children’s relationship with [K.S.]. She says [C.S.] is daddy’s little girl. [J.S.] is shy but smart. He needs lot more attention and has always received lot more from everybody. He needs help even making sure his shirt is on correctly. [J.S.] likes to stay home and play Nintendo and watch movies. Now he is happy to show [K.S.] his computer and is enjoying the new bike [K.S.] has purchased for him. [E.K.] and [K.S.] also have good relationship. [E.K.] wants to come home. [T.K.] and the Children [78] [T.K.] says [E.K.] is welcome to come home but that he will have to work and go to school. He will have curfew. [T.K.] acknowledges that [J.S.] is happy where he is. She would like to see him come home at some point, but only when he is ready. Even though she still has issues with [S.K.], she recognizes that [S.K.] has provided stable home for [J.S.] and that he is settled there. [79] [T.K.] wants [C.S.] to come home and says [C.S.] wants to come home. [T.K.] says she is prepared and [K.S.] is prepared to provide good and safe home for [C.S.]. [C.S.] has experienced no stability in her life since her apprehension. She was removed from her home and placed with her grandmother. She was removed from [S.K.] against her wishes, separated from [J.S.], with whom she has strong connection and placed with [D.] and [T. 1]. This was not positive placement for her and even placed her in position where she was physically afraid, because of [T. 1]’s comments. While she was there she did not feel that she was cared for. She was left alone. This placement ended when she was unceremoniously packed up and left with [S.] and [T. 2]. They were not ready for her, did not really want her and even had her sleep on the floor for time when she arrived. She was provided with second-hand clothes and was not made to feel welcome. They have made it clear that they are not prepared to keep her over the long-term as DCR is looking for foster home for her. [C.S.]’s best interests have not been safeguarded during this process. [80] [T.K.] says she is prepared to do anything to have her children back. If [K.S.] refuses to do anything required of him, she will separate from him so his refusal does not prevent her from having the children with her. [81] Parental Services Agreement was signed by DCR and [T.K.] and [K.S.] on June 8, 2004. The conditions were as follows: [T.K.] and [K.S.] agreed to work co‑operatively with Christa Dacio by maintaining regular phone contact and home visits; [T.K.] and [K.S.] agreed to work co-operatively with Family Support worker ten hours week on tasks outlined by the caseworker and family; [T.K.] agreed she would have mental health assessment with follow-up counselling and treatment including but not limited to anger management; [K.S.] agreed to have an addictions’ assessment and follow all recommendations arising out of that assessment including treatment if directed; [K.S.] agreed to attend sessions at Alternatives to Violence and both [K.S.] and [T.K.] agreed to make contact with the relevant agencies by June 22, 2004. [82] Ms. Dacio was not involved with this matter after June 9, 2004. [T.K.] testified that she was not informed when Ms. Dacio left. [T.K.] says she did go to the violence intervention program and did go to mental health after this agreement was signed. She does not believe that [K.S.] followed through with his obligations under the agreement. He was working in Alberta quite bit during this time period. [83] By September of 2004, Bonnie Brooks was the case worker on this file. She said that after the pre-trial in September of 2004, Parental Services Agreement was entered into between DCR and [T.K.]. The term of the Agreement was September 15, 2004 to November 17, 2004. The intended outcome was that [E.K.], [J.S.] and [C.S.]’s safety and well-being would be ensured. [T.K.] agreed to work co‑operatively with Bonnie Brooks by maintaining regular phone contact and home visits. [T.K.] agreed to work co-operatively with family support worker and to notify DCR immediately of any change in living arrangements. [T.K.] agreed to attend counselling either with Mental Health or the Victim Intervention Program (“VIP”). [T.K.] agreed to initiate contact with either agency by September 20, 2004. [T.K.] reported being separated from [K.S.] at this time. [84] The plan was to have the two younger children living full-time with [T.K.] by the end of the agreement. [E.K.] would remain with [S.K.]. The plan was for [E.K.] to eventually return home as well. [85] The plan was not successful because in mid-October [T.K.] was hospitalized for depression and with threats of suicide. This was surprise to Ms. Brooks because the children were coming slowly back to the home. [T.K.] was in and out of the hospital over the next couple of months. [T.K.] testified she was going to Mental Health at this time, but that it was not helping her with her problems. [86] The plan was never re-instituted because [K.S.] and [T.K.] reconciled. DCR took the position that [K.S.] would have to be part of the plan and sobriety for him for period of six months was considered to be important. [T.K.] said he would not co‑operate with this. [87] In February of 2005, [T.K.] went to the hospital in North Battleford to deal with her addiction to sleeping pills. She left after one week, having been able to successfully quit taking the pills. [88] Linda Fraser took over the file August 29, 2005. Her first contact with [T.K.] was December 2005. She says she told [S.K.] that her door was open for [T.K.], but [T.K.] did not call. She understood at that time that mental health was an issue. [89] [T.K.] identified that she had some personal issues with Linda Fraser. Apparently they were known to each other on personal level and [T.K.] found it difficult to share her personal issues with Ms. Fraser. This was brought out by [T.K.] in her cross-examination of Ms. Fraser who acknowledged she knew [D.P.], [S.], [T. 1], [T.K.] and [S.K.] on personal level. [90] Ms. Fraser frequently questioned [S.K.] about [T.K.] and [K.S.]’s whereabouts and whether they had seen the children. [S.K.] was concerned that if she disclosed that [T.K.] had seen the children, they might be taken away from her. The children had the same fear. Ms. Fraser went to the children’s school and interviewed them for the purpose of determining if they had seen [T.K.] and [K.S.]. [91] On one occasion Ms. Fraser gained access to the apartment building pretending to be making delivery at [S.K.]’s home. She attempted to justify this behaviour by saying she did have papers to deliver, but find this was clearly for the purpose of surprising [S.K.] to see if [T.K.] was there. Ms. Fraser indicated that she was concerned about [T.K.] going to her mother’s home to see the children. The reason for this concern is not immediately apparent as DCR’s position seems to be that it was not opposed to [T.K.] seeing the children, it just did not want [T.K.] living with the children. [92] Ms. Fraser acknowledged leaving letter for [S.K.] dated December 30, 2005 in which she advised that the children would be taken to foster care on January 3, 2006. The letter was left at about 6:30 p.m. on Friday, December 30 and the office was not open again until January 3, the day the children were to be taken. She further acknowledged that [S.K.] and [D.P.] came to the office, crying and begging for the children to be permitted to remain with them. She confirmed that the Department refused to provide any additional financial assistance to [S.K.] and refused to provide any childcare. [S.K.] received $270.00 per month per child. THE POSITIONS OF THE PARTIES [93] DCR recommended, and ordered that [E.K.] be committed to the Minister to age 16. After that point DCR would be in position to offer him services pursuant to s. 10 of the Act. [94] This permits [E.K.] to return home to [T.K.] and [K.S.] which is acceptable to [T.K.]. [95] DCR recommended and [T.K.] agreed that [J.S.] should remain with [S.K.] as P.S.I. for an indefinite period. [S.K.] is also in agreement with having [J.S.] remain with her. DCR recommend that some conditions be imposed which are the following: (a) [J.S.] will attend for mental health counselling and [S.K.] shall follow any recommendations which are made by the professionals; (b) Access to [J.S.] by [K.S.] will be supervised by [S.K.] or another responsible adult; (c) [S.K.] will work with any family support worker or similar service provided to her by DCR; (d) [J.S.] shall not be returned to [T.K.] or [K.S.] by [S.K.] without further order of the court. [96] [T.K.] foresees at some point in the future that [J.S.] could return home as well, but acknowledges that the time is not now. (1) The Department [97] DCR recommends that an order be made pursuant to subsection 37(3) of the Act placing [C.S.] in the custody of the Minister until she attains the age of 18 years. [98] Although DCR is not recommending temporary order it would suggest the following conditions if one were to be made: (a) [T.K.] will obtain mental health assessment as arranged for by DCR or by [T.K.]’s family physician; (b) [T.K.] will participate in the Victim Intervention Program (VIP); (c) [T.K.] will work and communicate with DCR in developing case plan which will include visits at the apartment. [99] [T.K.] wants [C.S.] to be returned to her care. [100] The provisions of the Act contemplate two-stage inquiry which has been described by McIntyre J. in Saskatchewan (Minister of Social Services) v. E.K.S., D.W. and D.S. (1996), 1996 CanLII 7131 (SK QB), 146 Sask. R. 46 (Q.B.) As follows: [40] In child protection hearings it is two step process. First, there must be determination pursuant to s. 36(1) as to whether the child is in need of protection as that term is defined in s. 11. If it is determined that child is in need of protection the next step is to determine the appropriate order among the options contained in s. 37. He continued at para. 41 to discuss what the Court must consider on the first stage of this inquiry: [41] In determining whether child is in need of protection pursuant to any of the grounds enumerated in s. 11, Baynton, J., in Saskatchewan (Minister of Social Services) v. S.E. and E.E., 1992 CanLII 8071 (SK QB), [1992] W.W.R. 289 (Sask. U.F.C.) at p. 296 states: “... [T]he issue is not whether the children might be better off, or happier, or obtain better upbringing in the care of other ‘parents’ than with their natural parents. If that were the criterion for protection order, not many children would remain with their natural parents. The issue, however, really is whether the children concerned are receiving level of parenting care that is below the minimal standard that will be tolerated in our society...” [101] am satisfied that at the time of the apprehension, [E.K.] had suffered from physical harm. The evidence is unclear as to the regularity of the infliction of this harm, and as to whether it had ever extended to the other children. But given [T.K.]’s apparent stress, and isolation at the time would consider the other children to be at risk. In addition, I am satisfied the children were exposed to domestic violence or severe domestic disharmony. [102] [T.K.] has done her best to discount or minimize any domestic violence between herself and [K.S.] and has attempted to assume any blame arising out of such conduct. However, am satisfied by her evidence, [S.K.]’s evidence and the statements made to DCR and the police by the children that they were exposed to severe domestic disharmony. [K.S.]’s excessive consumption of alcohol exacerbated this problem. [103] Following the children’s apprehension things spiralled out of control for [T.K.] and for [K.S.]. [104] There is significant concern here with the passage of time before resolution of these matters. In Catholic Children’s Aid Society of Metropolitan Toronto v. M.(C.), 1994 CanLII 83 (SCC), [1994] S.C.R. 165, Justice L’Heureux-Dubé discussed the importance of reaching speedy resolution in matters affecting children. At p. 206 of that decision, she states: ... The Act requires it and common sense dictates it. few months in the life of child, as compared to that of adults, may acquire great significance. Years go by crystallizing situations that become irreversible.... Chief Justice McLachlin of the Supreme Court of Canada also spoke of this in Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48 (CanLII), [2000] S.C.R. 519 at para. 124. There she emphasized that “... child’s need for continuity in relationships provides the most compelling basis for requiring prompt post‑apprehension hearing....” [105] Matters did not move quickly once the children were in the care of DCR. [T.K.] identified this as big issue for her. The history of the deterioration of her mental health and her numerous admissions into health facilities following the apprehension of her children is some evidence of her concerns. The evidence is equivocal as to whether any of these conditions pre-existed the apprehension. The fact that the children were placed by DCR with [S.K.], person with whom [T.K.] had significant issues tracing back to her childhood did not assist the process for [T.K.]. Instead of working with DCR to ensure a smooth reintegration of the children into their home, [T.K.] and [K.S.] vacated their apartment, moved to Alberta for a while, lived in a series of motels, camped at [S.K.]’s apartment building and even lived in a tent. During that period of time, some of which encompassed the trial, I am not satisfied that there was an adult person who was willing and able to provide for the children’s needs. [106] Based on the circumstances at the time of the apprehension and currently, I am satisfied that the children are in need of protection within the meaning of s. 11 of the Act. [107] Having made that determination, now turn to the second stage of the inquiry. Here, the Court must concern itself with the best interests of the children within the meaning of s. of the Act, and decide first whether any of the options set forth in subsection 37(1) are appropriate. In Saskatchewan (Minister of Social Services) v. E.K.S., D.W. and C.S., supra, McIntyre J. set out five principles, which he takes from the legislation and jurisprudence, which provide guidance when deciding the appropriateness of any of the options. At pp. 54-56 he sets out the following principles: 1. The welfare of the child is the paramount (but not the sole) consideration. The wishes of the parent must be given independent subordinate weight. The weight will depend on the circumstances in each case. (R. v. (Saskatchewan) Minister of Social Services, 1974 CanLII 959 (SK QB), [1974] W.W.R. 388, at 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. [108] So, in determining the appropriateness of an order under subsection 37(1) of the Act, consideration must be given to the welfare and best interests of [J.S.] and [C.S.], the recommendations of the Minister, the objectives of the legislation, and to lesser extent, the wishes of the parents. In terms of [J.S.], given the position taken by DCR and by [T.K.] with respect to him staying with [S.K.], the only issue will consider is what, if any, conditions will be imposed. [109] In terms of [C.S.], if an order is made that she will be returned to her parents either now or in the future, there must be realistic expectation that the circumstances which placed her at risk no longer exist or can be ameliorated within reasonable period of time. As stated in Saskatchewan (Minister of Social Services) v. A.J. and C.J. (1987), 1987 CanLII 4660 (SK CA), 58 Sask. R. 246 (C.A.) at para. [24] 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.... [110] McIntyre J., in Saskatchewan (Minister of Social Services) v. E.K.S., D.W. and C.S., supra, also said the following at p. 55: [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 ss. 37(1) are premised upon reasonable prospect of change, within reasonable length of time and reasonable use of resources if needed. [111] I am satisfied that there is a reasonable prospect of change within a reasonable period of time, and that changes have already occurred. Apparently [K.S.] has quit drinking. His consumption of alcohol was contributing factor to the domestic disharmony. [T.K.] is now employed. She testified that the fact that she stayed home all of the time at about the time of the apprehension also contributed to the domestic disharmony. [112] [K.S.] has attended some anger management programming flowing from his criminal conviction. [T.K.] says that in addition, she and [K.S.] have grown closer as result of the apprehension of the children. She says they are able to communicate better and are prepared to work together for the return of the children. [T.K.] denies there is currently any domestic disharmony or domestic violence. [113] In the event that [K.S.] is not prepared to abide by any conditions imposed by the court, [T.K.] has decided that she will leave him, so that his presence will not impede her ability to be re-united with her children. [114] [T.K.] and [K.S.] have residence and [T.K.] has the stability of job. [K.S.] is seeking employment. At the moment he does not have driver’s licence which impedes his ability to work, but he will be eligible to re-acquire his licence on his birthday. [115] [T.K.] is currently taking medication which promotes the continuation of her mental health. DCR acknowledges that there are no current issues with [T.K.]’s mental health and that there have not been for some time. [116] There have been ongoing issues between DCR and [T.K.] with respect to her unwillingness to stay in contact with them and work with them. [T.K.] has deep‑seated and long-standing issues with DCR and an essential distrust of their workers. [T.K.] feels she was not protected when she was child and as result was subjected to sexual abuse at the hands of [S.K.]’s male companions. In 2003 when [E.K.] mutilated bird [T.K.] does not feel he was offered any counselling or help. And when [J.S.] was sexually assaulted by someone associated with [S.K.], DCR did not become involved even after the matter was reported, and in fact they then placed her children with [S.K.] without any further investigation of the suitability of the placement. And finally, [T.K.] felt unwilling to engage with Linda Fraser on very personal matters involving her children, given that she had previously had personal relationship with Ms. Fraser. As she described it, it just did not seem right to be in the bar with Ms. Fraser at one time and to be required to share personal issues in her office the next time. Ms. Fraser confirmed that she had interacted socially with [T.K.], her brothers and with [S.K.] in the past. She did not, however, feel that this interfered with her ability to manage [T.K.]’s case in the system. [117] Even with all of these issues, [T.K.] says she is prepared to work with DCR to ensure the return of her children. accept that she will do this, however, find myself sympathetic to [T.K.]’s disinclination to work with Ms. Fraser. expect that the success of the involvement of DCR in the life of this family would be enhanced with the assignment of another worker. Ms. Fraser may feel that her personal involvement with this family has not impeded her ability to work with this family. This is not view shared by [T.K.], and it has worked to [T.K.]’s detriment. ORDERS [118] I find that [J.S.] is in need of protection and that he shall be placed with [S.K.] for an indefinite period. [J.S.] shall be encouraged to attend for mental health counselling and [S.K.] shall follow any recommendations which are made by the professionals consulted. [S.K.] shall work with any family support worker or similar service provided to her by DCR. [J.S.] shall not be returned to live with [T.K.] or [K.S.] by [S.K.] without a further order of the Court. This does not prevent [J.S.] from spending unsupervised time with [T.K.] and [K.S.], including overnight visits. [119] I find that [C.S.] is in need of protection and that she shall remain in the custody of the Minister for a period of three months. During that time [T.K.] and [K.S.] shall work co-operatively with and communicate with DCR to develop a case plan for [C.S.]’s return. This will include home visits at their apartment which should commence as soon as possible. [T.K.] and [K.S.] will work co-operatively with any family support worker provided for their assistance by DCR. [T.K.] will have a mental health assessment as arranged for by DCR or by her family doctor and will follow any recommendations of the mental health professional. T.K.] will participate in the Victim Intervention Program (VIP). [K.S.] will attend any sessions at Alternatives to Violence arranged for by DCR.

The Department of Community Resources (DCR) seeks orders pursuant to The Child and Family Services Act (the Act) placing CS with the Department until age 18 pursuant to s. 37(2) and JS with his grandmother as a Person of Sufficient Interest pursuant to s. 37(1)(b). With respect to EK the Department seeks an order placing him with the Minister until his 16th birthday. This order was granted at trial. The parents do not oppose the applications with respect to JS and EK but the mother seeks the return of CS to her care. HELD: JS is in need of protection and he shall be placed with SK for an indefinite period. JS shall not be returned to live with his parents without a further order of this Court. This does not prevent JS from spending unsupervised time with his parents including overnight visits. CS is in need of protection and she shall remain in the custody of the Minister for a period of 3 months. During that time, the parents shall work with DCR to develop a case plan for CS's return. TK will have a mental health assessment as arranged for by DCR and will follow any recommendations of the mental health professional and participate in the Victim Intervention Program. KS will attend any session at Alternatives to Violence arranged for by DCR. 1) The Court was satisfied that the children were exposed to domestic violence or severe domestic disharmony. 2) Matters did not move quickly once the children were placed in the care of DCR. Instead of working with DCR to ensure a smooth reintegration of the children into their home, the parents vacated their apartment, moved to Alberta for a while, lived in a series of motels, camped at SK's apartment building and even lived in a tent. During that period of time, some of which encompassed the trial, the Court was not satisfied that there was an adult person who was willing and able to provide for the children's needs. The children are in need of protection within the meaning of s. 11 of the Act. 3) There is a reasonable prospect of change within a reasonable period of time. KS has quit drinking. TK is now employed. KS has attended some anger management programming flowing from his criminal conviction. The parents have a residence. TK is taking medication which promotes the continuation of her mental health. DCR acknowledged that there are no current issues with TK's mental health and that have not been for some time. TK says she is prepared to work with DCR to ensure the return of her children. The Court accepts TK's disinclination to work with Ms. Fraser. The success of the involvement of DCR in the life of this family would be enhanced with the assignment of another worker.

9_2006skqb511.txt

nan IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Niles v. Munro, 2009 NSSC 318 Date: 20091030 Docket: 1201-56024 Registry: Halifax Between: Michele Debra Niles and David Alexander Munro Respondent Judge: Justice Lawrence I. O’Neil Heard: August 19, 2009, in Halifax, Nova Scotia Counsel: Stephanie Atkinson, for the Petitioner Shawn M. O’Hara, for the Respondent By the Court: Introduction, para. nan First Issue: Oral Decision October 2, 2009, para. 4-24 Jurisdiction: Is the older son child of the marriage? para. nan Evidence, para. 11 Conclusion, para. 18 Second Issue: The period of retroactive support for the younger child, para. 25 Positions of the Parties, para. 26 The Law, para. 28 the commencement date of retroactive support? effective notice; formal notice or time of change in circumstances; para. 32 the meaning of blameworthy conduct, para. 33 the four appeals before the court in D.B.S. D.B.S., para. 35 T.A.R. v. L.R.J., para. 36 Henry v. Henry, para. 37 Hiemstra v. Hiemstra, para. 39 When was formal notice give to Mr. Munro? para. 43 Was there delay by Ms. Niles? If so, what is its effect on the determination of effective notice for the purposes of this application? para. 50 Was Mr. Munro guilty of blameworthy conduct? para 58 Conclusion, para. 75 Introduction [1] The parties married July 24, 1982. On December 12, 2001 the couple divorced and Corollary Relief Judgment was granted. They have two children born June 23, 1986 and January 17, 1990. The subject proceeding is pursuant to an application by Michelle Niles filed May 30, 2008; as amended on September 8, 2008. [2] It was agreed that the court would deal with two significant issues in pre trial hearing and render pre trial rulings. [3] An Oral Decision was delivered October 2, 2009 and addressed the first issue; the court’s jurisdiction to deal with the claim for retroactive child support and s.7 expenses for the parties’ older child. This text at paragraphs 4-24 inclusive essentially repeats the oral ruling. The remainder of this written decision addresses the second issue. It is ruling determining the period for which retroactive child support if any will be calculated for the younger child. First Issue: Oral Decision October 2, 2009 [paragraph 4-24 inclusive] [4] The issues raised by Ms. Nile’s application to vary are retroactive review of the base table amount of child support paid by the Respondent and the Respondent’s contribution to the section 7 ( University) expenses – for the children. [5] Although originally scheduled for argument on May 20, 2009, the court did not hear the preliminary motion on behalf of Mr. Munro until August 19, 2009. He argued that the court did not have jurisdiction to grant any relief respecting the older child because the older child was not, at the time of the application, a child of the marriage. [6] Alternatively the Respondent takes issue with the costs claimed by Ms. Niles with respect to both her claim for retroactive child support and retroactive adjustment to the contribution Mr. Munro must make to the section expenses for the older child. Jurisdiction Is the older son child of the marriage? [7] Was the older child, child of the marriage within the Divorce Act, S.C. 1985, c.3 (2nd Supp.), s.2(1) at the time of the application? Is the court precluded from ruling on the merits of the Applicant’s claim if he was not child of the marriage at the time the application was filed? [8] Section (1) defines “child of the marriage” as follows: 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; [9] It is settled law that the court cannot entertain an application for retroactive child support and section expenses, if at the time the application is made, the subject child is not “a child of the marriage” within the meaning of section (1) of the Divorce Act supra. This conclusion was reached by The Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37 (CanLII). In the concluding sentence of paragraph 88 in D.B.S. supra, Justice Bastarache stated: “The question then arises when the “material time” is for retroactive child support awards. If the “material time” is the time of the application, retroactive child support award will only be available so long as the child in question is “child of the marriage” when the application is made. On the other hand, if the “material time” is the time to which the support order would correspond, court would be able to make retroactive award so long as the child in question was “child of the marriage” when increase support should have been due.” [10] Justice Roscoe in Smith v. Selig, 2008 NSCA 54 (CanLII) reviewed the law as explained by the Supreme Court of Canada on the issue of retroactive child support. She concluded that the principle regarding retroactive child support also applied equally to section expenses. She stated the following at paragraphs 25-26: 25 There is nothing in the S. (D.B.) decision which restricts the declared principles regarding retroactivity to basic child support. In para. 90 Justice Bastarache indicates that it will not always be possible for court to enforce an unfulfilled child support obligation. There is no attempt to distinguish between basic table amounts and s. expenses. 26 Many cases dealing with this issue have determined that the principles regarding retroactivity expressed in S. (D.B.) apply equally to s. expenses. See for example: Heatherington v. Tapping, [2007] B.C.J. No. 302, 2007 BCSC 209 (CanLII) at para. 20, Surerus‑Mills v. Mills, [2006] O.J. No. 3839 (Q.L.) (S.C.J.), para. 24 and J.C.R. v. J.J.R., 2006 BCSC 1422 (CanLII), para. 25. agree with the reasoning expressed in these cases in that respect. [11] The parties’ corollary relief judgment provided for shared parenting arrangement and equal sharing of all special and extraordinary expenses. [12] The evidence establishes that the child in question wrote his last exam at Queens University on April 19, 2008. On April 25, 2008 he and his girlfriend/common law partner took up residence in a downtown Toronto apartment. The lease is dated April 23, 2008 and had term of 15 months, requiring the parties to pay $1,575 as rent each month. [13] The subject child commenced full-time employment on May 12, 2008 earning a starting salary of $25,000 plus commissions and benefits. His common-law partner was also employed as legal assistant at Toronto law firm at this time. [14] The older child’s formal graduation was June 4, 2008. [15] Other than for short period in 2009 when both parents assisted this child, the last financial assistance from either parent was on April 28, 2008. At that time, his mother, the applicant gave him $2,000. There is insufficient evidence from which to conclude how that money was used by the son. [16] Mr. Munro maintains that his son was full-time resident of Toronto, as of April 25, 2008 and financially independent on May 12, 2008, the day he commenced full-time employment. In contrast Ms. Niles contends that her son was child of the marriage following his graduation from Queens University on June 4, 2008 and remained so until at least July 2009. Alternatively she argues that he regained his status as “child of the marriage” on March 14, 2009 when he returned to Halifax to study to become financial advisor. He was in Halifax for period of three weeks, portion of which were spent with his father and the remainder with his mother. [17] She argues inter alia that for period of time after beginning work, her son needed help, he could not support himself on his earnings and therefore remained dependent child of the marriage to period beyond the date the application to vary was filed. [18] Justice Boswell in Boomhour v. Huskinson [2008] O.J. No. 2139 at paragraph 75 and 76 discussed considerations of the court when responding to application to determine support for adult children, including post-secondary education expenses. 75 Applications to determine support for adult children, including post‑secondary education expenses, involve consideration of number of relevant factors. These factors are frequently referred to as the "Farden Factors" which were first outlined in Farden v. Farden, 1993 CanLII 2570 (BC SC), [1993] B.C.J. No. 1315. They are: Whether the child is in fact enrolled in course of studies and whether it is full‑time or part‑time course of study; Whether or not the child has applied for or is eligible for student loans or other financial assistance; The career plans of the child, i.e. whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do; The ability of the child to contribute to his or her own support through part‑time employment (and in light of subsequent cases, would add "or otherwise"); The age of the child; The child's past academic performance, whether the child is demonstrating success in the chosen course of studies; What plans the parents made for the education of the children particularly where those plans were made during cohabitation; At least in the case of mature child who has reached the age of majority, whether or not the child has unilaterally terminated relationship with the parent from whom support is sought. 76 In view of the lack of guidance otherwise contained in the Minutes, believe it is appropriate to apply the Farden Factors to the determination of the post‑secondary education expenses to be paid by each of the parties hereto. [19] I am satisfied the court does not have jurisdiction to consider the application of Ms. Niles for retroactive variation of child support and a readjustment of the claim for section 7 expenses pertaining to the parties’ older child. The older son clearly left the charge of his parents in April of 2008. He established an independent household without the consent, agreement, approval or financial support of his parents. He did not seek any of these from his parents when doing so. Clearly he had decided that he was independent, financially and otherwise from his parents. He and his partner established their home in April 2008. [20] In the words of Freeman J.A. in Martell v. Height, 1994 CanLII 4145 (NS CA), 1994 CarswellNS 45 (C.A.). at paragraph 8. It is clear from the various authorities cited by counsel that courts recognize jurisdiction under s. 2(1) of the Divorce Act to hold parents responsible for children over sixteen during their period of dependency. How long that period continues is question of fact for the trial judge in each case. There is no arbitrary cut-off point based either on age or scholastic attainment, although as these increase the onus of proving dependency grows heavier. As general rule, parents of bona fide student will remain responsible until the child has reached level of education, commensurate with the abilities he or she has demonstrated, which fit the child for entry level employment in an appropriate field. In making this determination the trial judge cannot be blind to prevailing social and economic conditions; bachelor’s degree no longer assures self-sufficiency. [21] Justice Beryl MacDonald, in H.(A.W.) v. (C.G.) 2007 NSSC 181 (CanLII) discussed the circumstances that could give rise to child regaining status as child of the marriage and thereby conferring jurisdiction on the court to entertain this application. At paragraph 36 she stated: 36 In this case, as result of the decision have made, the parties son was not dependent child of the marriage at the time the wife commenced her application. However, have also determined that if he follows course of post secondary studies at University or other post secondary institution he will regain his status as dependent child of the marriage. Applying the rationale suggested by Justice Bastarache, the wife would then be entitled to seek retroactive support for her son. This would seem to be an odd result. If she should have received this money for her son's support his entitlement at the time of the application should be irrelevant. However, Justice Bastarache's decision on this point relates primarily to jurisdiction and not to the result. If the court had jurisdiction to make retroactive order for an adult child, the discretion given to court to consider factors such as delay may ultimately lead to no award. What Justice Bastarache's decision makes clear is that jurisdiction to make the award is prerequisite. The Divorce Act confers jurisdiction upon the court to make orders for the support of "children of the marriage" as defined by section 2(1): The question then arises when the "material time" is for retroactive child support awards. If the "material time" is the time of the application, retroactive child support award will only be available so long as the child in question is "child of the marriage" when the application is made. On the other hand, if the "material time" is the time to which the support order would correspond, court would be able to make retroactive award so long as the child in question was "child of the marriage" when increased support should have been due. (para. 88) [22] find that he did not regain his status as “a child of the marriage over the coming year” He did experience some difficulties with his partner and return home for short period of three weeks. His partner was charged with domestic assault upon him and she was prohibited from having contact with him or from going to the Toronto residence for period of time. They subsequently reconciled. He changed jobs over the summer of 2008 and in early 2009 decided to pursue career as financial advisor. He did retrain himself in 2009 and accepted some assistance from his parents so he could do so. They equally shared his rental obligation of $1,575 in April and May 2009 when his partner was prohibited by Court order from residing there and their son accepted sole responsibility for payment of the rent. He may have also been preparing for examinations to become financial adviser. However, the parents were not required to assist him. They were simply helping an adult and independent child at time of crisis, purely discretionary act on their part. Their son continued to live independently with his partner after this short separation. [23] It is telling that neither parent has provided any other significant financial support to their son since April 2008 and could not tell the court how he was meeting his financial obligations or inform the court of his financial circumstances generally. Ms. Niles evidence on the subject was speculative and conjecture. [24] Given my decision on the issue of the court’s jurisdiction it is not necessary for me to consider the alternative issue which is recalculation of all child support and section expenses paid by Mr. Munro for the benefit of the parties’ older child. Second Issue: The period of retroactive support for the younger child [25] The parties agree that Mr. Munro’s child support obligation for the younger child must be recalculated on retroactive basis to reflect Mr. Munro’s actual income. They disagree on: 1. The period for which it is to be recalculated, question that has as sub issue 2. Whether Mr. Munro is guilty of blameworthy conduct which, could impact on the period of retroactivity by lengthening it.. 3. When Mr. Munro received effective notice of Ms. Niles’ claim for variation of the child support and s.7 (special expenses) obligation of Mr. Munro. Positions of the Parties [26] Mr. Munro argues that although the variation application was filed May 30, 2008, his counsel did not receive the relevant documents until October 9, 2008 and the retroactive recalculation should be limited to three years prior to October 9, 2008. He is arguing that he received formal notice of Ms. Niles claim on October 9, 2008. [27] Ms. Niles position is that Ms. Niles gave formal notice of her claim to Mr. Munro directly by letter dated July 8, 2004 (see her affidavit, exhibit 6 at paragraph 28). Alternatively she argues that even if that was not formal notice to Mr. Munro her then counsel raised the issue with Mr. Munro directly by letter dated July 20, 2004 (exhibit 1A page 1). As a consequence the recalculation should be three years prior to July 2004 i.e. to 2001. This is also the year when she says Mr. Munro’s obligation changed but his payments did not. Alternatively she argues that even if the formal notice was received by Mr. Munro much later than 2004 his blameworthy conduct warrants extending the period of retroactivity to more than three years i.e. back to 2001. [28] Section 17 of the Divorce Act provides that child support award may be varied prospectively or retroactively. (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 Guidelines apply (6.1) court making variation order in respect of child support order shall do so in accordance with the applicable guidelines. [29] In D.B.S. supra, Justice Bastarache at paragraph 56 stated: “the court’s jurisdiction over child support payments will arise only upon application by person authorized pursuant to the legislation: see s.15.1 of the Divorce Act .” [30] Once seized with jurisdiction over the issue of child support court may enforce an unfulfilled child support obligation. Justice Bastarache described the legal context as follows at paragraph 59: 59. While the payor parent does not shoulder the burden of automatically adjusting payments, or automatically disclosing income increases, this does not mean that (s)he will satisfy his/her child support obligation by doing nothing. If his/her income rises and the amount of child support paid does not, there will remain an unfulfilled obligation that could later merit enforcement by court. [31] The majority in D.B.S. identified three possible commencement dates for retroactive child support order: 1. The date of effective notice that child support was being sought or change in child support was sought at first instance; 2. Within three years of formal notice to the payor parent meaning no more than three years before an application; or 3. The date of the change in circumstances forming the basis of the claim. -the commencement date of retroactive support? (a) effective notice (b) formal notice or (c) when circumstances changed [32] Justice Bastarache’s reasons were concurred in by C.J. McLachlin, Justices Lebel and Deschamps and therefore represent the majority view. At paragraph 123, Justice Bastarache stated that “it will usually be inappropriate to make support award retroactive to date more than three years before formal notice was given to the payor parent” (emphasis added). However, he allowed for different result where the payor parent is guilty of blameworthy conduct. 124 The date when increased support should have been paid, however, will sometimes be more appropriate date from which the retroactive order should start. This situation can most notably arise where the payor parent engages in blameworthy conduct. Once the payor parent engages in such conduct, there can be no claim that (s)he reasonably believed his/her child's support entitlement was being met. This will not only be the case where the payor parent intimidates and lies to the recipient parent, but also where (s)he withholds information. Not disclosing material change in circumstances ‑‑ including an increase in income that one would expect to alter the amount of child support payable ‑‑ is itself blameworthy conduct. The presence of such blameworthy conduct will move the presumptive date of retroactivity back to the time when circumstances changed materially. payor parent cannot use his/her informational advantage to justify his/her deficient child support payments. 125 The proper approach can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. payor parent should not be permitted to profit from his/her wrongdoing. the meaning of blameworthy conduct [33] Earlier in his decision, Justice Bastarache attempted to define “blameworthy conduct”. At paragraph 106-109 he wrote: 106 Courts should not hesitate to take into account payor parent's blameworthy conduct in considering the propriety of retroactive award. Further, believe courts should take an expansive view of what constitutes blameworthy conduct in this context. 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. similar approach was taken by the Ontario Court of Appeal in Horner v. Horner (2004), 2004 CanLII 34381 (ON CA), 72 O.R. (3d) 561, at para. 85, where children's broad "interests" ‑‑ rather than their "right to an appropriate amount of support" ‑‑ were said to require precedence; however, have used the latter wording to keep the focus specifically on parents' support obligations. Thus, payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments: see Hess v. Hess (1994), 1994 CanLII 7378 (ON SC), R.F.L. (4th) 22 (Ont. Ct. (Gen. Div.)); Whitton v. Shippelt (2001), 293 A.R. 317, 2001 ABCA 307 (CanLII); S. (L.). payor parent cannot intimidate recipient parent in order to dissuade him/her from bringing an application for child support: see Dahl v. Dahl (1995), 1995 ABCA 425 (CanLII), 178 A.R. 119 (C.A.). And payor parent cannot mislead recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not. 107 No level of blameworthy behaviour by payor parents should be encouraged. Even where payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in blameworthy manner if (s)he consciously chooses to ignore them. Put simply, payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see A. (J.) v. A. (P.) (1997), 1997 CanLII 12394 (ON SC), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), at pp. 208‑9; Chrintz. 108 On the other hand, payor parent who does not increase support payments automatically is not necessarily engaging in blameworthy behaviour. Whether payor parent is engaging in blameworthy conduct is subjective question. But would not deny that objective indicators remain helpful in determining whether payor parent is blameworthy. For instance, the existence of reasonably held belief that (s)he is meeting his/her support obligations may be good indicator of whether or not the payor parent is engaging in blameworthy conduct. In this context, court could compare how much the payor parent should have been paying and how much (s)he actually did pay; generally, the closer the two amounts, the more reasonable the payor parent's belief that his/her obligations were being met. Equally, where applicable, court should consider the previous court order or agreement that the payor parent was following. Because the order (and, usually, the agreement) is presumed valid, payor parent should be presumed to be acting reasonably by conforming to the order. However, this presumption may be rebutted where change in circumstances is shown to be sufficiently pronounced that the payor parent was no longer reasonable in relying on the order and not disclosing revised ability to pay. 109 Finally, should also mention that the conduct of the payor parent could militate against retroactive award. court should thus consider whether conduct by the payor parent has had the effect of fulfilling his/her support obligation. For instance, payor parent who contributes for expenses beyond his/her statutory obligations may have met his/her increased support obligation indirectly. am not suggesting that the payor parent has the right to choose how the money that should be going to child support is to be spent; it is not for the payor parent to decide that his/her support obligation can be acquitted by buying his/her child new bicycle: see Haisman v. Haisman (1994), 1994 ABCA 249 (CanLII), 22 Alta. L.R. (3d) 56 (C.A.), at paras. 79‑80. But having regard to all the circumstances, where it appears to court that the payor parent has contributed to his/her child's support in way that satisfied his/her obligation, no retroactive support award should be ordered.. -the four appeals before the court in D.B.S. [34] Justice Bastarache applied these principles to the four appeals before the court, all of which raised the issue of retroactive child support. He stated the following at paragraphs 4, and 6: nan Each case involves recipient parent who failed to apply to court for an increase in child support payments in timely manner 5. unreasonable delay by the recipient parent in seeking an increase in support will militate against retroactive award, while blameworthy conduct by the payor parent will have the opposite effect. Where ordered, an award should generally be retroactive to the date when the recipient parent gave the payor parent effective notice of his/her intention to seek an increase in support payments; this date represents fair balance between certainty and flexibility. nan Courts must be open to ordering retroactive support where fairness to children dictates it, but should also be mindful of the certainty that fairness to payor parents often demands. [35] D.B.S. was an appeal of decision of the Alberta Court of Appeal and dealt with child support ordered under Provincial legislation. Justice Bastarache found that retroactive support was not justified for the reasons given in paragraph 139-141: 139 On application of the principles and factors discussed above, agree with Verville J. that retroactive support is not justified in these circumstances. While the mother states that she did not know support might have been owed, parents have responsibility to inquire into matters like this. Concerning the circumstances of the child, Verville J. noted that the present household incomes of the two parents were roughly equal. 140 As to the conduct of the father, the mother has made allegations of threatening and/or dominating behaviour with reference to various times in their post‑separation relationship. Yet, the chambers judge made no finding of fact that would support such allegations. That said, further question is what the father revealed about his income to the mother. court must inquire into whether the payor parent was hiding, or failing to reveal, the factual circumstances that would give rise to new or increased support obligation. Again, however, the chambers judge made no such finding. 141 Most important, however, Verville J. held that retroactive order would not necessarily benefit the children. believe this finding to be crucial. In the circumstances of this appeal, where cannot find any blameworthy conduct on the part of the payor father, and where the chambers judge held that retroactive award would be "inappropriate and inequitable", find myself compelled to defer to his original order. [36] T.A.R. v. L.R.J. was also decision of the Alberta Court of Appeal dealing with child support under the same Provincial legislation. Again Justice Bastarache deferred to the conclusion of the chambers judge that no retroactive award should issue, in large part because of the hardship it would cause. He placed importance on the payor parent not having acted deceitfully and the Chambers Judge’s conclusion that the father’s conduct was “far from blameworthy”. [37] Henry v. Henry, third appeal from the Alberta Court of Appeal involved the interpretation of the child support provisions of the Divorce Act. Blameworthy conduct was attributed to the payor parent. In addition, the delay by the recipient parent in pursuing her claim was not unreasonable, given her limited means, lack of legal knowledge and her sense of intimidation. Justice Bastarache upheld the award of retroactive child support. He found the following factors to be significant and basis for finding blameworthy conduct: (1) the father’s misleading communication as to his financial means; (2) the father’s knowledge of the needs of the children; (3) the father’s increase in income since the previous order; (4) the father’s knowledge of the mother’s low income; (5) the children were deprived in significant way; and (6) the retroactive award would not impose too great burden on the father. [38] The Chambers Judge had awarded retroactive support for period of more than five years and based it on the father’s guideline income. [39] Hiemstra v. Hiemstra, fourth decision of the Alberta Court of Appeal, also involved the support provisions of the Divorce Act. Justice Bastarache upheld the retroactive award of child support. In doing so, he considered the following factors as militating in favour of retroactive award: 1. The disparity of incomes of the parties was great; 2. The mother paid disproportionate share of the burden of supporting the children; 3. The mother’s delay in seeking change in support was understandable given the negative effects of previous litigation upon her and her family; 4. The father was well aware that he could afford child support and did not reasonably believe his support obligation was being met; and 5. The father’s failure to respond to an e-mail request for help. [40] The Chambers Judge’s decision to award retroactive child support to January 1, 2003 was upheld. The mother had e-mailed the father seeking financial help on April 3, 2003. The mother’s application was filed May 28, 2004. [41] It is worthy of note that although agreeing with Justice Bastarache’s disposition of the case(s), Justices Abella, Fish and Charron, would not limit child support by reference to “the date of the recipient parent’s notice of an intention to enforce it” (paragraph.162). They describe the obligation of the payor parent to adjust payments in more positive terms at paragraph 161 and 163: 161. The law is clear that separated parents are obliged to pay child support in accordance with their ability to do so. Only the payor parent knows when there has been change in income that would warrant an adjustment to child support. That, therefore, is the parent with the major responsibility for ensuring that child benefits from the change as soon as reasonably possible. system of support that depends on when and how often the recipient parent takes the payor parent’s financial temperature is impractical and unrealistic. 163. So long as the change would warrant different child support from what is being paid, the presumptive starting point for the child’s entitlement to change in support is when the change occurred, not when the change was disclosed or discovered. [42] The various issues and factors to be considered prior to making retroactive award may be outlined as follows: 1. Whether there is an existing court order or agreement (i) parent paying in accordance with court order is generally entitled to rely upon the certainty the order purports to confer; (ii) agreements are accorded some deference but their reasonableness may need to be assessed at the original signing date and application date; 2. Status of the child/children: whether still of the marriage jurisdictional issue 3. Delay by the recipient parent in seeking an award; 4. Blameworthy conduct by the payor parent; 5. Financial circumstances of the child(ren) and whether the award will benefit the children; 6. Hardship imposed by retroactive award; When was formal notice given to Mr. Munro? [43] The parties disagree on whether the retroactive period should be calculated by reference to July 8, 2004; July 20, 2004; May 30, 2008 October 9, 2008 or some date in between. [44] On October 9, 2008, Mr. Munro actually received the variation application when it was delivered to his lawyer. On May 30, 2008 his lawyer received copy of Ms. Niles counsel’s cover letter to the court enclosing the application and related documents. The effect of the communication between the parties from July 8, 2004 to May 30, 2008 is less clear. [45] On July 8, 2004, Ms. Niles wrote Mr. Munro and raised the issue of child support (exhibit 6, para. 28). Her solicitor initiated dialogue on July 20, 2004. Almost four years passed before the application was filed. One must ask whether the July 2004 correspondence is formal notice in the context of this litigation and secondly what effect, if any the passage of time before the filing of the court documents had on the effectiveness of notice. [46] Mr. Munro submits that Ms. Niles’ delay in following up on the July 8, 2004 letter was unreasonable and therefore, can not be taken as effective notice. Presumably this is reference to Ms. Niles alleged tardiness in responding to his inquiries and proposals after this date and secondly to her decision to not more expeditiously pursue the matter in court if she disagreed with his position. [47] The July 20, 2004 letter from Ms. Niles’ counsel to Mr. Munro directly, concluded by serving notice that “an application to the Supreme Court (Family Division) to resolve this matter” would result if she did not have response on or before Friday, August 13, 2004. Ms. Niles, by letter dated July 8, 2004 (her affidavit- exhibit paragraph 28 and his affidavit- exhibit at paragraph 1) had also raised the issue of extraordinary expenses for the two children. [48] Over the next four (4) years, Ms. Niles continued discussions with her lawyer, including the prospect of court action (exhibit paragraph 28). She argues in part that she wanted to have the matter in court before May 30, 2008 She essentially holds her lawyers responsible for the delay in filing the application. [49] In the context of the parties correspondence between 2004 and 2008 on the issue of child support and special expenses for the children there could be no misunderstanding on May 30, 2008 that Ms. Niles was now making serious claim. therefore reject the argument that date as late as October 9, 2008 should be taken as the date of formal notice to Mr. Munro of Ms. Niles’ claim. am satisfied that occurred May 30, 2008. The rationale for this conclusion follows in the form of answers to the questions that arise as part of the pertinent analysis. Was there delay by Ms. Niles? If so, what is its effect on the determination of effective notice for the purposes of this application [50] Justice Bastarache, in D.B.S. at paragraph 102-104 addressed the issue of delay by the recipient parent in formalizing notice of her claim. He described the considerations as follows: 102 Not awarding retroactive child support where there has been unreasonable delay by the recipient parent responds to two important concerns. The first is the payor parent's interest in certainty. Generally, where the delay is attributable to unreasonableness on the part of the recipient parent, and not blameworthy conduct on the part of the payor parent, this interest in certainty will be compelling. Notably, the difference between reasonable and unreasonable delay often is determined by the conduct of the payor parent. payor parent who informs the recipient parent of income increases in timely manner, and who does not pressure or intimidate him/her, will have gone long way towards ensuring that any subsequent delay is characterized as unreasonable: compare C. (S.E.) v. G. (D.C.). In this context, recipient parent who accepts child support payments without raising any problem invites the payor parent to feel that his/her obligations have been met. 103 The second important concern is that recipient parents not be encouraged to delay in seeking the appropriate amount of support for their children. From child's perspective, retroactive award is poor substitute for past obligations not met. Recipient parents must act promptly and responsibly in monitoring the amount of child support paid: see Passero v. Passero, 1991 CanLII 8165 (ON SC), [1991] O.J. No. 406 (QL) (Gen. Div.). Absent reasonable excuse, uncorrected deficiencies on the part of the payor parent that are known to the recipient parent represent the failure of both parents to fulfill their obligations to their children. 104 In deciding that unreasonable delay militates against retroactive child support award, am keeping in mind this Court's jurisprudence that child support is the right of the child and cannot be waived by the recipient parent: Richardson, at p. 869. In fact, am not suggesting that unreasonable delay by the recipient parent has the effect of eliminating the payor parent's obligation. Rather, unreasonable delay by the recipient parent is merely factor to consider in deciding whether court should exercise its discretion in ordering retroactive award. This factor gives judges the opportunity to examine the balance between the payor parent's interest in certainty and fairness to his/her children, and to determine the most appropriate course of action on the facts. [51] In the words of Bastarache, J., the “delay in seeking child support is not presumptively justifiable”. [52] Ms. Niles has not justified the delay in seeking child support as reasonable. [53] Court exhibit 1A, being exhibit to the affidavit of Mr. Munro, includes an exchange of letters between Mr. Munro’s counsel and Ms. Niles’ counsel following July 20, 2004 when the issue was raised by Ms. Niles’ counsel with Mr. Munro. The correspondence supports the conclusion that the parties continued to discuss the merits of the claim of Ms. Niles. Lengthy periods passed between requests for information and the provision of the information. I am satisfied that Mr. Munro did not engage in blameworthy conduct during this period. The correspondence reflects good faith on his part. am satisfied he reasonably believed throughout he was meeting if not exceeding his obligations. [54] In addition, conclude that the cumulative effect of the communication is to leave an impression of acceptance of the status quo by Ms. Niles, notwithstanding her stated claims. [55] Justice Bastarache referred to effective notice as consisting of communication as informal as “broaching” the subject. Clearly the filing of an application is not necessary for there to be effective notice. On the unusual facts of this case I have concluded that communication that represented effective notice in 2004 was voided by the delays of the recipient parent and her failure to prosecute the matter. arrive at this result by balancing the competing need of the payor parent for certainty and fairness to children. The recipient parent’s responsibility was to pursue her claim when negotiations became fruitless from her perspective. Allowing her claim to languish for years represented unreasonable delay on her part. [56] In the circumstances, am persuaded that the potential retroactive period should be determined by reference to Mr. Munro being given formal notice on May 30, 2008 when the application was filed. Ms. Niles counsel’s letter to the court, wherein she requested that the application be filed, was copied to Mr. Munro’s lawyer. The enclosures were not. Notwithstanding Mr. Munro’s requests for the enclosures over the next months, the May 30, 2008 letter dispelled any sense of confidence that matters were settled. In the context in which the May 30 2008 letter was received, Mr. Munro was given formal notice that Ms. Niles was seeking variation of the parties Corollary Relief Judgment. [57] The earliest presumptive commencement date for any retroactive child support award is therefore three years prior to this formal notice. It may be earlier if Mr. Munro is guilty of blameworthy conduct. Was Mr. Munro guilty of blameworthy conduct? [58] In her pre-hearing brief, Ms. Niles argues that Mr. Munro’s blameworthy conduct consisted of the following: 1. strategy to avoid dialogue on the child support issues. 2. strategy that consisted of delaying responses to inquiries and in making payments. 3. Unilateral decreases in child support. 4. Misrepresenting his resources available to assist the older child with his education expenses. 5. Lying to the older child about the use to which his mother was putting child support funds. 6. Breaking promises regarding funding. 7. Instructions to the older boy to not disclose the level of assistance he was receiving from Mr. Munro. [59] would characterize Mr. Munro as responding to inquiries about his income in direct way. There is no evidence of deceit or desire to avoid his responsibilities. In fact, he expended large sums of money on the educational pursuits of his older son, and paid what was an arguably appropriate table amount of support for the younger child. The matter remained in contention because the parties disagreed as to whether certain expenses were justified for the older child. [60] On October 28, 2004, Mr. Munro’s lawyer replied in detail to letter dated July 20, 2004 from Ms. Niles’ counsel. Mr. Munro’s position was reasonable. Although the parties corollary relief judgment provided for equal sharing of special expenses he was agreeable to paying 73% of the older boy’s university expenses and $1,200 per month for child support for the other child who remained at home. The table amount was $1,419.00. Mr. Munro’s position was that the support for the younger child should be reduced to $1,200 to reflect the fact of the younger son spending 40% of his time with him. (Exhibit 1A, p.13) In follow up letter dated November 22, 2004, Mr. Munro’s lawyer sought response to his October 28, 2004 letter. This was received on November 29, 2004. [61] Other communication followed, culminating in letter to Ms. Niles’ counsel on January 21, 2005. This letter reveals that the parties disagreement now revolved around certain expenses for which Ms. Niles was seeking cost sharing. As stated the parties’ corollary relief judgment provided for equal sharing of special expenses. Ms. Niles sought Mr. Munro’s agreement that the cost sharing be proportionate. Mr. Munro was not opposing the change. It is clear that the focus of the parties’ disagreement was the older boy’s university expenses not the quantum of child support for the younger child, The only reference to the younger child is whether child support should be the full table amount of $1,419 or $1,200. By September 2005, Mr. Munro agreed to pay the full table amount, notwithstanding that he was of the view that the younger son spent more than 40% of his time with him. In the context of the money Mr. Munro was paying, the difference was an insignificant amount. [62] Mr. Munro’s counsel wrote September 28, 2005 to Ms. Niles’ counsel with proposal for settlement. The proposal for settlement was reasonable. He wrote again October 26, 2005 and December 8, 2005. [63] On February 14, 2006 he again asked for response to the September 28, 2005 letter (exhibit 1A p.55 and p. 57) As of March 22, 2006, Ms. Niles’ lawyer had not received instructions upon which to base response. period of almost six months had passed. To this was added another 2-3 months before response, dated June 9, 2006 was received by Mr. Munro. This represented the passage of almost nine months. [64] Finally by letter dated January 2, 2007 Mr. Munro offered to settle the disagreement with lump sum payment of $8,000. response was received February 16, 2007. This resulted in an increased offer of $10,000 on behalf of Mr. Munro by letter dated May 11, 2007. Apparently this was not accepted. (Exhibit 1A p.78 83) [65] On December 10, 2007, Mr. Munro’s lawyer was advised that new lawyer had assumed carriage of the file. Mr. Munro’s lawyer immediately sought an outline of Ms. Niles’ position by letter dated December 11, 2007. [66] It appears the response came in the form of copy of covering letter from Ms. Niles’ lawyer to the court, wherein she asked the court to file the application and issue it. On June 2, 2008, June 19, 2008, July 17, 2008 and August 13, 2008 Mr. Munro’s lawyer sought copies of the court documents from Ms. Niles’ lawyer. They were provided October 9, 2008. Mr. Munro’s lawyer sought “missing” documents from Ms. Niles’ lawyer by letter dated October 28, 2008. [67] One of the factors the court must consider when assessing blameworthiness is the disparity between what was paid and what should have been paid. Counsel have asked that assess blameworthiness without considering this aspect of the analysis in detail. believe it is possible to do so based on the evidence and submissions made. Additional submissions may still be made on whether there was an underpayment by Mr. Munro. Given that the older child is not affected by this aspect of my ruling my focus is now on the level of support the younger son received. [68] The evidence establishes that Mr. Munro’s conduct following the July 2004 communication from Ms. Niles and her counsel was “far from blameworthy”. In 2004 he was making substantial child support payments. He was agreeable to making payments based on the child support tables and generous contribution to the post secondary education costs of his older son. He maintained this position over the ensuing period of almost four (4) years and he has in fact done so. [69] He disagreed with some expenses for the older child and for which Ms. Niles sought contribution. Given what those expenses were, his objections were within the range of reasonable concerns parent might raise. He did not seek to avoid his financial responsibilities. [70] It is worth noting that Mr. Munro paid the following amounts of base table child support in the years shown (paragraph 38 of Exhibit #1-Mr. Munro’s affidavit dated May 6, 2009): 2004 $19,200.00 2005 $17,793.00 2006 $16,831.00 2007 $16,829.00 2008 $11,224.00 [71] In addition, he paid the following amounts towards the university education of his sons: 1st year of university 2004/2005 $24,090.00 (para. 42- Exhibit #1) 2nd year of university 2005/2006 4,535.12 (para. 47-Exhibit #1) 3rd year of university 2006/2007 $16,402.80 (para. 54-Exhibit #1) 4th year of university 2007/2008 $21,232.42 1st year younger son 2008/2009 $10,856.90 (1st year at Dalhousie) (para. 65-Exhibit #1) [72] Mr. Munro responded promptly and was diligent in his pursuit of resolution. His offers to settle were meaningful, in good faith and fair given the uncertainties of the parties’ cases. [73] In contrast, it is difficult to avoid concluding that Ms. Niles was unsure of her claim. She must be held responsible for the many months of delay in responding to Mr. Munro’s inquiries. The reasonable conclusion is that she did not have confidence in her claim and was not serious about pursuing it. [74] In the words of Justice Bastarache, Ms. Niles is guilty of “unreasonable delay” in prosecuting her claim. The effect of her failure is to nullify the effective notice of July 20, 2004 and in subsequent correspondence. In my view, the need for certainty for a payor parent weighs in favour of Mr. Munro, given the passage of several years since effective notice was first received; the significant level of support he was providing; his reasonable belief that he was meeting his obligations; the efforts he made to determine Ms. Niles claim, to respond to it and to settle it. It would be very unfair result, if he could now be told that he is guilty of blameworthy conduct and his child support obligation reassessed for period more than three years prior to May 30, 2008. He is agreeable to having his child support obligation over the previous three years before formal notice, examined and if found to be deficient he is prepared to pay the difference. However, he believes he has not been deficient. Counsel will have the opportunity to make further submissions on this point. Conclusion [75] In light of the foregoing conclusion on the issue of blameworthy conduct, the appropriate period of retroactive reassessment should be three years before formal notice, this being the maximum recommended retroactive period absent , in this case, blameworthy conduct. Child support and Section expenses for the younger son will be therefore calculated based on the child support tables for the retroactive period of three years before May 30, 2008. That reassessment may result in finding that the obligation has in fact been satisfied. In addition, s.7 expenses will be calculated on proportionate basis.

The mother applied for retroactive support (table amounts and s. 7 expenses) for two adult children. The father resisted the application in relation to the oldest son on the basis that he was no longer a dependant child when it was filed. The evidence showed the son finished university before the application was filed. His graduation took place after, at which time he was already working full time and living with his girlfriend. He lived with his mother for few months because of relationship problems, but later moved back in with the girlfriend. He also received some assistance from his parents when he took time off work to retrain. The father felt the mother's application in relation to the younger son should be limited because of her unreasonable delay in making it. He argued retroactivity should be limited to three years from the date he received the application (months after it was filed). The mother argued formal notice was given when her lawyer sent a letter requesting additional support several years earlier. She asked the court for support retroactive to three years before that date, or longer (based on what she alleged was blameworthy conduct on the father's part). The evidence showed the mother was slow in responding to the father's request for particulars. Despite threatening legal action several times, it took her years to file the application. The wife's application for retroactive support in relation to the oldest son dismissed. He was no longer a child of the marriage when it was filed. He became independent when his schooling finished and he started working and living with his girlfriend. While his parents provided assistance during his relationship troubles and retraining, they did so voluntarily and not out of any legal obligation. Support for the younger son to be reassessed retroactive to three years from the date the application was filed (as opposed to received). The mother unreasonably delayed her claim by allowing it to languish for years. While normally the letter from her lawyer would be said to constitute effective notice, the notice here was voided by the mother's failure to prosecute the matter. The father did not engage in blameworthy conduct: he made efforts to respond to and settle the mother's claims; he paid a significant level of support; and he reasonably believed he was meeting his obligations. Here, the need for certainty for a payor parent weighs in favour of the father.

e_2009nssc318.txt

J. 1999 SKQB 230 F.L.D. A.D. 1998 No. 70 J.C. S.C. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: BRENT PETER GUCKERT RESPONDENT(PETITIONER) and MELODY RENAE GUCKERT APPLICANT(RESPONDENT) and KONKRETE CONSTRUCTION LTD. RESPONDENT R.B. Hunter for Brent Guckert P.G. Alberts for Melody Guckert D.G. Kovatch for Konkrete Construction Ltd. JUDGMENT KRAUS J. December 7, 1999 [1] There are several issues to be determined on this application. Payment of $55,000 to BPG [2] The applicant asserts that the respondent's father's company (the third party) paid $55,000 to BPG, the respondent's company, in contravention of the order of the court made June 7, 1999 directing any funds accruing to BPG to be paid into court, and freezing any money to be paid out. [3] This is an extremely serious allegation. The uncontradicted facts are that the third party made cheque to BPG in the amount of $55,000. That cheque was deposited to the bank account of BPG on June 8, 1999, and applied by the bank against the overdraft. The applicant asserts that the third party was served (on May 28, 1999) with notice of the application giving rise to the judgment of June 7, 1999. The applicant seeks an order against the third party, requiring it to pay $55,000 into court. The third party argues that the application, in essence, seeks contempt citation and should be directed to trial. [4] The issue should be resolved at trial where evidence can be weighed and findings of credibility can be made. Since pre-trial conference has been scheduled for January 26, 2000 (by virtue of another order), and because do not wish to prejudice the third party's position by making any finding in this forum (chambers), direct this issue to trial and to the pre-trial conference to be held on January 26, 2000. Move to Medicine Hat and Related Issues: [5] The applicant has interim possession and exclusive use of the matrimonial home and contents pursuant to the order of the court made November 23, 1998. By that order, the court designed the primary residence of the two children (aged six and three and one-half years) to be with the applicant and the respondent was granted access every second weekend. By subsequent order made December 7, 1998, the respondent was granted additional access to include Thursday or Monday, when the weekend falls on statutory holiday, and the applicant was prohibited from removing the children from Saskatchewan without court order, absent consent. The applicant has recently secured an excellent job in Medicine Hat (60 miles from the matrimonial home) and the eldest child could attend kindergarten there in the new year. The applicant's parents live in Medicine Hat and assist in looking after the children. The respondent opposes the applicant's request for leave to move to Medicine hat; he argues that the move will be tantamount to a denial of access. [6] I do wish to encourage the applicant to attain self-sufficiency and I grant her leave to remove the children to Medicine Hat; their primary residence with the applicant will thereby continue. However, the status quo as to access should also be maintained: I order that the applicant return the children to Saskatchewan for purposes of exercise of access by the respondent in accordance with existing orders. [7] The respondent requests additional access: from December 17 to December 23, to enable the children to attend family ski vacation. I order access to the respondent for that purpose, provided, on such occasion, the respondent will pick up and return the children to the applicant's residence in Medicine Hat. [8] The interim order for exclusive possession of the matrimonial home to the applicant shall not be changed. She is at liberty to rent the home and receive the income therefrom provided that she maintains the home and ensures payment of all costs. The respondent has other suitable accommodation. [9] The applicant is directed to take all reasonable steps to sell the fifth-wheel recreational trailer in her possession and to pay the sales proceeds to the bank to discharge the lien indebtedness (approximately $25,000) and to pay the balance into court. The applicant is directed to thereafter deliver and file an affidavit of bona fides as to the sale which should relieve her of the obligation for payment of the loan (approximately $800 monthly). [10] Costs are reserved to trial.

The applicant asserted the third party (the respondent's father's company) paid $55,000 to the respondent's company in contravention of the June 7, 1999 order which directed any funds accruing to the company be paid into court and froze any money to be paid out. The third party argued the application essentially sought a contempt citation and should be directed to trial. The second issue concerned the respondent's opposition to the applicant's request for leave to move to Alberta, arguing that the move will be tantamount to a denial of access. The applicant had been prohibited in a 1998 order from removing the children from Saskatchewan without a court order, absent consent.HELD: 1)The issue of the payments was directed to trial and pre-trial conference to be held in January. 2)The mother was granted leave to move the children to Alberta. Their primary residence was to continue to be with her. She was encouraged to attain self-sufficiency. Access was to be maintained and the mother was ordered to return the children to Saskatchewan for purposes of allowing the respondent to exercise access in accordance with existing orders. Additional access was granted provided he picked up and returned the children to the applicant's residence. 3)The 1998 interim order for exclusive possession of the matrimonial home was not changed. The applicant was at liberty to rent the home. 4)The applicant was directed to take all reasonable steps to sell the recreational trailer in her possession and to pay the sale proceeds to the bank to discharge the lien and the balance into court. She was to file an affidavit of bona fides as to the sale which should relieve her of the obligation for payment of the loan. 5)Costs were reserved to the trial.

c_1999skqb230.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 76 Date: 20060620 Between: Docket: 1298 Shannon Tindall (Respondent) Appellant and Robert Murray Craig (Petitioner) Respondent Coram: Sherstobitoff, Jackson Richards JJ.A. Counsel: James A. Johnson for the Appellant W. Timothy Stodalka for the Respondent Appeal: From: FLD 455 of 2005, J.C. of Regina Heard: June 20, 2006 Disposition: Allowed (orally) Written Reasons: June 27, 2006 By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Richards SHERSTOBITOFF J.A. [1] This appeal was allowed from the bench with brief written reasons to follow. These are the reasons. [2] The appeal is from an order granting interim custody of a 10 year old girl to her father, notwithstanding that the child had been in the custody of the mother since the mother and father separated about 4 years ago. During the separation, the father paid some maintenance for the child pursuant to an agreement made by the parties themselves, and had extensive access to the child, she spending at least one weekend month with him, as well as the summer holiday. [3] In late December, 2005, while the child was with her father for the Christmas holiday, the father filed and served petition for custody of the child as well as motion for interim custody pending the hearing of the petition. In support, he filed an affidavit alleging that the child (as well as 16 year old sister born to the mother as result of previous relationship) in fact resided most of the time with her maternal grandparents, David and Vivianne Tindall. He further alleged that the mother was an alcoholic and as result did not properly care for the children. These allegations were based on what he says, in his affidavit, he was told by David and Vivianne Tindall, and by Karin McEwen of the Department of Community Resources and Employment, Family and Youth Services. [4] The mother filed an affidavit in reply, in effect denying all of the allegations, and in particular, that the child was not living with her, that she was an alcoholic, and that she was not giving proper care to the child. She included many allegations of improper conduct on the part of the father. She also filed affidavits from three friends and the 16 year old daughter to support her own evidence. [5] On January 13, 2006, Family Court Judge made an order compelling the father to return the child to the mother pending the hearing as to interim custody, as the father had not done so at the end of the holiday. The parties agreed that the motion should be adjourned to January 20. They also agreed to the introduction into evidence of an Investigation Record prepared by Karin McEwen, without requiring her to appear as witness. [6] The Investigation Record consisted of record of interviews or conversations Ms. McEwen had with Vivianne Tindall, and with the father. Ms. McEwen relied mainly on what she was told by Vivianne Tindall in arriving at conclusion that the child was at risk because of the mother’s drinking. She never took any action because, at the relevant times, the child was with her grandparents or her father, and most recently, the matter was in the hands of the Court. The rest of the record was series of complaints received respecting the conduct of the mother. None of the complainants were identified by name, and for various reasons, no action was taken on the complaints. [7] When the matter was in Court again on January 20, before another Family Court Judge, counsel for the father, in view of the directly conflicting evidence respecting the main issues to be decided, asked for and expected an order for trial of the issues, with viva voce evidence. The judge, however, declined to make such an order, but instead ordered the mother to undergo an independent drug and alcohol assessment to be conducted by Francis Stewart, psychologist. The order also gave either party the right, upon receipt of the assessment, to restore the matter to the chambers list on seven days' notice. [8] The psychologist’s report was filed. It consisted of summary of an interview with the mother, description of number of specific substance abuse tests administered to the mother, reading of the Investigation Record, and summary of “corroborative interviews” with Ms. McEwen and Vivianne Tindall. The report concluded as follows: The Investigation Report completed by Karin McEwen and the two corroborative interviews conducted by the writer are in stark contrast to the results obtained on the psychometric measures regarding Shannon’s use of alcohol and/or drugs. Shannon’s test results indicated that she exhibits patterns of alcohol use that is typical in the general population. This is highly unlikely when all information obtained in the assessment is considered. The evidence provided by these three additional sources strongly indicates that Shannon has an established pattern of alcohol use that is excessive, has interfered with her family relationships and quite possibly her occupational functioning, and has caused some disruption in her ability to provide consistent, responsible care to her children. It is this writer’s professional opinion that the information provided by these additional sources of information should not be ignored, despite the results obtained on the psychometric measures. In fact, it is the writer’s opinion that significantly more weight should be assigned to these sources than is given to the results of the psychometric measures. Due to the results of the testing, however, no diagnosis regarding Alcohol Dependence or Alcohol Abuse can be suggested. From all sources considered, including the psychometric testing, it appears that alcohol use (or misuse) is the greater problem of concern, with drug use possibly playing minor role. [9] The matter next came to court on April 26 before third Family Court Judge. She granted interim custody of the child to the father. Although she apparently gave oral reasons for her decision, the file has no record of them, and counsel advises that no copy is available, so that this Court has no reasons for decision available to it to assist in the review of the decision. [10] The mother has appealed to this Court on the ground that the judge erred in giving interim custody to the father by failing to follow the principle that in such matters the status quo should be preserved in the absence of compelling evidence to prove that the best interests of the child, during the short period that the interim order will be in effect, require otherwise, citing the decision of this Court in Harden v. Harden (1987), 1987 CanLII 4876 (SK CA), 54 Sask. R. 155; Roebuck v. Roebuck (1983), 1983 ABCA 156 (CanLII), 148 D.L.R. (3d) 131 (Alta. C.A.), and many subsequent judgments, most recently Dorval v. Dorval, 2004 SKQB 188 (CanLII), (2004), 248 Sask. R. 309. She says that the evidence did not establish either of the allegations of the father: that she was an alcoholic and that her alcoholism adversely affected the child. [11] We will not comment on the lack of reasons for decision since counsel did not raise it as ground of appeal. Since an order was made in favour of the father, we must assume that the judge found that he had established the grounds he advanced, namely the alcoholism of the mother and its adverse effect upon the child. [12] The appeal must succeed. Even assuming that the Investigation Record was admissible into evidence by reason of the agreement of the parties, and that the psychologist’s report was admissible into evidence under s. 97 of The Queen’s Bench Act, 1998, S.S. 1998, Q-1.01, both of which propositions are at least arguable, there is no evidence other than unsworn hearsay evidence upon which it could be found that the mother was alcoholic and that the child suffered from it, while there is sworn evidence from the mother denying that to be so, as well as sworn evidence from three other persons supporting the mother’s evidence to at least some degree. [13] The father’s affidavits are the only sworn evidence filed in support of his case. As noted above, he and the mother had not lived together for four years. His first affidavit makes the bare assertion that the mother is an alcoholic and that when they lived together her alcohol consumption was an ongoing problem. As to care of the child, he says that the child spent 95% of her time with the grandmother; that he was told by Karin McEwen that the Department had received complaints about the mother’s drinking and her care of the child; and that he was told by Vivianne Tindall and Karin McEwen that there was no fridge, food or telephone in the mother’s house and that it was always mess. The father’s rebuttal affidavit was simply refutation of allegations made against him by the mother in an affidavit filed by her. [14] From this, it is apparent that the father had no personal knowledge of the mother’s drinking habits during the past four years, nor any personal knowledge of how the mother cared for the children. He relied on what he was told by Karin McEwen and Vivianne Tindall. [15] The Investigation Record prepared by Karin McEwen shows that she, too, had no personal knowledge of either the mother’s drinking habits or her care of the child. Her only knowledge was what she was told by various unnamed persons in the community (at least one of whom she acknowledged to be maliciously motivated) and Vivianne Tindall. [16] The Drug and Alcohol Assessment Report prepared by Francis Stewart shows that none of the tests undergone in this respect by the mother showed her to have any problem with alcohol or drug use. However, based on what he read in Ms. McEwen’s Investigation Record, and his conversations with Ms. McEwen and Vivianne Tindall, he urged that the psychometric evidence be, in effect, ignored. [17] It is apparent that none of the authors of the documents supporting the father’s position that the mother is an alcoholic and not properly caring for the child have any personal knowledge that that is the case, and that the information conveyed is nothing more than the opinion of the authors based on hearsay, namely information obtained from third parties, the only one identified being Vivianne Tindall. In retrospect one is left to wonder why no one sought to obtain an affidavit from her. The information in the documents indicates that she would have been likely to co-operate. In fairness to the father’s counsel, he asked for, and presumably expected, an order directing trial of an issue with viva voce evidence, but the judges presiding decided to proceed otherwise. [18] While the Court may, under Queen’s Bench Rule 603(3), allow hearsay evidence in affidavits in applications for interim relief, it may do so only in “special circumstances” and none were shown to exist here. Accordingly, hearsay matters in the father’s affidavits should not have been considered. As to the reports prepared by Karin McEwen and Francis Stewart, neither were sworn or verified under oath. Thus Rule 603(3) does not apply to them, and to the extent that they were based on hearsay, they should not have been considered. [19] Without the hearsay evidence, there was no case for even direction of the trial of an issue, let alone an order in favour of the father. [20] But even if the hearsay were admissible, given the direct denial under oath by the mother of either alcoholism or lack of proper care for the child, there should have been an order directing trial of an issue rather than decision made on the written evidence filed: Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (C.A.). [21] Accordingly, the appeal is allowed and the order below is set aside. The father shall have leave to reapply on proper evidence if so advised.

The appeal is from an order granting interim custody of a 10 year old girl to her father, notwithstanding that the child had been in the custody of the mother since the mother and father separated about 4 years ago. During the separation the father paid some maintenance for the child pursuant to an agreement made by the parties themselves, and had extensive access to the child, she spending at least one weekend a month with him, as well as the summer holiday. HELD: Appeal allowed orally. 1) The oral reasons of the Family Court judge granting interim custody to the father were not available to the court, so it had no reasons for the decision available to assist it in the review of the decision. 2) The appeal must succeed. Even assuming the Investigation Record was admissible into evidence by reason of the agreement of the parties, and that the psychologist's report was admissible into evidence under s. 97 of The Queen's Bench Act, both of which propositions are at least arguable, there is no evidence other than unsworn hearsay evidence upon which it could be found that the mother was alcoholic and that the child suffered from it, while there is sworn evidence from the mother denying that to be so, as well as sworn evidence from three other persons supporting the mother's evidence to at least some degree. The father's affidavits are the only sworn evidence filed in support of his case. It is apparent that the father had no personal knowledge of the mother's drinking habits during the past four years, nor any personal knowledge of how the mother cared for the children. 3) It is apparent that none of the authors of the documents supporting the father's position that the mother is an alcoholic and is not properly caring for the child (the Investigation Record and The Drug and Alcohol Assessment Report) had any personal knowledge that that is the case. The information conveyed is nothing more than the opinion of the authors based on hearsay, namely information obtained by third parties, the only one identified is Ms. Tindall. One is left wondering why no one sought to obtain an affidavit from her. 4) Hearsay matters in the father's affidavits should not have been considered. The report were not sworn or verified under oath. Thus Rule 603(3) does not apply to them, and to the extent that they were based on hearsay, they should not have been considered. Without the hearsay evidence, there was no case for even the direction of a trial of the issue, let alone an order in favour of the father.

4_2006skca76.txt

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Patterson Publicover, 2005 NSSC 128 Date: 20050531 Docket: SFHD-10470 1201-55640 Registry: Halifax Between: Gregory Hugh Patterson v. Taura Irene Publicover Respondent Judge: The Honourable Justice Kevin Coady Heard: April 28 and May 16, 2005, in Halifax, Nova Scotia Counsel: Mr. Kenzie MacKinnon, for the Applicant Ms. Julia Cornish, for the Respondent [1] This is an application by Mr. Patterson to vary the terms of this couple’s 2001 Corollary Relief Judgment respecting parenting arrangements. The parties separated in 1999 after six years of marriage. They have two children: Maclean, now aged 11, and Kaylee, now aged 9. The parties entered into Separation Agreement dated August 23, 2000 which was incorporated into Corollary Relief Judgment on May 16, 2001. [2] The following three paragraphs of the Corollary Relief Judgment are most relevant to this application: CUSTODY AND ACCESS 7. (a) The Husband and the Wife shall have shared, joint custody, care and control of the Children of the Marriage. Each of the Husband and the Wife shall have the day-to-day care and control of each of the Children of the Marriage while each of the Children of the Marriage is in his or her care. (b) The Children of the Marriage shall spend equal amounts of time with the Husband and the Wife. The Husband and the Wife shall be flexible in attempting to determine the specific equal residency arrangements which are in the best interests of the Children of the Marriage. The Husband and the Wife initially shall implement residency arrangements which have the Children of the Marriage either alternating full weeks between the residences of the Husband and the Wife or alternating between four day and three day portions of each week at the residences of the Husband and the Wife. However, the Husband and the Wife may mutually agree upon alternative equal residency arrangements for the Children of the Marriage. (c) On or about the first anniversary of the execution of this agreement, either the Husband or the Wife may retain child psychiatrist, psychologist or therapist to study the success of the adjustment of the Children of the Marriage to the custody arrangements set out herein. The other party shall have the right to approve of the child psychiatrist, psychologist or therapist to be so retained, which approval shall not be unreasonably withheld. [3] The evidence disclosed that this is high conflict couple and it is doubtful their parenting arrangements had any real chance of success. Nonetheless, the parties shared parenting arrangement has existed since 2000, albeit with much disagreement and discord. [4] On October 8, 2003 Mr. Patterson made an application to vary seeking sole custody of the children. In support of his application, he alleged ongoing conflict which adversely impacted on the children. In February, 2004 the parties agreed to an assessment and also to the assessors. The report was completed on January 14, 2005. There were thirteen recommendations and the most fundamental was the first which stated: Kaylee and Maclean Patterson be placed in the primary care and custody of their father, Greg Patterson. [5] bi-weekly access schedule was recommended and there was significant emphasis on therapy for all members of this family. [6] Mr. Peterson alleged Ms. Publicover refused to implement the recommendations and as result the children were suffering. He relied on the assessment to support his concerns. Ms. Publicover did not accept the assessment and its recommendations. She essentially found it flawed for various reasons set out in her evidence. [7] The position of Ms. Publicover is she wishes to continue with the shared parenting arrangement. She prefers week on-week off arrangement to the three days on-four days off, and vice versa, that is presently the practice. She feels that this change, as well as surrendering decisions on school, activities, etc., would result in less parental conflict. [8] The position of Mr. Patterson is that the assessment recommendations be implemented forthwith. He argues the children’s problems are “deep seated” and “profound”. It is his position that dramatic steps must be taken and that there is some urgency. [9] The assessment was completed by Lise Godbout and Marg de la Salle, both psychologists. found both to be very senior and experienced professionals. The assessment was put into evidence and the authors were cross-examined on their conclusions. The assessment included psychological testing of the parties. find that the assessment was conducted appropriately and represents very in-depth, comprehensive analysis of this families situation. [10] The reason for referral was stated as follows: Greg Patterson and Taura Publicover have been unable to develop workable co-parenting arrangement and understanding that takes into account their distinctive perspectives and parenting styles as they respond to the needs of their children. The problems encountered to date have created stress and anxiety for the children and have contributed to ongoing difficulties and disputes. [11] accept the following conclusions that arose from the Assessors’ examination: Both parents are capable parents. This case is not about parental deficiencies but rather question as to what the children need at this time. Both parents are capable of providing basic needs. The conflict between the parents is extreme and needs to end. This conflict is negatively impacting on both children. The children must be placed in the most stable environment with follow-up counselling and treatment. The assessment recommendations should be immediately implemented as the children’s stress represents developmental impediment. Both parents contribute to the stress and conflicts. There is lot of conflict between these children and Ms. Publicover’s stepson, Thabo. Maclean internalizes his feelings and worries about hurting his Mom and her new family. That is basis for depression and there is history of depression on the paternal side of the family. The children perceive that many issues (sports, school, activities) are not resolved by Ms. Publicover and as result they feel caught in the middle of the conflict. The children are presently stressed out and suffering as result of the uncertainty surrounding the future of their family. The children are close to both parents but are more relaxed in the home of their father. The children find that Mr. Patterson tends to listen to them and to discuss issues with candour. The children do not feel any competition in Mr. Patterson’s home but feel competition in Ms. Publicover’s home given the presence of her immediate new family. Mr. Patterson provides more stable environment for the children and he is very involved in their activities. Stability is the most important factor needed by these children. The recommendations have gone unimplemented for too long. These children cannot proceed until they are in place. Ms. Publicover’s concessions concerning surrendering decisions in areas that have driven conflict is too late and would represent band-aid solution. The children require greater stability. Shared parenting will not work until all family members get treatment. The children’s present stress would be greater than the stress they would experience from scaling back the time they spend with their mother. [12] The assessment report concluded at p. 7: ...Although Mr. Patterson’s home environment and approach to problems may lack refinement (at times he responds too quickly to matters and won’t back down), there is greater level of openness to the children’s individual needs and experiences that takes priority. The defensive anxiety frequently noted during the course of the Assessment has not been in evidence when the children are in his presence. There is relaxed, casual nature to the children’s intimacy with their father that allows for greater clarity of disclosure and discussion of needs, as well as sharing of day-to-day events. These clinical observations are consistent with the results of the parenting stress index. [13] The assessment report reflected somewhat differently on Ms. Publicover. The following appears at p. 7: Within the emotional realm, Taura struggles somewhat in her ability to be flexible in hearing, understanding, and integrating the individual emotional needs of the children. This component is further complicated by the current custody/access dispute. Had these parents maintained working relationship, each of these parents would have been complimentary to each other’s parenting style, and this would not have been concern. At this time, Taura’s struggles in this area of parenting can partially account for her experience of parenting stress with Maclean and Kaylee. She has been unable to relax into the children’s individual emotional needs and fully adjust her principles accordingly. [14] had the benefit of report and the evidence of Dr. Nina Woulff, Psychologist. Dr. Woulff was retained by Ms. Publicover to critique the court ordered assessment. While she interviewed Ms. Publicover, she did not meet with Mr. Patterson or the children. While appreciated and considered this evidence, it in no way impacted on the credibility of the assessment or the assessors. [15] There was great deal of affidavit evidence tendered by the parties and by their family and friends. For the most part, these affidavits extolled the virtue of both parties as caring, loving and committed parents. As well, the parties affidavits focussed on several incidents of high conflict since separation. While this evidence has its place, it did not lessen the concerns for the children disclosed by the court ordered assessment. After all, both parents are capable parents, they just can’t do it together. [16] Section 17(5) of the Divorce Act requires a material change in circumstances before I revisit custody on its merits. must find such material change “since the making of the custody order or the last variation order made in respect of that order”. I find the serious concerns raised by the assessment satisfies this threshold requirement. The urgency of these concerns require immediate action. [17] Furthermore, must decide this variation application on the best interests of these children as determined by reference to the change in circumstances. cannot consider what is in the best interests of these parties. Individually they could be good parents. Together they have failed to act in the best interests of their children. They refuse to put aside their personal hurt and anger so as to benefit these distressed children. see nothing that will change this in the foreseeable future. The obvious solution, disclosed by the evidence, is to terminate the shared parenting arrangement set forth in their Corollary Relief Judgment. It is time to assist these children by creating stability in their lives. The only way this can be accomplished is by awarding primary care to one parent. [18] This is an interim application to vary Divorce Act order. There is no authority in the Divorce Act to make an interim variation order. Nonetheless, this practice of “Interim Variation” has become local practice. The parties have insisted this was an interim hearing and they anticipate final hearing. The only way can effect the parties’ wishes is to consider this as the first part of the application to vary. Any future proceedings would amount to completion of this application. Obviously would be seized with this application until it is completed. If there are no future proceedings on this application, my decision would become final upon motion of one of the parties. [19] conclude it is in these children’s best interests to forthwith implement all recommendations of the Court ordered assessment. Kaylee and Maclean Patterson shall forthwith be placed in the primary care and custody of their father, Greg Patterson. All other recommendations are to be implemented at the very earliest opportunity. [20] request was made to seal this file. This will require formal application. direct counsel’s attention to Civil Procedure Rule 70:32 and the case of The Edmonton Journal v. A.G. for Alberta et al., 1989 CanLII 20 (SCC), [1989] S.C.R. 1326.

Pursuant to the Corollary Relief Judgment, the parents had been equally sharing the parenting time of their two children for four years. The father now applied for interim sole custody, alleging that the ongoing extreme conflict between the parties was adversely affecting the children. An assessment recommended that the children live with the father and have access with the mother. Father granted interim sole care, custody and control of the children. The serious concerns raised by the assessment satisfied the threshold requirement of a material change in circumstances; the urgency of the concerns required immediate action.

6_2005nssc128.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 045 Date: March 22, 2013 File: 80/12 Location: Yorkton Between: Sturgis Meats Ltd. and Gardon Securities Telecommunications and Answering Ltd. Mark Persick For the Plaintiff Mark Galambos For the Defendant JUDGMENT R. GREEN, OVERVIEW: [1] In 2006, Sturgis Meats entered into a contract with Gardon Securities. That contract covered both the installation of temperature monitoring equipment at Sturgis Meats and the month to month monitoring by Gardon Securities of the temperature in the freezer and cooler at this business. As result, Gardon Securities installed temperature monitoring equipment in the cooler and freezer of Sturgis Meats in January 2006, for the sum of $1,190.26 (Exhibit P-1), and then monitored the temperature in the freezer and cooler of this business thereafter. Even with this dispute, Gardon Securities continues to monitor those temperatures at Sturgis Meats. That monitoring is done by the Gardon Securities staff in Yorkton, based on information transmitted by the monitoring equipment over telephone line from Sturgis Meats. [2] The initial contract, in 2006, between the parties was for three years, and had provision that the contract would renew thereafter. The contract also states: Gardon Securities assumes no liability for delay or interruption of service due to any acts of God or cause beyond the control of Gardon including interruptions in telephone service. (Exhibit P-1) [emphasis added] [3] In each of the years 2009 and 2010 Sturgis Meats paid $264.00 per year to Gardon Securities for alarm monitoring services (Exhibit P-2). Each of the invoices for these years contained proviso saying: It is the responsibility of each customer to perform routine tests on each system (including components). Gardon will not be responsible for incidents arising from equipment that has not been maintained or tested semi-annually. The case for Sturgis Meats [4] Rodney Wegner is co-owner of Sturgis Meats. He lives about forty-five miles from Sturgis, where the business is located. The monitoring equipment at Sturgis Meats was tested on January 19, 2010 by Gardon Securities, and found to be in good working order (as per the invoice, Exhibit P-3). He said there were two temperature probes in the walk-in cooler and one in the walk-in freezer. He claimed that Gardon Securities set the temperature in the cooler and the freezer, and that he had no involvement with this. Co-owner Bill Baerr, from Rhein, as well said he did not know how to adjust the temperature or monitoring equipment at the business. [5] Terry Hancock, whom the business employed as meat cutter in Sturgis, was away on vacation from August 5, 2010 onwards. As result, on August 14, 2010, Mr. Wegner went with Bill Baerr to check on their business. They found that the freezer was at room temperature and that the meat inside had spoiled. Mr. Wegner later discovered that this resulted from a circuit breaker at the business being tripped off. As no alarm notification had been received from Gardon Securities, he immediately contacted their office. In his words, he received no satisfactory explanation from the woman he spoke to. He then called his insurance broker, and was told to turn the freezer back on and to clean out the freezer. [6] Mr. Wegner returned to Sturgis Meats the next day, August 15, 2010, and opened the door on the freezer to clean it out. When he did so, the temperature in the freezer rose, and within thirty to forty-five minutes he received call from Gardon Securities saying that the alarm had gone off. [7] The meat spoiled as result of the initial temperature change in the freezer was valued at between $23,000.00 and $24,000.00 (Exhibit P-5). The net loss to Sturgis Meats was $11,000.00, after settlement with their insurance broker, who was originally named as defendant in this action. [8] Sturgis Meats claims that Gardon Securities is liable for this loss, by breaching the contract between them. That breach is said to be failing to properly monitor the temperature in their freezer on August 14, 2010, or the days leading up to that day, and failing to notify Sturgis Meats of the rising temperature in their freezer. Sturgis Meats claims that, as result of this failure, they were unable to respond appropriately and to prevent the meat in their freezer from spoiling. [9] Terry Hancock said he knew where the probes and the equipment were hooked up to monitor the temperature in the cooler and freezer at Sturgis Meats, but denied that he had ever adjusted this equipment. He said he called Gardon Securities when there was trouble, but this was not often. He denied ever speaking to Gardon Securities about adjusting the temperature after an alarm sounded or about changing the settings on the monitoring system. The case for Gardon Securities [10] Kelly Stoll has owned Gardon Securities for six years. Gardon Securities provides broad cross section of monitoring services which, in addition to the monitoring of fridges and coolers, includes the monitoring of: water and burglar alarms; vaccines for the health region; life lines for health care clients; and medical pendants. His business also provides an answering service and an overload service for the ambulance. [11] Mr. Stoll purchased the business after the monitoring equipment was installed by Gardon Securities at Sturgis Meats in 2006. He, however, is well acquainted with the equipment installed there and has frequently dealt with this client. He denied any suggestion that the monitoring equipment at the business in Sturgis was the property of Gardon Securities. He said the monitoring equipment that was initially sold to Sturgis Meats became their property and responsibility at that time, in 2006. [12] Gardon Securities’ monitoring services are set up in Yorkton, where the business has eight separate computer receivers. This provides back-up. If one receiver fails, the signal will go on to the next receiver. Records for the monitoring are kept at an alternate site in eastern Canada, which, according to Mr. Stoll, produces records of the monitoring that cannot be altered or erased. He claimed that he was not aware of any failure of the Gardon Securities’ monitoring system over the years, largely because of the medical nature of much of their work and the resulting high level of regulation they are subject to. [13] Exhibit P-6 records the monitoring system contacts between Sturgis Meats and Gardon Securities from January 11, 2006 until November 15, 2012. That document shows that on August 4, 2010 at 9:45 a.m. Sturgis Meats was opened and the security system was disabled. At the same time, the alarm ID was reset (page 37). The records further show that on August 5, 2010 at 2:23 p.m., the building was closed and was not reopened until nine days later on April 14 at 9:39 a.m. It was closed at 11:36 a.m. on that date. There was no alarm reported in these records between August and August 14, 2010. On the next day, August 15, 2010, the building was opened at 10:33 a.m. and an alarm sounded at 11:08 a.m. The notation after that alarm, was “spoke to Janet, they are cleaning out the freezer, gave password”. [14] Mr. Stoll said these records show that his company did monitor the temperature at Sturgis Meats as contracted over the dates in question, and that they did not breach the contract as no alarm was received by them on August 14, 2010 or on the days leading up to that day. He further said that no request was ever received from Sturgis Meats, after this incident, to repair the temperature monitoring equipment at that business. He said many of the clients of his business have their monitoring equipment serviced and checked every three months, and some more frequently than that. [15] Despite what Mr. Hancock had said regarding his discussions with Gardon Securities, Mr. Stoll said he had personally spoken to Mr. Hancock at least ten times and described to him how to turn off and turn on the cooler by use of his computer program. take from his evidence that they discussed how the monitoring equipment would be reset. Mr. Stoll made it clear that he was not in the meat business, and as result did not know what the appropriate temperatures were for the freezer. This meant that he had to seek the advice of people at Sturgis Meats on that question. ANALYSIS: [16] Sturgis Meats has the onus of proving on a balance of probabilities that Gardon Securities breached the contract between the parties by failing to properly monitor the freezer temperature at Sturgis Meats on or before August 14, 2010. [17] Mr. Stoll was cross-examined at length about number of entries in the computer printout (Exhibit P-6). This was an attempt to show that it was possible that the Gardon Securities’ computer monitoring system had failed in the months and years before this incident, and that similar failure could have been the reason notice of the rising temperature in the freezer was not detected and then reported to Sturgis Meats in this case. [18] Mr. Stoll was shown number of entries in Exhibit P-6, on date unrelated to this incident, where there was reference to someone, purportedly from Gardon Securities, responding to an alarm by speaking to someone at Sturgis Meats or by attending at Sturgis Meats to work on the equipment. In response to questions about how that information could find its way into computer log that was automatically generated and incapable of being erased, Mr. Stoll said, and accept, that the person monitoring the computer in Yorkton for Gardon Securities has the ability to manually enter information into the log about who was spoken to or who responded. He, however, maintained, and further accept, that, despite manual additions that may be made, it is not possible in this system to erase the computer record of the signal being received by telephone from business such as Sturgis Meats. [19] The plaintiff submits, in pointing to what they characterized as inconsistencies in the printout, that there was so-called glitch in Gardon Securities’ computer monitoring system that led to no alarm from Sturgis Meats being received by them on August 14, or the days leading up to that day. That purported failure of the Gardon Securities’ monitoring system is said to constitute breach of their contractual obligation to monitor the temperature in the freezer at Sturgis Meats. [20] The defendant, however, states that: (1) it is obvious that the monitoring equipment was working as an alarm was received from Sturgis Meats on August 15, 2010 and no request for repair was ever received from the business after this incident; and (2) the detailed computer records, which are unalterable, and the nature of the computer back-up system at Gardon Securities ensures that there was no failure of the computer monitoring system. The defendant says that the obvious cause of the fact that no alarm was received on or before August 14, 2010 is that the monitoring equipment of Sturgis Meats either failed perhaps from lack of proper maintenance or was adjusted improperly by someone at Sturgis Meats. [21] Based on the original contract between the parties (Exhibit P-1), and ongoing payments being made in 2010 by Sturgis Meats, I am satisfied that the contract between the parties was solely for the monitoring of the temperature in the cooler and freezer at Sturgis Meats, and did not include any obligation on Gardon Securities to maintain or repair the monitoring equipment at Sturgis Meats. If such upkeep was requested by Sturgis Meats, that would be done separately, and would form separate agreement. [22] I am further satisfied, and find, that an employee of Gardon Securities was monitoring the signal from Sturgis Meats on the dates in question and that no freezer alarm was received before the alarm of August 15, when the computer monitoring system was working properly. Given the exclusion clause in this contract which am satisfied is enforceable (see Fraser Jewelers (1982) Ltd. v. Dominion Electric Protection Co. (1997), 1997 CanLII 4452 (ON CA), 34 O.R. (3d) (Ont. C.A.)) the issue becomes whether there was cause beyond Gardon Securities’ control which resulted in no freezer alarm being received by them so it could be reported to Sturgis Meats. [23] In my view it is not possible on the evidence to say with any certainty why Gardon Securities did not receive such an alarm generated by the rising of the freezer temperature at Sturgis Meats on or before August 14. It is possible that there was so-called glitch in Gardon Securities’ computer system. It is, however, equally possible that the reason no alarm was received by Gardon Securities was that none was generated at Sturgis Meats, either because of failure or glitch in the temperature monitoring equipment (which am satisfied belonged to and was the responsibility of Sturgis Meats) or because of the way that monitoring equipment was set or adjusted by someone other than an employee of Gardon Securities. [24] In particular, regarding the latter possibility, do not reject Mr. Stoll’s evidence that he spoke to Terry Hancock at least ten times, during which conversations Mr. Stoll explained how the monitoring equipment could be set. Nor am I satisfied, on the evidence, that Sturgis Meats was regularly having their monitoring equipment serviced or repaired. That is obviously so given the lack of any request for Gardon Securities to attend for check of or the repair of the equipment after the incident, but as well note from the evidence that the monitoring equipment was last serviced on January 19, 2010, about seven months before this incident and more than the minimum of six months suggested by Gardon Securities on their invoice. [25] Given that I find the explanation of what happened in this case, as given by Mr. Stoll, to be at the least as plausible as that presented on behalf of Sturgis Meats, I am not satisfied on a balance of probabilities the plaintiff has proved that the defendant breached this contract by failing to monitor the freezer temperature and by failing to respond to Sturgis Meats. Put another way, there is not in my view proof to that standard that the reason Gardon Securities did not receive freezer temperature alarm from Sturgis Meat was within their control. [26] This action is dismissed. There will be no order as to costs.

The plaintiff entered into a contract with the defendant for the installation and monitoring of temperature monitoring equipment for its meat cutting business. The defendant monitored the temperature in the freezer and cooler at the business. The plaintiffs sued because their freezer failed and meat spoiled after a circuit breaker at the business tripped off. The defendant had received no alarm. The plaintiff asserts that the defendant breached the contract by failing to properly monitor the temperature in the freezer. HELD: The contract between the parties was solely for installation and monitoring. The contract did not include any obligation on the defendant to maintain or repair the equipment at the plaintiff's business. The Court was satisfied that the defendant was monitoring the signal from the plaintiff's business on the dates in question and no alarm was received. It is not possible to say with any certainty why the defendant did not receive an alarm, but the Court was not satisfied that the plaintiff was regularly having its monitoring equipment serviced or repaired. The plaintiff has not proven that the defendant breached the contract. The action is dismissed.

5_2013skpc45.txt

CANADA PROVINCE OF NOVA SCOTIA 1991 S. T. 03937 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: LORNE M. NICHOLSON and SHAWN EDWARD NICHOLSON and THE ATTORNEY GENERAL OF NOVA SCOTIA REPRESENTING HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA AND DARRELL R. MACRAE DEFENDANTS HEARD: at Truro, Nova Scotia, before The Honourable Mr. Justice Walter R. E. Goodfellow, Trial Division DATES: November 26 and 27th, 1991 DECISION: November 27, 1991 (Orally) COUNSEL: R. Malcolm MacLeod Robert K. Dickson, for the Plaintiffs Scott Norton, for the Defendants CANADA PROVINCE OF NOVA SCOTIA 1991 S. T. 03937 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: LORNE M. NICHOLSON and SHAWN EDWARD NICHOLSON and THE ATTORNEY GENERAL OF NOVA SCOTIA REPRESENTING HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA AND DARRELL R. MACRAE DEFENDANTS Goodfellow, J. (Orally): Shawn Edward Nicholson, born October 24, 1969, was operating a 1984 Suzuki motorcycle on the 13th of May, 1988 when he and the motor cycle came into contact with a dump truck driven by Darrell R. MacRae, an employee of the Province of Nova Scotia. The dump truck was owned by the Department of Ariculture and Marketing. At the commencement of the trial, agreement was reached assessing liability at 75% on the defendants and 25% on the plaintiff, Shawn Edward Nicholson. Further agreement was reached on the special damages; the motor cycle loss was agreed at $1,950.00 and past loss of net income of $1,720.00, under Section "B" coverage of the insurance policy. BACKGROUND Shawn Edward Nicholson described how his injuries were incurred. While overtaking the dump truck, it turned left and his right side came into contact with the dump truck. He rolled over the hood of the truck, travelled 25 to 30 feet, landing in the ditch in mud and grass. His initial reaction was to feel sharp pain in his back and he feared paralysis. Shawn noted his pants were ripped at the right knee and blood was coming from wound in that area. At the time of the accident shawn was the lead motorcycle to his friend Scott Harris. Shawn told Scott to call his mother and tell her he was "OK". Shawn remained conscious throughout. He was taken to the Colchester Hospital by ambulance and treated there for his injuries. His family doctor, Dr. A. C. H. Crowe, as alerted and Dr. Crowe attended at the Colchester Hospital and examined Shawn in the emergency room. Dr. Crowe's medical report of October 17, 1988 was entered into evidence by consent and the plaintiffs also called Dr. Crowe to give evidence. His report and evidence is that Shawn suffered a posterior dislocation of his right hip, a compound injury involving his right knee with a disruption of the medial collateral ligament and a fracture of his third right metacarpal in the right hand. The latter is the bone extending from the knuckle into the hand. Shawn was taken to the operating room where closed reduction of the dislocated hip was performed. He had debridement and medial collateral repair to his right knee. Dr. Crowe described the injury to his hand as "inconsequential". The next day, May 14th, he was sent to the Victoria General Hospital in Halifax under the care of Dr. D. I. Alexander, an orthopedic surgeon. On the 17th of May 1988, Dr. Alexander examined Shawn's right knee and right hip under anesthetic. He found the right hip to be stable with no surgery required. He also found the right knee to be stable with mild instability of the medial collateral ligament with no other major ligamentous injury. With respect to the fracture of the right hand, Shawn was referred to Dr. Patelz, plastic surgeon. Dr. Patelz last examined Shawn at the plastic surgery clinic on the 29th of June 1988. It was felt that his fracture had healed and that there was no likelihood of there being any long term problems with his hand in the future and he would have normal function. On the 25th of May, Shawn was discharged back to the Colchester Hospital and finally discharged from the Colchester Hospital on the 2nd of June. During his hospital stay, physiotherapy was commenced with passive machine. His hospitalization totalled 22 days. Shawn returned home from the Colchester Hospital where his mother, Judith Ann Nicholson, set it up so that he could be in the family room. Within week he was taking physiotherapy at the Colchester Hospital twice week and this continued for three weeks to month. Initially he used two crutches. His mother described the right crutch. His right and to the elbow was in cast and the right crutch had an extension so the pressure could be taken at the elbow. After two weeks on two crutches, one crutch for one and half weeks and cane for most of the remainder of the summer. It was approximately 90 days from the date of the accident before Shawn was ambulatory without assistance. Mrs. Nicholson described Shawn on his return home from the Colchester Hospital on June 2nd, 1988 as frustrated, particularly by his very restrictive movement and pain. Shawn used passive machine for therapy at home, rented from Doncaster Medical Supplies and every increase in the degree of movement achieved was accompanied by pain. At the time of the accident Shawn was in Grade XII at Cobequid Educational Centre. His plan was to complete Grades X, XI and XII in four years and this was not interrupted by his injuries. Taking four years was, as he said, "going to happen anyways". He did not have good academic record in Grade X. He had trouble with math and stayed away from the sciences. The accident was May 13th, 1988 and with the help of friends and teachers he completed his year by oral examinations and achieved Grade XII average of 63%. Shawn went to work for week in the latter part of August of 1988 with Miller Excavators and he was driving an excavator which is like backhoe, but considerably bigger. When he returned to high school in September 1988, physically he did not have too many problems. His mother, in her evidence, indicated Shawn would be late for some classes when required to go to class at the other end of the school building on another floor. In the summer of 1989, Shawn worked on maintenance at the Glengarry. Mrs. Nicholson said Shawn's hip and knee were still sore and were worse at the beginning of the 1989 summer. She said Shawn did lot of landscaping in the spring and continual outdoor maintenance for which he was in pain most of the time. In the fall of 1989 Shawn enrolled at U.N B., Fredericton, New Brunswick, in the Faculty of Arts. he had applied for Business Administration but was not accepted because of his math deficiency. He was enrolled on academic probation and in his first year achieved little less than "C" average. In the summer of 1990 he was employed in maintenance at the Glengarry, which included: mowing lawns cleaning pools setting up convention requirements working in the kitchen working on banquets physically returning beer empties and restoring liquor general maintenance, filling in and painting. The activity that troubled him most was carrying beer bottles and liquor supplies downstairs which caused soreness in his hip. He also found setting up tables and chairs involved quite bit of walking and was strenuous somedays, producing limp. The Glengarry is very large spread out complex and at the end of the day he found his hip was usually sore. The soreness was directly related to the activities of the day. His mother confirmed that in the summer of 1990 Shawn physically handled the maintenance and that Shawn was not reluctant to take on the responsibilities but it produced, from her observation, good deal of pain. She said that at the end of day of painting, Shawn would be in pretty bad shape and would be limping very noticeably. Staff members would comment to her about the limping. In September 1990 Shawn returned to U.N.B. He worked very hard on his studies but was unable to achieve as good result as his first year and in April 1991 he was academically required to withdraw from the university. In his first year at U.N.B. Shawn was involved in intra mural soccer indoors, playing Tuesday and Thursday for month on his residence team. In his second year he played snow football, which is tackle football in the snow without wearing protective equipment. He skied once in his first year but was in pain the next day. He did weight lifting twice week both years at U.N.B. with great frequency in his second year. He would do squats which required deep knee bending and then rising lifting weights behind him on bar. He would do sets during to 1k hour workout and lifts weights to maximmum of 220 lbs. Shawn was examined on Discovery in March of 1991 and asked if there were any sports he did before that he does not now and replied, "No, no", He says that now that he played rugby in his first year of Grade XII and did not play after the accident as the doctors said he should not. He does, however, go on to say that he does not miss rugby lot and is not upset about no longer playing it. Shawn did ski before the accident, but there is no evidence of the frequency. Shawn still water skis, weight training and drives his mountain bike in the evening after work. He played softball once, for the motel team, since the accident. With respect to water skiing he skis on one ski. After Shawn returned home in the Spring of 1991, he decided to try change from the family business where he had worked for years. He wanted to prove to himself that he could get employment elsewhere. This is but one of the many examples of the strength of character of this young man. Shawn went to Coupar's Nursery seeking employment as he knew he would not be returning to university. He was hired immediately and started work the next day. His work included raking leaves, sodding, building lawns, building patios, planting trees, digging ditches, etc. He remained in the employ of Coupar's for approximately months. Kevin Paul MacNaughton, the landscape architect for Coupar's Nursery, gave evidence that there was no problem with Shawn's work ethic, that he had the ability to do the work required and was always capable. He would have liked Shawn to continue his employment with Coupar's. About two weeks before Shawn left Coupar's he told Mr. MacNaughton that he had experienced some pain pretty well every day and that he was not sure how long he could continue. Mr. MacNaughton had seen Shawn limp the odd time. Jack Coupar, the owner of Coupar's Nursery, said Shawn's work record was good and Shawn missed very little time. He described Shawn as clean cut, hard working, responsible person and that Shawn's real problem was in the evening with pain. Shawn left Coupar's just before July 15th, 1991 and week later became involved in project with his father. He is turning house into 4‑unit apartment building and anticipates residing in the unit on the third floor. He is the main contractor and has been physically involved including participating in ripping out walls, tearing down ceilings and gyprocing. The existing concrete basement floor has to be broken up and removed in 5‑gallon pails. Shawn has been on the job site every day and at the end of the day he takes load to the dump. He anticipates for the most part the job will be completed by December 1st. Also, the Glengarry has an uptown development whereby it is changing two buildings into restaurant, lounge and tavern. The buildings were warehouse and store and Glengarry has had to tear down walls, make doors, strip ceilings, etc. The work is very extensive and Shawn goes to the dump four to five times day. His father is the general contractor for the project and Shawn is the helper. Shawn said, "I do more of the hard work". Shawn does some rather surprising physical activities. He has used jack hammer and helped in such areas as unloading and carrying sheets of gyprock to the second floor. He described his work on this project as hard, but not as hard as when he worked at Coupar's. At the end of the day his hip will be sore depending on the activity of the day. His knee also is bit of problem about once week. At the most, he experiences sharp pain and feels there is considerable difference between his right leg and his left leg. It would appear that he can handle certain measure of physical activity without too much trouble but continual physical activity as required with his employment at Coupar's is recipe for almost certain pain that evening. On the subject of pain and suffering, do note that Dr. Alexander, the orthopedic surgeon, in his report of November 20th, 1989, stated: "Things have continued to improve and in the summer of 1989 he basically was fairly asymptomatic and in September of 1989 he enrolled at UNB in the faculty of Arts. His extracurricular activities include weight lifting, soft ball and some other non‑contract sports, however, when he does try to do vigorous activities he does get pain in the right hip and right knee area. He also notices that damp weather bothers him, however, the pain is never so severe that he has to take medication." In the period of over three years since the accident, Shawn obtained only one prescription for pain and did not utilize the supply obtained in that prescription. He also tried Tylenol but found this did not help and tended to put him to sleep. Shawn also gave evidence of some concern with respect to his personal sex life as personal physical activities can bring on pain causing cessation of the activities. As young man this is matter of some concern to him. ASSESSMENT OF DAMAGES The two issues to be decided are: 1) The assessment of non‑pecuniary damages, and 2) What future pecuniary loss has been suffered by Shawn and the compensation for such loss. 1. Non‑Pecuniary Damages Dealing with the non‑pecuniary damages that is, for past and future pain and suffering and loss of amenities have been referred to number of cases, all of which have reviewed. No two cases are identical because no two human beings are identical and even where you have identical injuries, which cases are very rare, they are still only guide because identical injuries will impact differently on different people. The decision of Poirier v. Dyer, 91 N.S.R. (2d) 119, does have some similarities. However, it does not have the personal concern Shawn is faced with. Overall the injuries suffered by Anthony Poirier, who was 17 at the time of his accident, were more serious than Shawn's and required much more prolonged period of extensive medical treatment. The injuries received by the young Poirier boy are related in paragraphs to 11: "(3) On admission, the initial concern was the restoration of circulation in the right leg. He was stabilized in the emergency department and placed in splints and traction and prepared for emergency surgery. It was necessary to debride the wound in the leg and clean away dirt and dead tissue. The fractures to the tibia and fibula were aligned by external fixation and he was placed in balanced traction for the femur fracture. (4) On December 13th, 1985, the young lad was again taken to the operating room for further debridement and fixation of the unstable ankle fractures. (5) The third operation occurred on December 20th., 1985, when an intramedulary nail was inserted in the right femur and skin grafts effected. (6) On December 27th, 1985, further skin graft over the tibia took place and the right knee was manipulated. This latter procedure was carried out because, with fractures above and below the joint, the knee joint can become contracted. (7) Before his discharge from the hospital, the young plaintiff underwent further operative procedures including further manipulation of the knee and removal of the fixation on the tibia. (8) Tony was seen in the orthopedic clinic every six weeks until the end of 1986 and about every four months since that time. By April 1986, the fractures were healing but there was considerable restriction of movement of the knee. He underwent an agressive physiotherapy program but his flexion remained at limitation of 95º. Flexion of 130º is normal. (9) In may 1987, Tony was again readmitted to hospital to undergo surgery to improve the range of motion in the knee. Physiotherapy continued after discharge from hospital and although there was some temporary improvement, the restriction has returned to 95º and now there are minimal signs of arthritis in the knee. (10) The ankle healed well and there are no residual problems with the ankle. The hardware was removed in late 1988. (11) At this time, the residual problems related to the knee. It is described as "floating knee" and it cannot absorb shock. The leg turns in slightly and there is 3/4 inch leg length discrepancy. Tony said he limps during times of poor weather and he has pain when he bends his leg. His activities before the accident included bicycle riding, baseball and football in an unorganized fashion. He didn't deny he could still participate in these activities but with more effort and less satisfactory results." The above paragraphs indicate that Anthony Poirier required series of operations and skin grafts and very extensive medical treatment. The plaintiff also refers to number of cases including Sabbas v. Golobic, decision of the British Columbia Court of Appeal, November 15, 1989. In this case an 11 year old girl suffered injuries, the main one being dislocated hip. The Appeal Court did not interfere with the trial judge's award of $65,000.00 for non‑pecuniary damages. The medical reports of Dr. Alexander cover the period of hospitalization on May 14, 1988 to the V. G. Hospital and to the fall of 1989 when Dr. Alexander repeated x‑rays. Dr. Alexander gave letter of clarification in September of 1990 regarding his report of August 8, 1990 on the subject of pain and suffering. Dr. Alexander in his report of August 8, 19990, commented: "When reviewed him on this occasion he told me that there had been some worsening in his symptoms in both his hip and his knee. He told me that walking for long distances would cause his knee to become quite sore and would cause him to limp and he finds that prolonged standing on his feet also bothers him quite bit. He denied, however, any locking, giving away or swelling of the knee joint. With respect to his hip his complaints are those of sharp pain in the superior aspect of the hip area and although it has not been major problem it has been source of concern to him. he has described snapping feeling and sharpness with certain twists of his right hip." Shawn is an impressive young man and he has suffered and will continue to suffer pain in the future. do not think the medical reports reflect the extent and the frequency of pain that Shawn has suffered. His industry and energy have kept him active but at price. accept the evidence of both Shawn and his mother as to the frequency and extent of the pain. It is never an easy job to determine proper compensation for non‑pecuniary damages and in doing the best can; assess Shawn Edward Nicholson's damages at $41,000.00. 2. Future Pecuniary Losses The most difficult area of assessment is for future losses. It requires projection into the future from evidence which is available in the present. In this case, can look to medical evidence to project future limitations on Shawn's physical capacity for employment, to his past work experiences to project limitations on the scope of his employment, and to his family and employment history to project his employment opportunities. Dr. Mahar, in his report of August 16, 1991, had the benefit of all the previous medical reports, x‑rays, etc. In addition he had CT scan of the right hip obtained June 3, 1991 and on page of his report he quoted from that: "On the right side, there is mature new bone formation arising from the acetabulum posteriorly and extending along the posterior acetabular margin. Just inferior to this level and posterior to the femoral heads are several small corticated ossific fragments within the soft tissues above the hip. These findings are presumably post‑traumatic. The femoral head is concentrically seated in the acetabular fossa. There does appear to be definite narrowing of the posterior aspects of the joint with sclerosis and subchondyral cystic change evident in the acetabulum, particularly anteriorly. These finds (sic) are consistant with an element of post‑traumatic osteoarthritis. There is at least one interarticular osseous fragment in the acetabular fossa and there are two smaller ossific fragments medial to the femoral neck which may as well be interarticular." Dr. Mahar's conclusion is: "This reveals then degenerative change within the hip joint or arthritis as evidenced by narrowing at the joint, sclerosis and cystic change. Sclerosis is increased density of bone which occurs due to altered mechanical forces or weight bearing and cystic changes diagnostic, in association with his other problems, of post traumatic osterarthritis." Dr. Mahar also found decreased range of motion in the right hip. Dr. Mahar believes further hip surgery is likely and that Shawn will develop progressive degenerative disease of arthritis over the next 10 years. In his report, Dr. Mahar says at page 7: "This man has had significant injury to the right hip. He has, at time years after his accident, developed degenerative arthritis within the hip joint. There is no evidence, to date, to suggest that he will develop avascular necrosis or death of the femoral head, complication which occurs in 20 percent of posterior dislocations if reduced within few hours and 50 percent if left for longer than that period. He continues to complain of discomfort, which after an initial improvement following his injury has become more troublesome. He demonstrates restriction in range of motion of the right hip, (flexion, abduction, internal and external rotation). This restriction would represent decrease in range from that described by Dr. Alexander, from his last examination of November 1989 (18 months before this examination). Given this change in physical findings, increase in complaints of pain, believe this man will develop progressive degenerative disease or arthritis over the next 10 years." see Dr. Alexander did not have the benefits of the findings of the physiatrist, Dr. Mahar, or the further radiological evidence. Mrs. Nicholson gave evidence of the family business and its requirements. Shawn has been involved since he was about years of age and indicates an intention to make his future in the hospitality industry. Indeed, he has obtained wealth of experience and training from his family background. This is not a case where evidence has been adduced showing a history of income and the interference in that income capacity due to the injuries. There is no evidence of Shawn\'s projected income from the family business and I appreciate the difficulties in adducing such evidence. Nevertheless, it must be recognized that to succeed in claim for dimunition of future income there is an onus to establish some evidence, such as actuarial evidene as base which can be used as guide to the calculation of the loss. Actuarial evidence should only be received where there has been evidence placed before the court which establishes with reasonable certainty the hypothesis on which the actuary is to make his calculations. Such situation exists where there has been total disability and it is clear that the plaintiff will not be in position to earn income in the future. Such situation also exists where it can be said from an appraisal of the evidence that there was reasonable probability of the course of employment open to the plaintiff if the accident had not happened and reasonable probability that the employment the plaintiff will be forced to take because of the accident will involve loss of wages in the future, which loss can be calculated without recourse to speculation or conjecture. Mrs. Nicholson recited the desire for the family business to continue and that she and her husband will be thrilled if Shawn wants to be part of Glengarry. Mrs. Nicholson says that Shawn has grown up in the business and has feeling for it. share her assessment of her son's personality. He projects very personable individual who have no doubt relates easily with other people. Employment in the hospitality industry would appear to be one that he is admirably suited for. Shawn will have difficulty with his hip in the future and have addressed as best can the pain and suffering and the loss of interference with his life style and amenities, particularly for young man, in my award for non‑pecuniary damages. do not think the plaintiff has established dimunition for which actuarial evidence is of any assistance. Shawn does have reduced capacity for his chosen employment and he has limitation as to the fields of employment should he ever be required or desire to leave the hospitality industry. Essentially though, think as best can judge it in all probability his future will unfold as planned. I am satisfied that by reason of his hip injury his employment opportunities are less than they were before the accident and in that sense he has suffered a loss of a wider employment horizon. He has suffered a reduction in his capital asset and in the breadth of his employment opportunities and he is entitled to be compensated therefore. There will also be financial consequences for him in the hospitality industry. In all probability he will face periods of financial expenditures for physical assistance related to his own limitations from time to time. Such loss is very difficult to quantify. I consider the only appropriate way to compensate him is to award a lump sum for this loss which is separate and apart from the non‑pecuniary damage. For the restriction in future employment and financial consequences that will follow from that, I award further compensation of $21,000.00 CONCLUSION The plaintiff, Shawn Edward Nicholson, recovers 75% of the loss of income net of Section "B" coverage agreed in the amount of $1,720.00 with prejudgment interest at 3/4% from the 1st of August, 1988. General damages for non‑pecuniary matters of $41,000.00 with prejudgment interest at the agreed rate of 9 3/4% from May 13, 1988 and general damages related to future income losses of $21,000.00 from which there is no entitlement to prejudgment interest. will now adjourn for 15 minutes to give counsel an opportunity, if they can, to address the matter of costs, failing which will hear counsel and try to deal the matter of costs and disbursements. J. Truro, Nova Scotia November 27, 1991 1991 S. T. 03937 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: LORNE M. NICHOLSON and SHAWN EDWARD NICHOLSON and THE ATTORNEY GENERAL OF NOVA SCOTIA REPRESENTING THE QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA AND DARRELL R. MACRAE DEFENDANTS DECISION OF GOODFELLOW, J.

A 19 year old motorcyclist collided with a dump truck and suffered a dislocated hip, knee injuries and a minor hand injury. He was hospitalized for 22 days. Three years after the accident, continued physical activity caused him pain. Further hip surgery, as well as progressive degenerative arthritis, was likely. Awarding the plaintiff $21,000 for future pecuniary loss, that his employment opportunities were less now than before the accident and he was entitled to lump sum compensation. No weight was given to the plaintiffs actuarial report since there was no history of income and no evidence of projected income from the family hotel business in which the plaintiff was expected to continue. Non-pecuniary damages of $41,000 were awarded.

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1999 SKQB 76 D.I.V. A.D. 1998 No. 305 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: SHARON CHRISTINE LANG and EDWARD JAMES HERBERT LANG RESPONDENT E. F. Anthony Merchant, Q.C. for the petitioner Mervin C. Phillips for the respondent JUDGMENT KYLE J. September 18, 1999 [1] This action raises issues about matrimonial property and especially the matrimonial home. [2] It may be assumed that legislatures in passing matrimonial property legislation sought to eliminate the injustice of spouse, almost always wife, being left in poverty by the departure of the breadwinner in whose name most of the family assets were habitually held. In many cases she was left with nowhere to live. [3] It may also be assumed that in making the law gender-neutral it was recognized that most often the young children of broken home remain in the custody of the mother and so discretion was given to judge to ameliorate the equal division regime which the registration imposed. This has special application to the matrimonial home. [4] If in this case pursue the “ordinary case” regime would divide the matrimonial home or the proceeds of its sale equally. It was, prior to the 21 month marriage between the parties, the long term family home of Sharon Lang and her 10 children all born of a previous marriage. Five of those children live with her in the home today. Such division would mean that Edward Lang for his 21 month involvement in the family was being given one-half of the only asset the family has. They would either have to assume large mortgage or move out of their modest $60,000.00 home to far more modest home or to rental accommodation. [5] Edward Lang has some assets which can be shared but her share would only be $2,000.00 or so as he is quick to claim exemption for his own house, which they never lived in, and all of the assets which he had before the marriage. [6] Sharon Lang is 51 and has, now that her family duties allow it, sought to improve her economic prospects. She has obtained grade 12 equivalency and is engaged in training as teacher’s assistant at SIAST. She holds down two jobs, one as noon hour supervisor in the separate school system and one as an office cleaner at night. She has no savings, no pension and she is supported in part by welfare funds. [7] Edward Lang is employed by the public school system and has a permanent job. He has the prospect of an inheritance from his mother, a good pension, his own home with no mortgage and in short no financial problems. He would be even better off if were to award him the $25,000.00 or so that he has claimed against the matrimonial home. Under the provisions of s. 22 of The Matrimonial Property Act, 1997, S.S. 1997, c. M-6.11 (the “Act”), must distribute the matrimonial home or its value equally unless am satisfied that it would be (a) unfair and inequitable to do so having regard only to any extraordinary circumstance; or (b) unfair and inequitable to the spouse who has custody of the children. [8] While it might seem that this case would fit squarely under subparagraph (b) am cautioned by counsel for the respondent that “the children” in this context refers to children of this marriage and not to the five or ten holdovers from Sharon’s first marriage. make no finding in that regard. [9] Precedents arising in this Court and the Court of Appeal suggest that neither marriage of short duration nor the prior ownership of home by one party or inheritance or gifts by one side of the family constitute extraordinary circumstances. I am persuaded however, that the prior ownership of the home by Sharon and its occupancy by her many children, the economic imbalance between Edward and Sharon and the brevity of the marriage combine to make this an out of the ordinary or unusual case. This is, after all, what “extraordinary” means however narrowly it may have been construed in the past. [10] This is court of equity and the Act does not think, impair my equitable jurisdiction. In fact, it emphasizes it in s. 22 so must do equity. The matrimonial home will therefore not be distributed but allowed to remain in Sharon’s name as it was for many years before she met Edward. [11] There are other property issues. Section 21 mandates the division of matrimonial property other than the matrimonial home. There is certain personal property, vehicles etc. which is, am satisfied, divided approximately equally between the parties already and direct no further division or appraisal of those properties. There is also: (1) an accrual to Edward’s pension during the period between the marriage and the application date of May 21, 1998 valued at $8,358.00; (2) an accrual to his Standard Life contract during the same period in the amount of $1,200.00. These two items are subject to income tax so I have applied a 30% deduction to their value leaving $6,690.00. To that number must be added the accrual to a Sun Life policy during the same period of $2,200.00 for a total of $8,890.00, one-half of which accrues to each of the parties or $4,445.00. Edward has assumed debts of almost $5,000.00 of which $2,500.00 must be credited to him, leaving a credit to Sharon of $1,945.00. [12] have considered and rejected arguments that involved calculation of the precise value of the personal properties because the evidence had was not reliable and there was an appearance of equality as noted above. I have also accepted the claim that Edward’s house, jointly owned with his mother as protection “in case he meets someone” is exempt property. have rounded some of the numbers and ignored the fact that the mortgage on the matrimonial home was reduced by about $10,000.00 during the period in question. Both parties had the benefit of the matrimonial home during the marriage. [13] It is to the credit of Edward that at trial he conceded that his claim for 50% of the equity was perhaps unfair (i.e. inequitable) and that 25% would do. As well he was prepared to extend the time for payment. However the claim was, in its entirety, inequitable and had he not filed counter petition there would have been no division, no trial and no excessive legal costs because the petition made no property claims whatever. I therefore direct that there shall be judgment in favour of Sharon Lang for $1,945.00 plus an award of costs of $5,000.00 for a total of $6,945.00.

Division of matrimonial property and the matrimonial home were in issue. The respondent claimed exemption for his own house and all of the assets he had before the marriage which lasted 21 months. HELD: The petitioner was awarded $1,945 plus costs of $5,000. The respondent's claim was inequitable in its entirety. 1)Saskatchewan precedents suggest that neither a marriage of short duration nor prior ownership of a home or inheritance or gifts by one side of the family constituted extraordinary circumstances. However, prior ownership by the petitioner and its occupancy by her children, the economic imbalance between the spouses and the brevity of the marriage combined to make this an 'extraordinary' case. The home was to remain in the petitioner's name. It was the long term family home of the petitioner and her 10 children born of a previous marriage. Five of those children still lived with her in the home. The respondent had a permanent job, the prospect of an inheritance, a pension and his own home with no mortgage. 2)Credit was given to the respondent for half of the debts assumed. One-half of the accrual to his pension and his two life insurance contracts was credited to the petitioner less a 30% deduction for income tax. The respondent's house, jointly owned with his mother, was exempt property.

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Q.B.G. A.D. 1997 No. 1793 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA and HER MAJESTY THE QUEEN RESPONDENT D.M. MacMullin on behalf of Peter Chow M.M. Vass on behalf of her Majesty the Queen JUDGMENT ZARZECZNY J. January 2, 1998 The appellant, Peter Chow, appeals his conviction on acharge of dangerous driving contrary to ss. 249(1)(a) of theCriminal Code, R.S.C. 1985, c. C-46. The conviction was entered June 5, 1997, by Her Honour, Judge J.E. McMurtry of the Provincial Court. There are two grounds of appeal, namely:1. The learned trial Judge erred in holding thatstatements made by the Appellant were not made pursuant tothe Highway Traffic Act and therefore admissible in thecriminal proceedings against the Appellant.2. The learned trial Judge erred in holding that therewas no evidence to indicate that statements made by theAppellant were made pursuant to the Highway Traffic Act andthese statements could have been made simply because theAppellant wished to have his description of the accidentpresented to the police and therefore were voluntary andadmissible in criminal proceedings. During the trial, and after conducting voir dire to determine the admissibility of certain statements made by the accused to Constable Louvel, member of the Regina City Police Force, the learned trial judge concluded that the statement made by the accused was voluntary and admissible. review of the transcript reveals that the accused attended at the Regina City Police station to report an accident. He reported to Constable Louvel that he was the driver of vehicle involved in collision April 12, 1996, in the 2000 block Broad Street. Constable Louvel had earlier received the statement of other witnesses involved in the accident. At pp. 60 and 61 of the transcript he testifies: A.The one gentleman was asked to take seat while the gentleman here was taken into small interview room where we discussed the matter. From the statements had received earlier formed an opinion that what had happened was dangerous driving and he was issued an appearance notice in relation to the charge. We also completed an accident report at that time as he had identified himself as the driver. Again, at pp. 64 and 65, Constable Louvel was asked and gave answers to the following questions: Q.So in the initial discussion out at the front desk there had been no rights to counsel or caution. A. No. Q.Is that correct? A.No. He was just in to report the accident at that time. No other evidence was produced by the Crown at the trial to identify who was driving the vehicle in question other than the statement given by Mr. Chow. The argument of defence counsel at the voir dire was to the general effect that the statement made by the accused (namely that he was the driver of the vehicle) was given pursuant to the compulsion of statute, namely, s. 83 of The Highway Traffic Act, S.S. 1986, c. H-3.1. As such it was not "voluntary" statement and therefore ought to be ruled inadmissible. Counsel then argued that should McMurtry J. agree with that submission there existed no evidence of identity and consequently the charge should be dismissed. It is clear from the transcript of the trial that the arguments of counsel with respect to the admissibility issue were based upon the application of common law principles of voluntariness. During the argument on appeal however it was recognizedthat the question of voluntariness raised a s. 7 Canadian Charterof Rights and Freedoms, Part I of the Constitution Act, 1982,being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11("Charter") issue. Neither the argument before McMurtry J. nor the noticeof appeal raised the Charter argument. The determination of the Charter issue is at the heart of this case and may very well be conclusive of the voluntariness issue. If the accused's statement is not admitted the conviction of the accused cannot stand. (See, for example, considerations of the admissibility of statement given under compulsion of provincial statute in the context of criminal prosecution and s. of the Charter as reviewed in the cases of R. v. Hicks (1988), 1988 CanLII 7148 (ON CA), 42 C.C.C. (3d) 394 (S.C.C.); R. v. Sarkonak (1990), 1990 CanLII 10982 (MB QB), 53 C.C.C. (3d) 542 (Man. Q.B.); R. v. Spyker (1990), 1990 CanLII 10954 (BC SC), 63 C.C.C. (3d) 125 (B.C.S.C.); R.v. Fitzpatrick (1995), 1995 CanLII 44 (SCC), 102 C.C.C. (3d) 144 (S.C.C.).) One other aspect of this case needs to be addressed in the context of the second ground of appeal. The trial judge, in giving her ruling on the admissibility of the accused's statement after the voir dire concludes at p. 82 of the transcript: As am not aware of the reason why Mr. Chow attended to the police station and gave the information, cannot say that the question arises in this case as to whether or not The Highway Traffic Act obligation to give report to the police renders any statement made during the report involuntary. Accordingly, for that reason do not find the statements made by Mr. Chow to be involuntary. With respect to the learned trial judge, find it difficult to agree with her conclusions in this respect or her statement that notwithstanding the evidence of Constable Louvel already referred to she was not aware of the reason why Mr. Chow attended at the police station. Constable Louvel testified that it was his understanding Mr. Chow did so to give an accident report. Had the Charter issues been properly raised and arguedbefore the learned trial judge, a conclusion different from theone she reached (based solely upon the application of common lawprinciples of voluntariness) may well have resulted. The Saskatchewan Court of Appeal, in the case of R. v.; Pelletier (1995), 1995 CanLII 3923 (SK CA), 97 C.C.C. (3d) 139, established that objections to the admissibility of evidence in criminal trials based upon Charter arguments must be made on timely basis. Mr. Justice Tallis observed "the need for some element of discipline with respect to s. 24(2) applications". The issue now raised is an important issue and impacts directly and perhaps conclusively upon the conviction of the accused. Objections to the admissibility of the accused\'sstatements based upon s. 7 of the Charter raise a different issueand different considerations from the application of common lawprinciples. There may also be different approach to the evidence that counsel for either the accused or the Crown may adduce in the voir dire in order to establish the foundation for the Charter argument. In the result, and particularly out of consideration for the justice of the case insofar as the accused is concerned, the appropriate approach in disposing of this appeal is that taken by the Court of Appeal in the Pelletier case directing, as it did, that new trial be ordered. Accordingly, the appeal is allowed, the conviction setaside, and a new trial in the Provincial Court is ordered.

An appeal of conviction on a charge of dangerous driving on the grounds the trial judge erred in holding that statements made by the appellant were not made pursuant to the Highway Traffic Act and therefore admissible in the criminal proceedings; and in holding the statements could have been made simply because the appellant wished to have his description of the accident presented to the police and therefore were voluntary and admissible. The defence at the voir dire was that the statement by the accused that he was the driver of the vehicle was given pursuant to the compulsion of a statute, s 83 of the Highway Traffic Act, and as such was not a 'voluntary' statement. Arguments during trial were based upon the application of common law principles of voluntariness. HELD: The appeal was allowed, the conviction set aside and a new trial ordered. During the appeal it was recognized that the question of voluntariness raised a s7 Charter issue which was not raised in the trial nor in the notice of appeal. Objections to the admissiblilty of the accused's statements based upon the Charter raise a different issue and considerations from the application of common law principles and a different conclusion may have been reached.

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