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Registrar C.A. No. 128144 NOVA SCOTIA COURT OF APPEAL Freeman, Bateman and Flinn, JJ.A. BETWEEN: FREDERICK W.F. BLACK and KRUPP MaK MASCHINENBAU GmbH body corporate, and KRUPP MaK DIESEL INC., body corporate Respondents the appellant appeared in person Thomas M. MacDonald for the Respondent Appeal Heard: October 9, 1996 Judgment Delivered: October 22, 1996 THE COURT: Appeal dismissed with costs to the respondents in the amount of $1500.00 inclusive of disbursements per reasons for judgment of Bateman, J.A.; Freeman and Flinn, JJ.A. concurring. BATEMAN, J.A.: Mr. Black appeals the Order of Justice Michael MacDonald of the Supreme Court dated April 30, 1996, dismissing a motion to strike the plaintiffs' (respondents') Originating Notice and Statement of Claim. Background: The respondent companies claim that they are creditors of bankrupt company, NsC Diesel Power Inc. The appellant was the shareholder, chief officer and controlling mind of that company. On August 10, 1994, Associate Chief Justice Palmeter granted an Order (issued September 7, 1994) pursuant to s. 38 of the Bankruptcy and Insolvency Act, as amended. That Order was granted upon the motion of the respondents herein (Krupp) who sought leave of the court to initiate an action against the appellant, as is required by s. 38. The appellant unsuccessfully applied for an Order of this court declaring the s. 38 Order, along with other Orders granted by Palmeter, A.C.J., "nullity". The decision of Pugsley, J.A., in Chambers, on this issue, is dated October 26, 1994. The appellant by way of application purported to appeal that decision to the Chief Justice, who, by decision dated November 24, 1994, dismissed the application. On September 28, 1995, the respondents commenced the action in the Supreme Court against the appellant, seeking, inter alia, damages for the appellant's alleged fraudulent actions as the controlling mind of NsC Diesel Power Incorporated. Justice Michael MacDonald was assigned to case manage that action. By Originating Notice (Application) dated January 9, 1996, Mr. Black applied to the Court for an Order declaring that Associate Chief Justice Palmeter was without jurisdiction to grant the s. 38 Order; that the respondents' action be dismissed or stayed in that Nova Scotia is not the forum conveniens; and that the action should be dismissed as the Nova Scotia courts are not impartial. That application was heard by the case management judge. In decision dated February 9, 1996, Justice MacDonald found that the Order of Palmeter, A.C.J. remained valid Order of the Supreme Court. He declined to dismiss or stay the proceeding, as the balance of convenience strongly favoured the continuance of the action in Nova Scotia. He found, as well, that there was no material before him demonstrating bias or to support reasonable apprehension of bias on the part of Nova Scotia judges. Mr. Black's application was dismissed. It is from that Order that Mr. Black appeals. Issues: The appellant states the following grounds of appeal: 1. THAT the learned Chambers Judge erred in law, insofar as he failed to consider and apply the provisions of the Bankruptcy and Insolvency Act R.S.C. 1985, c. B-3 as amended, sec. 38 to the facts of the cases; and failed to consider the prejudicial and damaging effects of the order sought to be rescinded; 2. THAT the learned Chambers Judge erred in law, insofar as he failed to consider matters respecting the roles, and the rights, of the applicant as defined in the Constitution Act, 1982 R.S.C. 1985, c. 11 (U.K.), specifically s. 1., 7., 15. (1), 24(1), 32(1)(a) (b), and 52.(1) and the Canadian Bill of Rights, and specifically s. 1(a) 2(d); 3. THAT the learned Chambers Judge failed to remove himself as he was unable to act in an impartial and unbiased judicial man (sic) 4. THAT the learned Chambers Judge erred in law, insofar as he failed to consider evidence in the file. He seeks the following relief: 1. THAT the Decision of Justice MacDonald be reversed and an order granted rescinding the Order of the Court in Bankruptcy dated September 7, 1994 and striking the plaintiffs' originating notice and statement of claims in action S.H. No. 120859; 2. THAT the Court award costs, of the motions in the Courts below and on appeal, to the appellant payable forthwith; Mr. Black has not appealed Justice MacDonald's finding that Nova Scotia is the forum conveniens. Grounds 2, and are argued in the context of the allegations of bias and failure to consider the evidence. The issues on this appeal are, therefore, the challenge to the s. 38 Order; the allegations of bias; and the judge's, alleged, failure to consider the evidence. Analysis: (i) Bankruptcy and Insolvency Act s. 38 Order: Section 38(1) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, provides: (1) Where creditor requests the trustee to take any proceeding that in his opinion would be for the benefit of the estate of bankrupt and the trustee refuses or neglects to take the proceeding, the creditor may obtain from the court an order authorizing him to take the proceeding in his own name and at his own expense and risk, on notice being given the other creditors of the contemplated proceeding, and on such other terms and conditions as the court may direct. creditor is "a person having claim, preferred, secured or unsecured, provable as claim under" the Act. It was Mr. Black's submission before MacDonald, J. that Chief Justice Palmeter was without jurisdiction to issue the s. 38 Order because the respondents are not "creditors" of the bankrupt company, NsC Diesel Power Incorporated, a status essential to the granting of the Order. The threshold issue before us is whether MacDonald, J. had jurisdiction, in the proceeding before him, to strike the respondents' Statement of Claim on the basis that, as submitted by Mr. Black, Palmeter, A.C.J. was wrong in granting the s. 38 Order. Mr. Black, on this jurisdictional issue, submits that MacDonald, J. wrongly refused to exercise jurisdiction or, alternatively, that he did exercise jurisdiction, in that he reviewed, in a limited way, the merits of the decision of Palmeter, A.C.J., but erred in the result. A review of the transcripts of the pre-hearing conference and of the hearing reveals that MacDonald, J. was of the firm view that he did not, in the context of the application before him, have jurisdiction to review the s. 38 Order. Mr. Black, however, insisted upon advancing this argument in his submissions to the judge. MacDonald, J. wrote in his decision: At the Section 38 hearing, Palmeter, A.C.J. had before him affidavit evidence confirming that the plaintiffs were creditors of the bankrupt estate. The plaintiffs' request for standing was supported by the trustee. The defendant has applied to the Nova Scotia Court of Appeal, without success, to have Palmeter, A.C.J.'s order declared nullity. It remains valid order of this Court. As such, this Court has jurisdiction to hear the plaintiffs' claim. This aspect of the defendant's application, therefore, fails. (emphasis added) Mr. Black submits that the above passage confirms that MacDonald, J., notwithstanding the reservations he expressed, did assume jurisdiction to review the Order of Palmeter, A.C.J. and in so doing should have received and considered the substantial volume of material submitted by Mr. Black on the issue of whether Krupp was creditor of NsC Diesel. He further submits that MacDonald, J. was clearly wrong when or if he concluded that prima facie case that Krupp was creditor had been made out before Palmeter, A.C.J. disagree with the interpretation Mr. Black places upon the remarks of MacDonald, J. The judge did no more than confirm that the Order of Palmeter, A.C.J., not having been declared nullity in this court in the proceeding before Pugsley, J.A., remained valid court Order. In the alternative, even should we accept Mr. Black's submission that MacDonald, J. assumed jurisdiction, with which submission disagree, we must nevertheless consider whether he had such jurisdiction. If he did not have jurisdiction to review the s. 38 Order, he was correct in not receiving the evidence purportedly impugning its validity. The record confirms that Justice MacDonald was correct when he noted that Associate Chief Justice Palmeter had before him evidence that the respondents were creditors of the bankrupt estate. In particular, Axel Kettmann of Hamburg Germany, lawyer employed by the respondents, in paragraph of his Affidavit of June 21, 1994, deposes that the respondents Krupp "are creditors of the estate of the bankrupt NsC Diesel Power Incorporated and have filed Proofs of Claim together with supporting documentation with respect to the bankruptcy". This evidence was unchallenged. Indeed, the trustee in bankruptcy supported the respondents' s. 38 application. Mr. Black's submission that there was no evidence before Palmeter, A.C.J. that Krupp were creditors of the bankrupt estate is in error. Mr. Black's complaint is therefore restricted to the sufficiency and reliability of that evidence. He wished to have an opportunity, in the proceeding before MacDonald, J., to attack the evidence of Axel Kettman and tender contrary evidence. It is settled law that an affected party, here Mr. Black, has no standing in s. 38 application. The transcript of the proceeding before Palmeter, A.C.J., reveals that, while Mr. Black did not have standing on that motion, he was permitted to appear and make limited representations. He asserted, as he did here and before MacDonald, J., that there was no evidence that the respondents were creditors of the bankrupt estate. There was discussion on that issue with representations on behalf of the Superintendent of Bankruptcy as well as the solicitor for the respondents. The judge was satisfied that prima facie case had been made out. All of this is, however, irrelevant to the question of the jurisdiction of MacDonald, J. to review the s. 38 Order. In support of his position that Justice MacDonald possessed jurisdiction to review the Order, Mr. Black has cited Toyota Canada Inc. v. Imperial Richmond Holdings Ltd. (1993), 10 AIta.L.R. (3d) 127 (Q.B.). In that case, which is not binding upon this court, the judge who had granted s. 38 Order ruled that the affected party, had standing to appear before him to challenge the Order on the basis of alleged procedural irregularities. The situation before this court is not analogous. Mr. Black is seeking to challenge the finding of fact by Palmeter, A.C.J., that, for the purposes of the s. 38 application, the respondents are creditors of the bankrupt estate. factual finding is distinct from procedural irregularity. Had there been no evidence before Palmeter, A.C.J. that the respondents were creditors of the bankrupt estate, then there may have been procedural error in the granting of the Order and we would have to consider whether the Toyota case applied, so as to give Mr. Black standing to challenge the s. 38 Order and, if so, in what form of proceeding that challenge could be made. Mr. Black cites, as well, B.N.R. Holdings Ltd. v. Royal Bank (1992), 1992 CanLII 1093 (BC CA), 16 C.B.R. (3d) 72 (B.C.C.A.). In that case an action was commenced by creditors of the undischarged bankrupt company, without benefit of s. 38 Order, long after the trustee had been discharged and the company struck from the register of companies. Six years after the commencement of the action the defendant applied for dismissal of the proceeding for want of prosecution or, in the alternative, to have the statement of claim struck. After various interim applications, the chambers judge, inter alia, ordered that the trustee be reappointed and granted an Order pursuant to s. 38 permitting the creditors to bring the action. The issue before the court of appeal was whether leave pursuant to s. 38 could be granted nunc pro tunc. The court held that, as no cause of action existed until leave of the court was granted, the existing action could not be authorized retrospectively. Mr. Black is of the view that in this case the Court of Appeal assumed the jurisdiction to review the s. 38 Order of the chambers judge and, thus, we have jurisdiction to review the s. 38 Order, as did MacDonald, J. B.N.R. is not analogous to the situation before us. In B.N.R. the chambers judge was granting an original s. 38 Order, not reviewing his own Order or that of another judge. The Court of Appeal was not reviewing whether the conditions precedent to the granting of s. 38 Order had been met nor the validity of the s. 38 Order, per se, but, rather, determining whether an action, commenced without leave could be retrospectively revived. B.N.R. does not bear upon the jurisdiction of MacDonald, J. to review the s. 38 Order. Mr. Black refers, as well, to Construction Co. v. Reid (1985), 1985 CanLII 616 (BC SC), 56 C.B.R. (N.S.) 232 (B.C.S.C.). There the chambers judge held that the defendants, in an action commenced by creditors pursuant to an Order under s. 20 of the Bankruptcy Act, did have status to bring an action for declaration that the proceedings were nullity and void ab initio on the ground that the proceedings were authorized by an Order of the registrar rather than by an Order of judge of the bankruptcy court. Again, this case is unhelpful to Mr. Black. There is distinction between an application challenging an action on the basis that it is nullity, due to failure to meet mandatory statutory conditions, and challenge to the factual findings made by judge in the process of granting the Order. Indeed, in Paris, J. wrote at p. 5: Finally, objection is taken that the material before the registrar was inadequate to justify the making of the order. It is questionable in my mind to what extent judge in my position can review the decision of the court or registrar authorizing the proceedings. But, in any event, there was before the registrar clear, uncontradicted allegation, under oath, of fraudulent preference and dispositions by the bankrupt in favour of the defendants. In my view, that was certainly sufficient to warrant an order. (emphasis added) Mr. Black cited Toronto Dominion Bank v. Alex L. Clark Limited (1992), 22 C.B.R. (3d) (O.C.J.,Gen.Div.). There an applicant for s. 38 Order failed to satisfy the judge of his status as creditor. That case is relevant only to the question of the sufficiency of the evidence before the judge on the s. 38 application. It is not helpful on the issue of MacDonald, J.'s jurisdiction to review the Order. In short, none of the authorities put forward by Mr. Black are supportive of his position. Re Coroban Plastics Ltd. (1994), 1994 CanLII 1135 (BC CA), 34 C.B.R. (3d) 50 (B.C.C.A., in Chambers) is, in my view, dispositive of this issue. There, the affected party sought leave to appeal the granting of s. 38 Order. After thorough review of the authorities, Taylor, J.A. wrote at p. 54: These decisions, taken together, seem to me to establish clearly that on s. 38 application, such as that which resulted in the present order, neither the bankrupt nor any other proposed defendant in the intended action has right either to notice or to be heard on the application, and that neither the bankrupt nor any other proposed defendant will have standing to appeal any order made on such an application, provided that it goes no further than to authorize action to be brought this being for the reason that their rights will not be affected by s. 38 order so long as it goes no further than that. The effect of the order is to transfer from trustee to creditor whatever right of action may exist much, no doubt, as chose in action may be contractually transferred from one party to another, without adversely affecting the debtor. The order in this case imposes no liability on the appellant which did not previously exist, and leaves it free to assert in the action every defence it ever had. (emphasis added) And at p.55: After hearing the application invited the assistance of counsel with respect to two decisions, Wilson v. The Queen, 1983 CanLII 35 (SCC), [1983] S.C.R. 594, and Caisse Populaire Vanier Ltée v. Bales (1991), 1991 CanLII 7294 (ON SC), O.R. (3d) 456 (Gen. Div.), which were not referred to in argument. am obliged to them for their written responses to this request. Wilson v. The Queen sets out the principle that, absent fraud or new evidence, it is not possible to attack an order in proceedings other than those whose specific purpose is the reversal, variation or nullification of that order. In Caisse Populaire Vanier Ltée v. Bales it was held that challenging the validity of s. 38 order in the proceeding commenced pursuant to the order would amount to such collateral attack, and is therefore impermissible. (emphasis added) The appellant's attempt to challenge the validity of the s. 38 Order, in the proceeding before MacDonald, J. was a collateral attack. His application could therefore not succeed. Section 187(5) provides procedure for limited review of an Order granted pursuant to the Bankruptcy and Insolvency Act. The subsection permits court to "review, rescind or vary any Order made by it under its bankruptcy jurisdiction". would make no finding as to whether non-party to the s. 38 proceeding can seek review under this section. Taylor, J.A., remarked in Coroban, supra, at p. 55, "such provision cannot invoke any wider test for standing than would otherwise apply". Suffice to say, the application before MacDonald, J. was not made pursuant to s. 187(5). It is Civil Procedure Rule 14.25 that governs the striking of Statement of Claim. Mr. Black's application before MacDonald, J. was not made pursuant to this Rule, which provides: 14.25 (1) The court may at any stage of proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struck out or amended on the ground that, (a) it discloses no reasonable cause of action or defence; (b) it is false, scandalous, frivolous or vexatious; (c) it may prejudice, embarrass or delay the fair trial of the proceeding; (d) it is otherwise an abuse of the process of the court; and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly. (2) Unless the court otherwise orders, no evidence shall be admissible by affidavit or otherwise on an application under paragraph (1)(a). As was held by this court in Sherman v. Giles (1994), 1994 CanLII 3964 (NS CA), 137 N.S.R. (2d) 52, affidavit evidence is not admissible to prove or disprove allegations of fact in an application to strike pursuant to this Rule. It was confirmed in that case that the allegations of fact, as set out in the Statement of Claim, must be taken to be true. The Statement of Claim asserted that the respondents are creditors of the bankrupt estate. Had Mr. Black advanced his application under this Rule, which, in any event he did not, he could not have succeeded. Accordingly, I would find that this ground of appeal fails. (ii) Bias: In addition to the claim that was before MacDonald, J., that the courts in Nova Scotia are biased in this matter, the appellant alleges on this appeal, that MacDonald, J. acted with bias in his handling of the application. This latter allegation is set out at paragraphs 42 and 43 of Mr. Black's factum: It is respectfully submitted that Justice MacDonald did not wish to have to deal with the jurisdiction and the correctness of the Order of Palmeter ACJ., as the Associate Chief Justice is and was responsible for the duties as assigned to the Associate Chief Justice by the Chief Justice of the Supreme Court being "...the assignment of judicial duties." and both the Chief Justice and the Associate Chief Justice had precedence over Justice MacDonald. It is respectfully submitted that Justice MacDonald, when he knew that the correctness of the Order of Palmeter ACJ. would be tested on the Application to be heard on February 9, 1996, should have removed himself as he would not be able to deal with the application in an impartial and unbiased manner without personal prejudice to himself in the pursuit of his own judicial career. Mr. Black submits that MacDonald, J. was aware that Palmeter, A.C.J., did not have evidence before him that Krupp was creditor, therefore one is inevitably led to the conclusion that MacDonald, J. could only have refused to overturn the s. 38 Order because he feared repercussions. This allegation is preposterous and completely unsupported by the record. There was evidence before Palmeter, A.C.J. that the respondents were creditors. MacDonald, J. did not have jurisdiction to review the s. 38 Order. There is nothing in the extensive record before this court to indicate that MacDonald, J. acted other than in an impartial and fair manner in considering the application before him. On the issue of bias in the Nova Scotia courts, generally, MacDonald, J. was correct in his finding that the appellant's submission before him had no merit. I would dismiss this ground of appeal. (iii) Failure to Consider the Evidence: Mr. Black further alleges that MacDonald, J. erred in that he failed to consider the evidence before him. It was the appellant's view that his evidence was compelling and determinative. That the trial judge was of different view, however, does not lead to the conclusion that he did not consider the evidence. Having reviewed the record to the extent necessary, am satisfied that MacDonald, J. properly considered the admissible and relevant evidence before him. As he did not have jurisdiction to review the s. 38 Order, he was correct in limiting the evidence submitted by Mr. Black to the degree that he did. I would dismiss this ground of appeal. Fresh Evidence: Mr. Black sought to tender fresh evidence at the hearing in the form of an Affidavit of several persons which he maintains is relevant to the relationship between the trustee of the bankrupt NsC Diesel and Krupp and to the status of Krupp as creditor. In view of my finding that MacDonald, J. did not have jurisdiction to review the s. 38 Order, the affidavit is not relevant to an issue before us. It is thus unnecessary to determine if it meets the stringent test for the receipt of fresh evidence as set out in Thies v. Thies (1992), 1992 CanLII 2590 (NS CA), 110 N.S.R. (2d) 177 (N.S.C.A.). The affidavit should not be received. Disposition: I would dismiss the appeal with costs to the respondents in the amount of $1500.00 inclusive of disbursements. Bateman, J.A. Concurred in: Freeman, J.A. Flinn, J.A. CANADA C.A. No.128144 PROVINCE OF NOVA SCOTIA IN THE NOVA SCOTIA COURT OF APPEAL 1995 S.H.No.120859 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: KRUPP MaK MASCHINENBAU GmbH body corporate, and KRUPP MaK DIESEL, INC., body corporate PLAINTIFFS/ RESPONDENTS and FREDERICK W.L. BLACK APPELLANT HEARD BEFORE: The Honourable Justice J. Micheal MacDonald PLACE HEARD: Halifax, Nova Scotia DATE HEARD: February 9, 1996 COUNSEL: Frederick W.L. Black, the Defendant/Appellant, Thomas M. Macdonald, Esq., for the Plaintiffs/Respondents Richard J. Melanson, Esq., for the Plaintiffs/Respondents CASE ON APPEAL C.A. No.128144 NOVA SCOTIA COURT OF APPEAL BETWEEN: FREDERICK W.L. BLACK and KRUPP MaK MASCHINENBAU GmbH, body corporate, and KRUPP MaK DIESEL, INC. respondents REASONS FOR JUDGMENT BY: BATEMAN, J.A.

The respondents were granted an order by a Chambers judge pursuant to s. 38(1) of the Bankruptcy Act which authorized them to commence a fraud action against the appellant, a bankrupt. In making his ruling, the Chambers judge found that the respondents were creditors of the bankrupt estate for the purposes of s. 38(1). The respondents subsequently commenced an action against the appellant. The appellant applied to the judge assigned to oversee the case management of the action for an order striking the Statement of Claim on the basis that the respondents were not creditors of the bankrupt estate and, therefore, should not have been granted the order authorizing the commencement of the action. The case management judge held that he did not have the jurisdiction to inquire into the merit of the s. 38 order. He dismissed the action. The appellant appealed. Dismissing the appeal with costs, that the case management judge did not err. The appellant could not collaterally attack the s. 38 order by challenging a factual finding made in the granting of the order.

c_1996canlii5236.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 149 Date: 20051215 Between: Docket: 935 Her Majesty the Queen Coram: Gerwing, Lane Richards JJ.A. Counsel: A.B.Gerein for the Appellant Marvin Bloos, Q.C. for the Respondent Appeal: From: Provincial Court Heard: October 25, 2005 Disposition: Appeal allowed Written Reasons: December 15, 2005 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Lane Richards J.A. [1] The respondent had just begun serving the community supervision portion of custody and supervision order made pursuant to the Youth Criminal Justice Act (“YCJA”) when he walked away from his designated residence and thereby breached the terms of the order. The provincial director immediately issued warrant for his apprehension but he was not found by police until almost month later. His case went to the Youth Justice Court (“Youth Court”) for review under s. 103 of the YCJA. [2] The Youth Court judge interpreted the YCJA as meaning the respondent’s sentence had continued to run while he was at large and, as a result, had already expired. In consequence, she held that no action was required on the alleged breach of the custody and supervision order. [3] The Crown appeals her decision and argues that, on a proper reading of the YCJA, the respondent was deemed not to be serving his sentence during the time period between when the warrant was issued and when he was apprehended. [4] I accept the Crown’s argument and find, for the reasons which follow, that the Youth Court judge erred in her interpretation of the YCJA. I. Factual Background [5] In May of 2004 the respondent was sentenced to six months deferred custody and supervision, followed by six months of probation, for variety of matters including break and enters, theft, weapons offence and drug offence. He breached the terms of the deferred custody order in June of 2004 and, on June 21, was directed to serve the remainder of his sentence under custody and community supervision order. [6] The respondent was released from custody on October 8, 2004 and began the community supervision portion of his sentence. The terms of the supervision included requirement that he reside at Quint Youth Lodge in Saskatoon, attend school and maintain curfew. Immediately after acknowledging these conditions, the respondent walked away from Quint Youth Lodge and did not return. [7] The provincial director issued warrant for the respondent’s arrest on October 8, 2004. Police located and arrested the respondent on November 4, 2004. The director concluded that the matter was serious and remanded the respondent pending review by the Youth Court pursuant to s. 103 of the YCJA. [8] As stated above, the Youth Court judge held that the community supervision portion of the respondent’s sentence had continued to run while he was at large, with the result that the sentence had ended prior to the matter coming before her for disposition. She concluded that no action was required on the alleged breach of the custody and community supervision order because the sentence had already expired. II. The Statutory Scheme [9] Much of the analysis necessary to the resolution of this appeal is grounded in the distinctions between what shall refer to as custody and conditional supervision orders on the one hand and custody and community supervision orders on the other. As result, it is useful to begin with brief overview of each type of order. [10] Custody and conditional supervision orders can be made pursuant to either ss. 42(2)(o), (q) or (r) of the YCJA. These provisions apply to offences of relatively serious nature. will not quote each of them in full. However, s. 42(2)(o) is reproduced below in order to provide an illustration of how the Act reads: 42(2) When youth justice court finds young person guilty of an offence and is imposing youth sentence, the court shall, subject to this section, impose any one of the following sanctions… (o) in the case of an offence set out in subparagraph (a)(ii), (iii) or (iv) of the definition "presumptive offence" in subsection 2(1), make custody and supervision order in respect of the young person for specified period not exceeding three years from the date of committal that orders the young person to be committed into continuous period of custody for the first portion of the sentence and, subject to subsection 104(1) (continuation of custody), to serve the remainder of the sentence under conditional supervision in the community in accordance with section 105; [11] young person sentenced under s. 42(2)(o), (q) or (r) is brought before the Youth Court at least one month before the expiry of the custodial portion of the sentence and the Court then sets the conditions of the young person’s conditional supervision. See: s. 105. [12] Breaches of conditional supervision are addressed in ss. 106 to 109 of the YCJA. For present purposes, s. 106 and 107(1) are particularly important. Section 106 empowers the provincial director to suspend the conditional supervision and to remand the young person in custody until review is conducted by the Youth Court. Section 107(1) sets out the director’s power to issue warrant when conditional supervision is suspended under s. 106. It also provides that, until the young person is apprehended, he or she is deemed not to be continuing to serve the youth sentence. Sections 106 and 107(1) are set out below: 106. If the provincial director has reasonable grounds to believe that young person has breached or is about to breach condition of an order made under subsection 105(1), the provincial director may, in writing, (a) suspend the conditional supervision; and (b) order that the young person be remanded to any youth custody facility that the provincial director considers appropriate until review is conducted under section 108 and, if applicable, section 109. (1) If the conditional supervision of young person is suspended under section 106, the provincial director may issue warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. [13] turn then to custody and community supervision orders. They are made pursuant to s. 42(2)(n) of the YCJA. Section 42(2)(n) provides for sentence of up to two years. The first part of the sentence is served in custody and the second part is served under supervision in the community subject to conditions. Section 42(2)(n) states: (2) When youth justice court finds young person guilty of an offence and is imposing youth sentence, the court shall, subject to this section, impose any one of the following sanctions (n) make custody and supervision order with respect to the young person, ordering that period be served in custody and that second period which is one half as long as the first be served, subject to sections 97 (conditions to be included) and 98 (continuation of custody), under supervision in the community subject to conditions, the total of the periods not to exceed two years from the date of the coming into force of the order or, if the young person is found guilty of an offence for which the punishment provided by the Criminal Code or any other Act of Parliament is imprisonment for life, three years from the date of coming into force of the order; Section 97 of the YCJA sets out the conditions to be included in the order. [14] Violations of custody and community supervision order are addressed in s. 102(1) of the YCJA. It prescribes the powers of the provincial director when the director believes young person has breached or is about to breach supervision conditions: 102. (1) If the provincial director has reasonable grounds to believe that young person has breached or is about to breach condition to which he or she is subject under section 97 (conditions to be included in custody and supervision orders), the provincial director may, in writing, (a) permit the young person to continue to serve portion of his or her youth sentence in the community, on the same or different conditions; or (b) if satisfied that the breach is serious one that increases the risk to public safety, order that the young person be remanded to any youth custody facility that the provincial director considers appropriate until review is conducted. [15] Section 102(2) then states that ss. 107 and 108 of the YCJA, quoted above, are applicable to an order under s. 102(1)(b) with any modifications required by the circumstances. Section 102(2) says: (2) Sections 107 (apprehension) and 108 (review by provincial director) apply, with any modifications that the circumstances require, to an order under paragraph (1)(b). [16] With that introduction to the legislative scheme, now turn to the substance of this appeal. Analysis A. Right of Appeal [17] The respondent submits, as preliminary matter, that the Crown has no right of appeal in the circumstances of this case. Counsel for the respondent did not press this line of argument very strongly during oral submissions. However, his bottom line is summarized as follows at para. 34 of his factum: (a) young person or his counsel may only seek review by this Court where the Youth Justice Court ordered that the young person serve the balance of their sentence, or portion of it in custody pursuant to s. 103(2)(b); (b) The Attorney General or provincial Director may only appeal where the young person sought an order under s. 103(2)(a) and sought to keep the young person in custody pursuant to s. 103(2)(b) but the Court makes an order under s. 103(2)(a). [18] In order to deal with this issue, it is important to remember the procedural history of this case. It concerns an order made by the director pursuant to s. 102(1)(b) of the YCJA. He considered the breach of community supervision conditions by the respondent to be serious and concluded the respondent should be remanded in custody until review was conducted. Section 103 describes the nature of such review: 103. (1) When the case of young person is referred to the youth justice court under section 108 (review by provincial director), the provincial director shall, without delay, cause the young person to be brought before the youth justice court, and the youth justice court shall, after giving the young person an opportunity to be heard, (a) if the court is not satisfied on reasonable grounds that the young person has breached or was about to breach one of the conditions under which he or she was being supervised in the community, order that the young person continue to serve portion of his or her youth sentence in the community, on the same or different conditions; or (b) if the court is satisfied on reasonable grounds that the young person has breached or was about to breach one of the conditions under which he or she was being supervised in the community, make an order under subsection (2). (2) On completion of review under subsection (1), the youth justice court (a) shall order that the young person continue to serve the remainder of the youth sentence the young person is then serving in the community, and when the court does so, the court may vary the existing conditions or impose new conditions; or (b) shall, despite paragraph 42(2)(n) (custody and supervision order), order that the young person remain in custody for period that does not exceed the remainder of the youth sentence the young person is then serving, if the youth justice court is satisfied that the breach of the conditions was serious. (3) Subsections 109(4) to (8) apply, with any modifications that the circumstances require, in respect of review under this section. [emphasis added] [19] As is evident, s. 103(3) creates right of appeal “in respect of review under [s. 103]” by referencing ss. 109(4) to (8) of the YCJA and making them applicable with any modifications the circumstances require. Section 109(8) is particularly relevant for present purposes. It deals with appeals from Youth Court reviews where conditional supervision is suspended under s. 106 and the young person is remanded in custody. Section 109(8) refers, in turn, to s. 101, saying that s. 101 applies with necessary modifications. For its part, s. 101 provides for appeals not just from an order but also from refusal to make an order. While this obviously is not the most clearcut drafting imaginable, it does indicate that decision by Youth Court judge not to conduct review (and hence not to make an order) is subject to appeal. [20] In similar vein, also underline that s. 103(3) itself references ss. 109(4) to (8) as applying “in respect of review under this section”. This language is inconsistent with the notion that the right of appeal particularized in ss. 109(4) to (8) arises only in relation to certain kinds of orders and, in particular, that it arises only when there has been an unsuccessful attempt to keep the young person in custody. In other words, s. 103(3), on its face, contemplates appeals in respect of the s. 103 review generally rather than in respect of an order or certain kinds of orders. [21] As result, the respondent’s argument on this point must fail. B. Running of the Sentence 1. The Youth Court Decision [22] The Youth Court judge decided that the respondent’s sentence continued to run while he was at large. This produces an extraordinary result. The YCJA creates no offence for breaching the terms of community supervision order. Thus, as consequence of the decision appealed from, young person can escape the community supervision aspect of sentence simply by avoiding apprehension by the authorities. In other words, the Youth Court judge effectively found that Parliament intended there should be no consequences for breaching the terms of community supervision. [23] The decision of the Youth Court judge turned principally on what she saw as noteworthy differences in the YCJA between community supervision orders made pursuant to s. 42(2)(n) and conditional supervision orders made pursuant to s. 42(2)(o), (q) or (r). In this regard, she attached particular importance to the differences in the relevant breach and review provisions. She emphasized that, while s. 106 expressly enables the provincial director to suspend conditional supervision on breach of the terms of the supervision, s. 102 which deals with the breach of community supervision does not provide for suspension. [24] The Youth Court judge regarded this difference between conditional supervision and community supervision as extending through those parts of the YCJA dealing with apprehension. Although her analysis is perhaps not entirely clear in this regard, she seems to have considered the “deemed not to be continuing to serve the youth sentence” wing of s. 107(1) as being inapplicable on the facts at hand because the director had no authority to suspend the community supervision part of the respondent’s sentence. The key passages of her reasons are set out below: [49] Both sections 102 and 106 begin by saying that should the provincial director have reasonable grounds to believe that young person has or is about to breach condition of supervision, action may be taken. After that there is departure between the two sections. Pursuant to s. 106, the provincial director may suspend the conditional supervision and order that the young person be remanded until review is conducted. Pursuant to s. 102 the provincial director may permit the young person to continue to serve the sentence in the community upon the same or different conditions, or if satisfied that the breach is serious one that increases the risk to public safety, order remand until review is conducted. There is no reference to suspension in s. 102. [50] The procedure that follows for apprehension and review by the provincial director is the same both for s. 102 and s. 106. Section 102(2) does not set out separate procedure for apprehension and review by the provincial director; rather it incorporates the procedure applicable to s. 106 breaches, stating as follows: 102(2) Sections 107 (apprehension) and 108 (review by provincial director) apply, with any modifications that the circumstances require, to an order under paragraph (1)(b). There is no mention here of s. 106 or the power to suspend. [51] Section 107(1), which provides that the sentence doesn't run until apprehension, is reliant upon suspension pursuant to s. 106. It states: Apprehension 107. (1) If the conditional supervision of young person is suspended under section 106, the provincial director may issue warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. Section 108 provides for prompt review of the case by the provincial director. It states: Review by provincial director s. 108 108. Without delay after the remand to custody of young person whose conditional supervision has been suspended under section 106, or without delay after being informed of the arrest of such young person, the provincial director shall review the case and, within forty-eight hours, cancel the suspension of the conditional supervision or refer the case to the youth justice court for review under section 109. While s. 102(2) provides that sections 107 and 108 apply with "any modifications that the circumstances require", it does seem that this proviso cannot have been intended to incorporate the power to suspend which is provided for under separate section. These sections may allow the issuance of warrant authorizing apprehension, as that is the focus of s. 107, and may direct the provincial director to review the case promptly, as that is the focus of s. 108, but they cannot incorporate the power to suspend. am assisted in part in ascertaining the focus of these sections by reference to the headings contained in the Bill. In Sullivan and Driedger on the Construction of Statutes, 4th edition by Ruth Sullivan, Butterworths Canada Ltd. 2002, the use of headings is discussed. Beginning at page 305 the author discusses the use of headings in statutory interpretation, noting that in R. v. Zundel (1992), 1992 CanLII 75 (SCC), 95 D.L.R. (4th) 202 (S.C.C.), "headings were relied on to help establish the purpose of s. 181 of the Criminal Code,". [underlining added] [2005 SKPC 6; (2005), 2005 SKPC (CanLII), 259 Sask. R. 75] 2. The Proper Interpretation of Section 102(2) [25] A straightforward analysis of the YCJA serves to answer the question of whether the respondent’s sentence continued to run while he was at large. That analysis begins with s. 102 of the Act. As noted above, s. 102(1) sets out the authority of the director when young person has breached or is about to breach condition of his or her community supervision. In those circumstances, the director may do one of two things: (i) pursuant to s. 102(1)(a), the director may permit the young person to continue to serve his or her sentence in the community, or (ii) pursuant to s. 102(1)(b), if the breach is serious and increases the risk to public safety, the director may order the young person to be remanded in custody until review is conducted. [26] As explained earlier, s. 102(2) goes on to make ss. 107 and 108 applicable to an order for remand and review made pursuant to s. 102(1)(b). Section 102(2) is reproduced below for ease of reference: 102. (2) Sections 107 (apprehension) and 108 (review by provincial director) apply, with any modifications that the circumstances require, to an order under paragraph (1)(b) [27] Section 107(1) is the provision referred to by s. 102(2) which is of immediate concern. Again, for ease of reference, it reads as follows: 107. (1) If the conditional supervision of young person is suspended under section 106, the provincial director may issue warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. [28] There is an obvious modification of s. 107(1) which "the circumstances require" when, as per s. 102(2), it applies in the context of breach of the conditions of community supervision. That modification involves the notional deletion of the opening words of the subsection which refer to s. 106 and the substitution in their place of reference to s. 102. As result, when applied in respect of an order made pursuant to s. 102(1)(b), s. 107(1) effectively reads as follows: 107. (1) [When an order is made pursuant to s. 102(1)(b)] the provincial director may issue warrant in writing, authorizing the apprehension of the young person and, until the young person is apprehended, the young person is deemed not to be continuing to serve the youth sentence the young person is then serving. [29] This means two things. First, it means that when the director decides to issue an order under s. 102(1)(b) remanding young person in custody until review is conducted, the director has the authority to issue warrant authorizing the apprehension of the young person. Second, it means that if warrant is issued, the young person's sentence does not run until he or she is apprehended. [30] note that this issue has now been considered by several Youth Court judges. One case follows the decision under consideration in this appeal. See: R. v. C.K.W., 2005 ABPC 64 (CanLII). However, the courts in the other cases have reached the same bottom-line conclusion as have. See: R. v. T.F.W., 2005 SKPC 96 (CanLII); R. v. M.D.S., 2005 NSPC 39 [unreported]; R. v. C.W.W., 2005 ABPC 214 (CanLII). 3. Some Comments on the Youth Court Decision [31] It may be appropriate to comment further on some of the considerations which seem to have led to the decision in the court below. These are (a) the purpose of the YCJA, (b) the reference to s. 107 which is found in s. 102(2), and (c) the relationship between the concept of the suspension of supervision and the running of the sentence itself. The discussion of these points will also serve to further explain the basis of my own decision. (a) Purpose of YCJA [32] will deal first with the purpose of the YCJA. In her decision, the Youth Court judge quite properly cited the well known principle of statutory interpretation expressed by the Supreme Court in Rizzo Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] S.C.R. 27 at para. 21 and confirmed in various other cases including R. v. Sharpe, 2001 SCC (CanLII), [2001] S.C.R. 45 at para. 33. She then turned to the Preamble of the YCJA and the Declaration of Principle in s. and emphasized the uniqueness of the youth justice system and stressed its objectives of rehabilitation and reintegration, seeing these factors as supporting or leading to her construction of the statutory provisions at issue in this appeal. [33] In this regard, note that the Youth Court judge would presumably have been led in somewhat different direction if she had referred to the Preamble and the Declaration of Principle in their totality and given consideration to all of the factors included therein including, for example, the statement in the Preamble referring to youth justice system which “…fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation…” and the principle expressed in s. 3(1)(a)(iii) that young persons be subject to “meaningful consequences” for offences. [34] Further, and in any event, do not accept that even narrow focus on “rehabilitation and reintegration” is consistent with the conclusion that young person should be able to escape community supervision without consequence. One of the central purposes of community supervision is to promote rehabilitation and reintegration. sentence imposed after due process and careful consideration by sentencing judge should be complied with in full. An interpretation of the YCJA which allows young person to avoid the community supervision aspect of sentence directly undercuts the objectives of rehabilitation and reintegration. (b) Reference to s. 107 in s. 102(2) [35] Second, turn to the wording of s. 102(2). The Youth Court judge’s thinking appears to have been based in part on the fact that s. 102(2), when it refers to s. 107, uses the language “Sections 107 (apprehension) …”. In other words, the judge seems to have thought s. 102(2) incorporates only the “apprehension” aspect of s. 107 because that is all it refers to. The respondent advanced the same argument in his submissions. [36] However, this line of reasoning is faulty. Section 102(2) includes the word “apprehension” after the reference to s. 107 merely as an aid to the reader. “Apprehension” is the opening marginal note to s. 107. It is included in s. 102(2) in order to give the reader sense of what s. 107 is about without requiring him or her to actually turn to the section. This same technique is used throughout the YCJA. See, for example: ss. 16, 34(2) and 40(10). If Parliament had intended only part of s. 107(1) to apply in the context of breach of community supervision orders, it would have made that point expressly. (c) “Suspension” and Running of the Sentence [37] Third, and perhaps most importantly, it is useful to consider the relationship between the concept of the suspension of supervision and the running of sentence. In this regard, the Youth Court judge focused unduly on the provincial director’s lack of authority to “suspend” community supervision under s. 102 and the contrast in this regard with the power of the director under s. 106 to suspend conditional supervision. note, for example, that in para. of her decision the Youth Court judge framed the issues as follows: [3] …While Parliament provided for the application of sections 107 and 108 to the breach of custody and supervision procedure, it did not provide for the application of s. 106 which is the source of the authority for suspension. Furthermore, there is no similar provision permitting suspension where the sentence being served is s. 42(2)(n) custody and supervision. [38] Similarly, in the last paragraph of her reasons, the Youth Court judge again returned to what she characterized as the provincial director’s ability to “suspend” the operation of sentence. She wrote this by way of conclusion to her decision: [60] As held that the provincial director had no power to suspend operation of the Young Person's sentence, no action was required with respect to the breach initiated by the provincial director as the practical effect was that the sentence had expired. judicial stay was entered with respect to the provincial director's suspension of the sentence. [39] This emphasis on the provincial director’s power to “suspend” was misplaced and lead to an analysis which focused on the wrong question. The provincial director did not purport to suspend the respondent’s sentence in this case. He simply issued warrant. The real question before the Court is whether the sentence was deemed not to be continuing following the issuance of the warrant. It is not whether the provincial director had the power to suspend the community supervision. [40] The suspension of supervision and the running of sentence are separate concepts under the YCJA. This can be seen in the structure of s. 106 and s. 107 themselves. On the face of s. 107(1), the director’s authority to issue warrant is contingent on the existence of an order under s. 106, i.e. on the existence of an order which suspends the community supervision. If, as the Youth Court judge seems to have concluded, it is the suspension itself which stops the sentence from running, there would be no need for s. 107(1) to stipulate that the sentencing clock is frozen following the issuance of warrant. It already would have stopped on the making of the order under s. 106. [41] The distinction between the running of sentence and the suspension of conditional supervision is also evident in s. 109. It describes the authority of the Youth Court in its consideration of the case of young person where conditional supervision has been suspended and the young person has been remanded pending review. Section 109(2)(b) says the Youth Court can order “… the continuation of the suspension of the conditional supervision for any period of time, not to exceed the remainder of the youth sentence the young person is then serving…” This language necessarily contemplates distinction between the suspension and the running of the sentence. [42] In short, it is clear that the feature of the YCJA which stops sentence from running is not the “suspension” of supervision but the issuance of warrant for the apprehension of young person. Thus, when the director issues warrant pursuant to the combined effect of s. 102(2) and s. 107(1), the young person is deemed not to be continuing to serve his or her sentence until an apprehension is made. C. Other Matters [43] The Crown included significant argument in its written materials to the effect that the decision of the Youth Court judge should be set aside because it was tainted by reasonable apprehension of bias. The point was not pressed at the argument of the appeal. Rather, the Crown acknowledged that its root concern revolved around how the Youth Court judge had come to make an earlier decision on the same legal point which is at issue here and then had relied on that decision in the proceedings in this case. This does warrant some comment. [44] The earlier decision is R. v. K.P.A. (2004), 2004 SKPC 20 (CanLII), 243 Sask.R. 180 (“K.P.A. #1”). By apparent coincidence, it involves the same young person who is the respondent in this appeal. In R. v. K.P.A. #1, the respondent applied for reinstatement of the community supervision portion of his sentence. He had been sentenced to two months open custody, followed by one month of community supervision. He had absconded after the start of his community supervision and that portion of his sentence had been suspended as consequence. He appeared before the Youth Court judge on s. 103 review. She decided to re-release on community supervision with variations on the conditions of that release. [45] The Youth Court judge's written reasons for decision in K.P.A. #1 contain broad-ranging commentary on number of questions not necessary to her decision in that case. Some of those issues were not argued before her. The opening paragraph of her reasons for decision states: [1] This decision concerns review pursuant to s. 103 of the Youth Criminal Justice Act (YCJA). The community supervision portion of the Young Person's month custody and supervision sentence had been suspended. Pursuant to sections 102 and 108 his sentence was reviewed by the Provincial Director and he was referred to the Youth Justice Court for review. This application raised number of procedural and substantive questions when it came before me for review pursuant to s. 103. The Young Person had been in custody since December 23rd when this matter came up for argument on December 31st. was informed that his sentence expiry was January 18th. returned the Young Person to the community pursuant to s. 103(2)(a) and while gave some indication of my reasoning orally, indicated that full written reasons would follow. It was my intention to be instructive with respect to future applications of this nature both with respect to the merits of the review and the procedure employed. Many of the issues were not argued and some only came to light as wrote this judgment but persisted as believed it was in the interests of this Young Person and others that these issues be explored. [emphasis added] [46] One of the issues canvassed by the Youth Court judge in her reasons was the point which is at issue in the current appeal. Without the benefit of argument by counsel, she offered the opinion that the provincial director had no authority to "suspend" the running of community sentence order on the issuance of warrant. [47] When counsel for the respondent appeared before the Youth Court judge in the present case, she drew his attention to K.P.A. #1 and indicated she had number of concerns about whether the procedure which had been followed was in compliance with what she had said in K.P.A. #1. Counsel for the respondent, following an adjournment, decided to pursue only the aspect of K.P.A. #1 dealing with the provincial director's so-called power to "suspend." In her reasons for decision in this case, the Youth Court judge quoted at some length from K.P.A. #1 by way of an introduction to her analysis. [48] appreciate that in K.P.A. #1 the Youth Court judge was attempting to shed some light on what was then relatively new piece of legislation. However, judge is generally ill advised to offer legal commentary with respect to issues lying outside the line of analysis necessary to the determination of the matter before him or her. The risks involved in offering unnecessary opinions are compounded in circumstances where those opinions are put forward without the benefit of submissions from counsel. It would have been prudent for the Youth Court judge in this case to have written K.P.A #1 in less wide-ranging terms and, having written it as she did, to have treated it less as precedent and more as the collection of obiter observations it was. Conclusion [49] The appeal is allowed The respondent’s sentence did not run in the time period between the issuance of the warrant on October 8, 2004 and his apprehension on November 4, 2004. The Crown does not seek to have this matter returned to Youth Court for reconsideration and, as result, there will be no order in that regard. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of December, A.D. 2005. RICHARDS J.A. concur GERWING J.A.

The respondent had just begun serving the community supervision portion of a custody and supervision order made pursuant to the Youth Criminal Justice Act when he walked away from his designated residence and breached the terms of the order. The provincial director immediately issued a warrant for his apprehension but he was not found until almost a month later. His case went to the Youth Court for review under s. 103 of the Act. The Youth Court judge interpreted the Act as meaning the respondent's sentence had continued to run while he was at large and had expired. She held that no action was required on the alleged breach of the custody and supervision order. The Crown appeals the decision. HELD: Appeal allowed. 1) The Youth Court judge erred in her interpretation of the Act. On a proper reading of the Act, the respondent was deemed not to be serving his sentence during the time period between when the warrant was issued and when he was apprehended. 2) A straightforward analysis of the Act serves to answer the question of whether the respondent's sentence continued to run while he was at large. Section 102(1) of the Act sets out the authority of the director, when a young person has breached or is about to breach a condition of his community supervision. The director may, pursuant to s. 102(1)(a), permit the young person to continue to serve his sentence in the community or, pursuant to s. 102(1)(b) of the Act, if the breach is serious and increases the risk to public safety, the director may order the young person to be remanded in custody until a review is conducted. Section 102(2) goes on to make s. 107 and s. 108 applicable to an order for remand and review made pursuant to s. 102(1)(b). Section 107(1) is the provision referred to by s. 102(2) that is of concern. There is an obvious modification of s. 107(1) which 'the circumstances require' when it applies in the context of a breach of the conditions of community supervision. That modification involves the notional deletion of the opening words of the subsection that refers to s. 106 and the substitution in their place of a reference to s. 102. This means two things. First it means that, when the director decides to issue an order under s. 102(1)(b) remanding a young person in custody until a review is conducted, the director has the authority to issue a warrant authorizing the apprehension of the young person. Second it means that if a warrant is issued, the young person's sentence does not run until he or she is apprehended. 3) The court went on to comment further on some of the considerations that seem to have led to the decision in the court below, including the purpose of the Act, the reference to s. 107 that is found in s. 102(2) and the relationship between the concept of the suspension of supervision and the running of the sentence itself.

d_2005skca149.txt

Date: 20000525 Docket: S.H. No. 139555C IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: DAVID PLUMMER and J.D. IRVING LIMITED, body corporate, doing business under the name and style of KENT BUILDING SUPPLIES DEFENDANT HEARD: at Halifax, Nova Scotia before the Honourable Justice David MacAdam on April 25-27, 2000 DECISION: May 26, 2000 COUNSEL: J. Brian Church for the plaintiff David P.S. Farrar for the respondent MACADAM, J.: [1] The plaintiff injured his right knee when he tripped over a “dolly-cart” while attending at the premises of the defendant, J.D. Irving Limited, doing business under the firm name and style of Kent Building Supplies (herein “Kent”) at Bayers Lake Business Park, Halifax, Nova Scotia. [2] The plaintiff operates sole proprietorship known as Markham Contracting which is involved in house renovations through the winter period and landscaping in the summer. On Wednesday, July 5, 1995, he was attending the Kent premises to pick up lumber and other materials for job on which he was working. He entered the building from the yard where he had left his vehicle, and which was being loaded with lumber by Kent employee, proceeded to pick up screws, nails and other materials, and then returned to what is known as the “contractor’s desk” located close to the glass doors separating the lumber yard from the interior of the building. When he entered the building, he did not notice “dolly” or other obstruction by the contractor’s desk and when he returned he was positioned on the side of the desk facing towards the glass doors. He completed his business, chatted with Kent employees and then proceeded along the front of the desk, intending to walk towards and through the glass doors to the lumber yard. As he turned the corner of the desk, he tripped over the end of “dolly” which had been placed with the handle end against the side of the contractor’s desk. The cart extended approximately four feet into the aisle separating the contractor’s desk from the display aisles located directly across. [3] The plaintiff agreed the distance of 13 1/2 feet, suggested by counsel for the defendant as the width of the aisle, was probably correct and also stated the “dolly” was located one to two feet inside the corner. He says as he was standing conducting business at the contractor’s desk he did not notice the “dolly” and that, when he first entered the premises, he had not seen anything located on the side of the contractor’s desk facing towards the aisle. He says, as he left to proceed the two or three feet along the front of the counter before turning to his right with the intention of exiting through the glass doors and taking what he described to be the shortest path, being straight line, he did not observe the “dolly” at any time. [4] He says as he proceeded his foot struck the bumper located at the end of the “dolly”, farthest from the contractor’s desk, and this caused him to trip and fall. He says he was embarrassed, in shock and responded to Kent employees who approached him that he appeared to be alright. [5] He indicated he never expected the “dolly” to be there and that the counter was higher than the highest part of the handle of the ”dolly”, agreeing with defence counsel the counter was some three to four inches higher than the top of the handle. He said that, over the approximate one year the store had been open prior to this incident, he had never seen “dolly” in this location and added it was type of “dolly” used by both Kent employees and sometimes by contractors, but not by the general public. [6] In response to defence counsel, he agreed he heard “dolly” being pushed, noting they make quite racket, but also adding he was used to the racket and therefore did not pay much attention to the noise. He said, at the time he tripped over the bumper at the end of the “dolly”, he was wearing work boots and proceeding at normal pace. After picking himself up, he went out to the yard, retrieved his vehicle, and proceeded to the gate to leave Kent’s premises. [7] He says his knee was bothering him but he didn’t give it lot of thought and felt it would heal itself. He dropped the materials off at the work site at approximately 8:30 to 8:45 in the morning and then noticed the knee was beginning to swell. By later in the morning, he knew it was really bothering him so he dropped in to see his family doctor, Dr. Brennan. Dr. Brennan suggested he have the knee x-rayed but by this time he found the pain was so much that he was unable to drive so he had one of his employees drive him to the Emergency Department. At the same time, he called his wife, who worked at the IWK Children’s Hospital, and she met him at the VG Emergency. He was x-rayed and later informed that nothing was broken and his injury was one of soft tissue damage. His knee was red, inflamed and swollen and it was wrapped with plastic wrap and he was given anti-inflammatory drugs and told to return home, ice the knee and keep it elevated. [8] The following day, being Thursday, he continued to keep his leg elevated and to ice the knee from time to time. During this period, he said he was running his company from his couch, using cell phones which he had distributed to some of his employees. [9] He says on Friday there was lot of discomfort and he began shaking and having the shivers and his wife took his temperature which read 102.5° and gave him Tylenol. When his wife called the doctor, it was suggested they return to the Emergency Department and she drove him there that evening. The dressing was removed and his knee was found to be very swollen with infection. He was provided with antibiotics and splint was applied to the knee which was then wrapped and he was given the continuing instruction that he ice the knee and remain off it. [10] As instructed, he says he returned to the Emergency Department on the Saturday and observed that the infection still remained. Arrangements were made for him to see his family doctor on the following Monday. He had an employee drive him to the family doctor on the Monday and his knee was re-examined by Dr. Brennan who suggested he should see an orthopedic surgeon. Arrangements were made for him to see Dr. Erdogan later that day. After examining the knee, he suggested there was tissue damage and provided him with exercises for the knee. He says the rest of that week he was off his leg and that he kept his knee both elevated and iced. [11] On Friday, he obtained pair of crutches and had an employee drive him to the site where he remained sitting in the truck for most of the day. He says the first time he drove himself was on the following Monday or twelve days following the accident. [12] He testified, for the remainder of the year, although involved in overseeing his business, he did not involve himself to the same extent in manual or physical labour and, as result, was required to hire additional employees to perform work which, in previous years, he had performed himself. He says he limited himself to overseeing the jobs and that it bothered him to kneel and, therefore, kneeling was not an option. He says he was able to return to do the physical part of his work in the spring of 1996, indicating to date the knee still bothers him when he drives long distances and that he has to stop and stretch his leg. He says it often bothers him when he maintains it in flex position for long period and it kind of bothers him on cold damp days as well. [13] He says before the incident he used to enjoy biking, running, fishing and hunting and that he did no biking, no running, no fishing and didn’t visit either his or his wife’s parents’ cottages located in New Brunswick and Prince Edward Island in 1995. [14] With respect to household activities, he indicated both he and his wife were employed full-time outside the home and, therefore, they shared the home activities 50/50. He says for period following the accident he was unable to do his share, including his share of preparing the breakfast meal, vacuuming or washing the floors. He says he was only able to resume some of these activities by the fall of the year. [15] On cross-examination, he agreed the division between labour and materials in the work he performs varies from job to job. He says calculation of extra labour costs was prepared by his accountant and involved comparison of the labour costs from the date of the accident to the end of 1995 as compared to the same period of the previous year. He noted the gross sales for the two years were approximately the same and, for the period following the accident, the labour costs were more than $9,000.00 in excess of what they were during the same period of 1994. [16] At issue is both liability and the extent and quantum of the injuries and damages occasioned to the plaintiff. LIABILITY Legal Requirements [17] The legal principles applicable in the circumstances of this case are not really in dispute. The applicable law was outlined by Justice Spence, writing on behalf of the majority of the Supreme Court of Canada, in Campbell v. Royal Bank of Canada, [1974] S.C.R. 85. His Lordship adopted the description of an occupier’s liability to an invitee as outlined by Justice Willes in Indermaur v. Dames (1966), L.R. C.P. 274 at 288 where he said: And, with respect to such visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, of which he knows or ought to know. [18] In Smith v. Provincial Motors Ltd. (1962), 1962 CanLII 478 (NS SC), 32 D.L.R. (2d) 405, at p. 412 and Fiddes v. Rayner Construction Limited (1963), 1963 CanLII 599 (NS CA), 45 D.L.R. (2d) 367, at p. 373, Chief Justice Ilsley stated the requirements for determining whether an occupier had breached its duty of care, by series of questions: (1) Was there an unusual danger? (2) If so, was it one which the Defendant knew or ought to have known? (3) If so, did the Defendant use reasonable care to prevent damage to the Plaintiff from the unusual danger? (4) Did the Plaintiff use reasonable care on his own part for his own safety? 1. Was there an unusual danger? [19] After the reference to the statement by Justice Willes in Indermaur v. Dames, supra, Justice Spence, in Campbell v. The Royal Bank of Canada, supra, at p. 92 continues as follows: That outline of liability has been accepted universally since the day it was pronounced. Therefore, the first and most important inquiry before court considering such claim is whether, under the circumstances existing at the time and place of the accident, there was present an ‘unusual danger’. ‘Unusual danger’ has been defined in the judgment given in the House of Lords in London Graving Dock Co. Ltd. v. Horton, by Lord Porter at page 745 as follows: think, ‘unusual’ is used in an objective sense and means such danger as is not usually found in carrying out the task or fulfilling the function which the invitee has in hand, though what is unusual will, of course, vary with the reasons for which the invitee enters the premises. [20] The foregoing was also accepted as the law by the Nova Scotia Supreme Court, Appeal Division in Vyas v. Board of Education of Colchester-East Hants District (1989), 94 N.S.R. (2d) 350. Justice Chipman, at p. 353, referenced Chief Justice Illsley on the meaning of “unusual” danger. Chief Justice Ilsley, in his assessment of whether the danger in Fiddes v. Rayner Construction Ltd., supra, was unusual, had also applied the objective test. Then at p. 373 Justice Chipman said: As to (1), the danger is unusual if it “is not usually found in carrying out the task or fulfilling the function which the invitee has in hand”: London Graving Doc. Co. v. Horton, [1951] A.C. 737 at page 745, per Lord Porter. With respect, it would appear that the Learned Judge considered that “unusual” should be used in subjective rather than an objective sense. However, the authorities are clear that the test is objective, not subjective. The word ‘unusual’ is used objectively and means such danger as is not usually found in the circumstances; it is not to be construed subjectively as meaning unexpected by the particular invitee concerned. 28 Hals., 3rd Ed., p. 41, note (p). [21] Justice Spence, in delivering the majority reasons of the Supreme Court of Canada in Campbell v. The Royal Bank of Canada, supra, at p. 93, adopted the statement of Lord Normand, in London Graving Dec. Co. v. Horton, [1951] A.C. 737, at p. 752: am of opinion that if the persons invited to the premises are particular class of tradesman then the test is whether it is unusual for that class. [22] Justice Spence continues: Here, the invitee was an ordinary customer of the bank but of no particular class. We must, therefore, consider the facts in particular case in the light of these statements of the law which adopt. [23] The plaintiff was customer of the defendant. As stated by Justice Spence, the facts must be considered in light of the law applicable to his presence on the defendants’ premises. [24] The plaintiff says that in the approximate one year from the opening of the store until the day of the accident, he had never observed “dolly” located where it was at the time he tripped. He says initially contracting customers were served from the end of the desk and it had only been some time later that customers were no longer served from that end and the computer terminal located at that end had been removed. He did not observe the “dolly” or any other obstruction at the end of the desk when he entered and, returning only short time later, he says he assumed the situation had not changed. Therefore, he presumed there was no obstruction which would impede his turning the corner of the desk and walking in straight line towards the glass doors which exited to the lumber yard. He says his focus was on the glass doors and inferentially, therefore, not on the floor in front of him as he proceeded around the corner of the desk. [25] In Campbell v. Royal Bank of Canada, supra, at p. 96, Justice Spence agreed with the minority reasons of Justice Freedman of the Manitoba Court of Appeal who said even in Western Canadian winter conditions one would not normally expect bank premises, to which members of the public customarily resort in large numbers, to be wet and therefore hazardous. [26] Justice Spence continues: Again, find myself in agreement with Freedman, J.A. that not even the exigencies of Western Canadian winter conditions would make usual the presence on the floor of large bank in city of 30,000, in mid-afternoon, of ‘a dangerous glaze of water underfoot near the tellers’ wickets’. am of opnion that the state of the floor in that bank on that afternoon constituted an ‘unusual danger’. [27] In the context of the present circumstances, it is also clear that the presence of a “cart” or “dolly” out of view would also be an “unusual danger”, notwithstanding knowledge of the presence of such dollies within the premises. [28] The presence of the “dolly” is not comparable to the ice in the parking lot in Breau v. Amherst (Town) 1996 CanLII 5355 (NS SC), 1996, 155 N.S.R. (2d) 161, when knowledge by the plaintiff of the icy conditions resulted in Justice Saunders finding the danger not to have been unusual. Here the “dolly” caused the plaintiff to fall. Like the yellow liquid in Young v. Sobeys Inc., (1991, unreported: C.S.N. No. 20973), its presence next to the contractor’s desk was not something to be expected by persons in the position of the plaintiff and, therefore, constituted an unusual danger. 2. Did the defendant know, or ought it to have known, the danger? [29] It appears from the evidence the “dolly” was placed in the position next to the contractor’s desk between the time the plaintiff entered the premises and few minutes later when he returned to the contractor’s desk. It further appears from the evidence that it may have been one of the defendant’s employees who placed the dolly in this location. am satisfied the defendant knew or ought to have known the danger associated with the dolly being located as such. 3. Did the defendant use reasonable care to prevent damage? [30] Clearly the defendant did not use such reasonable care. The unusual danger could easily have been avoided by instructing employees to ensure they were not placed in such positions as to constitute hidden obstructions. The dolly was placed not by accident, but intentionally, and therefore the position of the defendant is not comparable to circumstances where one knows or is presumed to have known of unusual dangers and procedures or processes are established for employees to identify and remove or at least mitigate the risk associated with the unusual dangers. [31] There is nothing to indicate the defendant had implemented an adequate system for the prompt discovery or removable of objects or materials, in this case the dolly, which might be hazard to persons in the position of the plaintiff. 4. Did the plaintiff use reasonable care for his own safety? [32] In his evidence, the plaintiff acknowledges that, not having observed anything against the wall of the contractor’s desk as he entered through the glass doors, he therefore had assumed there was no obstruction when he later returned to complete his business and then to proceed through the glass doors to the lumber yard. [33] He says he cannot remember whether there was any obstruction on the counter which would have prevented him viewing the dolly in its location against the side of the contractor’s desk, as he proceeded along the front of the desk and then to his right in the direction of the glass doors. His focus was on the doors and not on the floor between his position and the doors themselves. At the request of counsel for the defendant, with no objection from counsel for the plaintiff, the court attended the defendant’s premises which had been restored to the approximate condition as they existed on the date of the accident. From the position the plaintiff occupied at the contractor’s desk, it is clear the dolly could not have been visible or at least the flatbed portion of the dolly towards the end over which he tripped could not have been visible. However, the plaintiff also says he never looked in that direction and had no reason to do so as his attention was focussed towards the Kent employees with whom he was having discussion and completing his business. [34] On his evidence, he says he never looked at the floor but focussed on the doors and therefore proceeded on the assumption that nothing had changed from the time he first entered the building some few minutes previous. In these circumstances, can it be said that he used reasonable care for his own safety? We do not believe he did. Just as an occupier is required to locate and remove hidden or unusual dangers or at least warn of their presence, so too the occupier is entitled to expect that persons who visit their premises will use reasonable care for their own safety. Clearly, these were commercial premises and the presence of any number of obstructions on the floor would be obvious to the plaintiff. The defendant’s premises were described as commercial warehouse from which building supplies were sold. These circumstances were known to the plaintiff and as such he should have taken greater care to observe and avoid anything in his path as he proceeded towards the glass doors. The plaintiff, therefore, did not use reasonable care for his own safety. [35] Recognizing the defendant has not used reasonable care in these circumstances to prevent injury or damage to persons in the position of the plaintiff and that the plaintiff failed to use reasonable care for his own safety, I assess the plaintiff as 60 percent and the defendant 40 percent responsible for the injuries and damages suffered by the plaintiff. DAMAGES [36] The plaintiff says the injuries he sustained to his knee resulted in his knee being swollen with infection, and that he had to endure considerable pain and discomfort for a substantial period following the accident. He says it was some twelve days before he was able to drive his own vehicle and that, during the summer of 1995, he limited his involvement in his business to supervisory types of activities rather than involving himself in physical labour as he had done previously and has also done in subsequent years. He testified that during the summer of 1995 he was not able to visit his parents’ or his in-laws’ cottage in Prince Edward Island and New Brunswick nor did he partake, at least to the same extent as in other years, in biking, running or fishing. [37] He testified he was able to resume his work activities by the spring of 1996, although he stated that, even at the time of trial, his knee bothers him when he drives for long distances or if it is in flex position for extended periods. [38] Counsel for the plaintiff, in his pre-trial submission, reviews number of cases involving assessments of damages for knee injuries and concludes by suggesting they demonstrate range of damages for such injuries between $2,500.00 and $22,000.00. The defendant, on the other hand, suggests that the knee injury was “relatively minor and did not cause the plaintiff great deal of difficulty”. [39] Having considered the evidence of the plaintiff, together with the medical reports, am satisfied the plaintiff has suffered an injury; the injury restricted his activities during the remainder of 1995 and, to lesser extent, the following year and, to very limited extent, continues to the present. I would therefore award the plaintiff the sum of $8,500.00 by way of general damages. Loss of Income [40] The plaintiff says, as result of the injuries, during 1995 he was unable to fully participate in the activities of his business and, as result, suffered loss in that he was required to hire other persons to carry out some of his tasks. He also says he was unable to pursue, as aggressively as in other years, the obtaining of business and, therefore, suffered further loss because of the injury to his knee. With respect to loss of income, the plaintiff claims for the difference in the wages for the equivalent period in 1995 as compared to 1994 and, in addition, claims a diminishment in earning capacity. Although in many cases of persistent injury, there have been allowances, in varying amounts, for diminution of future earning capacity, including potential earning capacity, the evidence does not support such claim in the present instance. The plaintiff does not indicate that his work is presently being affected by any injury occasioned by this accident and only notes that, when he drives long distances, he is required to stop from time to time to stretch his leg. Therefore, there is no basis to sustain a claim for diminishment in earning capacity and, as such, no amount is herein awarded. [41] With respect to loss of wages, it is clear from the evidence of the plaintiff, particularly during the remainder of 1995, the physical activities required in the performance of his work necessitated his hiring employees for activities which he normally performed himself. However, the evidence does not support that all the difference in wages between 1995 as opposed to 1994 can be traced to the accident since, on the evidence, the plaintiff also sustained broken wrist in May of 1995. The extent of the difference in the wage costs for the period from July to the end of each year does not account for the total of the difference between the total wages in 1995 as compared to 1994. Factors such as the degree or extent of labour involved in particular job, impact on the wage component of the cost when compared to the material component. It is clear that in 1994, with approximately the same total of gross sales, the labour component was nevertheless some $21,000.00 more than for the 1995 year. am satisfied there was loss to the plaintiff. However, am not satisfied it is the measurement between the wages paid for the period from July to the end of 1995 as compared to the period from July to the end of 1994. [42] With regard to the evidence as a whole, the realization that some of the loss can be attributed to this accident and recognizing the need to provide fair and reasonable compensation, even where proof of actual amounts may be difficult or indeed impossible, I award the sum of $5,000.00. Loss of Ability to Perform Household Tasks [43] Counsel for the plaintiff citing the decision of Davison, J. in Madonna Hill v. Abdel Kader Ghaly and Madonna Hill v. George Bernard, Sr. and George Bernard, Jr. (Unreported, S. H. Nos. 126537 and 94-109667), suggests the sum of $5,000.00 be awarded on account of the limitation in the plaintiff’s ability to perform household tasks. have considered the evidence and authorities detailing calculations in respect of such loss. I am satisfied the sum of $1,000.00 is more than reasonable in the circumstances and such sum is thereby awarded. Special Damages [44] The plaintiff claims, and is entitled to the sum of 578.00, on account of special damages relating to transportation to medical appointments, costs of photocopying medical reports, cost of prescription drugs not reimbursed, cost of increased cell phone use and preparation of accountant’s statements. MacAdam, J.

Plaintiff suffered soft tissue damage to knee when he tripped over a dolly cart in a building supply warehouse. Knee became swollen and infected and he was off work for 12 days. He claimed for pain and suffering, loss of income and loss of earning capacity. Plaintiff was found 60% responsible for injuries and defendant 40% responsible. Damages were assessed as follows: $8,500.00 for general damages, $5,000.00 as damages for loss of income and $1,000.00 for loss of ability to perform household tasks. The dolly cart out of view behind the counter was an 'unusual danger' which the defendant knew or ought to have known of and reasonable care was not used to prevent injury. However, the plaintiff failed to look at the floor as his attention was focused on the door. He assumed nothing had changed in the area from the time he entered the premises a few minutes previously. The plaintiff was in commercial premises and should have taken greater care to observe and avoid anything in his path. The plaintiff suffered an injury which restricted his activities for the first five months, to a lesser extent for the following year and to a very limited extent to the time of trial. There was no evidence to support a claim for diminishment of earning capacity.

b_2000canlii4425.txt

J. 2001 SKQB 98 D.I.V. A.D. 1999 No. 323 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: DOREEN CAMPBELL and JAMES RUSSELL CAMPBELL RESPONDENT P.G. Alberts for Doreen Campbell B.R. Craik for James Russell Campbell JUDGMENT (ORAL) SCHEIBEL J. February 15, 2001 [1] This issues for resolution in this trial are:1. Divorce2. Custody of the Children3. Access to the Children4. Maintenance for the Children5. Spousal Support6. Division of Matrimonial Property [2] The issue of divorce, custody and access were disposed of by judgments given during the course of the trial by consent of the parties. It is not necessary to make further reference to these matters at this time except to say that any access as between the respondent and the child, Randy, shall be mutually agreed upon between the respondent and Randy who is now 18 years of age. [3] The evidence with respect to the remaining issues leaves much to be desired. It involves farming operation which includes the respondent's father and mother as well as three brothers of the respondent. The father of the respondent has died with the result that the issues are further complicated by the estate. It is necessary to attempt to deal with some issues which are in excess of 10 years old. Even though some of the evidence is not clear as to what took place, found that the petitioner and the respondent were both truthful witnesses as were the respondent's mother and his brothers. [4] There is no evidence as to the tax implications regarding matrimonial property although the respondent attempted to introduce such evidence through an expert. The respondent failed to give notice of the expert in contravention of the Rules of Court. Indeed, no mention of such evidence was given either on the pre-trial form or at the commencement of the trial when the parties were asked about the number of witnesses which would be called. Counsel for the petitioner strenuously objected to the calling of an expert as the last witness of the trial without notice or the reasonable potential of calling his own expert in reply. In the end the respondent closed his case without further argument about calling evidence on the tax implication. [5] must do the best can with the evidence such as it is. CHILD MAINTENANCE [6] now turn to the issue of maintenance for the children. [7] There are two children of the marriage, Kaitlyn, born November 13, 1992, and Breeanna, born May 7, 1996. In addition, the petitioner has son of prior marriage, namely, Randy, who was born December 11, 1982. It is agreed that the respondent stands in loco parentis in respect of Randy. It is also agreed that the petitioner receives the sum of $300.00 per month from the natural father of Randy. The court order for Randy predated the Guidelines and therefore the petitioner pays income tax on that amount. She also claims Randy as tax exemption on her returns. [8] The petitioner's income is $798.00 gross per month from her employment in restaurant. However, she receives tips which equate to about $10.00 per day. Therefore, she earns approximately $200.00 per month in tips. She claims this amount decreases in the winter, however, there is no evidence as to the number of months that her tips decrease. find that she earns an average of approximately $150.00 per month year round on tips. Therefore, fix her income for purposes of the Guidelines at $948.00 per month, or $11,376.00 per year not including the child support she receives for Randy. [9] The respondent is farmer. His income varies from year to year. Therefore, in my view the respondent's income should be determined on three year average. At issue is whether all or part of the capital cost allowance should be added back for purposes of arriving at the respondent's adjusted income. [10] The Saskatchewan Court of Appeal in Sjogren v. Pipchuk (1997), 1997 CanLII 9808 (SK CA), 34 R.F.L. (4th) 280 said that the facts of each case must determine what portion of the capital cost allowance, if any, should be added back to income. [11] Again in Sjogren the Court of Appeal stated that in the absence of any proof of underhanded or inappropriate conduct, grain is to be viewed as part of the gross income of the party in the year it is actually sold. Therefore it appears that where the cash method of accounting is relied upon, it is appropriate to ignore grain, livestock and other components of inventory artificially brought into income and deducted from income for averaging purposes. [12] The three year average taken from line 150 of the respondent's tax return is $15,238.13. am of the opinion that the average capital cost on land and buildings should be added back for purposes of determining the respondent's income and for the purpose of the Guidelines. This figure is $989.98 and brings the respondent's income to $16,228.11. Given the decisions of Beeler v. Beeler (1997), 1997 CanLII 10925 (SK QB), 161 Sask. R. 167 of the Saskatchewan Queen's Bench and Rudachyk v. Rudachyk of the Court of Appeal am of the view that the capital cost allowance taken on the machinery should generally not be added back for purposes of determining the respondent's income for the Guideline purposes. am also of the view that the capital cost allowance deducted by the respondent was proper farming expense which reflects the decreased value of the equipment over time. There are other authorities which have added back the capital cost of the machinery. In these authorities the amount added back for Guideline purposes ranges from "0" to "100%". In this case have concluded the facts justify adding back 25% of the average capital cost allowance over the last three years. The average capital cost allowance claimed on machinery was $37,971.86. Twenty-five percent of $37,971.00 equals $9,492.96. Therefore, this sum must be added to the respondent's income for Guideline purposes. The respondent's income is as follows: The three year average from line 150 of the tax return 15,238.13 100% of the capital cost on land and buildings on the three year average 989.98 25% of the capital cost on machinery on the three year average 9,492.96 Total Income $25,721.07 Therefore, for the purposes of the Guidelines the petitioner's income is fixed at $11,376.00 per year and the respondent's adjusted income is fixed at $25,721.07. [13] The petitioner claims she spends $100.00 per week of day care for Breeanna which equals $400.00 per month. She also pays $40.00 per month for Breeanna to attend play school. The total costs of $440.00 per month is to be paid by the petitioner and the respondent in their respective percentage based on the Guidelines. [14] In addition, the respondent is to pay one-half of the cost of extra-curricular activities as is set forth on Exhibits P-9, P-10 and P-ll, and is to pay one-half of the cost of any future extra-curricular activities which the parties mutually agree upon. [15] With respect to the child, Randy, both counsel agree that should adopt the approach used by MacLeod J. in Cook v. Kilduff, [2000] S.J. No. 482 QL (Sask. Q.B.). That is support is to be calculated as payable for three children, then deduct from that support figure the support which would be payable for the two natural children of the respondent to determine the difference the third child made. The, one-half of this difference is to be taken and added to the Guideline amount of support for the two children to obtain the total payable for the three children. SPOUSAL SUPPORT [16] now turn to spousal support. [17] The petitioner is presently employed and the respondent\'s income is unlikely to increase in the near future. Given the fact that after the respondent pays child support (including the extra costs) the income of the respondent and that of the petitioner will be nearly the same, I decline to order any spousal support. [18] The income of the respondent cannot be increased by adding back capital cost allowance for the sole purpose of bringing him to level of income which is artificial just so it might appear he has the means with which to pay spousal support. MATRIMONIAL PROPERTY [19] The petitioner called two experts and the respondent called one in an attempt to fix the value of the property. All three gave credible evidence, however, in some instances one or the other of the appraisers had better opportunity to view and assess some of the property and to determine its value. [20] Exhibit P-1 sets forth the appraisal of the farm land which consists of 11 parcels of land. The first 10 parcels which are described on page 17 of Exhibit P-1 is land which is in the name of the estate of the respondent's father. This land was left equal to the deceased's four children. The eleventh parcel, namely, the SE 1/4 of 11-20-7-W3 is registered in the names of the respondent and his brother, Colin, each as to an undivided one-half interest. [21] accept the evidence of Mr. Holstein as to the land values as is set forth on page 17 of Exhibit P-1. Indeed, the petitioner and respondent agree as to the value of all the parcels of land except as to the added value of the contributory yard site of the SW 1/4 of 30-20-5-W3 and the contributory yard site on the NW 1/4 of 19-20-5-W3. [22] The appraised contributory yard site for the SW 1/4 of 30-20-5-W3 is valued at $96,600.00. Mrs. Campbell testified that one grain bin described on page 10 of Exhibit P-1 at 4D and valued at $3,000.00 belongs to her and not to the estate. The reduces the contributory yard site value to $93,600.00. [23] The appraised contributory yard site for the NW 1/4 of 19-20-5-W3 is valued at $63,700.00. However, Colin Campbell testified that he personally owns the garden shed valued at $200.00 as shown on Exhibit P-1, page 12. In addition, he claims he personally owns the metal working chute with loading ramp valued at $2,000.00 as is shown on Exhibit P-1, page 13. Therefore, the contributory value of the yard site must be reduced by $2,200.00, which brings the value to $61,500.00. In addition the evidence establishes that the water source for the property on the NW 1/4 of 19-20-5-W3 is actually located on the SW 1/4 of 30-20-5-W3. The appraiser, Mr. Holstein, confirmed that the value of the contributory yard site on the NW 1/4 of 19-20-5-W3 would be reduced by the costs of getting water. Exhibit D-27 is the cost of the well for the SW 1/4 of 30-20-5-W3 therefore the contributory value of the yard site must be reduced by further $15,964.00, bringing the value of the contributory yard site on the NW 1/4 of 19-20-5-W3 to $45,536.00. [24] The value of the estate land is therefore calculated as follows: Value NE 1/4 of 28-21-5-W3 40,146.00 SE 1/4 of 30-21-5-W3 36,132.00 NW 1/4 of 30-20-5-W3 41,485.00 SW 1/4 of 30-20-5-W3 38,273.00 (add contributory value of yard site) 93,600.00 NW 1/4 of 19-20-5-W3 30,780.00 (add contributory value of yard site) 45,536.00 NW 1/4 of 36-19-6-W3 13,386.00 NE 1/4 of 36-19-6-W3 13,386.00 Portion of SE 1/4 of 36-19-6-W3 1,612.00 NE 1/4 of 1-20-7-W3 10 NW 1/4 of 1-20-7-W3 Total $407,868.00 [25] The respondent owns one-quarter of the estate land and it is agreed that his share of the estate land is matrimonial property. Therefore, one-quarter of $407,868.00 equals $101,967.00 which forms part of the matrimonial property. [26] The land described as the SE 1/4 of 11-20-7-W3 is valued at $26,778.00 and the respondent has an undivided one-half interest in the property, however, the property is mortgaged and the amount owing on the mortgage is approximately $28,650.00 as of the date of separation. Therefore, the land described as the SE 1/4 of 11-20-7-W3 has no value for the purposes of matrimonial assets. [27] The respondent owns an additional six quarters of land. Mr. Holstein, in Exhibit P-2 at page 11, values the land at $178,000.00. This land was owned by the respondent prior to the marriage to the petitioner. As of the month of December, 1989, (the date of the marriage) the land was valued at $176,400.00. This would indicate an increase in value of approximately $1,600.00 during the marriage. In cross-examination Mr. Holstein confirmed the land had not increased in value or, if it had, that the increase was marginal at best. Therefore, find this land has not increased in value. However, during the course of the marriage a mortgage debt of $24,000.00 was paid off with matrimonial property therefore the parties agree that $24,000.00 must be added to the value of the matrimonial property as the net increase in the equity in the six quarters. [28] The petitioner claims an interest in the standing crops. The respondent testified he had only completed seeding on one-third of the land when the petitioner left on June 3, 1999. He testified that he had large input costs which had to be paid after seeding and which were not charged as debt to the matrimonial property. He testified and accept that his costs exceeded the value of any potential interest in the standing crop. He also testified that he had farming loss for 1999. The issue is further complicated by the lack of evidence as to whether it was his personal land seeded or that of the partnership land. If it was partnership land, then his brother, Colin, would have an interest in the crops. In any event, am satisfied there is no interest to claim in the crops for 1999. PARTNERSHIP FARM EQUIPMENT [29] The respondent and Colin operate the farm in partnership with the equipment being owned equally by them except for the part which is estate equipment. [30] For the most part the appraisers, Mr. Hodgins and Mr. White, are close to each other as to the valuation of the partnership farm equipment. There are couple of major differences. The first relates to the TR97 combine with header. Mr. White values it at $109,000.00 which Mr. Hodgins values it at $84,000.00 (including the second header). prefer Mr. Hodgins value of the combine because he inspected it and Mr. White did nothing more than drive by while it was in operation. With respect the Ford NH tractor, Mr. White values it at $72,000.00 and Mr. Hodgins at $67,000.00. Again in this respect prefer the appraisal of Mr. Hodgins. In all other respects accept the appraisal of Mr. White. The net effect is to reduce the value of Mr. White's appraisal with respect to partnership equipment by the sum of $25,000.00 for the combine and $5,000.00 for the tractor for total of $30,000.00. [31] Therefore, find the partnership machinery and equipment to be as follows: Description Value TR97 x/971 30' NH Header pu header 84,000.00 Ford NH 9480 3000 hrs. 67,000.00 Versatile 855 7000 hrs. 18,500.00 JD 3155 w/MFWD 265 JD FEL 31,700.00 Ford 7700 6000 hrs. w/3pth (engine poor) 6,000.00 Flex 5000 x/1720 tank-single shoot 39' 45,000.00 IH cultivator w/applicator (rough) 5,000.00 NH 499 haybine (good shape except for reel) 12,500.00 NH 664 baler 15,000.00 Flexicoil 65 XL sprayer 130' wind guards 14,000.00 Ford 5000 w/FEL 3pth (power steering hyd pump shot) 2,500.00 Sakundiak HD7 45' w/Honda 13hp start 1,500.00 Old HD 4x45 Sakundiak (poor-motor no good) 250.00 Degelman rock picker ground drive (rough) 700.00 Westfield 61'x10' top load auger 53' Friggstad cultivator (very poor) 1,000.00 Morris B3-36 rod weeder 14' Noble double disc (rough) 1,200.00 MF 36 18' discer 250.00 MF 36 15' discer 250.00 CCI Co-op tractor 800.00 Case Model tractor 1,500.00 Auto trans swather 25' 500.00 Paysen swath roller 275.00 Shop contents were not appraised, but average contents w/floor hoist, etc. Total $319,925.00 [32] The respondent's share is one-half $319,925.00 which equals $159,912.50. [33] The respondent also owns the following property in his personal name: Description Value 1978 Kenworth 1,000.00 1975 Mac Tandem 10,000.00 1978 Grain Trailer 3,500.00 1972 Hay Trailer 2,500.00 1980 Yamaha SS440 [34] These items were acquired prior to the marriage and are exempt from matrimonial property. In addition, the respondent claims an exemption for the items listed on Exhibit D-22, however, am not satisfied that these items can be claimed as exempt because they have not satisfactorily been traced to replaced items. There is no pre-marriage valuation and no way to determine whether the trade in value represents the fair value. Therefore, decline to grant an exemption for them. [35] The respondent owns the following property in his own name which must be added to matrimonial property, namely: Value 1995 F-150 Truck 4x4 9,000.00 1983 F-150 Truck and fuel tank 800.00 1997 Skidoo 5,000.00 1976 Camper 3,000.00 1976 Glastron with 85 hp. Merc. 2,500.00 1997 Seadoo GTX and trailer 4,500.00 Contents of farm house [36] The matrimonial property is as follows: Description Value Respondent's value of estate land (agreed to be matrimonial property) $101,967.00 Value of SE1/4 11-20-7-W3 (joint with Colin) same as purchase price Nil quarters of land owned prior to marriage (no increase in value) Nil Value of mortgages paid off during marriage on land owned before 24,000.00 Partnership Equipment (½ $319,925.00) 159,912.50 48 cattle cow/calf pairs at $1,000.00 per pair 2,000.00 Grain on hand 21,476.72 NISA Fund #1 25,090.00 Amount withdrawn from NISA Fund II 18,739.00 Balance in NISA Fund II 9,650.00 RRSP (withdrawn) 7,443.28 Wheat Pool RRSP 838.00 Co-Op Equity 1,980.00 Bank of Nova Scotia 4,783.42 Final Wheat Board Payments 20,750.00 Value of standing crops Nil Value of respondent's personal equipment and leasehold contents 28,650.00 Disposition after date of Separation: Ford Truck value $26,000.00 interest Tub Grinder value $37,500.00 interest Total $509,997.92 [37] The farm partnership had the following debts as of the date of separation: Description Value FCC Combine 97,500.00 FCC Tub Grinder 20,030.68 NH Air Drill 1,913.75 Ford Truck (Bank of Nova Scotia) Total $198,595.43 The respondent is responsible for one-half of the $198,595.43 or $99,297.71. Therefore, the net matrimonial property after partnership debts is ($509,997.92 $99,297.71) $410,700.21. [38] The respondent's personal debts as of June 9, 1999, as shown on Exhibit D-14 and D-15 are: Description Amount Ford Credit Van 20,363.69 Ford Credit Truck 2,543.05 Bank of Nova Scotia 50,000.00 Scotia Bank Loan 8,971.15 Canadian Wheat Board Cash Advance 16,853.50 Livestock Feeder Association Loan 20,000.00 SaskTel Mobility 442.39 Peoples Jewellers 6,061.66 C.D. Haley Van Policy 719.98 Pioneer Grain 280.48 Atlas Grain 160.85 G.E. Noren Accountants 465.45 C.D. Haley Insurance 751.00 Heartland Agro 3,341.12 Tugaske Co-Op 1,127.08 Paysen Livestock 1,074.81 Barb Paysen for cows 2,000.00 R.M. of Ernfold 523.34 Revenue Canada 355.43 Sask Crop Insurance 9,439.12 Total Personal Debts $158,577.34 Description Amount Matrimonial Property before deduction of Personal Debts $410,700.21 Personal Matrimonial Debt 158,577.34 Net Matrimonial Property $252,122.87 [39] One further issue must be dealt with before finalizing the net matrimonial property. At the date of death of the respondent's father the value of the farm equipment was $103,250.00. Each of the four children is entitled to one-quarter of $103,250.00 or $25,812.50. This amount has not been paid. am satisfied on the evidence this debt still exists and that the respondent owes and must pay the sum of $25,812.50 from his interest in the estate. After deducting this sum, that is $252,122.87 $25,812.50, the net sum available as matrimonial property is $226,310.37. Each party is entitled to one-half $226,310.37 or $113,155.19. [40] The costs of the appraisals should be totalled and each party is responsible for one-half of the cost of appraisals. [41] accept the evidence of Barry White as to the valuation of the assets of the marriage in the possession of the petitioner. These assets are found on Exhibit P-6. Therefore, find the total value of the matrimonial property assets set forth on Exhibit P-6 and in the hands of the petitioner to be $15,580.00. [42] Several items were ordered to be turned over to the petitioner by Kyle J. do not intend to make any further order on these items other than to state that the Skidoo appears to belong to Randy and is therefore not matrimonial property. The buffet and hutch according to the petition has value of $1,200.00 if it were replaced. No evidence was given with respect to the value of the pots and pans, children's toys or the bedroom suite ordered transferred by Kyle J. to the petitioner. [43] Therefore, the petitioner will have judgment against the respondent for the sum of $113,155.19 less the sum of $15,580.00 (being the value of the assets in her possession) leaving a balance of $97,575.19 to be paid to the petitioner, less one-half the costs of the appraisals. The judgment shall be a charge on the respondent\'s personal land. [44] There are no costs awarded to either party and each must pay his or her own costs. [45] In the event the respondent fails to pay the amount of the loan secured by the van now in the possession of the petitioner, the petitioner may apply for judgment against the respondent for the amount remaining unpaid.

Issues of divorce, custody and access were disposed of by judgment given during the course of the trial by consent of the parties. Matrimonial property was to be divided, maintenance for the children and spousal support were to be determined. HELD: 1)Access was to be mutually agreed upon with the 18 year old to whom the respondent stood in loco parentis. 2)Expert evidence of tax implications was not called as the respondent failed to give notice as required by the Rules of Court. 3)The mother's annual income for purposes of the Guidelines was fixed at $11,376 not including the $300 child support she received from the natural father of the 18 year old. The respondent's farming income was determined on a 3 year average as it varied from year to year. The facts justified adding back 25% of the capital cost allowance on the machinery over the last 3 years for Guideline purposes. Day care and play school costs of $440 per month were to be divided according to their proportionate share based on the Guidelines. The respondent was to pay one-half of the cost of extra curricular activities and any future activities as agreed upon. The approach used in Cook v. Kilduff was adopted and the amount for the two natural children was deducted from the amount payable for three children. One-half of the difference was added to the Guideline amount of support for the two children. 4)Spousal support was not ordered. The mother was employed and the respondent's income was not likely to increase in the near future. Given he paid child support and the extra costs, their income was nearly the same. 5)Of the six quarter sections owned by the respondent prior to marriage, there was no equity in one and the increase in value in the others was marginal. Credit was given for the reduction in the mortgage debt by $24,000. There was no interest to be divided in the 1999 crops. 6)The petitioner was awarded judgment for $113,155.19 less $15,580 for assets in her possession and less one-half the appraisal costs. The judgment was to be a charge on the respondent's land. The petitioner may apply for judgment for the amount of the loan secured by the van in her possession if the respondent fails to pay off the loan. 7)Each was to pay his or her own costs.

5_2001skqb98.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Chater et al v. Canada Lands Company, 2005 NSSC 120 Date: 20050518 Docket: S.H. 204478 Registry: Halifax Between: Eli Chater and Almon Investment Plaintiffs/Respondents v. Canada Lands Company CLC Limited Defendant/Applicant Judge: The Honourable Justice Walter R.E. Goodfellow Heard: February 15, 2005, in Halifax, Nova Scotia (Chambers) Final Written Submissions: May 9, 2005 Counsel: Gary A. Richard, for the Plaintiffs/Respondents Peter M.S. Bryson, Q.C. and Jeff Aucoin, Articled Clerk, for the Defendant/Applicant By the Court: [1] Application to strike pleadings and for summary judgment granted in Chambers February 15, 2005 upon the court concluding that mere intentions, negotiations, etc., and pleadings of a cause of action failed to create a cause of action. [2] The written release of decision February 17, 2005 left counsel to attempt to reach agreement with respect to costs and disbursements failing which the court would receive representations from both parties which have now been received. [3] The originating notice action in this matter was filed July 21, 2003 and therefore the new tariff of September 29, 2004 does not apply, (Little v. Chignecto Central Regional School Board (2004), 2004 NSSC 265 (CanLII), 230 N.S.R. (2d)1). [4] There is no tariff that provides direction with respect to the determination of the amount of costs in Chambers’ applications. Normal Chambers’ applications have been awarding costs generally in the range of $250 to $750, (Hi-Fi Novelty Co. et al v. Nova Scotia (Attorney General) (1993), 1993 CanLII 4632 (NS SC), 121 N.S.R. (2d) 63. In many applications where the results brings finality the court has utilized Tariff “A”, Keating et al. v. Bragg et al. (1997), 1997 CanLII 1961 (NS CA), 160 N.S.R. (2d) 363. In this application Canada Lands sets out that its solicitor and client fees to the date of the hearing amounted to $24,856.50 plus disbursements of $510.97 and counsel for Chater indicate that his solicitor and client fees were approximately half that amount. While time sheets, etc., can be very helpful in determining party and party costs, the level of solicitors’ fees in this application is not very helpful in measuring an amount that is just and appropriate. [5] The hearing in this matter was less than two hours in duration, however, there were a number of steps taken prior to the application including filing a list of documents, exchange of documents and apparently two days of discovery. The defendant made an offer of settlement in the amount of $5,000, inclusive of costs, which take to be an attempt to have the action simply go away due to the heavy costs of litigation. As indicated, the sale price of the property which was approximately $2,000,000 was not, in my view, the appropriate “amount involved”, and it was very difficult and, in fact, impossible for me to really get handle on what amount of loss of profits was being pursued or to what extent the defendants were monetarily at risk. am left therefore with judgment call as to what is reasonable level of indemnity to the defendants who have been successful on an application which does dispose of the matter before the court. [6] In the circumstances, I think a reasonable and fit party and party level of costs is $5,000 plus disbursements of $510.97 and the defendant is entitled to judgment for costs and disbursements herein taxed and allowed in the amount of $5,510.97.

The court granted the defendant's application for summary judgment of claim. Costs were at issue. Costs awarded in the amount of $5,000 plus disbursements; although the hearing was less than 2 hours in length, there were a number of steps taken prior to the application, including two days of discovery examination.

c_2005nssc120.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN RUTH JOAN GRAFF APPELLANT BY CROSS-APPEAL (RESPONDENT) (PLAINTIFF) and MARGARET MADONNA BENNETT, ANTHONY SCOTT THOMPSON, AND BERNICE THOMPSON RESPONDENT BY CROSS-APPEAL (APPELLANT) (DEFENDANT) (RESPONDENT/PLAINTIFF) CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Tallis The Honourable Madam Justice Jackson COUNSEL: Ms. K. Prisciak for the appellant, Mr. S.E. Halyk Q.C., and Mr. James A. Morrison for the respondent, Bennett. DISPOSITION: Appeal Heard: May 18, 1995 Appeal Decided: August 25, 1995 On Appeal From: Q.B. 958 1992 J.C. Saskatoon Appeal File: 1890 Reasons by: The Honourable Mr. Justice Tallis In concurrence: The Honourable Chief Justice Bayda and The Honourable Madam Justice Jackson Tallis J.A. The defendant Margaret Bennett appeals from a judgment for damages pronounced in Queen\'s Bench. Following a jury trial of this action for damages for personal injuries and loss sustained in an automobile collision, judgment was pronounced on 13 May 1994 awarding damages of $409,251.18 to the respondent plaintiff. Since liability was admitted by the defendant (appellant) the trial was limited to assessment of damages by the jury. As starting point we recite the verdict form and the jury's answers to the questions submitted to them:[1] A. NON-PECUNIARY DAMAGES: 1. At what amount do you assess the non-pecuniary loss of the Plaintiff, for pain and suffering and loss of enjoyment of life? 60,000.00 2. At what amount, if any, do you assess the Plaintiff's past loss of homemaking 0.00 B. PECUNIARY DAMAGES: 1. At what amount, if any, do you assess the Plaintiff's past loss of earnings. 1,568.00 2. At what amount, if any, do you assess the Plaintiff's future loss of earnings. $337,130.00 3. At what amount, if any, do you assess the Plaintiff's future loss of homemaking 5,000.00 The parties agreed to special damages of $5,553.18. Accordingly, the learned trial judge directed that judgment be entered for $409,251.18 together with pre-judgment interest of $16,686.00 for total of $425,937.18. The appellant limits her challenge to the "future loss of earnings" component in the amount of $337,130.00. In her cross-appeal the respondent challenges the trial judge\'s instruction to deduct sick leave benefits which were used in consequence of her injuries from the past loss of earnings component. GROUNDS OF APPEAL Appellant's counsel advances the following grounds of appeal: 1. The Learned Trial Judge erred in law in admitting the evidence of Douglas Kalesnikoff as expert opinion evidence which resulted in substantial wrong or miscarriage of justice. 2. The Learned Trial Judge erred in law in failing to caution the Jury regarding the weight to be given evidence of Douglas Kalesnikoff. 3. The Jury's finding of the future loss of income capacity was so inordinately high that it is perverse, wholly out of all proportion, unsupported by the evidence and unreasonable. We note that in the absence of agreement between the parties this Court has no jurisdiction to assess the damages, should it be decided that the award cannot stand. Since there is no such agreement, we are limited to dismissing the appeal or ordering new trial if we find merit in the appeal: see Quintal v. Datta, 1988 CanLII 5084 (SK CA), [1988] W.W.R. 481 (Sask. C.A.) and Rieger v. Burgess, 1988 CanLII 209 (SK CA), [1988] W.W.R. 577 (Sask. C.A.). FACTUAL BACKGROUND Since the appellant's complaints must be passed upon in factual and procedural context, we find it convenient to first review the relevant factual background. On 20 August 1990 the respondent Ruth Graff was injured while riding as passenger in the appellant's vehicle. This vehicle was involved in collision with the "Thompson" vehicle at the intersection of 22nd Street and Diefenbaker Drive in Saskatoon. At the time of trial Ruth Graff was 45 years of age. Following graduation from high school in 1967, she attended the College of Education for one year. She then moved to Vancouver where she met and married Art Graff. She and her husband have raised two children. Before the collision the respondent enjoyed excellent health. She was an industrious person who worked outside the home after the children attained school age. When the family moved to Saskatoon, she obtained employment as resident attendant or nursing aide in nursing home. She later attended Kelsey Institute where she realized her ambition to qualify as registered nurse. While studying at Kelsey, she worked on weekends to supplement the family income. Following her graduation as registered nurse in 1983, she first worked in that capacity at St. Anne's nursing home. After few months, she obtained employment at the Royal University Hospital. In July 1985 she obtained nursing position on the neuro-surgery ward and was so employed at the time of the collision. As result of the collision, she sustained multiple injuries including concussion, whiplash, fractured ribs, contusions and abrasions. She was rendered unconscious and remained in state of post-traumatic amnesia for approximately four hours. The most serious consequence was "closed" head injury. Although we will refer in more detail to the medical evidence, we observe that the respondent and her medical advisors attributed significant cognitive, emotional, behavioural and physical deficits to this traumatic brain injury. Ruth Graff returned to work approximately four months after the collision. At time of trial, she was still working as nurse at the University Hospital but testimony from number of fellow employees and medical advisors cast serious doubt on her ability to continue in nursing as career. This aspect of the evidence will be canvassed in greater detail when we consider the grounds of appeal. We now turn to consideration of the grounds of appeal. Ground Admissibility of Expert Opinion Evidence. This complaint must be considered in factual and procedural context. In calculating damages, it is assumed, that if the injured person had not been disabled, she would have continued to work and to receive salary or wages at periodic intervals until retirement, lay-off, disability or death. An award for impaired earning capacity is intended to compensate the injured person for the diminution of that stream of income. In theory the award could take the form of periodic payments but in this province it has traditionally taken the form of lump sum, paid at the conclusion of litigation.[2] The appropriate lump sum cannot be calculated without first examining the stream of income it purports to replace. The lost stream's length cannot be known with certainty; contingencies such as illness, death, disability or unemployment could intervene. However, not all contingencies are negative. Each annual instalment in the lost stream of income comprises several elements. The most significant is, of course, the actual salary or wage. In addition the employee may have enjoyed certain fringe benefits such as shift differential, sick leave credits, uniforms and various other entitlements that are often specified in collective bargaining agreement or contract of employment. However, the estimate of loss from diminished earning capacity in the future need not be based solely on the salary which person was earning at the time of her injury. With the passage of time an individual often becomes more valuable to her employer. To reflect this heightened value, she will often receive "seniority" or "experience" raises or even promotions. Furthermore, the salary or wages of class of employees may increase over time even in theoretical inflation-free economy. Although the notion of damage award representing the present value of the lost stream of earnings engages some far-reaching economic considerations and contingencies, the two basic elements that determine its calculation can be stated. They are: (1) the amount that the person would have earned during each year she could have been expected to work after the injury; and (2) the appropriate discount rate, reflecting the essentially risk-free available investment. Even in an inflation-free economy the award for damages to replace the lost stream of income cannot be calculated simply by totalling the sum of periodic payments. When the lump sum award is notionally invested, it will earn additional money. Accordingly, where it is reasonable to suppose that interest may be earned on the award, if invested, the ascertained future benefits must be discounted in calculating the award. Speaking generally, the trier of fact will consider the various contingencies in estimating the amount that the person would have earned but for the injuries, and apply the controlling rate to each of the estimated instalments in the lost stream of income and then add up the discounted instalments to determine the total award. In this case, the plaintiff Ruth Graff was still working at the time of trial as registered nurse at the University Hospital. However, there was evidence before the jury that her nursing career was in serious jeopardy. This appeal was argued on the footing that loss of future earnings was the functional equivalent of loss of future earning capacity. The terms were used interchangeably at various times but, since no issue was raised, we simply refer to our discussion of this question in Seip v. South Saskatchewan Hospital Centre (1992), 1992 CanLII 8228 (SK CA), 97 Sask. R. 39 at 54 to 60. In the case now under consideration the question posed to the jury focused on the plaintiff's future loss of earnings, although the trial testimony was primarily directed to "loss of earning capacity". In Andrews et al v. Grand Toy Alberta et al, 1978 CanLII (SCC), [1978] S.C.R. 229 at 251 Dickson J. (as he then was) articulated loss of earning capacity in this way: We must now gaze more deeply into the crystal ball. What sort of career would the accident victim have had? What were his prospects and potential prior to the accident? It is not loss of earnings but, rather loss of earning capacity for which compensation must be made: The Queen v. Jennings, supra. capital asset has been lost: what was its value? This approach was applied in Earnshaw v. Despins (1990), 1990 CanLII 596 (BC CA), 45 B.C.L.R. (2d) 380 (C.A.) at 399 where Southin J.A. stated: In my opinion, the true questions the jury must address in claim such as this are: 1. Has the plaintiff's earning capacity been impaired to any degree by his injuries? 2. If so, what amount in the light of all the evidence should be awarded for that impairment? ... In catastrophic injury cases, the whole of the capital asset is lost. But there may be much less serious injuries which cause permanent impairment although the loss cannot be determined with any degree of exactitude. In Pallos v. Insurance Corp. of British Columbia (1995), 1995 CanLII 2871 (BC CA), 100 B.C.L.R. (2d) 260 (C.A.) Finch J.A. writing for the majority expressed the test for loss of income earning capacity in this way at pages 269-271: ... The plaintiff's claim in this case, properly considered, is that he has permanent injury, and permanent pain, which limit him in his capacity to perform certain activities and which, therefore, impair his income earning capacity. The loss of capacity has been suffered even though he is still employed by his pre-accident employer, and may continue to be so employed indefinitely. ... In sum, there is no clear medical evidence that the plaintiff has diminished ability to earn income in the future, or, if so, the extent to which that ability is diminished. On the other hand, there is uncontradicted medical evidence of partial permanent physical disability which could have an effect on his capacity to work, and on his employability. would conclude that his earning capacity had not been reduced, even though he presently earns more than he did before he was injured. Applying the test referred to in Kwei v. Boisclair (supra) to the uncontradicted medical evidence and the plaintiff's work history, think the only reasonable conclusion is that the plaintiff was rendered: less capable from earning income from all types of employment; less attractive as potential employee to new employers; unable to take advantage of all job opportunities previously open to him; and less valuable to himself, as person capable of earning income in competitive labour market. Given the appellant's position at trial and on appeal we assume that the trial proceeded on the footing that the final assessment of damages would be the same regardless of terminology or approach. However, in future cases of this nature consideration might well be given to jury question that focuses on "loss of earning capacity" rather than "future loss of earnings". In laying the foundation for the "loss of future earnings" component, learned counsel supplemented the plaintiff's oral testimony concerning her work record with relevant documentary evidence that included: 1. past payroll records from Royal University Hospital for the period from 19 August 1990 to 29 December 1990 with particulars of hours and sick leave benefits; 2. copies of collective bargaining agreements between Saskatchewan Union of Nurses and Health Care Association; 3. 1990 calendar documenting schedule shifts of the plaintiff; and 4. income tax returns of the plaintiff for years 1988 to 1993. Following this background testimony counsel for the respondent plaintiff called Mr. D. Kalesnikoff, chartered accountant (and forensic accountant), to calculate the future income stream based on present value earnings. Since the parties called no expert evidence concerning predicted future rates of inflation, the interest rate that could be appropriately used to discount future earnings to present value, or the possible connection between inflation rates and interest rates, Queen's Bench Rule 284B governs. It reads in pertinent part: 284B(1) Except where there is evidence to the contrary: (a) the life expectancy of an individual as set forth in the table in Form 23A is admissible in evidence; (b) three per cent per annum is admissible in evidence as the rate of interest to be used in determining the capitalized value of an award in respect of future pecuniary damages to the extent that it reflects the difference between estimated investment and price inflation rates; and (c) the value of one dollar per year as set forth by the respective periods shown in Form 23B, is admissible in evidence. (3) Notwithstanding Subrule (1), Form 23A is not conclusive as to life expectancy and the health and habits of the individual and any other relevant fact or circumstance may be considered by the court in determining life expectancy. This Rule was enacted to avoid the cost of calling actuarial evidence on such matters. It was clearly designed as cost saving measure in the litigation process in Queen's Bench and enables counsel to put forward calculations based on proffered factual underpinnings. We refer to the following passage in Seip, supra at p. 55 (paragraph 25) to illustrate its application: At trial plaintiff's counsel made the following written submission: "(ii) Future Loss of Income "Elaine is presently 35 years old. If we assume normal retirement age of 65 years, Elaine has working life expectancy of 28 years. If we utilize the approved discount of 3%, loss of future income is calculated as follows: Annual Income for Step Nurse $19.53 40 hours 52 weeks $40,622.40 19.02074 (present value of $1 using 3% discount rate over 28 years) $40,622.40 "We rely upon rule 284B of the Rules of Court for the approved discount rate and life expectancy. In the absence of evidence to the contrary, rule 284B provides that 3% is an approved discount rate, (real investment rate or the difference between historical investment rates and inflation rates). The Supreme Court of Canada approved this method of calculating future loss of income in Andrews, supra. We admit the Form 23A 23B tables into evidence as provided by rule 284B. "If we assume that Elaine can work three days per week, five hours per day, at salary of $700 per month (Weight Loss Centre income) her revised future loss of income is calculated as follows: Lost Annual Nursing Income $40,622.40 Weight Loss Centre Income 8,400.00 Balance: $32,222.40 x19.02074 Revised Future Income Loss: 612,893.89 "The assumption that Elaine can work three days per week, five hours per day, is highly optimistic, given her post injury work record and the opinion of Margaret Friesen that, in many ways, she is presently working beyond her physical capabilities. Also, her present job may not continue indefinitely." Before this Court, learned counsel advanced the same argument although he conceded that minor deduction in the neighbourhood of 10 to 15% for contingencies should be made when computing the final figure. In attacking the award of $75,000 learned counsel took the mathematical calculation of $612,893.89 as starting point and then contended that the trial judge had effectively made an 88% deduction for contingencies. In making his calculations Mr. Kalesnikoff utilized Queen's Bench Table 23A and 23B for life expectancy and discount rates. For convenience we reproduce the tabulation prepared by Mr. Kalesnikoff.[3] Ruth Graff Present Value of Future Earnings Capacity Adjusted for Mortality May 1, 1994 to December 31, 2013 Earnings assumed to occur at the midpoint of each period Earnings Discount Adjustment Discounted Age Annual Number of for the Factor for Earnings Cumulative Year Dec Earnings Months Year @3% Mortality Capacity Total 1994 46 43,500 29,000 .9901 .99790 28,653 28,653 1995 47 43,500 12 43,500 .9662 .99558 41,844 70,497 1996 48 43,500 12 43,500 .9381 .99303 40,522 111,019 1997 49 43,500 12 43,500 .9108 .99022 39,232 150,250 1998 50 43,500 12 43,500 .8843 .98713 37,971 188,221 1999 51 43,500 12 43,500 .8585 .98374 36,740 224,961 2000 52 43,500 12 43,500 .8336 .98004 35,536 260,497 2001 53 43,500 12 43,500 .8093 .97601 34,360 294,858 2002 54 43,500 12 43,500 .7858 .97165 33,211 328,069 2003 55 43,500 12 43,500 .7629 .96692 32,088 360,157 2004 56 43,500 12 43,500 .7407 .96179 30,989 391,146 2005 57 43,500 12 43,500 .7191 .95623 29,913 421,060 2006 58 43,500 12 43,500 .6982 .95018 28,859 449,919 2007 59 43,500 12 43,500 .6779 .94364 27,826 477,745 2008 60 43,500 12 43,500 .6582 .93655 26,814 504,559 2009 61 43,500 12 43,500 .6390 .92886 25,820 530,378 2010 62 43,500 12 43,500 .6204 .92051 24,843 555,221 2011 63 43,500 12 43,500 .6024 .91144 23,882 579,103 2012 64 43,500 12 43,500 .5848 .90164 22,938 602,041 2013 65 43,500 12 43,500 .5678 .89103 22,009 624,050 Total 624,050 Although learned counsel for the appellant objected to the admissibility of this tabulation, the learned trial judge admitted it into evidence before the jury. Learned counsel challenges the admissibility of this tabulation and Mr. Kalesnikoff's analysis of it on the ground that it was admitted into evidence with the label of expert opinion attached to it. She contends that Mr. Kalesnikoff was permitted to present under the "guise" of expert opinion evidence what was essentially mathematical calculation matter that does not require the services of an expert forensic accountant. In the circumstances of this case, she contends that he was not bringing any expert opinion evidence to assist the jury in making factual determinations and accordingly should have not affixed his imprimatur as an expert to P16. Learned counsel for the appellant accepts that expert witnesses may be able to assist the jury in certain cases where the assessment of the loss is complicated: see Engel v. Salyn, 1993 CanLII 152 (SCC), [1993] S.C.R. 306 at 313. However, in this case she stresses the relative ease with which the calculation can be made and submitted that the plaintiff's argument on future loss of income should not have been put to the jury in the guise of expert testimony. When dealing with the admissibility issue the learned trial judge recognized the need to control the scope of Mr. Kalesnikoff's testimony. During his introductory testimony Mr. Kalisnikoff testified as to his expertise in calculating economic loss. But he was not permitted to range into fields that were essentially for the jury. Although the trial judge permitted the witness to testify as to certain mathematical calculations and place them before the jury (Exhibit P-16), the judge restricted this testimony. This is made clear in the text of his ruling.[4] Yes, considered the briefs, and as the determination of percentage of disability is technical and medical matter, and as no such evidence has been brought before the Court, it would be inappropriate for Mr. Kalesnikoff to provide calculations provide calculating assistance, which he's clearly capable of providing, as it might tend to confuse the jury as to the state of the evidence. don't think he should be suggesting level of disability in respect of which there has been no testimony. Also, there has been no evidence of future incapacity to earn income of specific nature. The plaintiff has worked, apparently to the satisfaction of her employers, for three and half years, and I've heard no evidence that she could not continue, although she has testified as to her discomfort. As well, if ever she left the present employment there is every possibility that this competent woman would be able to continue to provide useful service as nurse of another type. She is on the evidence far from being totally disabled. Accordingly, would consider testimony on the assumption that she is totally disabled to be inadmissible, as the need of the jury for assistance in that area has not been demonstrated. The housekeeping capacity is in about the same situation. We have no testimony as to what these duties amount to, how long they would take, et cetera. How then can Mr. Kalesnikoff testify without suggesting scenario, scenario which is not, until now at least, supported by any evidence other than that of the plaintiff's discomfort? Accordingly, would place severe restrictions on Mr. Kalesnikoff. don't challenge his professional capabilities. don't think Ms. Prisciak challenges his professional capabilities in any way. MS. PRISCIAK: No, My Lord. THE COURT: She is merely seeking to avoid the presentation of argument through the mouth of this witness, and there is tendency once person is established as an expert, to accept the fact that his expertise extends perhaps to deciding how much housekeeping house needs, which he hasn't claimed any expertise on at all. So in that sense would accept the argument of Ms. Prisciak, and reject testimony, although haven't seen the report that's to be testified upon. have no doubt it's on the Court file, but didn't have it before me. Consequently, I'm not just sure whether I've excluded all of the evidence that was to be tendered, or just part of it. The tabulation (P-16) and explanatory testimony did not go far beyond the limited scope of mathematical calculation permitted by the learned trial judge. Accordingly the admission of this evidence did not impermissibly invade the province of the jury in this damage assessment. This point was clearly established in the following cross-examination of Mr. Kalesnikoff.[5] Mr. Kalesnikoff, when you were doing ‑‑ you've made number of calculations, one was for the past loss of income and one was for the future loss of income? If could clarify, did calculation on the past loss of earnings capacity. On the future, the calculation that I've done is the present value of the earnings capacity, not the loss, the loss is another matter. Right, the loss is matter for the jury to decide? Exactly. There is no dispute as to the criteria for expert testimony. In Roberge v. Bolduc, 1991 CanLII 83 (SCC), [1991] S.C.R. 374 L'Heureux-Dube J. states at p. 429: In my view, the trial judge was right. Expert evidence is admissible provided that the expert is qualified and his or her testimony is necessary or useful to assist the court in the determination of technical or scientific matters. In the straightforward circumstances of this case, the "expert" services of chartered accountant" or "forensic" accountant were not required to make the calculations that were placed before the jury. Given the Queen's Bench Tables and the documentary evidence, these calculations did not require expert opinion evidence. Accordingly, the tabulation could have been made in much the same way as in Seip, supra. Although Mr. Kalesnikoff made the calculations in P-16, we cannot characterize his testimony as "expert opinion" evidence in this case. Accordingly the tabulation was not objectionable because similar calculations could have been made by counsel or the trial judge: See C.L. Smith and J.C. Bouck, Civil Jury Instructions (Vancouver: Continuing Legal Education Society of British Columbia 1994) CIVJI 9.32. In this case the calculations involved relatively simple mathematics. Tabulations of this nature could easily be prepared in advance and tendered pursuant to pre-trial stipulation. Furthermore one should not overlook the availability of computer programs for this purpose. We observe that in Shuparksi v. Mair (N.W.T.S.C. January 18, 1995) Hetherington J.A. relied on software program (Support Works 1.0) to assist her in calculating the effect of interest on child support payments payable by the respondent. Given the nature of the case before us, we reject the appellant's contention that the admission of the tabulation and explanation of it by Mr. Kalesnikoff resulted in any miscarriage of justice. No substantial wrong or miscarriage of justice has been demonstrated but in the circumstances of this case, we would, if necessary, invoke Rule 39 with respect to any alleged error: see Terrie's Plumbing Heating Ltd. v. Grosvenor Fine Furniture (1982) Ltd., 1993 CanLII 6611 (SK CA), [1994] W.W.R. 275 (Leave to S.C.C. denied January 26, 1994). We reject the appellant\'s first ground of appeal. Before parting from this issue, we observe that the taxation of expert witness fees is not before us. However, this question should not be overlooked in taxing costs because the services involved in case of this nature do not merit the assessment of expert witness fees. GROUND The Learned Trial Judge erred in law in failing to caution the Jury regarding the weight to be given evidence of Douglas Kalesnikoff. The appellant contends that the learned trial judge should have specifically directed the jury on the limited purpose for which Mr. Kalesnikoff's testimony could be used as well as the weight that might be given to it. In dealing with this aspect of the case the trial judge gave the following instructions:[6] will deal in specific terms with the award you may be making in this case in moment, but first want to give you some specific advice which will be relevant if you decide to compensate the plaintiff for loss of income‑earning capacity. Her loss of future income, or her loss of future income‑earning capacity will be determined by first the degree of her disability, the extent to which she will in the future see her income reduced as result of her injury. Secondly, the length of her working life expectancy. This is drawn from actuarial tables, and is statistical average. The discount rate of interest, this is, in effect, discount from bulk award to offset the value of the interest which lump sum payment could earn over the period of her working life. believe the report of Mr. Kalesnikoff will be of assistance in deciding how to make this calculation. Other contingencies: there are contingencies in life, illness, job loss, accident, can reduce earning capacity. Some times if these risks in every day economic life are taken into consideration, small percentage deduction from the gross or net award of pecuniary damages is made. You must remember, however, that such risks are often insured against through unemployment insurance or other protective programs, so that the adjustment is usually not large percentage. suggest that the precedents would support in this case, where mortality has already been considered, deduction in the order of 10 to 12 per cent. This instruction was followed with review of the relevant evidence. The learned trial judge left the truth of the respondent's post injury history for the jury to determine. From reading the charge as whole, he made it clear that the weight of the respondent's evidence as well as the supporting medical and non-medical evidence was solely for the jury. Although the trial judge did not specifically focus on the need to weigh and consider the assumptions underlying Mr. Kalesnikoff's calculations, we find no reversible error in the circumstances of this case. It would have been preferable for the trial judge to have instructed the jury as to the importance of their primary findings of fact, as necessary foundation for their making any calculations or assessment; however any such deficiency was canvassed by learned counsel for the respondent. We refer in particular to the following passages reproduced from Mr. Halyk's address to the jury:[7] Now with respect to what the nurses said who worked with Ruth with respect to her ability to continue in the future, and if there is any one person in this room who wants to continue working in the future it's Ruth Graff, think she told you that, she would like to continue working. The other side of the coin is, and the important side of the coin is, can she continue working as nurse, and my respectful submission, as the evidence indicates with the greatest of respect to Ruth, that that's not very likely that she's going to be able to continue working. Now whether she can get through another month, another six months, another year, don't know. guess that's what you people have to decide, because it's important you decide what the probability is. Nobody, don't think, can predict the future, at least nobody in this room, with total accuracy, and that's why what you have to look at is the probability, the simple probability as to whether she will be able to keep working. If it's probable that she will not be able to keep working her normal life working expectancy, then she is entitled to an award, she is entitled to be compensated, and that's why we had the evidence of Mr. Kalesnikoff, so you don't have to go into the jury room and start pulling numbers out of the air. We have tried to help you by giving you the appropriate numbers. Now how you apply those numbers is entirely up to you as to whether ‑‑ if it was worst case scenario and something over $600,000.00, if she couldn't work from now until 65, that's what she would be entitled to, and entitled to in law in every sense of the word, but if you say, no, she'll be able to get through another year or two, then it's something less and the tables will help you. If you say not only that, but, sure, she's not going to be able to work as nurse any more, because the evidence is pretty clear, the probability of that is pretty remote that she will be able to work as nurse, but we think she should go and do something else, maybe she could work in some other type of facility, she's not going to earn the same kind of money or whatever else, then you plug that in, and that's why we helped you, we thought, we tried to help you with the evidence from Mr. Kalesnikoff again. It's simply if you say, well, she'll earn two‑thirds less the rest of her life and she'll be able to work until 55 instead of 65, well, you can just take those figures and make the appropriate adjustments, but that is the key part of this case, with the greatest of respect, your decision as to the future loss of earnings, or the probability of future loss of earnings is the key to the whole thing in terms of the appropriate award in terms of the large amounts of money that Ruth Graff is entitled to. We reject this ground of appeal because any alleged non-direction does not amount to reversible error. GROUND The Jury's finding of the future loss of income capacity was so inordinately high that it is perverse, wholly out of all proportion, unsupported by the evidence and unreasonable. The controlling standard of review with respect to damage awards has been expounded in number of cases in this province. For the purposes of this appeal we need only refer to Seip, supra, where the Court stated at pp. 43 44 and 59: The principles that should be observed by an appellate court in deciding whether it is justified in disturbing the finding of court of first instance as to quantum of damages were articulated by Viscount Simon in Nance v. British Columbia Electric Railway Co. Ltd., 1951 CanLII 374 (UK JCPC), [1951] A.C. 601; [1951] All E.R. 448; [1951] All E.R. 448; [1951] D.L.R. 705; W.W.R. (N.S.) 665; 67 C.R.T.C. 340 at 613-614: "Their Lordships now turn to the question of quantum of damages. As already stated, the jury awarded the plaintiff $35,000. The three members of the British Columbia Court of Appeal were unanimous, for different reasons, in holding that this figure could not stand. The Chief Justice was for reducing it to $20,000 (subject to further reduction to $12,000.00 in respect of contributory negligence which he found proved); Sidney Smith, J.A., who did not find contributory negligence proved, would have awarded $12,000; and O'Halloran, J.A. would have left the figure to be determined at new trial on materials more adequate than those available at the actual trial. "In those circumstances two distinct questions arise: (1) What principles should be observed by an appellate court in deciding whether it is justified in disturbing the finding of the court of first instance as to the quantum of damages; more particularly when the finding is that of jury, as in the present case. (2) What principles should govern the assessment of the quantum of damages by the tribunal of first instance itself. (1) The principles which apply under this head are not in doubt. Whether the assessment of damages be by judge or jury, the appellate court is not justified in substituting figure of its own for that awarded below simply because it would have awarded different figure if it had tried the case at first instance. Even if the tribunal of first instance was judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be wholly erroneous estimate of the damage (Flint v. Lovell, approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. The last named case further shows that when on proper direction the quantum is ascertained by jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by court of appeal, be even wider than when the figure has been assessed by judge sitting alone. The figure must be wholly `out of all proportion'. (per Lord Wright, Davies v. Powell Duffryn Associated Collieries Ltd.)" (footnotes omitted) [12] The "Nance test" has been adopted in Canada. In Bunce v. Flick et al., 1991 CanLII 7975 (SK CA), [1991] W.W.R. 623; 93 Sask R. 53; W.A.C. 53 (C.A.) Sherstobitoff, J.A., succinctly summed up the controlling principle in the following passage at p. 631: "A court of appeal, before interfering with an award of damages, must be satisfied that it was `either so inordinately low or so inordinately high that it must be wholly erroneous estimate of the damage': Nance v. British Columbia Electric Railway 1951 CanLII 374 (UK JCPC), [1951] A.C. 601; [1951] All E.R. 448; W.W.R.(N.S.) 665; 67 C.R.T.C. 340; [1951] D.L.R 705 (P.C.). It cannot act because its own view of the evidence would result in different conclusion. It can intervene only where there was no evidence upon which the judge could act, or where he acted upon mistake or wrong principle, or where the result was wholly erroneous. Woelk v. Halvorson, 1980 CanLII 17 (SCC), [1980] S.C.R. 430; [1981] W.W.R. 289; 14 C.C.L.T. 181; 114 D.L.R. (3d) 385; 24 A.R. 620; 33 N.R. 232 and Watkins v. Olafson, [1989 CanLII 36 (SCC), [1989] S.C.R. 750.]" [36] In our opinion the learned trial judge was entitled to reject the pure mathematical approach propounded by the plaintiff. He was obliged to weigh and consider the various imponderables such as the availability of employment, the effect of Crohn's disease as well as other contingencies of life. In the circumstances of this case the cloak of mathematics cannot give an air of scientific accuracy to decision that is fundamentally one of judicial assessment rather than mere calculation. On the evidence adduced in this case, one cannot discard the "crystal ball" and opt for pure mathematical approach. [37] Although Keizer v. Hanna and Buch, 1978 CanLII 28 (SCC), [1978] S.C.R. 342; 19 N.R. 209; involved damages in fatal accident case, the following words of Dickson, J., at p. 351 are instructive: "At the end of the day the only question of importance is whether, in all the circumstances, the final award is fair and adequate. As an initial matter, we observe that there is no suggestion in the record that the jury was attempting to give the plaintiff perfect compensation by making simple mathematical calculation: see for example Taylor v. University of Saskatchewan (1955), 1955 CanLII 208 (SK CA), 15 W.W.R. 459. (Sask. C.A.) If the jury had awarded $624,050.00, an amount equal to the present value of the plaintiff's total future earnings under the governing collective bargaining agreement, on the assumption that she would work to 65, then there would be serious question in light of Taylor, supra. However, the amount awarded was $337,130.00. It is fair inference that the jury considered the plaintiff's earning capacity to have been significantly diminished but not completely lost. In passing upon this ground of appeal we observe that there was non-medical and medical testimony of brain injury sequelae in the case of Ruth Graff. The weight of such evidence was question solely for the jury and in his instructions the learned trial judge left the issue with them. The instructions were not weighted in favour of the plaintiff. On fair reading of those instructions, one can say that the trial judge fairly raised the factors that had been stressed by counsel for the appellant when dealing with credibility of the various witnesses including the plaintiff and her co-workers. The trial testimony focused not so much on the physical and motor sequelae as on other sequelae. The medical history stressed the cognitive sequelae and the non-medical testimony of co-workers and others emphasized the behavioural and emotional sequelae. Six medical doctors testified about their roles in Ruth Graff's treatment and about her medical problems. Dr. L. Klein, neuro-surgeon who had seen her on 21 August 1990, the day following the collision, stated that based on his observations he concluded that she had sustained moderate to severe head injury.[8] Dr. P. Davidson, neurologist who attended her on 25 February 1991, observed that her problems with poor memory, weak concentration and attention, and easy distractibility were consistent with head injury sustained in an automobile collision. Dr. Davidson testified that people who become unconscious at the outset of an injury, as had Ruth Graff, are much less likely to recover from their injury with the passage of time.[9] Dr. Boey, general practitioner, testified about the symptoms of forgetfulness, poor concentration and difficulty expressing herself outlined to him by Ruth Graff on 29 January 1991. Dr. S. Paniak, clinical neuropsychologist whose expertise is in the diagnosis, assessment and treatment of the effects of brain injury on behaviour and thinking, examined Ruth Graff on 24 and 25 April 1991 and again two years after the collision on 22 August 1992. In his testimony at trial he primarily focused on the cognitive sequelae. His first evaluation demonstrated significant deficits in the areas of divided attention (the ability to consider two or more pieces of information at time), of incidental memory (the ability to remember new information spontaneously), and of problem solving and reasoning. In addition, Ruth Graff suffered from fatigue and was more susceptible to anger and stress. Dr. Paniak re-examined her on 22 August 1992. He testified that once two years elapse, patients are unlikely to recover further from the effects of brain injury.[10] Two years post-injury is generally when deficits are considered permanent after this type of head injury. During his last examination Dr. Paniak found that Ruth Graff's ability to express herself and to think quickly and efficiently and her incidental memory all showed improvement. However, she continued to suffer from emotional sequelae an inability to control her emotions. He testified that her powers of concentration and rapid thought were permanently impaired and her problem solving and reasoning skills, were, as compared to people of similar age and education, "almost off the bottom of the scale". In dealing with the vocational aspects of her employment, Dr. Paniak testified that it would undermine her work performance. He pointed out that she might exhibit these deficiencies less in low stress, part-time nursing position. The testimony of the other two medical practitioners called as witnesses was consistent with the medical testimony of their colleagues. Five of Ruth Graff's co-workers in nursing at the hospital gave evidence of her pre-injury state and decreased competence as nurse following the injury. Each of them testified in detail as to her capable nursing skills before the injury. During their testimony serious questions were raised about her ability to continue as nurse. This concern was reflected and illustrated in the following testimony of Ms. Shawna Lewis:[11] Ruth isn't the same person any more. Where she was very talkative, outgoing, energetic person she is more on the withdrawn side. She is very emotionally labile. You can be talking to her one moment and in the next moment she is crying for no apparent reason. She panics easily. In stressful situations she would previously be able to priorize her care and change it and do whatever needed to be done for these people. Now she becomes very frustrated. She flies off the handle quite easily with patients and other staff members. She is forgetful at times. You can be giving her report on patient and you know she is not paying attention to you, she is asking you the same questions you've already answered. Physically, she seems like she is tired all the time. She falls behind in her work, leaving the rest of us to pick up the slack. do not believe that she is safe worker, and would not want her taking care of one of my family members now. During their testimony her co-workers referred to errors in her work and acknowledged covering for those errors. As well, Ruth Graff and her sister-in-law Sharon Woytiuk testified about post-injury effects. In this case, the appellant did not call any medical evidence to contradict the testimony of the plaintiff's medical witnesses. This is significant because under s. 50(1) of The Queen's Bench Act, defendant may apply for an "independent" medical examination and later apply to have that medical examiner called as witness under the provisions of s. 50(7).[12] The jury was required to weigh and consider both the medical and non-medical testimony. Learned counsel for the defendant stressed the issue of credibility and the need to determine the truth of Ruth Graff's testimony to the effect that her alleged problems were attributable to the injuries sustained in the collision. At the end of the day this issue and the consequent assessment of her losses fell to be determined by the jury. It is fair inference from the record that the jury accepted the testimony of Ruth Graff and witnesses called on her behalf. The jury could not have assessed the "future loss of earnings" at $337,130.00 unless they accepted the evidence that she had suffered significant loss of earning capacity. The trial record discloses ample evidence to support this finding. Applying the controlling standard of review, we cannot say that the award in issue was so inordinately high that it must be set aside and a new trial ordered. The principles stated by the Supreme Court of Canada in Warren v. Gray Goose Stage Ltd., 1937 CanLII 52 (SCC), [1938] S.C.R. 52 are apposite. In that "closed" head injury case, this Court allowed an appeal on the ground that the general damage award was excessive. On further appeal the Supreme Court restored the jury award and in the following passages at (pp. 55-57), it emphasized the role of the jury: The main proposition advanced by counsel for the defendant before us was that on the evidence no causal relation is proved between the headaches and the accident that the evidence is so vague that it could not reasonably be concluded that the headaches were the direct result of the accident. But there was some evidence, if believed, sufficient to connect the headaches with the accident. The weight of the evidence was question solely for the jury and in an admirably clear and direct charge the learned trial judge put that question to the jury as "the big question" to be decided by them. If you find he was not suffering from headache before the accident and that he struck his head on the occasion in question against the back of the front seat of the car and has been suffering headaches since then, it would be fair inference that it was the blow on the head from the back of the front seat that caused them; and in that case the evidence of Dr. McConnell would be of some importance. But before using the evidence of Dr. McConnell at all you must find that the headaches did not exist before the accident and that he did not suffer from headaches before the accident. Because the evidence of Dr. McConnell is not going to be of any assistance to you in coming to conclusion as to whether he had these before or after. He says: "Assuming the truth of his history"; that is, assuming the truth of what the plaintiff tells him, then he says: "The condition found could be due to the accident". But he also says "The condition which found may have existed long before the accident." So that as to whether he was suffering from those injuries before the accident or whether they commenced after the accident, the evidence of Dr. McConnell does not help you one way or the other. If you find they were non-existent before the accident, then you consider the evidence of Dr. McConnell he found the third ventricle was slightly larger than normal, that the left frontal region was abnormal, there was larger space than normal, and that they were liable to cause headaches. The jury could not have assessed the general damages at $5,000 unless they had accepted the plaintiff's evidence that the headaches were the direct result of the accident because the other complaints of the plaintiff were admittedly of trifling significance. The jury's finding of liability, affirmed as it was by the Court of Appeal, must stand. Once liability has been established, any views as to the weakness of the evidence regarded from the point of view of liability (the weight of which evidence, we repeat, was for the jury) must not influence the Court on the amount of compensation for the injuries. While it may be that the general damages were awarded on generous scale, there was no firm ground, in our opinion, on which the Court of Appeal was entitled to set aside the jury's assessment. This was essentially case for jury and it is quite impossible for the Court to say that the amount of the damages fixed by the jury was so large that the jury reviewing the whole of the evidence reasonably could not properly have arrived at that amount. Lord Wright in the House of Lords in Mechanical and General Inventions Co. v. Austin said: The appellate court is never the judge of fact in case where the constitutional judge of fact is the jury. For the appellate court to set aside the verdict of jury as being against the weight of evidence, merely because the court does not agree with it, would, in my judgment, be to usurp the functions of the jury and to substitute their own opinion for that of the jury: that would be quite wrong. Much more is necessary in order to justify the setting aside of jury's verdict where there is some evidence to support it. And at p. 377: The jury were, as the Lord Chancellor explains, properly directed and had all the facts fully before them. In considering their award on damages, that view of the evidence most favourable to their finding must be taken, not the view most adverse to it, if or where two views are competent. It is true that the damages awarded ran into big figures, but damages cannot be treated as excessive merely because they are large. Excess implies some standard which has been exceeded. The authorities are numerous but we might usefully refer to the judgment of the Privy Council in McHugh v. Union Bank of Canada. That was an Alberta case. Beck, J., sitting without jury, assessed the damages (a mortgagee's negligence case) at $2,800. The Albert court of appeal set aside the assessment but granted to the plaintiff the option to have it referred back to the clerk of the court at Calgary to take an account within prescribed limits of what damage, if any, the plaintiff had suffered by the negligence of the defendants. Upon appeal to this Court, the majority (Duff and Anglin JJ. dissenting) affirmed the order permitting reference at the plaintiff's option but varied the directions as to the mode of assessing the damages. Upon further appeal to the Privy Council, the assessment made by the trial judge was restored. Lord Moulton, who delivered the judgment of the Board, said at p. 309: The tribunal which has the duty of making such assessment, whether it be judge or jury, has often difficult task, but it must do it as best it can, and unless the conclusions to which it comes before the evidence before it are clearly erroneous they should not be interfered with on appeal, inasmuch as the courts of appeal have not the advantage of seeing the witnesses matter which is of grave importance in drawing conclusions as to quantum of damage from the evidence that they give. Their Lordships cannot see anything to justify them in coming to the conclusion that Beck's assessment of the damages is erroneous, and they are therefore of opinion that it ought not to have been disturbed on appeal. The importance of that case lies in the fact that the assessment had been made by the trial judge himself and the court of appeal had jurisdiction to rehear the case and to substitute their findings for his findings. But notwithstanding that both the court of appeal of Alberta and the Supreme Court of Canada had seen fit to set aside the assessment of damages made by the trial judge, the Privy Council restored the assessment. That course undoubtedly would not have been taken had the Privy Council not concluded that the two appellate courts below had erred in principle in interfering with the assessment made by the trial judge. In the case before us, however, the damages had been assessed by jury and the Court of Appeal had no jurisdiction in respect of the amount awarded to rehear the case and control the verdict of the jury. The court is not court of review for that purpose. If, viewing the evidence as whole, the Court of Appeal can see plainly that the amount of damages is in law indefensible, or that the trial has been unsatisfactory by reason of misdirection or wrongful admission or rejection of evidence, or if it is demonstrable that the jury have or must have misunderstood the evidence or taken into account matters which could not legally affect their verdict, the court may grant new trial for the reassessment of the damages. Accordingly we reject this ground of appeal and dismiss the within appeal with costs on double column V. CROSS-APPEAL The respondent challenges the trial judge's ruling with respect to payment for sick leave credits used as result of the injury and contends that Cunningham v. Wheeler, 1994 CanLII 120 (SCC), [1994] S.C.R. 359 mandates full recovery for such loss. Although Mr. Morrison mounted an extensive argument for the respondent's position on this point, Mr. Halyk in his concluding remarks made it clear that his instructions from the respondent were to preserve the integrity of the jury award and not risk new trial over relatively minor sum when viewed in the context of this case as whole. In the light of that submission we do not find it necessary or advisable to deal specifically with this point. Furthermore, on the facts of this case, there is real likelihood that the overall award includes some allowance for loss of number of accumulated sick days. In his instructions to the jury, the learned trial judge stated:[13] ... Her anticipated or probable future loss, if any, is something which you, assisted by some charts for calculation purposes, will have to work out. I'll say more about this in moment. It is possible, too, that you will wish to award something for the loss of number of accumulated sick days, and while it is quite clear, think, that accumulated sick days do not have the same value as full day's pay, you may wish to give consideration to awarding some amount as compensation for the loss of those days. During the course of their deliberations, the jury asked question concerning disability benefits. It was doubtful that this question was intended to refer in any way to sick leave benefits but in the discussion between the presiding judge and counsel reference was made to sick leave. In order to place the matter in perspective we reproduce the following extract from the record:[14] THE COURT: guess you've received copy of the question that has been asked. My essential inclination is that the disability benefits would not be affected by the amount of an award that was made. Does anyone disagree with that? MS. PRISCIAK: No. THE COURT: All right. MR. HALYK: But, with respect, My Lord, think this is little broader issue by the question. It's an issue was trying to address earlier. This issue of disability benefits, they should be instructed it plays no part whatsoever either way with respect to the matter, that is, in terms of either reducing the award for ‑‑ THE COURT: They should ignore the disability benefits set out in the contract. MR. HALYK: Totally. THE COURT: Okay. I'll tell them that. Bring them in. MR. HALYK: In all respects. THE COURT: Well, I'm not going to mention sick leave, because we've already dealt with that. MR. HALYK: No but in ‑‑ what I'm saying is it shouldn't be considered in any respect of anything in terms of their award. THE COURT: Okay. Well, think ‑‑ I'm not sure there is any other respect but what they're asking here is there? MR. HALYK: Well, here ‑‑ they're asking here, are disability benefits as outlined in the Collective Agreement reduced by the award, in other words what they want to know is if the award of damages here will affect her disability benefits. THE COURT: Yes. Well, the answer is no. MR. HALYK: But the other side of the coin is, should they consider in future award the disability benefits she might receive. In other words, the reverse. THE COURT: Oh, okay, well, we'll cover that, too. MS. PRISCIAK: But that's not the question, My Lord, mean the question is very straightforward. THE COURT: Yes, I'll just answer the question, but will probably tuck something in along the lines that you mentioned. MR. HALYK: Just no either way in any situation. THE COURT: Well, bring them in. MR. HALYK: Anyway, whatever. THE COURT: have been asked the question, Are disability benefits as outlined in the Collective Agreement reduced by the award of damages for future loss of earnings?" The answer is no, the disability benefits in the contract should not affect your order, nor will your order affect the disability benefits. Unless there is something else, that's what we were called for. In the circumstances of this case, we need say no more about this issue. In light of Mr. Halyk\'s submission we dismiss the cross-appeal without costs. DATED at the City of Regina, in the Province of Saskatchewan, this 25th day of August, A.D. 1995. TALLIS J.A. concur BAYDA C.J.S. concur JACKSON J.A. [1]. Appeal book Volume 1, page 14(a) and Volume 6, page 673. [2]. Parties to tort litigation in this jurisdiction are free to enter into "structured" settlements but the Court has no jurisdiction or power to impose such settlement. [3]. Appeal book, Volume 3, page 438g, Exhibit P16. [4]. Appeal book, Volume 4, page 349. [5]. Appeal book, Volume 5, page 520. [6]. Appeal book, Volume 6, pages 655 to 656. [7]. Appeal book, Volume 6, page 641-643. [8]. Appeal book, Volume 4, pages 272-273. [9]. Appeal book, Volume 4, page 469. [10]. Appeal book, Volume 4, page 234. [11]. Appeal book, Volume 5, page 409. [12]. Section 50 reads in pertinent part: 50. (1) In any action brought to recover damages or other compensation for or in respect of bodily injuries sustained by any person, the court may order that the person, in respect of whose injury the court may order that the person, in respect of whose injury the damages or compensation is sought, shall submit to be examined by one or more qualified medical practitioners, whom neither party proposes to call as witness or witnesses at the trial of the action. (7) Any medical practitioner who makes an examination under this section may by ex parte order of the court be called as witness at the trial, in which case he shall not be deemed to be witness called by either party. [13]. Appeal book, Volume 6, page 653. [14]. Appeal book, Volume 6, page 670-672.

The Appellant/Defendant, Bennett appealed a judgment resulting from a jury trial. At trial, the Plaintiff had been awarded damages for injuries suffered in a motor vehicle accident. The Defendant limited her appeal to the amount awarded for future loss of earnings. The Respondent/Plaintiff cross-appealed on the issue of whether the trial judge should have directed the jury to deduct sick leave benefits from her past loss of income. Also at issue was whether a forensic accountant should have been permitted to testify as to the present value of the Plaintiff's future earning capacity. HELD: Appeal dismissed. 1)The forensic accountant's evidence was properly admitted as explanatory of the calculations done. The same calculations could have been done by a computer program or by counsel or the trial judge with the assistance of the tables to the Rules of Court. 2)The trial judge properly explained to the jury that the accountant was not testifying as an expert. 3)Given the nature of the accountant's evidence, no expert fees should be permitted to the Plaintiff for the accountant's report or attendance. 4)The Appellant's argument that the trial judge failed to properly direct the jury as to the weight to be given to the accountant's evidence was rejected. 5)The Court was unable to say that the jury's award for loss of future income was so inordinately high that it should be set aside and a new trial ordered. 6)The Plaintiff's cross-appeal relating to the disability benefits was also dismissed.

a_1995canlii4000.txt

R.S. Smith THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 10 Date: 2013-02-01 Between: Docket: 1876-CR Orlando Jose Gonzales and Her Majesty the Queen Respondent Restriction on Publication: An order has been made in accordance with s. 486.4(1) of the Criminal Code directing that any information identifying the complainant shall not be published. Coram: Jackson, Ottenbreit and Herauf JJ.A. Counsel: Peter A. Abrametz for the appellant W. Dean Sinclair for the respondent Appeal: From: 2010 SKQB 283 (CanLII) Heard: October 24, 2012 Disposition: Appeal dismissed Written Reasons: February 1, 2013 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Herauf J.A. I. Introduction [1] After Orlando Jose Gonzales (“Mr. Gonzales”) pled guilty to two counts of sexual assault, Currie J. declared him to be a dangerous offender and sentenced him to an indeterminate sentence. Mr. Gonzales appeals from this sentence. [2] Mr. Gonzales contends that during the dangerous offender hearing Currie J. failed to give adequate consideration to the assessment of the two expert witnesses who both recommended that he be declared a long-term offender instead of a dangerous offender. [3] For the reasons that follow, I dismiss the appeal. Currie J. was not bound to accept the assessment of the experts. He gave more than adequate reasons for questioning the foundation the assessments were based upon. This finding, combined with his review of all of the evidence, is more than sufficient to support his conclusion that there was no “reasonable possibility of eventual control of risk in the community”. II. Background Facts [4] The predicate offences that led to Mr. Gonzales being classified dangerous offender were two sexual assaults. Mr. Gonzales pled guilty to both counts of sexual assault. Both offences occurred on May 28, 2005. The first offence in time involved Ms. P. One night while Mr. Gonzales was driving his van in Saskatoon, he pulled up to Ms. P., prostitute, with the intent to engage her sexual services. Ms. P. got into his van and the two agreed to exchange sexual services for money. Mr. Gonzales then drove into back alley, parked, and they both proceeded to get into the back of the van. Mr. Gonzales then punched Ms. P. twice in the face, pushed her face into the floor of the van and then forced her to perform oral sex on him. Mr. Gonzales then punched her three more times in the face. At this point, Ms. P.’s nose began to bleed. Mr. Gonzales then raped Ms. P. vaginally, and then once again punched her in the face. Mr. Gonzales then raped Ms. P. anally. Mr. Gonzales then clothed himself and began driving himself and Ms. P. around Saskatoon, pointing out random houses and vehicles which he claimed to own. At some point throughout these events, he came across her treaty card and confiscated it. Mr. Gonzales then threatened Ms. P. by telling her not to run because he would be able to find her due to the fact that he had her treaty card. Eventually Ms. P. was able to escape. [5] Later on that same night Mr. Gonzales committed another sexual assault, this time against Ms. B., also prostitute. Mr. Gonzales, while driving his van, pulled up to Ms. B. The two agreed to exchange her sexual services for money. Ms. B. got into Mr. Gonzales’ van and he parked the van in back alley. Ms. B. began to feel uneasy, so she asked Mr. Gonzales to pay her up front. Mr. Gonzales was enraged by this and began choking Ms. B. to point where she almost lost consciousness and her nose began to bleed. Mr. Gonzales then demanded that Ms. B. perform oral sex on him. At this point, third party interrupted and Ms. B. was able to escape. [6] Mr. Gonzales was arrested on June 17, 2005 in connection with these two sexual assaults. He has been in custody since that time. III. Criminal History [7] Mr. Gonzales previously pled guilty to two sexual assaults which occurred in 2002. These sexual assaults bear striking similarity to the predicate offences. [8] The facts relating to these assaults are described by Currie J. in his judgment at paras. and as follows: On the evening of July 27, 2002, Mr. Gonzales engaged B.H. in conversation. After some time, Ms. H. agreed to Mr. Gonzales’ suggestion of walk by the river. Once they reached the river Mr. Gonzales tripped Ms. H., choked her, slapped her, kicked her, called her bitch and slut, and raped her vaginally. He then agreed to her request that she could get dressed. While she was doing so he kicked her in the face. Later that night, by then the early morning of July 28, 2002, Mr. Gonzales engaged K.M. in conversation and they agreed to an exchange of sexual services for money. They entered an alley. Once there, he dragged her by the throat. She punched him, and he then punched her in the face, following which he raped her vaginally while holding her by the throat. [9] Mr. Gonzales was arrested and charged on July 28, 2002. DNA evidence linked him to the crimes. He remained in custody until he pled guilty and was sentenced in December of 2003. He was sentenced to time served on one of the offences and on the other to term of imprisonment of two years less day. He was released from prison on April 2, 2005. He was out of prison for less than two months when the predicate offences were committed on May 28, 2005. [10] In addition to the four offences of sexual assault, Mr. Gonzales has been convicted of 36 other offences between 1990 to 2005. For the most part, the offences related to the theft or possession of stolen vehicles. IV. Opinion Evidence [11] Dr. Mansfield Mela, psychiatrist, was appointed by the court to provide an assessment. Dr. William Arnold, psychologist, provided an assessment on behalf of Mr. Gonzales. 1. The Assessment of Dr. Mela [12] Dr. Mela spoke to Mr. Gonzales in July and August of 2007 and again in July of 2008. The 12 month period between interviews was occasioned because Mr. Gonzales vacillated between cooperating with the assessment and maintaining that he was coerced into pleading guilty. Mr. Gonzales advised Dr. Mela initially that on the day the offences were committed he consumed large amount of alcohol and had no memory of anything that happened after he started to drink. Mr. Gonzales blamed his violent behaviour on alcohol. Mr. Gonzales’ contention that alcohol was the cause of his violent behaviour may explain why he refused permission to conduct phallometric testing to determine if he was aroused by inflicting violence. [13] Dr. Mela assessed Mr. Gonzales’ risk to reoffend sexually as moderate to high with treatment and as extremely high without treatment. Dr. Mela acknowledged that Mr. Gonzales had significant number of psychopathic traits, including the fact that he was pathological liar. [14] With respect to managing Mr. Gonzales’ risk in the community, Dr. Mela proffered that if Mr. Gonzales successfully completed high intensity sexual offender treatment program and if he participated in “continuous unquestionable and bona fide alcohol and drug treatment program”, his risk might be manageable under “protracted supervision” regime. Dr. Mela did not offer an opinion as to the length of time these programs and supervision would take. [15] Dr. Mela knew that Mr. Gonzales had given widely inconsistent accounts about his personal and criminal history. As result, Dr. Mela was suspicious about whether Mr. Gonzales was exaggerating his personal circumstances in order to gain sympathy. [16] Dr. Mela was unequivocal that if Mr. Gonzales is lying about the offences and continues to do so he will not benefit from sexual offender treatment. As well, if Mr. Gonzales continues to vacillate between accepting and denying responsibility for the offences he will not benefit from treatment. Dr. Mela confirmed that federal offenders cannot be forced to take treatment and that offenders who deny guilt are not even eligible for treatment. [17] Dr. Mela testified that he was hopeful for Mr. Gonzales’ prognosis for two reasons. The first being that he had been told Mr. Gonzales was behaving well in prison and he assumed this to be true. The second being that Mr. Gonzales said he was motivated to work on his substance abuse and sexual offending issues and Dr. Mela assumed that Mr. Gonzales was genuine about this. [18] As noted, Dr. Mela’s overall assessment was that there was “possibility of adequate management of Mr. Gonzales’ risk in the community” and thus Dr. Mela recommended Mr. Gonzales be designated long-term offender. 2. The Assessment of Dr. Arnold [19] Dr. Arnold generally agreed with Dr. Mela’s conclusion relating to Mr. Gonzales’ risk and treatment prospects. He was supportive of long-term offender designation for Mr. Gonzales. He also cited Mr. Gonzales’ good behaviour in prison and his motivation to change as basis for his assessment. He proffered that Mr. Gonzales might become “clinically manageable with lengthy supervision”. He testified that Mr. Gonzales would have to complete intense and long-term sexual offender treatment, long-term substance abuse treatment, therapy for personal trauma, psychiatric care for mood and medication monitoring and educational upgrading before his risk would become “clinically manageable”. [20] Dr. Arnold was also unequivocal that the sexual offender program cannot succeed unless Mr. Gonzales understands and accepts that he has committed sexual offences. Dr. Arnold was willing to trust that Mr. Gonzales was ready to accept responsibility. [21] Dr. Arnold testified that Mr. Gonzales’ treatment needs are extensive and that he may have to repeat the sexual offender program several times. Dr. Arnold estimated that would take four to five years of sexual offender and substance abuse treatment before Mr. Gonzales could be released into the community. [22] Like Dr. Mela, Dr. Arnold’s prognosis was based upon two assumptions. The first being that he assumed that the reports of Mr. Gonzales’ good behaviour on remand were true and second, he assumed that Mr. Gonzales was genuine when he stated he wanted to change. V. Additional Evidence at the Dangerous Offender Hearing [23] Mr. Gonzales has been incarcerated since June 17, 2005. The trial judge heard extensive evidence from correctional centre staff. While Mr. Gonzales displayed good behaviour for short periods of time, for the most part the evidence from correctional staff points to violent, aggressive and irrational behaviour. [24] Mr. Gonzales often defied the rules of the correctional centre. He was apt to use his girlfriend in an on-going effort to smuggle drugs into the correctional centre. If he was caught or prevented from doing so he was prone to violent outbursts. He threatened staff and manufactured and possessed homemade weapons on many occasions. He also wilfully damaged property on many occasions. For example, when his girlfriend was denied visiting privileges he reacted by destroying microwave, television set, coffee maker and several telephones. [25] Another example of particular bad behaviour involves Mr. Gonzales’ attempt to smuggle drugs into the correctional centre when his girlfriend was temporarily suspended from visiting him. Mr. Gonzales arranged for his lawyer at that time to bring his baby to the correctional centre for visit. The lawyer picked up the baby from Mr. Gonzales’ girlfriend and brought the baby to the correctional centre. The lawyer did not realize that drugs had been hidden in the baby’s effects. After the visit, when Mr. Gonzales was searched and drugs were located, he falsely accused his lawyer of being part of the plot. [26] There are countless other examples of Mr. Gonzales’ disruptive and violent behaviour while incarcerated. One of the most telling examples relates to an occurrence during the dangerous offender hearing. Four days after Dr. Mela testified that Mr. Gonzales was well-behaved in the correctional centre and seemed sincere in his commitment to stop using drugs, Mr. Gonzales attempted to retrieve hidden package of drugs that had been left for him in the public washroom in the courthouse where the hearing was taking place. VI. The Trial judge’s Decision [27] Mr. Gonzales did not testify at the hearing. He conceded that the dangerous offender criteria in s. 753(1)( b) of the Criminal Code were proven. He also conceded that the only issue at stake was whether the trial judge was satisfied there was reasonable possibility of eventual control of risk in the community and thus be designated long-term offender. [28] Mr. Gonzales argued that the court should not designate him dangerous offender because he never had the chance to participate in sexual offender treatment programming. The trial judge noted that the experts were agreed Mr. Gonzales needed treatment before he could safely be released in the community. The trial judge rejected the argument that Mr. Gonzales never had chance to participate in treatment. When Mr. Gonzales was previously incarcerated he did not participate in programing to deal with his sexual conduct because he refused to discuss the sexual assaults in any meaningful way. When he did discuss the offences, he claimed that he did not commit them, or if he did so, it was under the heavy influence of drugs and alcohol and he had no memory of the offences. Treatment would not work with such an attitude. Treatment would also not work because Mr. Gonzales was untruthful regarding his conduct. [29] Furthermore, in the five years he was in custody he consistently engaged in disruptive and rule-breaking behaviour. He continued to have problems with violence and anger. The deciding factor in determining that Mr. Gonzales could not be controlled in the community was, according to the trial judge, the fact that in 2005 Mr. Gonzales committed two sexual assaults within two months of being released from prison where he was serving a sentence for two prior sexual assaults. [30] The Supreme Court of Canada in R. v. Currie, 1997 CanLII 347 (SCC), [1997] S.C.R. 260, set out the standard of appellate review as reasonableness in offender appeals of this nature. Accordingly, some measure of deference on appeal should be shown toward the trial judge’s assessment of credibility and findings of fact. See also R. v. Badger, 2012 SKCA 119 (CanLII) at para. 52 and R. v. Natomagan, 2012 SKCA 46 (CanLII), [2012] W.W.R. 444 at paras. 47-48. [31] The trial judge instructed himself properly on the law and noted the appropriate authorities in order to decide the contested issue, namely the third point in s. 753.1(1) of the Criminal Code: whether “there is reasonable possibility of eventual control of the risk in the community”. [32] The trial judge acknowledged that the protection of the public was the primary purpose to consider since the experts identified that there was substantial risk that Mr. Gonzales will sexually reoffend if left untreated. [33] Finally, the trial judge also acknowledged that the finding that particular individual is dangerous offender should only be made if an indeterminate sentence is the least restrictive means by which to reduce the public threat posed by the offender to an acceptable level. See: R. v. Johnson, 2003 SCC 46 (CanLII), [2003] S.C.R. 357 at para. 44; R. v. Lemaigre, 2004 SKCA 125 (CanLII), [2005] W.W.R. 52 at para. 11; R. v. Badger, supra, at paras. [34] With this background in mind it is appropriate to examine the main ground of appeal: that the trial judge failed to give adequate consideration to the opinions of the experts. [35] trial judge is not bound to accept the opinions of an expert. This Court in R. v. Badger, supra¸ at para. 94 As matter of principle, the judge was not bound to have accepted the assessment. He was obliged to judicially consider and weigh it, having proper regard for its foundation, for the evidence bearing upon the subject, and for the underlay of general principle at work here. But he was not obliged to act on the assessment, or any portion of it. Rather, he was free, on proper consideration of it, to accept or reject it, in whole or in part, for it was he who had ultimately to decide if, having regard for all of the evidence touching upon the subject, there existed “reasonable possibility of eventual control of the risk in the community” through the imposition of long-term sentence as contemplated by s. 753.1(1)(c): R. v. Brass, 2011 SKCA 125 (CanLII), 375 Sask. R. 280. [36] In addition to the reports and testimony of Dr. Mela and Dr. Arnold, the trial judge considered written reports from the Saskatoon Correctional Centre, including evidence of staff relating to the behaviour of Mr. Gonzales and to the treatment and programming available. The trial judge also considered statements from the witnesses relating to the sexual assaults and the evidence of Mr. Gonzales’ sister as to their family history. [37] The opinions of the experts were premised upon two assumptions. The first being that Mr. Gonzales was well-behaved in the remand unit. The second was that Mr. Gonzales was genuine in his commitment to stop abusing drugs and to honestly participate in sexual offender treatment. The experts appeared to have accepted Mr. Gonzales’ assurances at face value even though they both identified Mr. Gonzales as pathological liar. As the evidence previously set out clearly shows, both of these assumptions that form the basis for the experts’ opinions were proved false by Mr. Gonzales’ behaviour. [38] The belief that Mr. Gonzales was well-behaved, compliant prisoner while on remand was contradicted by the evidence. Indeed, as noted, Dr. Mela’s evidence that Mr. Gonzales was well-behaved and genuine in his assertion that he was adamant about stopping his drug abuse was contradicted by his blatant attempt to have drugs smuggled in the courthouse bathroom four days after Dr. Mela testified. There are other examples previously listed that dispel the assumption that Mr. Gonzales was good prisoner while on remand. [39] The trial judge was correct to be concerned that Mr. Gonzales continued to have problems with “violence, anger, manipulation and intoxicants within the Correctional Centre, which is more controlled environment than is the general community” (see para. 33 of the trial judgment). [40] What is even more surprising is that both experts trusted that Mr. Gonzales was genuine in his commitment to take programs to address his risk, i.e. sexual offender, anger, drug and alcohol abuse, etc. Both experts accepted Mr. Gonzales’ word that he was willing to take responsibility and commence appropriate programming. Since the experts had identified Mr. Gonzales as pathological liar this trust appears to have been misplaced. The evidence established that Mr. Gonzales vacillated between three positions involving the sexual offence charges. At para. 26 of the trial judgment these three positions are succinctly set out as follows: 26 Over the past few years, Mr. Gonzales has provided variety of responses when asked about his commission of the sexual assaults. At different times and to different people, including Ms. Landru, his probation officer Mr. Turta, Dr. Mela and Dr. Arnold: (a) Mr. Gonzales has provided, for each offence, contradictory detailed descriptions of the circumstances of the offences, aimed at explaining away the offences, so that with these detailed descriptions Mr. Gonzales has sought to establish that in fact he did not commit the offences; (b) Mr. Gonzales has accepted that he committed the offences, but has claimed that he did so under such heavy influence of drugs and alcohol that he has no recollection of any detail of the offences; and (c) Mr. Gonzales has denied committing the offences at all. [41] Both experts acknowledged that the first step to successful treatment is the acceptance of responsibility for the offences. Both experts were doubtful that treatment could be effective if Mr. Gonzales refused to discuss the offences or claims to have had no memory of the offences due to alcohol or drug use. Both experts acknowledged that Mr. Gonzales would not be eligible for programing if he denied committing the offences. [42] The trial judge, after consideration of all of the evidence, did not share the experts’ underlying assumptions that Mr. Gonzales is willing to take treatment, especially as it relates to reducing his high risk to reoffend sexually. The evidence certainly supported this conclusion. With respect to the offences that occurred in 2002, Mr. Gonzales refused to talk about the offences which made him ineligible for entry into high intensity sexual offender programs even though he told the sentencing judge at that time that he was willing to take the treatment. At the time of the dangerous offender hearing Mr. Gonzales still had not taken the high intensity sexual offender program. [43] The trial judge’s view that Mr. Gonzales was not willing to take treatment because he refused to accept responsibility for the sexual assaults was prophetic. On August 19, 2010, Mr. Gonzales filed a notice of appeal with this Court stating that “I am doing a life sentence for two sexual assaults I did not commit”. He followed this up with a letter dated August 28, 2010 to this Court where he said that he did not sexually assault anyone and was falsely accused by the victims who were forced to lie by the police. [44] The fresh evidence, which was filed by consent of the parties in this Court, included correctional plan that was written in January 2012. The document reveals that Mr. Gonzales refused to transfer to another institution in order to participate in the high intensity sexual offender treatment program. Mr. Gonzales wanted to be sent to the Regional Psychiatric Centre in Saskatoon instead. Once again, this clearly speaks to the unwillingness of Mr. Gonzales to work on his own rehabilitation. [45] It is incredible that, but for the period from April 2, 2005 to June 17, 2005, Mr. Gonzales has been in custody since July 28, 2002 for four degrading sexual assaults upon vulnerable women and has yet to take the high intensity sexual offender treatment program which the experts acknowledge is pre-requisite for rehabilitation. In fact, Dr. Arnold suggested that Mr. Gonzales may have to take the program more than once. Without this program everyone accepts that Mr. Gonzales’ risk for sexual reoffending is substantial. [46] One final point mentioned in the factum of Mr. Gonzales but not pressed on appeal relates to the criticism that the trial judge overemphasized specific deterrence and denunciation and overlooked rehabilitation. These objectives were not mentioned by the trial judge. The indefinite sentence was imposed not to denounce Mr. Gonzales’ crimes or to deter him from committing others. The law required the trial judge to place primary emphasis on public protection and that is what he did. [47] For all these reasons the appeal is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of February, 2013. “Herauf J.A.” Herauf J.A. concur “Jackson J.A.” Jackson J.A. concur “Herauf J.A.” Ottenbreit J.A. (as per authorization)

The appellant plead guilty to two counts of sexual assault, was declared a dangerous offender and sentenced to an indeterminate sentence. The appellant appealed the sentence arguing that the sentencing judge failed to give adequate consideration to the assessment of two expert witnesses who testified that they thought the appellant should be found a long-term offender. HELD: The appeal was dismissed. The sentencing judge was not bound to accept the assessment of the experts. Both experts testified that the appellant's risk to reoffend sexually was moderate to high and was extremely high if he did not receive treatment. Both experts based their opinions, in part, on the idea that the appellant had been a model inmate. Both experts believed the appellant's self report about his behaviour in custody, despite having reached the conclusion that he was a pathological liar. Both experts appeared to take the accused at face value when he said he was motivated to change. In fact, the evidence from correctional officials suggested that the appellant was prone to violent, aggressive and irrational behaviour in custody. He had shown on numerous occasions that he would not follow the rules in the institution and had been involved in several attempts to smuggle drugs into the jail, including picking up a package in the washroom of the court house during his dangerous offender hearing and convincing his lawyer to bring his baby into the jail with drugs in his diaper. The accused had committed two sexual assaults within months of being released from a previous sexual assault sentence. The trial judge was correct to emphasize protection of the public and was entitled to discount the opinion of the experts because it was based on incorrect assumptions. In supporting the sentencing judge's opinion that the accused would not take treatment because he refused to accept responsibility for his offences, the Court of Appeal noted that the accused had stated in his Notice of Appeal that he was serving a life sentence for two sexual assaults that he did not commit and the fact that he sent a letter to the Court saying that he had been falsely accused and did not sexually assault anyone. In addition, the Court considered fresh evidence that the appellant had refused to transfer to another institution in order to participate in high-intensity sex offender treatment pending his appeal.

d_2013skca10.txt

J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 189 Date: 2006 04 20 Docket: D.I.V. No. 6/2006 Judicial Centre: Regina, Family Law Division BETWEEN: GREGORY FRASS and CLARA FRASS Counsel: Kendra L. Chorney for the petitioner Peggy M. Benko for the respondent FIAT SANDOMIRSKY J. April 20, 2006 [1] The respondent, Clara Frass, moves for an order granting to her, (1) joint custody and primary care (residence) of Keandra Frass, d.o.b. October 15, 1996, with access to her former spouse; (2) interim child support pursuant to s. 15 of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) retroactive to January 1, 2006, together with special or extraordinary expenses pursuant to s. of the Federal Child Support Guidelines (SOR/97-175, as am.) (the “Guidelines”); and (3) interim spousal support in the sum of $750.00 per month retroactive to January 1, 2006. [2] The petitioner is not opposed to an order granting (or more appropriately “confirming”) joint custody of Keandra Frass, with the respondent being designated as the primary caregiver and the respondent’s residence being the primary residence of Keandra. Accordingly, this is so ordered. [3] The petitioner and respondent agree that the established status quo of shared parenting shall also be included in this order. Therefore, it is ordered that the petitioner shall parent Keandra each school day commencing after school recesses for the day until the respondent is finished her work and therefore able to pick Keandra up. This may often require that Keandra is fed supper at her father’s home. Further, every alternate weekend, coinciding with the respondent’s schedule where possible, Keandra will be parented by the petitioner commencing Friday when school recesses until the following Sunday at approximately noon hour. The petitioner and respondent shall split all school holidays and special occasions in fair if not equal manner as they presently do by agreement. [4] The petitioner is employed as school teacher, and on occasion takes part‑time work with an aircraft service company at the Regina Airport. The petitioner and respondent agree that the petitioner’s income shall be $73,262.00 less union dues which would require child support payment of $625.00 per month effective May 1, 2006, under the new tables. The petitioner and respondent also agree that inasmuch as the respondent earns $29,289.00 as SaskTel employee, that the petitioner’s share of their combined incomes is 71% of the total. The petitioner shall therefore bear 71% of special or extraordinary costs if any are payable as consequence of this fiat. Accordingly, it is ordered that the petitioner pay to the respondent as support for Keandra Frass, born October 15, 1996, the sum of $625.00 per month and 71% of special or extraordinary expenses as hereafter described. [5] The basis of the respondent’s claim for retroactive support is that the parties attempted to mediate as well as negotiate resolution of issues, including support, since their separation in April 2005, and certainly since these proceedings were commenced on January 9, 2006. Those efforts produced what the petitioner described as an agreement or understanding as to how the costs of raising Keandra would be apportioned between the parties. The petitioner feels that he lived up to his end of the bargain and therefore he is opposed to any order for retroactive support. The respondent argues that her requests and attempts to negotiate were rebuffed by the petitioner and therefore she should be entitled to retroactive order commencing January 1, 2006. [6] The evidence upon the issue of retroactivity is minimal and the positions are conflicting. Accordingly, child support, for interim purposes, shall commence effective April 1, 2006 inasmuch as the petitioner had been served with this notice of motion on March 3, 2006. [7] The parties cannot agree if any of the following expenses fall into s. of the Guidelines as being extraordinary expenses: (a) childcare after school program 975.00 per year (b) dance 500.00 per year (c) school activities 350.00 per year (d) asthma medication $1,140.00 per year. [8] The Guidelines have been amended effective May 1, 2006. One area in which the amendments seek to bring clarity is what may constitute an extraordinary expense from one which is ordinary. The table amount encompasses those expenditures which are ordinary. Section focusses upon expenditures which are extraordinary and therefore over and above the table amount. The amendment therefore attempts to entrench in law what has been an approach developed by case law to date. When the custodial parent’s income is added to the table amount of child support ordered, is the sum sufficient to reasonably cover the item claimed to be extraordinary? If the sum is sufficient to reasonably cover the claimed item, we are not dealing with s. extraordinary expense. On the other hand, if the sum is not sufficient to reasonably cover the claimed item, the item is considered to be extraordinary and falls into s. which requires the said cost to be paid pro rata to the parents’ respective incomes bear to the sum. [9] Section of the Guidelines further assists by listing the expenses which may be special or extraordinary in six categories, s. 7(1)(a) to (f) inclusive. do not believe that the “reasonable coverage” definition contained in the May 1, 2006 amendment is new law. At best, it is single test now enunciated in legislative form which should provide for more consistency and predictability as opposed to the many attempts to articulate definition of extraordinary which is found in the case law. What items claimed are necessary to attain Keandra’s best interests and yet are reasonable given the economic circumstances of Keandra and her parents? Which items might be reasonably covered by the sum of Ms. Frass’ income plus child support? I find that the childcare costs and asthma medication costs are of sufficient amount and peculiar to Keandra as to be extraordinary or not expected to be reasonably covered from the table amount of child support and the respondent’s income. The petitioner shall therefore pay to the respondent, 71% of those costs which is monthly sum of $125.00 commencing April 1, 2006 as well. In the likely event that the petitioner’s health plan covers the residual cost of Keandra’s asthma medication not paid for by the respondent’s plan, the petitioner’s s. payment is hereby decreased by $67.45 per month. [10] The petitioner’s assumption of family debt payments and any disparity in the division of family property to date are issues which go to the property division and are not relevant to interim child support. Nor is the fact that the petitioner cares for Keandra after school, thereby reducing the need and cost of additional childcare, logical reason to place the entire residual cost of daycare as an expense to be borne by the respondent. The petitioner’s input reduces the cost of daycare to both the petitioner and respondent and is not an offset. [11] This brings us to the last relief sought by the respondent, interim spousal support. The petitioner does not dispute the respondent’s legal entitlement to spousal support at this interim level. The parties accept that need and the corresponding ability to pay are predominant considerations at the interim stage, yet not to the exclusion of the statutory factors and objectives recited by the Divorce Act and The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. However, the petitioner suggests that $200.00 is sufficient amount to overcome any shortfall in the respondent’s present budget or needs. On the other hand, the respondent urges that the economic disparity in household incomes and post-separation lifestyles leaves her with need of $750.00 per month. [12] At this interim stage, rely upon need and ability to pay, largely circumscribed by the difference in the party’s respective incomes, $73,000.00 versus $29,000.00, rounded. also rely upon the principles of spousal support enunciated so carefully in the Supreme Court of Canada’s decision of Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813, wherein Madam Justice L’Heureux‑Dubé focussed upon the economic consequences of the marriage and marriage breakdown as they impact upon each spouse. Where there is significant disparity in the incomes of each of the former spouses in the immediate post-separation period, and such economic disparity defines corresponding disparity in the affordability of lifestyles of the former spouses, spousal support is the appropriate mechanism to diminish those disparities. The amount of spousal support should provide both of the former spouses with an interim standard of living which more closely relates to that of each other and to the standard of living experienced by both before their separation. This principle does not, however, demand equal household incomes as is so often misunderstood. [13] Neither counsel referred to the spousal support guidelines and the formula for spouses with children (Family, Children and Youth Section, Department of Justice Canada, Spousal Support Advisory Guidelines: Draft Proposal by Professor Carol Rogerson and Professor Rollie Thompson (Toronto: University of Toronto, Faculty of Law; and Halifax: Dalhousie Law School, 2005), which measures the difference between the individual net disposable incomes of each former spouse. These guidelines suggest that an award of between 40% to 46% of that difference in individual net disposable income be paid by the spouse with the higher INDI to the former spouse with the lower INDI. These guidelines create rough ballpark of $900.00 to $1,100.00 per month in this particular case. However, the petitioner is bearing the full responsibility for family debt repayment in the interim. While I have already stated that debt repayment can be adjusted as a property issue, the reality remains that in order to pay creditors in a timely fashion, the petitioner has taken this responsibility largely onto his shoulders. In the circumstances, it is ordered that the petitioner pay to the respondent interim spousal support in the sum of $700.00 per month commencing effective April 1, 2006 and on the first day of each and every month hereafter until further order. The respondent is no longer expected to contribute $80.00 per month to service family debt. The consequent reduction of family debt is therefore a factor of this particular interim spousal support order and should not cause confusion when addressing any property issues in the future. [14] As to costs, it is noteworthy that the parties agreed on custody, access, basic child support and entitlement to spousal support. Each party presented meritorious arguments as to the outstanding issues dealing with extraordinary expenses and the quantum of spousal support. This display of cooperation and fairness enforces my instinct that given the opportunity and guidance required, Mr. and Mr. Frass are able to settle their issues and thereby avoid the expense and emotional damage of further litigation. In the circumstances, am making no award as to costs. J. N. S. Sandomirsky

FIAT: The issues on this application are with respect to extraordinary expenses and the quantum of spousal support. HELD: 1) The petitioner's income is $73,000 versus $29,000 for the respondent. The parties cannot agree if any of the expenses fall into s. 7 of the Guidelines as being extraordinary: $975 for child care, $500 for dance, $350 for school activities, and $1,140 for asthma medication. 2) The court does not believe that the 'reasonable coverage' definition contained in the May 1, 2006 amendment is new law. At best, it is a single test now enunciated in legislative form which should provide for more consistency and predictability as opposed to the many attempts to articulate a definition of extraordinary which is found in the case law. What items claimed are necessary to attain the child's best interests and yet are reasonable given the economic circumstances of the child and her parents? Which items might be reasonably covered by the sum of the parent's income plus child support? 2) The child care costs and asthma medication costs are of sufficient amount and peculiar to this child as to be extraordinary or not expected to be reasonably covered from the table amount of child support and the respondent's income. 3) With respect to spousal support, neither counsel referred to the spousal support guidelines and the formula for spouses with children which measures the difference between the individual net disposable incomes of each former spouse. These guidelines suggest that an award of between 40% to 46% of that difference in individual net disposable income be paid by the spouse with the higher INDI to the former spouse with the lower INDI. These guidelines create a rough ballpark of $900 to $1,100 per month in this particular case. However, the petitioner is bearing the full responsibility for family debt repayment in the interim. In order to pay creditors in a timely fashion, the petitioner has taken this responsibility onto his shoulders. In the circumstances, it is ordered that the petitioner pay to the respondent interim spousal support of $700. The consequent reduction of family debt is therefore a factor of this particular interim spousal support order and should not cause confusion when addressing any property issue in the future.

2006skqb189.txt

Q.B.G. A.D. 1995 No. 260 J.C.B. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: PETER CHOBOTAR PLAINTIFF (DEFENDANT BY COUNTERCLAIM) and MARIE CHOBOTAR, GLEN CHOBOTAR, EDWARD CHOBOTAR, each in their personal capacity, and MARIE CHOBOTAR and GLEN CHOBOTAR in their representative capacity as Executors of the Estate of GEORGE NICHOLAS CHOBOTAR, late of Buchanan, Saskatchewan, Farmer, Deceased DEFENDANTS (PLAINTIFFS BY COUNTERCLAIM) R.M. Peet for Peter Chobotar R.A. Gibbons for all defendants (except Edward Chobotar, who did not appear and was not represented) JUDGMENT BAYNTON J. November 7, 1996 Peter sues his father\'s estate for damages forbreach of a farm lease and for the value of his farm labour. The estate counterclaims for a mortgage debt incurred by thefather on behalf of Peter. ISSUES The issues raised by the pleadings and at the trial of this case are: (a)Is there valid lease agreement between the plaintiff and his deceased father? (b)If so, was the lease repudiated by Peter? (c)If the lease is valid, is Peter estopped from suing on it? (d)What is the quantum of Peter's damages, considering his alleged failure to mitigate? (e)Is Peter entitled to reimbursement from the estate on quantum meruit basis for the value of his farm labour, and if so what is the quantum of his claim? (f)Does Peter owe debt to the estate of $17,800.00 (with interest) that was paid by his deceased father to clear his land titles that were mortgaged on Peter's behalf? FACTS Peter's breach of lease claim is based on an unsigned lease memorandum. It was written out by his father on the back of an envelope in the spring of 1993. copy was given to Peter and his father kept copy. The agreement gave Peter the right to farm two quarters of his father's land in 1994 with his father's farm machinery. In return, Peter was to give his father one-third of the crop harvested, was to pay $1,000.00 for the use of the machinery, was to do some summer fallowing in 1993, and was to pay for some diesel fuel his father had on hand. Peter's labour claim is quantum meruit claim for the value of his labour in 1993 in performing farming operations for his father. Peter is farm labourer and has for several years helped with his father's farming operation. The deteriorating health of the father required him to seek more assistance each year with the farm. He was helped by his other sons as well but the help came primarily from Peter. The sons were paid meagre amounts from time to time for expenses but they contributed their time primarily to assist their father rather than with the expectation that they would be fully reimbursed for their efforts. In the mid eighties Peter acquired some farm land of his own. His father assisted him by granting the lender, Bank of Montreal, collateral mortgage on his own land. Peter was not able to meet the financial obligations of the loan and in 1989 his father was required to remortgage his land to Farm Credit Corporation for $17,800.00. He did this to raise $17,500.00 required by the Bank of Montreal for release of the father's land from the bank's foreclosure. Through the foreclosure Peter lost his investment in the land he had purchased. The father never made claim against Peter to repay the $17,800.00. This amount with interest has been claimed by the estate from Peter by way of counterclaim in Peter's action. The father died in November 1993. Prior to his death, he showed the handwritten memorandum on the envelope to Elsie Lamber, one of his daughters, and acknowledged to her that Peter would be farming the father's land the following year. Peter did not farm the land in 1994 as it was farmed by Glen, one of the executors, on behalf of the estate. Peter did not vigorously pursue his right to farm under the lease assuming from the position taken by the executors that it would be pointless to do so. Peter was not included in his father's will as beneficiary of the estate. The will contained no reference to the $17,800.00 mortgage amount. The father's statement of assets filed in his divorce and matrimonial property action did not disclose it as an asset. Nor was it shown as an asset of the estate in the statement of assets filed in connection with the probate application. ANALYSIS OF THE EVIDENCE a. The Memorandum of Lease I am satisfied that the unsigned handwrittenmemorandum evidences a binding agreement for lease betweenPeter and his father. It sets out the terms with sufficient particularity to be enforceable. In any event, it is not the terms of the lease that are in dispute. The father considered the document to be lease. He kept a copy of it on hisperson and he showed it to his daughter, Elsie, when he stayedwith her for a week shortly before he died. He in effectaffirmed the lease in his discussions with her, saying Peterwould be farming the land in 1994. It is odd that the executor, Glen, denies any knowledge of the handwritten document even though he was told of it at the farm in March 1994 by Elsie Lamber. His brother, Alex, was present and testified that he cannot say whether he heard the conversation with Elsie. accept the evidence of Elsie. As residual beneficiary of the estate, she stands to lose if the lease is upheld. The lease was performed in part when Peter did some of the summer fallowing and paid for some of the diesel fuel. Although Peter voluntarily and without expectation of payment contributed his labour from time to time to help his ailing father, it is not feasible that he would take on what he agreed to do under the lease without being paid some remuneration or share of the crop. Nor is it feasible that he would pay his father for fuel if he was doing the farm work for his father without compensation. b. Repudiation of the Lease The estate maintains that Peter had fight with his father and abandoned the lease. It is also submitted that Peter breached the lease by not doing the summer fallowing properly. The weight of the evidence on this issue is to the contrary. The relationships in the family were stormy at times and find that the father, in the heat of an argument, arbitrarily and without justification repudiated the agreement. Had he remained alive in 1994, he likely would have permitted Peter to complete the lease. Peter also testified that he did not want to upset the precarious health of his father by fighting with him so he withdrew from the land hoping his father would subsequently change his mind and let him farm. Although both Peter's brother, Alex, and Glen, one of the executors, testified that the summer fallow was covered with high weeds, this is inconsistent with the examination for discovery evidence of Glen. I find that Peter neither repudiated the lease norfailed to complete his obligations under it. Estoppel It is suggested by the estate that Peter is estopped from enforcing the lease as he did not oppose the farming of the land in 1994 by the executors of the estate. I find inthe circumstances that the fact Peter did not vigorouslycontest the right of his brother to farm the land on behalf ofthe estate does not estop him from suing the estate fordamages for his father\'s breach of the lease. accept the evidence of Peter and Elsie over that of Glen that the estate was aware of Peter's lease prior to putting in the crop in 1994. To avoid confrontation, Peter did nothing hoping that he would be fairly treated by the estate. d. Quantum of Damages for Breach of Lease Understandably, the evidence as to the quantum of damages leaves much to be desired, but the court must do the best it can to assess those damages. There was conflicting evidence as to most of the components making up the damage claim for what could reasonably have been realized in 1994 from Canola crop grown on the land, including yield, quality, sale price, and the costs of putting the crop in and taking it off. Obviously the plaintiff is only entitled to the net return he would have realized had he farmed the land in accordance with the lease in 1994. This involves assessing not only the gross return he would likely have received but as well the input expenses he likely would have incurred. In the rather peculiar circumstances of this case, Peter could likely have mitigated his damages somewhat had he been more forceful in asserting his claim against the estate. He never showed the agreement to Glen until July of 1994 when it was too late to let Peter farm the land. Nor did he raise the matter when the will was read. Even though he is not estopped from bringing his claim, any doubt about the accuracy of his forecast of damages should be determined in favour of the estate. The plaintiff submitted written calculation showing that his damages represented his loss of net profit of $10,984.00. Based on the evidence heard, the calculation overestimates the gross return and underestimates the input costs. conclude that his net return would have been approximately $6,216.67 calculated as follows: Gross Return 140 acres 20 bushels per acre at $7.00 (No. 1) $19,600.00 Less 1/3 crop to father 6,533.33 Less $1,000 equipment rental to father 1,000.00 Less balance of fuel purchase owed to father 250.00 Gross return to Peter 11,816.67 Input Costs Peter's input costs (@ $40.00 per acre) 5,600.00 Net Return Peter's estimated net return 6,216.67 In arriving at these amounts, have considered Peter's testimony that he would have realized 24 bushels to the acre at $8.00 per bushel, and that his input costs (excluding fuel for harvest) would be $30.00 $35.00 per acre. Against this is Alex's testimony, an experienced farmer, that although Canola crop usually yields 25-30 bushels per acre in the area, yields were down for 1994. His estimate was 12-15 bushels per acre. He also testified that much of the Canola crop grown in the area in 1994 was graded down to No. or even to sample. He estimated input costs (excluding harvesting) to be $40.00-$45.00 per acre. I fix Peter\'s damages at the rounded figure of$6,500.00. e. Quantum Meruit Claim The plaintiff has not proven that he is entitled to be reimbursed for his farm labour expended on behalf of his father in 1993. He was not able to produce any documents toshow that he had been reimbursed for his contributions inprior years. Nor was he able to produce any independent evidence to establish an understanding between his father and himself that he was to be paid for helping out on the farm. Other family members as well helped the father farm from timeto time due to his ailing health and advancing age. Even the plaintiff\'s own evidence does not establishhis quantum meruit claim. By his own conduct he did nothingwhile his father was alive to demand or obtain payment. One of the aspects of claim in the nature of an amount due for wages or labour (as contrasted with debt or other similar obligation payable at future time) is that payment is normally made during, or immediately following, the provision of the services. If there was an understanding that Peter was to be paid, it is odd he would not have demanded payment at least prior to his father's death which occurred months after the labour had been performed. It is clear from the questions and answers read in from his examination for discovery that he performed the services out the "goodness of his heart" for his ailing father because there was no one else to help him. He testified that his father had never paid him over period of some nine years, that he did not expect to be paid, and that he never sent his father bill for his labour. However once he learned that he, unlike most of his brothers and sisters, were not included in his father's estate, he felt he was entitled to some compensation for his labour. The quantum meruit claim is accordingly dismissed. f. Foreclosure Debt am not satisfied that the $17,800.00 mortgage granted by the father in 1989 to Farm Credit Corporation to obtain funds to clear his land from the Bank of Montreal mortgage foreclosure is debt owed the estate. The father's initial mortgage of his land to the Bank of Montreal was not to secure loan to Peter. The father simply put up his land as additional security so that Peter could get the loan to acquire his own land. Nor did the father redeem the Bank of Montreal mortgage to salvage his land. Instead he remortgaged the land to Farm Credit Corporation (a mortgage which still remains on his titles) to raise the funds required to discharge the bank mortgage from his land. Although he likely could have taken action against Peter to recover this amount, it is clear that he never did so. The estate counterclaims on the basis that Peter agreed to repay this amount (and interest) and that payment has been demanded of him from time to time by his father. Yet there is no evidence of any document or agreement to support this claim. In fact the examination for discovery evidence of Peter's sister, Marie, who is one of the executors of the estate, is that her father never mentioned any debt to her even though she discussed his affairs with him on various occasions prior to his death. Likewise the examination for discovery evidence of Glen, the other executor, is that he knew of no agreement whereby Peter had agreed to pay the alleged debt. He in fact testified that he knew Peter had never agreed to repay the amount. Nor is there any evidence of conduct on the part of Peter or his father to indicate that they considered the $17,800.00 (and interest) as debt due and owing. On the other hand, there are several indications inthe conduct of Peter and his father that even if the amountwas considered as a debt in 1989 it was subsequently forgiven. It is significant that Peter continued to help his father on the farm for several years without any reimbursement other than for expenses. It is also significant that Peter was notincluded as a beneficiary of his father\'s will made on April22, 1993. The estate farm land is valued at $57,050.00 and was left to three beneficiaries equally. On this basis, the value of their respective shares would be $19,016.67, an amount similar to the $17,800.00 alleged debt. Before, during, and after the date the father made his will, he was on good terms with Peter. Peter continued to help on the farm as he had done in previous years. It was also at this approximate time that the father granted Peter the lease of the land. The inference is that the father concluded that Peter had already received his share of the estate by way of the father's contribution to Peter's failed farm venture. No other reason has been suggested as to why Peter would have been cut out of the estate. It also significant that this substantial amount was not shown as an asset either on the father's financial statement in his divorce and matrimonial property action in 1993 nor in the statement of assets filed by the executors in support of their probate application. Glen testified that "he forgot about it" even though he also testified that he argued with Peter about the alleged mortgage debt on several occasions prior to his father's death. It was only after Peter commenced his claim that the $17,800.00 was alleged pursuant to the counterclaim to be debt due and owing by CONCLUSION For the reasons given, judgment shall issue as follows: 1.Peter suffered damages from his father's breach of the lease. 2.The quantum of the damages are $6,500.00. 3.Peter does not have an enforceable quantum meruit claim for the value of his farm labour in 1993 expended on behalf of his father. 4.The $17,800.00 mortgage (and interest) granted by the father to Farm Credit Corporation to raise the sum of $17,500.00 to clear his land from the Bank of Montreal mortgage is not debt enforceable by the estate against Peter. 5.Peter shall have his costs against the estate on a party andparty basis for that portion of his claim on which he wassuccessful and for defending the counterclaim. The issues raised by the claim and counterclaim are not typical "estate" issues. Solicitor and client costs against the estate are accordingly not appropriate. 6.It was agreed by the parties that judgment should not issue against the non appearing defendant, Edward Chobotar, nor against any of the other defendants personally. Judgmentshall issue only against Marie Chobotar, and Glen Chobotar intheir representative capacity as executors of the Estate ofGeorge Nicholas Chobotar, deceased.

The plaintiff sued his father's estate for breach of a farm lease and for the value of his farm labour. The estate counterclaimed for a mortgage debt incurred by the father on behalf of the plaintiff. The plaintiff was not included in his father's Will as a beneficiary and the Will contained no reference to the mortgage debt. The father's statement of assets filed in his divorce and matrimonial property action did not disclose it as an asset. HELD: 1)The unsigned handwritten memorandum evidenced a binding agreement for lease between the plaintiff and his father. He affirmed the lease in his discussions with a daughter. 2)The plaintiff neither repudiated the lease nor failed to complete his obligations under it. The fact that he did not vigorously contest the right of his brother to farm the land on behalf of the estate did not estop him from suing for damages for his father's breach of the lease. Damages of $6,500 were awarded. 3)The plaintiff failed to establish a quantum meruit claim. He did not produce any documents to show he had been reimbursed for his labour on the farm in prior years. Other family members helped with the farming from time to time. He did nothing while his father was alive to demand or obtain payment. 4)Even if the mortgage was considered a debt in 1989 it was subsequently forgiven. It was significant that the plaintiff was not included as a beneficiary and the amount of the mortgage was similar to the bequests to the other children. 5)The plaintiff was awarded his costs against the estate on a party and party basis for that portion of his claim on which he was successful and for defending the counterclaim. Solicitor and client costs against the estate were not appropriate as the issues raised by the claim and counterclaim were not typical estate issues. Judgment issued against the two executors in their representative capacity.

3_1996canlii6732.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 26 Date: 20110223 Between: Docket: CACR 1892 Lyle Edwin Parker and Her Majesty the Queen Coram: Cameron, Lane Smith JJ.A. Counsel: Lyle Edwin Parker in person Kim Jones for the Crown Appeal: From: 2010 SKQB 344 (CanLII) Heard: February 23, 2011 Disposition: Appeal dismissed (orally) Written Reasons: February 25, 2011 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Smith Cameron J.A. [1] The appellant appealed his conviction for dangerous driving to the Court of Queen’s Bench and, having failed, then appealed to this Court. He was convicted at trial on the basis of the testimony of his estranged wife and their daughter, whose accounts of what occurred were accepted by the trial judge. The trial judge found both to be credible witnesses. He also rejected the appellant’s account, finding that he was not credible witness. [2] The appellant was represented at trial by experienced counsel, but took the appeals himself. [3] He contends that he was the victim of a miscarriage of justice inasmuch as he has evidence that his estranged wife, out of a desire for revenge, had lied about what occurred. The evidence, he says, consists of tape recordings of conversations with his estranged wife over the last several years, recordings that indicate she was out to get him and had intimidated their daughter into testifying against him. [4] The appellant had little to say of this in the Court of Queen’s Bench beyond saying he had asked his counsel to adduce evidence of this nature at trial but that counsel had refused to do so. Nor did he apply to the Court of Queen’s Bench for new trial on the basis his counsel was incompetent, or make formal application to adduce fresh evidence. Indeed, he informed the Court that, while he had evidence to prove his estranged wife’s perjury, it was not his intention to place that evidence before the Court. He seemed to think all he had to do was raise the matter, by way of argument, to warrant new trial. [5] In the course of the argument before us, we explained to him that there are procedures that have to be followed if one intends, on appeal, to challenge the competence of trial counsel or to adduce fresh evidence. Otherwise, the courts are left with no basis upon which to act upon allegations of that nature. These procedures were not followed, and in the result there was nothing before the Court of Queen’s Bench upon which it might act, and nothing before us upon which we might act. [6] In the circumstances, we are all of the view that there is no tenable basis for allowing his appeal, setting aside his conviction, and ordering new trial. We might add that, on the facts as found by the trial judge, based on the judge’s assessments of credibility, the conduct of the accused amounted to dangerous driving within the meaning of the applicable provisions of the Criminal Code. [7] Accordingly, the appeal is dismissed.

The appellant appealed his conviction for dangerous driving and alleged that his estranged wife and daughter lied. The appellant had been represented at trial by experienced counsel but undertook the appeals himself. HELD: Appeal dismissed. The appellant had not followed procedures that must be followed if one intends, on appeal, to challenge the competence of trial counsel or to adduce fresh evidence.

5_2011skca26.txt

J. IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. P.J.N., 2003 NSPC 024 Date: 20030617 Case No.(s): 1137510; 1137511 Registry: Halifax P. J. N. Restriction on Publication: s. 486 Publication Ban Judge: The Honourable Judge C. H. F. Williams, JPC Heard: Decision rendered orally June 4, 2003 in Halifax Nova Scotia Counsel: Eric R. Woodburn for the Crown Catherine Benton for the Defence BY THE COURT Introduction [1] Fourteen year old S.D.M., the complainant, was close friend of B.N. who is the daughter of the accused, P.J.N.. The accused was also the complainant’s mother’s ex-boyfriend. Periodically, during the latter good relationship, the complainant would sleep over at the accused apartment and he would babysit her. After the relationship ended, the complainant would still sleep over along with her friend B.(N.). On one of these sleep overs, on or about November 10, 2001, the complainant stated that while she was asleep in bed with B.(N.), she felt touching that awakened her. When she awoke, she saw the accused standing beside the bed. She averred that the accused then touched her left breast with his hand and afterward left the room. Following an investigation, the police charged the accused with sexual assault and sexual touching of the complainant. Relevant Evidence (a) for the Crown [2] accept and find that on November 10, 2001, the complainant went for sleep over at the accused apartment. The accused daughter was also present. After they had consumed pizza and watched movie, the girls, about midnight, retired to the bedroom in which they would usually sleep on such occasions. accept that the complainant was wearing pyjama pants with an elastic waistband, underwear, T-shirt and bra when she went to bed. Sometime around 0300 hours, the complainant awoke because she felt that someone had touched her in her vaginal area. When she awoke, she saw the accused standing by the bed near her. She however did not see him touch her. Concerned about his presence and what she surmised he had done, she tried to wake her friend who was sleeping beside her. She turned on her left side and the accused leaned over and touched her left breast over her clothing, went to window on the opposite side of the bed and then left the room. When she woke up her friend, she told her, without any details or elaborations, that her father had touched her “down there and up there”. Feeling ill, the friend got out of bed and went into the living room where she discovered that her father was still awake and that the television was on. Shortly afterwards the complainant also came into the living room and they all sat and watched television. They did not speak about the alleged incident. After while, the accused retired to the bedroom to sleep leaving the girls in the living room. (b) for the accused [3] The accused testified. He knew the complainant for about four years when he was living common law with her mother. Frequently, she would sleep over at his apartment and sometimes he would babysit her. He denied that he entered the bedroom when the girls were asleep and denied touching the complainant in or near her vaginal area or her breast. When his daughter came into the living room at about 0300 hours, he was asleep but the television was on. They watched television for awhile and afterwards, he retired into the bedroom to sleep leaving the girls in the living room watching television. Findings and Analysis [4] Here, credibility is an issue. As observed in R. v. O.J.M., [1998] N.S.J. No. 362 at para. 35: Overall, witness’ statement is considered true until there is some particular reason to doubt it. This may come about by circumstances of the inherent unreasonableness of the testimony itself, or by imputations extracted in cross-examination of the witness to infer, for example, the very incredibility of fact that reveals obvious errors. In addition, extrinsic evidence, or lack of it, may point to errors or inaccuracies in witness’ testimony and if never corrected to rehabilitate the credit of the witness, that testimony would have little or no probative value. [5] am mindful of the words of Finlayson J.A. in R. v. S.(W), (1994) 1994 CanLII 7208 (ON CA), 29 C.R. (4th) 143, 90 C.C.C. (3d) 242 (Ont. C.A.), at p.250 (C.C.C.) (Leave to appeal to S.C.C., refused 93 C.C.C. (3d) vi). We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness’ testimony. Demeanour alone should not suffice to found conviction where there are significant inconsistencies and conflicting evidence on the record. [6] Also in mind are the words of Rowles J.A., in R. v. R.W.B., [1993] B.C.J. No. 758 (B.C.C.A.), at para. 28: It does not logically follow that because there is no apparent reason for witness to lie, the witness must be telling the truth. Whether the witness has motive to lie is one factor which may be considered in assessing the credibility of witness, but it is not the only factor to be considered. Where, as here, the case for the Crown is wholly dependant upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant’s evidence be tested in the light of all the other evidence presented. [7] First, think that the relationship between the parties and the location of the alleged offence are critical and significant and must be weighed along with the total evidence. bear in mind that the complainant and the accused were not strangers. After all, he was once her mother’s boyfriend and she knew him for about two years. During that period she had slept at his apartment and at times she and the accused were alone as he babysat her. Even though the accused had broken up with her mother she would still go to his apartment and stay over night with his daughter who was her good friend. When the girls had sleep over, the accused would sleep in the living room and they would occupy the bedroom. [8] Second, on the crucial issue of reliability, examined each version for its consistency with the surrounding probabilities. Overall, it was an evening with no apparent interpersonal tensions. The accused bought pizza for the girls and all was convivial as they watched movie. Eventually, the girls retired to bed and the accused remained in the living room watching television and fell asleep on the couch. In any event, the complainant testified that, presumably when asleep, she felt something inside her pyjamas, about her vaginal area, like someone touching her. Additionally, she described that she felt bodily sensation but that its causation was ambiguous. Was it hand or was it breeze between her legs? Did someone actually touch her when she was asleep? Or, did she surmise that someone had touched her? [9] I, however, think that when she was asleep it is reasonable to conclude that she would not be conscious of her immediate surroundings. Further, it seems to me that it is reasonable to infer, and do, that when asleep she also would not be consciously aware of any external bodily stimulus and would be unable to identify any causative agent unless that medium or effect was still in progress when she became consciously and emotionally aware of her surroundings. In other words, if on awaking she discovered some activity in progress, she could reasonably infer that it that ongoing activity that brought her from sleep to conscious awareness. Likewise, assuming that there was in fact touching when she was asleep, think that there ought to be some objective indication that her clothing was disturbed in the area of the bodily sensation and in manner that would lead person to conclude rationally and reasonably that in the circumstances of the discovery the only rational conclusion could be that it was the accused and no other person who could have touched her. [10] Therefore, think that only if these factors coincided that she would be able to conclude rationally or to make reasonable valid connection, on the balance of probabilities, between what she discovered to be happening when she awoke and her pre-waking bodily sensations as the probable causative external factor that disrupted her sleep, or brought her from state of sleep to state of conscious awareness of her surroundings. However, on her testimony, when she awoke, she discovered that no one was touching her. The accused was just standing near her “belly button area”. [11] Additionally, before falling asleep the girls had covered themselves with comforter. The complainant was wearing pyjama pants with an elastic waistband, underwear, T-shirt and bra. There was no clear evidence to indicate that anyone had interfered with her pyjamas or underwear before she awoke or that they were in fact disturbed. She, however, described the touching as above her underwear, near her pubic area, and “where you use the bathroom”. When considered the description of the event as portrayed by the complainant concluded that it lacked contextual enhancements and that there were no coherent details that practical and informed person would readily recognize as reasonable and probable in the circumstances, as to how the accused accomplished the act of touching her vaginal area, or at all. Thus, in my view, upon observing the witnesses as they testified and on my assessment of their testimonies, the complainant’s description of this touching when evaluated and assessed with the total evidence, was not sufficiently credible to persuade me that her recounting of the event was either accurate or reliable. [12] Further, upon assessing her testimony and when assessed with the total evidence also was not convinced that it was in harmony with the preponderance of the probabilities which practical and informed person would readily recognize as reasonable. I think that it was internally inconsistent and her cross-examination, in my view, revealed obvious errors which were never corrected to rehabilitate her credit. therefore concluded that her testimony was dubitable. Consequently, in my view, if indeed she could feel something while asleep, she could not, without doubt, state, that in reality, what she experienced was the accused actually touching her vagina with his hands. [13] As she lay on the bed and fully awake, according to her testimony, the accused moved and reached over and touched her left breast. It was unclear whether she had turned onto her left side with her back toward him or what was the exact position of her body when that touching occurred. After touching her he went to the window on the opposite side of the bed, the side on which his daughter was sleeping. Here, the insinuation is that the accused was opportunistic. However, he had babysat her in the past and had been alone with her on many occasions without any incidents. Also significant, in my view, was her testimony that soon after the event she informed the police and others that the accused had put his hand inside her shirt and over her bra on her left breast. At trial, she asserted that he touched her left breast over her shirt. Additionally, when she woke up her friend she gave vague and ambiguous description of significant event particularly to close friend with whom she sleeps over and with whom she talks “girl stuff”. Her immediate post event conduct as gleaned from the total evidence did not suggest someone who was shocked and awed by the incidents as she attempted to portray as being the status of her emotional reaction to the occurrence. [14] Frankly, was troubled by aspects of the evidence. Nonetheless, here, reiterate what said in R. v. D.A.B. [2002] N.S.J. No. 512, 2002 NSPC 35 (CanLII), at para. 11: ...we should also remind ourselves that evidence of complaint of sexual assault is never evidence of the facts complained of as the complaint cannot support the complainant’s testimony. From this proposition think that the best that the prosecution can expect is that accept the complainant’s prior statement only as part of her narrative and nothing more. R. v. Ay (1994) 1994 CanLII 8749 (BC CA), 93 C.C.C. (3d) 456 (B.C.C.A.), R. v. O.B. 1995 CanLII 7507 (NS CA), [1995] N.S.J. No. 499 (C.A.). [15] concluded that the complainant had testimonial competence. However, was concerned about her capacity to relate coherently and consistently her recollection. Further, although she appeared willing to relate the essence of what was alleged, in my view, she appeared somewhat casual, impersonal, scripted and lacked background details such as bodily sensations as one might expect from someone who experienced the ordeal would know about. was also concerned about the independence of her revelation, on contentious points, without suggestive questions. Although do not expect her to perform in the same manner as an adult, her testimony however is not subjected to lower level of scrutiny than that of an adult, R. v. Stewart, (1994) 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (C.A.), R. v. R.W., (1992) 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.). See also: R. v. A.W.E., (1993) 1993 CanLII 65 (SCC), 83 C.C.C. (3d) 462 (S.C.C.). [16] However, considering the details of the incident as she described them both in direct and cross-examination, and in light of the total evidence, logic and commonsense when applied to those facts made me cautious in fully accepting them on their face value. Although do not require corroboration of her testimony, common sense required that, in weighing and assessing it, look for supportive evidence capable of persuading me to entertain rational belief that she was telling the truth and which would strengthen my belief that she was truthful. Her narration of events did not remain consistent and looked for such supporting evidence on the central issues but found that such evidence was either lacking or unpersuasive. R. v. Vetrovec (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) (S.C.C.), R. v. Boss (1989), 1988 CanLII 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.), R. v. Marquard 1993 CanLII 37 (SCC), [1993] S.C.R. 223 at paras. 19 and 20. however should note that her minor inconsistencies did not diminish unduly her credit. It was the cumulative effect of inconsistencies on critical issues that was consequential and caused me to doubt her reliability. In the result, concluded considering the total evidence that, overall, the frailties and the inherent weaknesses in her testimony rendered it unpersuasive. Additionally, in my view, on the issue of the sexual touching, it did not meet the threshold reliability criterion. [17] After hearing the accused and observing him as he testified and on assessing his testimony with the total evidence, and the evidence that accept, he has raised, in my mind, reasonable doubts. In short, am left in doubt by the testimony of the accused. R. v. W.(D), 1991 CanLII 93 (SCC), [1991] S.C.R. 742. [18] On the evidence before me and that which accept, determine that it would be unsafe to conclude beyond reasonable doubt that the accused sexually assaulted the complainant or touched her for sexual purpose, or at all. In my view, the evidence was more impressionistic than probative of the facts alleged and I was not persuaded, on the total evidence and that which I accept, that the Crown has proved beyond a reasonable doubt, on the Information tried before me, that the accused, P.J.N. between the 19th day of October 2001 and the 19th day of November 2001, sexually assaulted S.D.M. or for a sexual purpose touched her with his hand. Accordingly, I find him not guilty as charged and will enter acquittals on the record.

A 14 year old accused her friend's father of touching her breast while she was sleeping over at his residence with her friend. She also stated that just prior to this she was awakened by the feeling of someone touching her vagina. The accused was charged with sexual assault and sexual touching of the complainant., accused found not guilty; the complainant's testimony was internally inconsistent and her cross-examination revealed obvious errors which were never corrected to rehabilitate her credit. The evidence was more impressionistic than probative of the facts alleged and the accused's evidence raised reasonable doubts in the court's mind.

2003nspc24.txt

2004 SKQB 12 Q.B.G. A.D. 2003 No. 2147 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: MARY BULIZIUK and GEORGE BULIZIUK and PUBLIC TRUSTEE, ADMINISTRATOR OF THE ESTATE OF HELEN PISCHNOT RESPONDENT R.G. Gates, Q.C. for the applicants G.A. Treleaven for the respondent JUDGMENT MATHESON J. January 15, 2004 [1] The applicants have applied for an order setting aside the grant of Letters of Administration of the Estate of Helen Pischnot and granting to them Letters Probate with respect to a document, or documents, purporting to be the last will and testament of Helen Pischnot in which they are named as executors and sole beneficiaries. [2] The applicants met Helen Pischnot in September, 1996. The second hand store operated by the applicants was less than block from where Helen Pischnot resided. [3] In December, 1996, Helen Pischnot became ill. The applicants began attending at her residence three times each day, to bring groceries to her, clean her house, shovel snow from her sidewalks, mow her lawn and effect minor repairs to the house. [4] In February, 1999, Helen Pischnot fractured her hip. The applicants transported her to the hospital, where she was confined for two months. The applicants visited Helen Pischnot in the hospital three times each day, and looked after her house and cat. On the hospital social work referral form it is stated, under the heading of Next of Kin, “no family”, but the plaintiffs were listed as “friends”. [5] After Helen Pischnot was released from the hospital on April 7, 1999, the applicants continued to visit her each day and assist her with chores and errands. [6] In August, 1999, Helen Pischnot gave to the applicants an old tape recorder which required repairs. After it was repaired conversation between the applicants and Helen Pischnot was recorded and subsequently transcribed. It is clear from the transcript that Helen Pischnot wanted all of her property to go to the applicants upon her death. [7] On January 10, 2000, Sheri A. Hupp, at the time an associate with the law firm of Gates and Company, met with Helen Pischnot. Sheri Hupp does not recall the meeting, but she made notes at the time. Helen Pischnot stated that she wanted will prepared; the applicants were to be named as executors and sole beneficiaries. [8] On January 26, 2000, Sheri Hupp again talked to Helen Pischnot, who apparently did not recall the conversation on January 10. However, she asked Sheri Hupp if she had will. She was told “Not yet because she hadn’t signed anything”. [9] Helen Pischnot told Sheri Hupp not to come to her residence that afternoon because she was feeling sick; she had the flu. Helen Pischnot declined to set date for the signing of the will which Sheri Hupp had drafted. [10] On February 8, 2000, Sheri Hupp went with Ronald Gates to Helen Pischnot’s residence. Mary Buliziuk was at the residence when they arrived and informed them that Helen Pischnot had fallen the previous evening and had the shakes. [11] Ronald Gates went into Helen Pischnot’s bedroom to talk to her. When Sheri Hupp, who apparently had the draft will with her, joined them in the bedroom she noted that Helen Pischnot was sitting in chair and looking very weak; she was non-responsive. Nevertheless, Helen Pischnot said her hand hurt and she could not sign the will. [12] When Helen Pischnot was asked what she wanted in her will, she said whatever you want. When asked again “She said you know want to leave everything to you (ie. Ron)”. [13] Helen Pischnot died shortly thereafter without signing the document proffered as her last will and testament. [14] On April 26, 2001, the Public Guardian and Trustee of Saskatchewan was appointed administrator of Helen Pischnot’s estate. No beneficiaries have been located. There is $44,245.25 in cash remaining in the estate trust. [15] The applicants have applied for an order declaring that the draft will prepared by Sheri Hupp, or her notes, or both, be admitted to probate as the last will and testament of Helen Pischnot. LEGAL REQUIREMENTS FOR WILL [16] The law of wills in Saskatchewan is governed by The Wills Act, 1996, S.S. 1996, c. W-14.1 (the “Act”). [17] Section of the Act states that holograph will, wholly in the handwriting of the testator, and signed by him or her, may be made without any further formality or any requirement as to the presence of or attestation or signature by witness. Otherwise, s. 7(1) provides the formalities for valid will: 7(1) Unless provided otherwise in this Act, will is not valid unless: (a) it is in writing and signed by the testator or by another person in the testator’s presence and by his or her direction; (b) it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will; (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses who are in the presence of the testator at the same time; and (d) at least two of the witnesses in the presence of the testator: (i) attest and sign the will; or (ii) acknowledge their signatures on the will. [18] The documents propounded as the will of Helen Pischnot do not, of course, comply with the requirements of s. 7(1). However, the applicants have referred to s. 37 of the Act, which states: 37 The court may, notwithstanding that document or writing was not executed in compliance with all the formal requirements imposed by this Act, order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where court, on application is satisfied that the document or writing embodies: (a) the testamentary intentions of deceased; or (b) the intention of the deceased to revoke, alter or revive will of the deceased or the testamentary intentions of the deceased embodied in document other than will. INTERPRETATION OF SECTION 37 [19] In Re Balfour Estate (1990), 1990 CanLII 7460 (SK QB), 85 Sask. R. 183 (Sask. Q.B.), Gerein J. noted that the equivalent section in the Manitoba statute had been interpreted in Re Pouliot (1984), 1984 CanLII 3766 (MB QB), 30 Man. R. (2d) 178; 1984 CanLII 3661 (MB QB), 17 E.T.R. 225; Re Briggs (1985), 21 E.T.R. 127; and Kuszak v. Smoley (1986), 1986 CanLII 4996 (MB QB), 46 Man. R. (2d) 14; 23 E.T.R. 237 as giving the court broad discretion to validate testamentary document. He agreed with that approach. [20] Instructions for will have been accepted as valid will, but only if properly executed: Re McNeil (1918) 45 N.B.R. 479 (C.A.); George v. Daily (1997), 1997 CanLII 17825 (MB CA), 143 D.L.R. (4th) 273 (Man. C.A.). [21] In Re Mate Estate (1999), 1999 CanLII 12652 (SK QB), 179 Sask. R. 298 (Sask. Q.B.), the applicants had applied for probate of the instructions delivered by Elizabeth Mate to her solicitor. The notes had not been signed by Elizabeth Mate. Dielschneider J. noted that although Gerein J. had concluded, in Re Balfour Estate, supra, that s. 37 of the Act should be interpreted as giving the court broad discretion to validate testamentary documents, Gerein J. had also stated: [6] Yet it must be kept in mind that the section’s purpose is to overcome noncompliance with formal requirements. It does not empower the court to render document testamentary in nature when it is otherwise not so. [22] Dielschneider J. remarked that “Some form of execution must appear on the document sought to be admitted to probate pursuant to this section. Section 37 does not dispense entirely with the requirements of s. but rather grants relief against its formality.” [23] The solicitor’s notes were not accepted as the last will and testament of Elizabeth Mate. [24] An appeal was taken from the refusal by Dielschneider J. to accept the solicitor’s notes. In an oral judgment dated May 17, 2000, the Saskatchewan Court of Appeal stated that “We are not satisfied that Mr. Justice Dielschneider erred in his construction and application of s. 37 of The Wills Act”. [25] Section 37 of the Act permits the court to order document to be fully effective as will notwithstanding that “it was not executed in compliance with all the formal requirements imposed by this Act” (emphasis added). The discretion granted to the court does not extend, however, as concluded in Re Mate Estate, supra, to endorsing a document as testamentary which does not comply with any of the formal requirements of the Act as to execution; in particular, a document which does not bear the signature of the deceased. [26] Although there is no reason not to accept the assertion of Sheri Hupp that her notes accurately reflect the instructions she received from Helen Pischnot, it has been acknowledged that not only did Helen Pischnot not sign either the notes of Sheri Hupp or the draft will, she never saw either of those documents. [27] Helen Pischnot no doubt intended to bequeath her assets to the applicants. However, she did not do so in any manner prescribed by The Wills Act. Thus, regretfully, it must be concluded that the documents presented as the last will and testament of Helen Pischnot do not meet the statutory requirements for valid last will. Consequently, the application must be dismissed, but under the circumstances the applicants shall be entitled to their costs, on a solicitor and client basis, to be approved by me, payable from the estate assets.

The applicants asked for an order setting aside the grant of Letters of Administration and granting Letters Probate with respect to a document purporting to be the Will of the deceased. The document was a draft Will prepared by the deceased's solicitor, which was never signed. HELD: The application was dismissed, but the applicants were entitled to their costs on a solicitor and client basis, payable from the estate. Section 37 of The Wills Act permits the Court to order a document to be fully effective as a Will notwithstanding that it was not executed in compliance with all the formal requirements imposed by the Act. The discretion granted to the Court does not extend to endorsing a document as testamentary which does not comply with any of the formal requirements of the Act as to execution, and, in particular, a document which does not bear the signature of the deceased.

5_2004skqb12.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 44 Date: 20090420 Between: Docket: 1430 Saskatchewan Government Insurance Appellant (Third Party) and Mel Sebastian and Campbell Haliburton TWC Insurance Investments Respondents (Defendants) and Stewart Drader and Cathy Drader Respondents (Plaintiffs) Coram: Vancise, Lane and Hunter JJ.A. Counsel: Christopher S. Weitzel for the Appellant David J. McCashin for Mel Sebastian and Campbell Haliburton Appeal: From: 2007 SKQB 61 (CanLII) Heard: January 14, 2009 Disposition: Appeal Allowed Written Reasons: April 20, 2009 By: The Honourable Madam Justice Hunter In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Lane Hunter J.A. [1] Mel Sebastian (“Sebastian”), is licensed insurance agent with Campbell Haliburton TWC Insurance and Investments (“TWC”). In 1993, Sebastian prepared Home-Pak Application on behalf of Stewart and Cathy Drader (“the Homeowners”), which they signed and he submitted to Saskatchewan Government Insurance (“SGI”) for the purpose of obtaining policy of insurance for their home, including coverage for their Swarovski Silver Crystal figurines collection (“the Swarovski collection”) with an estimated value of approximately $9,950. [2] Sebastian had the Homeowners execute form, which cancelled the prior home insurance policy issued by SGI, which had been placed by McCallum Hill in 1992. Unknown to Sebastian, McCallum Hill had arranged for coverage outside of that which is usually provided for in the policy. The coverage was referred to as “manual narrative”. This special coverage covered loss or damage due to accidental breakage of their Swarovski collection. In response to the application submitted by Sebastian, SGI issued the standard “comprehensive perils” home coverage policy with Fine Arts Rider for the Swarovski collection, which contained an exclusion for accidental damage to and breakage of fragile items. [3] On April 21, 2004, the Homeowners’ display case, which contained items of the Swarovski collection, fell off the wall and many of the collectibles were damaged and destroyed. The Homeowners made claim under their house insurance policy. SGI denied coverage on the basis of the exclusion in the policy; the loss was due to an accidental breakage, which did not constitute “listed peril” as defined in the policy. [4] The Homeowners sued Sebastian and TWC alleging negligence or breach of contract for failing to obtain the coverage for insurance as instructed by the Homeowners. Sebastian and TWC issued a third party claim against SGI and claimed SGI was negligent or in breach of contract or contributory negligence pursuant to The Contributory Negligence Act[1] for failing to issue a policy of insurance in accordance with the application submitted to SGI by Sebastian on behalf of the Homeowners. [5] The trial judge concluded Sebastian and TWC were negligent and liable for the loss suffered by the Homeowners, which he assessed at $7,739 (U.S.), pre-judgment interest and PST and GST, if payable. Further, the trial judge concluded that the insurer, SGI, owed duty of care to both Sebastian and TWC, and the Homeowners, to properly underwrite and deal with the application for insurance. The trial judge concluded SGI contributed equally to the Homeowners’ loss by “their negligent acts” and was responsible to pay 50% of the judgment. The negligence of Sebastian and TWC is not disputed in this appeal. The Homeowners have been paid the amount owed under the judgment and advised they have no interest in the matter and did not participate in the appeal. [6] SGI appeals and says the trial judge erred in determining that SGI: (a) owed a duty of care to the insureds, Homeowners, and to the broker when it received an application for insurance in “all the circumstances”; and (b) breached its duty of care. Facts and Trial Judgment[2] [7] In August 1993, the Homeowners first contacted Sebastian. They advised him their home was currently insured with SGI through McCallum Hill Agency. They further advised Sebastian they were interested in insuring instead with Sask Mutual or another insurer. They had chosen TWC and Sebastian to be their intermediaries for that purpose. The trial judge summarized the evidence of the meeting of October 14, 1993, between Sebastian and the Homeowners as follows: [11] They advised him of the importance to them of the crystal collection and provided him with list of their collection along with valuations. This was the day before the McCallum Hill SGI policy was scheduled to expire or to be renewed. At no time did Mr. Sebastian request the Draders to provide him with copy of their existing insurance policy nor did he examine it at any time during his meeting with the Draders. After discussing alternative insurers the Draders decided to continue to insure with SGI. Mr. Sebastian had them sign Home Cancellation form cancelling their existing SGI policy number H4409596-6 (the McCallum Hill SGI policy). At the bottom of the form the reason for cancellation was expressed as “rewritten with us” reference to the fact that the Draders had elected to now use the Campbell Haliburton agency as opposed to McCallum Hill agency to obtain this SGI coverage. [12] At the same time Home-Pak Application Form was prepared by Mr. Sebastian and signed by Mr. Drader. The Home-Pak Application, in paragraph dealing with “special belongings other property,” under the heading property description states: Fine Arts: Swarovski silver crystal As per support file SF 222 (see H4409596-6). [8] The trial judge found that the Homeowners and Sebastian had some discussion about the coverage for breakage and damage to the Swarovski collection, but their recollection differed and he concluded: [14] it is clear that Mr. Sebastian and the Draders were talking at cross purposes based upon their own understanding or misunderstandings of the nature and scope of the coverage which the Draders had under the McCallum Hill SGI policy. On cross-examination during the trial, Mr. Sebastian accepted that Mr. Drader did instruct him to obtain the same or better coverage with SGI than the Draders enjoyed under the McCallum Hill SGI policy. [9] By virtue of special “manual narrative” endorsed on the McCallum Hill SGI policy, the Homeowners had coverage for accidental breakage for the Swarovski collection. The trial judge found that this was unknown to Sebastian, but was available for him to know if he had examined the McCallum Hill SGI policy. Sebastian did not ask to see the policy nor did the Homeowners produce it to him. [10] In respect of the special coverage for accidental breakage in the policy McCallum Hill had obtained from SGI on behalf of the Homeowners, the trial judge explained the insurer’s evidence as follows: [21] Mr. Gordon Giles gave evidence on behalf of the third party, SGI. His evidence establishes that in 1993 there was nothing in the SGI rate manual that dealt with accidental breakage coverage for items like the Draders’ Swarovski crystal. Nevertheless, SGI did, on an individual insured and policy basis, negotiate for such breakage coverage if requested to do so. McCallum Hill had done so on behalf of the Draders and the Draders had this special coverage by manual endorsement on their policy. Such endorsements were only offered to very, very few policy holders numbering approximately 200 [transcript reads 100] or so. Some years after 1993, SGI decided to phase out these special endorsements entirely and it gave notice of the termination of these special endorsement coverages to those policy holders that had them. That notice would not have gone to the Draders after they began their dealings with Campbell Haliburton since the Campbell Haliburton policy as issued did not have this special coverage. The Homeowners requested the special coverage from their agent, McCallum Hill, who at the time sought and obtained the special coverage from SGI. [11] In describing the insurance broker’s duty of care to the insured Homeowners, the trial judge referred to number of authorities from the Supreme Court of Canada and this Court. The duty of the broker is to procure the requested coverage, or draw to the attention of the insured that he could not get the coverage, and to advise the insured of the consequent gap in coverage. If the insurance broker fails to do so, he may be liable in negligence. (See: Fletcher v. Manitoba Public Insurance Co.;[3] Fine’s Flowers Ltd. v. General Accident Insurance Co. of Canada;[4] and Piggott Construction (1969) Ltd. v. Saskatchewan Government Insurance Office.[5]) For ease of reference, the trial judge’s conclusions finding Sebastian and TWC negligent are reproduced: [33] This Court concludes that Mr. Sebastian and his employer Campbell Haliburton, the defendants in this case, are liable in negligence for the loss suffered by the plaintiffs. Mr. Sebastian failed in his duty of care to properly identify the nature and extent of the Draders’ existing insurance coverages which he could easily have done by carefully reviewing copy of their existing policy. The evidence suggests he may, in fact, have done so but in either case he appears not to have noted the special coverage the Draders had including “Loss or damage due to breakage” (exhibit “F” and paragraph 16 Sebastian affidavit). He undertook, as he admits in cross-examination, to provide the Draders with insurance coverage equal to or better than the McCallum Hill SGI existing policy which they had. [34] Mr. Sebastian deposes that he was not aware, through any published SGI materials, that SGI did have coverage available for the accidental loss or damage due to breakage of the Draders’ Swarovski crystal collection. Nor, he claims, was he aware that the Draders had such special coverage under their McCallum Hill SGI policy. Nevertheless, with due and proper diligence that information should and would have been available by simple examination of the McCallum Hill SGI policy which Mr. Sebastian testified it is his normal practice to obtain and review. Had he done so carefully, he would have discovered the special coverage which the Draders had for their Swarovski crystal collection under the McCallum Hill SGI policy. In either case, that would no doubt have prompted him to ensure that the application for the renewal coverage that he had completed for Mr. Drader’s signature would have very specifically referred to the special scope of coverage being applied for. His actions or inactions constituted negligence at law. [Emphasis added] [12] The trial judge concluded Sebastian and TWC were liable in negligence on the basis that Sebastian was in breach of his duty of care because he failed to properly identify the nature and extent of the Homeowners’ existing insurance coverage, which he could easily have done by carefully reviewing copy of the McCallum Hill SGI policy. Sebastian admitted in evidence that he undertook to provide the Homeowners with insurance coverage equal to or better than the McCallum Hill SGI policy. Sebastian was not aware the Homeowners had special coverage under the McCallum Hill SGI policy, but with due and proper diligence he could have found that out by simply examining their previous policy. [13] Having determined Sebastian and TWC were liable in negligence, the trial judge then moved on to discuss the issues raised in the third party claim: whether SGI was liable to indemnify Sebastian and TWC or contribute to the amount of the judgment payable to the Homeowners on the basis of negligence, contract, or pursuant to The Contributory Negligence Act. [14] Significant to the third party claim is the trial judge’s conclusion that had Sebastian examined the McCallum Hill SGI policy, it would have prompted him to ensure that the application for renewal coverage that he completed for the Homeowners “would have very specifically referred to the special scope of coverage being applied for. His actions or inactions constituted negligence at law.”[6] [15] The trial judge states: [35] The Court now turns to an examination of the liability of SGI to the defendants upon the third party claim. [36] The Court has already concluded that SGI, as insurer, owed duty of care to both the defendants and the plaintiffs to properly underwrite and deal with the application for insurance submitted by its agent Campbell Haliburton on behalf of the Draders as prospective insureds. [37] The evidence satisfies me, as the defendants claim, that SGI did not publish the availability of this special insurance coverage which it had extended to the Draders under the McCallum Hill SGI policy in any of the materials distributed to its agents including Campbell Haliburton. Whether it had duty to do so or not, as claimed by the defendants, needs not be determined in this case. [38] The circumstances alone, combined with the application for insurance which SGI received, leads this Court to conclude that SGI did breach its duty of care to the defendants (as well as to the plaintiffs) in respect of the [TWC] policy it issued October 15, 1993, to replace the McCallum Hill SGI policy that expired the same date. [16] The trial judge’s conclusion that SGI had duty, and breached the duty of care to the Homeowners and Sebastian and TWC, is founded on the reference in the application form submitted by Sebastian (on behalf of the Homeowners) to the previous McCallum Hill SGI policy #H4409596-6 and the support file SF 222 containing list of the Swarovski crystal collection and its valuation. The trial judge characterizes this as specific direction to SGI. [39] The application specifically directs SGI, in this paragraph 4, to “see H4409506-6,” the McCallum Hill SGI policy. [40] This was not done. References to the expiring policy both in the heading of the application and as well in the coverages portion of the application (namely, in paragraphs and 4) were apparently ignored. [17] The trial judge noted that SGI examined the support file SF 222 when the policy was issued in 1993. In later years, SGI requested that Sebastian have the Homeowners update their collection list and valuations. The trial judge then concludes: [40] Had the McCallum Hill SGI policy been referred to, as directed by the application, one would expect that the SGI replacement policy issued, without further or other discussion, would have reflected the same scope of coverage (the special coverage) as the Draders had under the prior McCallum Hill SGI policy. If not, at least inquiries would have been made to clarify the scope of coverage then being applied for. [41] The resultant situation, and ultimately the loss incurred by the Draders with respect to their Swarovski crystal collection was reasonably foreseeable. Mr. Sebastian deposes that he was not aware that SGI extended special coverages as they did under the McCallum Hill SGI policy and therefore he would have proceeded, over all of the years, on the assumption that the Draders had exactly what they previously had under normal home-pak SGI policy without the special coverages. [18] The trial judge then addressed the allegation in the third party claim of whether SGI is contributorily negligent: [43] The defendants plead against the third party in contributory negligence. Upon the evidence, the law and for the reasons given and upon the analysis undertaken in this judgment, this pleading is well-founded. This Court finds upon the analysis undertaken, that the defendants and third party each equally contributed (50%/50%), by their negligent acts, to the loss sustained by the Draders. The defendants’ claim against SGI pursuant to The Contributory Negligence Act, R.S.S. 1978, c. C-31 succeeds and they are entitled to recovery against SGI equal to 50% of the judgment. For ease of reference, note the relevant provisions of The Contributory Negligence Act are: 2(1) Where by the fault of two or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault, but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally. (2) Nothing in subsection (1) operates so as to render any person liable for any damage or loss to which his fault has not contributed. When it appears that person not party to an action is or may be wholly or partly responsible for the damages claimed, he may be added as party defendant or may be made third party to the action, upon such terms as are deemed just. [19] Lastly, the trial judge concluded the Homeowners were not contributorily negligent for their loss and he proceeded to assess damages. This last issue is not before us in this appeal. [20] There are two principle issues in this appeal, namely, did the trial judge err: (a) when he held that the third party insurer is liable for 50% of the damages the broker owes to the Homeowner; (b) when he stated that SGI had duty of care to the insured when the application for insurance was submitted to it, by broker, on behalf of the Homeowner. [21] Since January 1, 1985, TCW has been party to an agreement (“Agency Agreement”) with SGI. The Agency Agreement, inter alia, appoints TWC to be an agent of SGI, although not exclusively. Sebastian is employed by TCW. It authorized TWC, and by extension, Sebastian, to do such things as are necessary to carry out the terms of the Agency Agreement, including soliciting applications, collecting premiums and to bind SGI in certain situations. [22] Other than when TWC is in default, it is clear that TWC owns the clients. Clause 8(a) of the Agency Agreement provides: the property in and the ownership of the portfolio of business written by the Agency shall at all times be and remain in the Agency and the ownership of and property in the Agency’s records pertaining thereto and the right to use them for the purpose of transacting business shall be and remain in the Agency. [23] The Agreement prohibits SGI (other than at the request of the policyholder) from using its records to transact insurance business with homeowners, nor can it permit the use of its records by any other “agent, broker or insurer or any other person who might use them” to compete with TWC or to infringe on the business owned by TWC. [24] This then is the background necessary to understand the transactions in the instant case. In this case, the Homeowners are TWC’s clients. [25] In Insurance Law in Canada,[7] there is discussion about the use of intermediaries, i.e., agents and/or brokers, in the insurance industry as customers often deal with an agent or broker when purchasing insurance. Generally, the terms agent and broker may be used interchangeably. In the instant case, whether Sebastian or TWC are described as broker or agent is of no import as Sebastian and TWC are intermediaries. The Agency contract does not bind TWC to deal exclusively with SGI. In fact, it is evident, both from the contract and the evidence, that TWC and its employees are at liberty to place insurance for their customers with insurers other than SGI. [26] In describing the personal liability of an intermediary, Brown notes that the intermediary may become liable to either the insured or the insurer, depending on the nature of the error. He states at page 3-17: Should customer be denied claim because an agent has failed to transmit information properly to the insurer, s/he may be able to turn instead to the intermediary for redress. On the other hand, an insurer might find itself bound to pay claim made by customer it would not have insured in the first place had it known facts that were not passed on by an intermediary acting with the requisite authority. Here the insurer may seek redress from the intermediary. In this section we shall examine the legal bases on which insurance intermediaries may be found liable to insurers or customers and the nature of the duty that liability implies. The possible legal bases are warrant of authority, contract, tort or equity. [27] In the numerous cases listed in Brown[8] there is breach of the duty of care of the broker to the insured, if the broker fails to procure the appropriate insurance for the customer or fails to advise that it is unavailable. Also, the intermediary has been held liable to the insurer where the broker fails to convey information relating to changes in the risk or amended conditions to the insurer, or fails to forward information to the insurer that has been given to the broker by the customer (see: Yorkshire Trust Co. v. Laurentian Pacific Insurance Co.[9]). [28] In the instant case, Sebastian met with his customer, the Homeowners, from whom he obtained information about their insurance needs. Sebastian had information about the coverage and premiums for number of insurers as TWC was not the exclusive agent for one insurer. It is clear that TWC and Sebastian are intermediaries within the meaning of the term as used by Brown. [29] Even though the Homeowners wanted insurance coverage for the accidental breakage of their collection, Sebastian was never aware that such coverage was available or that their prior policy with SGI, written by McCallum Hill, provided this coverage by way of “manual narrative”. Sebastian was found liable for failing to apply for the insurance coverage the Homeowners desired and instructed him to obtain on their behalf. Given this finding by the trial judge, how, in these circumstances, should the insurer who received this application owe duty to the applicant to provide coverage beyond what is understood by, and applied for by the broker? In other words, is there duty on the insurer (i.e., its underwriters) when it receives the application for insurance from broker on behalf of homeowner to conduct its own review of the needs, wishes or desires of the applicant? In my view (absent specific request by the broker, which the insurer agrees to undertake), there is no such general duty on the insurer. [30] While it is unclear what the trial judge meant by the phrase “[t]he circumstances alone” in para. 38 of the judgment, it would seem he relied on that portion of the application form where the previous McCallum Hill policy number was stated together with the reference to the support document SF 222. The question is whether these references provided an adequate direction to the insurer about the coverage that was to be procured for the customer. The further question is whether these references, when taken together with the number of changes in coverage applied for by Sebastian and the practice of SGI, created special set of circumstances which warrant the creation of “new duty” to be imposed on the insurer. In my view, for the reasons stated below, it does not. [31] In this case, the trial judge correctly placed the duty of care on the intermediary, Sebastian. He gathered the information from the Homeowners, reviewed the existing coverage, and completed the application. It is his duty to properly complete this set of tasks. In return, commission is paid to the broker. [32] Further, the onus is placed squarely on Sebastian to make the appropriate inquiries of the Homeowners, review their prior policy if that was the basis for the coverage requested by the Homeowners, and be clear in requesting the special scope of coverage being applied for in the application form. [33] Sebastian deposed that the Homeowners did not specifically advise him they had accidental breakage coverage for their collection in the McCallum Hill policy, but they only advised him that the collection was insured through Fine Arts Rider.[10] [34] In the application for insurance submitted by Sebastian, it shows that the coverage requested, with $250 deductible, was for $71,000 for each the dwelling and belongings and $7,100 for the outbuildings. The total premium cost was $272 and an additional $14 premium charge for the glass deductible. Under the heading “Special Belongings Other Property” Sebastian had written in the following: FINE ARTS: SWAROVSKI SILVER CRYSTAL AS PER SUPPORT FILE SF 222 (see H4409596-6) (see revised list attached) Under the coverage limit column, the figure 9,995.50 is circled and written in ink, whereas it appears the first writing of the amount of coverage on this application form is 10,500. Under the column “Ded.”, is the figure and the premium was $50. The total premium for the insurance applied for was $336. [35] By contrast, the insurance under the McCallum Hill policy shows that with deductible of $250, the dwelling and belongings were insured for $88,000 and the outbuildings for $8,800, for premium cost of $303, and the glass breakage coverage of $240 for premium cost of $14. The coverage under the Fine Arts Rider for the Swarovski Silver Crystal was listed on support file SF 222 for coverage of $9,776 with premium cost of $94, including loss or damage due to breakage. The total premium charged was $426. [36] It is evident from comparing the McCallum Hill SGI policy and the coverage applied for by Sebastian in the application form, that there are number of differences in the coverage requested, culminating in twenty per cent reduction in the premium from that charged for the McCallum Hill SGI policy. [37] During cross-examination on his affidavit, Sebastian said he understood support file to be something the insurer would have in their records to show the values and description of the items that made up the approximate $9,700 value for the amount of insurance coverage for these items. In the application form he submitted, Sebastian had included the prior policy number as “reference for SGI to refer to that policy to which the new application was taking over from”. He did not say for what purpose it was reference. He also filed form executed by the homeowners cancelling the McCallum Hill SGI policy. [38] Gordon Giles explained that the support file SF 222 is an actual physical file that SGI keeps. The file: would have given physical description of the items that the [Homeowners] had insured. The support file itself would only document the items that were insured. It would not outline the coverage.[11] In this in this case because of the existence of the support file our staff would have reviewed what was there to to get descriptor of the items insured and the values.[12] [39] Gordon Giles in his evidence on behalf of the insurer, spoke to the role of the insurer and stated: SGI did not compare the [McCallum Hill] policy with the new policy application for the second policy. SGI merely processed the application as submitted by [Sebastian]. In practice, SGI does not compare previous policy with new policy application to make sure that any changes in coverage are intentional. SGI relies on the broker’s expertise in this regard.[13] [40] In response to questions from the Court with respect to the role of the insurer, the following exchange occurred:[14] THE COURT: Now, is there any notation there that would have prompted SGI to conclude that there was change in the scope of coverage? THE WITNESS: Well, what happens, Your Lord, is as common business practise because of the volumes that we deal with on daily basis where we deal with approximately 150,000 policies annually just in the business area that I’m responsible for. We receive many applications from brokers where an individual has gone is an SGI client, have moved from one broker to another for whatever business reasons. We do not review the prior policy of the customer, the reason being is that one, is that it would manifest itself and it would be physically impossible for us to provide the service levels that we established for ourselves. The second is that on many occasions people will change their coverage when moving from one broker to another. They may, for example, decide to move from $500 deductible to $1000 deductible. When my staff receive that we don’t feel that it’s well, it’s not our responsibility to to review that. Our responsibility is to fulfill the request from an insurance broker for insurance coverage that we receive. [Emphasis added] THE COURT: Right, but what does this communicate to you in terms of the requested coverage if there is reference to, in this particular area, the prior policy? THE WITNESS: In this particular area what it’s saying to my staff is that there was coverage for scheduled belongings for this crystal for the [homeowners] on the previous policy and what the reference to the support file number is on there is just providing them with the descriptor and the listing of the values for that. THE COURT: Right, and that’s not in issue, it’s the nature of and scope of coverage that is in issue in this case and I’m asking you what you take this application for insurance referencing in this area the prior policy to mean with respect to the scope of coverage the nature and scope of coverage. THE WITNESS: In terms of the nature of the scope of coverage, what I’m referring well, how would reference it is that we would provide the coverage that’s requested by the broker. THE COURT: Right. And that is by reference to the previous policy? THE WITNESS: That is by reference to the application the broker has submitted. [41] Gordon Giles was asked why an SGI staff member would contact Sebastian about the value of the coverage on the Fines Arts Rider requested on the application form. The following exchange occurred: why SGI would be recalculating those numbers. Well, I’m assuming that what happened is is that the initial application that we got from Mr. Sebastian would have requested $10,500 in coverage. When my staff would have looked at the support file they would have seen total value of $9,995, so they would have contacted Mr. Sebastian to to verify what the correct value was or the other assumption would have been that perhaps there might have been an item that wasn’t put on the support file that Mr. Sebastian wanted to have insured. And why would it be important for SGI to to determine what the correct value is? Well, for two reasons. One is to ensure that the customer has proper coverage in place in terms of the values of their of the scheduled items and secondly is to get the proper premium for the risks that we’re insuring.[15] [42] From the above evidence, it is clear the insurer relies on the broker to apply for the coverage in accordance with his clients’ (i.e., the insureds’) wishes and needs. The evidence is clear that the references in the application form to SF 222 and the previous policy number do not request the insurer to provide the same coverage as existed in the previous policy of insurance. If that is the coverage requested, then the application form should have said so. Further, the trial judge concluded that if Sebastian had looked at the McCallum Hill SGI policy, it would have prompted him to ensure that the application he completed “would have very specifically referred to the special scope of coverage being applied for. His actions or inactions constituted negligence at law.”[16] [43] The coverage requested in the application form differs from the previous coverage in the McCallum Hill SGI policy. The premium charged for the requested coverage is significantly less than the previous policy. In my view, the evidence does not support the inference made by the trial judge that the coverage applied for by Sebastian was to be identical to the coverage that existed in the cancelled McCallum Hill policy. Therefore, the reference in the application form to the policy number of the cancelled policy submitted to SGI cannot form the factual basis for the trial judge to conclude the insurer has duty to inquire of the insured whether the coverage applied for in an application filed on behalf of the insured by broker is adequate and in accordance with the insureds’ instructions. There was no other evidence before the Court to establish the standard of care; the basis for imposing a duty at law where none has previously existed; or the subsequent breach of that duty by the insurer, SGI, in connection to the application for insurance submitted by Sebastian. [44] It appears the trial judge founded the basis of liability of SGI to Sebastian and TCW on the basis of tort. However, the instant case is factually and legally distinguishable from the only situation in Yorkshire Trust cited to this Court in which an insurer was found to have duty to its intermediary. [45] The trial judge’s analysis follows: [29] The defendants claim that the insurer, SGI, owes duty of care to the plaintiffs, as the insured, and the defendants as SGI’s agent, in all of the circumstances. The defendants rely upon Yorkshire Trust Company v. Laurentian Pacific Insurance Company (1987), 28 C.C.L.I. 368 (B.C.S.C.) as setting out the principle that, in certain circumstances, particularly as they relate to the processing of an application for insurance, an insurer may well be liable to an insured and the insurer’s agent in negligence and/or breach of contract. This case supports the principle that an insurer has duty of care to underwrite risk and issue an insurance policy in accordance with an application for insurance that is submitted and in respect of which an insurer has made appropriate and careful inquiry. If, in breach of an insurer’s duty, an insurer is negligent in its treatment of an application for insurance, the insurer may well be liable to anyone who can reasonably be foreseen as harmed by that negligence which may include the insured and/or the insurance agent that presents the application. This Court agrees with and accepts these legal principles as applicable in this case. (See also Fletcher v. Manitoba Public Insurance Co., supra; Audio Works Production Services Ltd. v. Canadian Northern Shield Insurance Co., 2005 MBQB 209 (CanLII); [2006] W.W.R. 643 (Man. Q.B.); C. Brown and J. Menzies, Insurance Law in Canada, 2nd ed. (Toronto: Carswell, 1991) at pp. 57 and 58; Piggott Construction (1969) Ltd. v. Saskatchewan Government Insurance Office, supra) [36] The Court has already concluded that SGI, as insurer, owed duty of care to both the defendants and the plaintiffs to properly underwrite and deal with the application for insurance submitted by its agent Campbell Haliburton on behalf of the Draders as prospective insureds. [46] As point of clarification, the question of whether the insurer, SGI, owed an independent duty of care to the insured when broker, on behalf of the insured homeowner, completes the application for insurance and submits it to the insurance company, was not raised by the Homeowners. However, Sebastian and TWC, in the Third Party Claim, plead that such duty exists based on their contention that SGI was obliged to inform them of the coverage under the McCallum Hill SGI policy. However, the trial judge correctly concluded that task belonged to the broker. So why does the insurer have duty to provide advice to the broker as to the contents of previous insurance policy held by an insured when the insured changes brokers, and it is the new broker who applies (on behalf of the insured) for new policy of insurance? [47] have found no cases where broker’s breach of the duty of care for failing to procure the appropriate insurance for the customer has been extended to recognize an independent duty owed by the insurer (who receives the application for insurance from the broker) to the customer to procure the appropriate insurance for the customer. [48] This leads to the question whether the duty of the insurer extends beyond providing policy in accordance with what is requested in the written application form? Does the law impose on the insurer duty to conduct inquiries of the broker and/or the insured when there are any requests for any changes from that contained in previous insurance policy issued by that insurer? If so, what is the nature of that duty? Is it duty imposed by contract law or tort law? If tort law, what is the standard of care against which the conduct of the insurer is to be measured? [49] Counsel for Sebastian acknowledges that many of the authorities relied on by the trial judge in support of the principle he cites imposing liability on the insurer in this case, do not support the principle he sets out. The trial judge states the following principle: [29] the principle that an insurer has duty of care to underwrite risk and issue an insurance policy in accordance with an application for insurance that is submitted and in respect of which an insurer has made appropriate and careful inquiry. If, in breach of an insurer’s duty, an insurer is negligent in its treatment of an application for insurance, the insurer may well be liable to anyone who can reasonably be foreseen as harmed by that negligence which may include the insured and/or the insurance agent that presents the application. [50] In the respondents’ factum, they concede the following authorities cited by the trial judge do not support the principle asserted. They stated: 52. That is the case with regard to the reference to C. Brown and J. Menzies, Insurance Law in Canada, (2nd ed. 1991) at pp. 57 and 58 The section of the text cited discusses the duty and potential liability of an insurance agent but not an insurer. Piggott Construction 1969 Ltd. v. Sask. Government Insurance Office does not explicitly state the principle set out by the Judge. Fletcher v. Manitoba Public Insurance Co. involved situation where the insureds dealt directly with public auto insurer and there was no independent agent or broker involved. Therefore it is not similar factually to the circumstances at issue in this appeal.[17] [51] The result is that the only authority cited by the trial judge that can be relied on for this principle is Yorkshire Trust. In my view, this case fails as an authority for the principle stated and relied on by the trial judge because it deals with fundamentally different legal issue based on an unusual fact pattern substantially different from the instant case. [52] Yorkshire Trust involved an action by three mortgagees under commercial policy of property insurance that covered building destroyed by fire. The insurer defended and argued the policy was void because one of the mortgagees fraudulently omitted to disclose material change relevant to the risk. In addition, the insurer brought third party action against the insurance agent for failing in his duty to advise the insurer of these material facts. [53] The insurer was unable to convince the Court that the policy was void as result of the fraudulent misrepresentation of the mortgagees at the time of the application for insurance. Therefore, the mortgagee (plaintiff) was entitled to recover under the policy. [54] The Court concluded the insurer would not have accepted the risk and would not have issued the policy if it had been told what the agent knew: The insurance agent, being in the same complex, knew more than enough to have been alerted to these risks. Despite his knowledge of the building and its owner, and of the probability that the owner and former owner were in financial difficulties, [the agent] communicated no warning at all to [the insurer]. When he phoned to seek coverage and obtained the necessary commitment, the information which he gave to [the insurer] was sparse, innocuous and, in my view, plainly inadequate to discharge the agent’s duty to an insurer in such circumstances. do not, however, believe that the insurer would have accepted any part of the risk had it been told what [the agent] then knew. Had he been frankly told that the bank was his customer, that it was covering only its own interest, that much less than half of the property seemed to be income-producing and that the reputation of the owner was questionable, think it probable that [the insurer] would have instructed [the agent] to make further inquiries, initially of the bank. Had those inquired not been frankly answered by the bank, any policy issued would have been void under statutory condition 1. Had frank answers been given, they would have led to discovery by the insurer …[18] [55] The Agent was liable to the insurer for his failure to provide material information to the insurer at the time of underwriting the policy of insurance. [56] The Court, in the unique circumstance of that case, found the insurer 50% liable for its loss. The Agent in Yorkshire Trust was an inexperienced agent with no power to bind the insurer. In addition, there were number of circumstances which should have alerted the underwriter to ask for more information. The Court found: Most other relevant details concerning the property including its age, wiring, heating, location in relation to fire hydrants and fire protection system were simply “guessed” by someone in his office who filled out the data sheet, often quite wrongly. …[19] [57] More importantly, the Court noted that the underwriter’s readiness to take on the risk on the basis of paucity of information was factor in the policy being in place and the subsequent loss to the insurer. The Court noted, with respect to the standard of care, that it: did not conform with that of reasonably careful fire risk underwriters as explained in expert evidence, and substantially contributed to its loss.[20] [Emphasis added] [58] The special set of circumstances in Yorkshire Trust can be contrasted with the instant case. Here the agent is experienced, has authority to bind the insurer, works with his clients for in excess of fifty days in search of new insurer, who on the day before coverage expires submits new application for insurance with several changes in coverage, and who fails to review his client’s existing policy. [59] The only evidence before the Court relating to the relationship of the underwriter, insurer, to the broker was that of Gordon Giles. He dealt with the practice followed by SGI in this case. It was his testimony that their practice was consistent with their standard practice in such situations. Accordingly, in this transaction, with respect to the obligation of the insurer to the broker, SGI did that which could reasonably have been expected of it. It issued the policy in accordance with the application. [60] As previously discussed and, further, conceded by the appellants, neither Fine’s Flowers nor Fletcher are authority for duty being owed by an insurer to an insured, independent of the duty owed by an agent or broker to an insured. There is nothing in the facts of this case which leads this Court to conclude that such duty ought to be created in the circumstance of this case. The insurer’s obligation to the insured is to issue policy in accordance with the application submitted. There may well be other circumstances where the law requires more of an insurer, but this is not such circumstance. [61] I conclude there is nothing in this transaction which warrants the creation of a duty of care owed by the insurer to a broker applying for insurance on behalf of his clients. [62] The relationship of intermediaries to their clients, the insureds and to the insurers, is matter of long established law, both in contract (which when required may be changed by agreement) and in tort. The commentators cited at length by counsel for the Appellants[21] advocate the extension of or the creation of new duties of insurers to intermediaries and to insureds. There is, however, nothing in this case which should cause long standing commercial relationships or the expectations of the parties to those relationships to be altered. Further, the established duty of intermediaries to their clients is adequate to protect insureds. [63] note that in Clause 7(a) of the Agency Agreement, the parties thereto, SGI and TWC, have provided, by contract, for an obligation of the insurer to indemnify the Agent where the Agent has become obligated to pay damages as result of loss sustained by the policyholder caused by the error or omission of SGI. It is apparent the parties have provided for contractual mechanism to cover the circumstances. Accordingly, this is the obvious justification for not creating “new” or “novel” duties and imposing them on insurers. With respect to this contractual provision, there is nothing in the evidence to suggest that the loss sustained by the Homeowners is result of an “error or omission” on the part of SGI. [64] For all of these reasons, that portion of the judgment finding that SGI is liable for 50% of the damages payable to the Homeowners is set aside and the Third Party Claim is dismissed. Accordingly, the appeal is allowed with costs to the Appellant. DATED at the City of Regina, in the Province of Saskatchewan, this 20th day of April, A.D. 2009. “Hunter J.A.” HUNTER J.A. concur “Hunter J.A. for” VANCISE J.A. concur “Lane J.A.” [1] R.S.S. 1978, c. C-31. [2] 2007 SKQB 61 (CanLII), [2007] W.W.R. 705. [3] 1990 CanLII 59 (SCC), [1990] S.C.R. 191. [4] (1977), 1977 CanLII 1182 (ON CA), 81 D.L.R. (3d) 139 (Ont. C.A.). [5] 1985 CanLII 2669 (SK CA), [1986] W.W.R. 530, (1985), 44 Sask. R. 203 (C.A.). [6] Supra note at para. 34. [7] Craig Brown, et al., Insurance Law in Canada, looseleaf (Toronto: Thomson-Carswell, 2002). [8] Ibid. at pp. 3-24 to 3-28. [9] (1987), 28 C.C.L.I. 368 (B.C.S.C). [10] Exhibit D4 at Trial, Affidavit of Mel Sebastian, dated December 5, 2006, at para. 4. [11] Transcript of Trial Proceedings Held: December 20, 2006, at p. 100. [12] Ibid. at p. 102. [13] Exhibit T1 at Trial, Affidavit of Gordon Giles, dated November 30, 2006, at para. 7. [14] Supra note 11 at pp. 108-10. [15] Ibid. at p. 111. [16] Supra note 6. [17] Factum on Behalf of the Respondents, Mel Sebastian and Campbell Haliburton. [18] Supra note at pp. 378 and 379. [19] Ibid. at p. 380. [21] Professor James A. Rendall annotation in Yorkshire Trust Co. v. Laurentian Pacific Insurance Co. (1987), 28 C.C.L.I. 368; and Professor Marvin G. Baer annotation in Fletcher v. Manitoba Public Insurance Co. (1987), 1987 CanLII 4382 (ON SC), 26 C.C.L.I. 236.

The respondent Homeowners sued the respondents Sebastian and the TWC alleging negligence or breach of contract for failing to obtain the coverage for insurance as instructed by the Homeowners. Sebastian and TWC issued a third party claim against the appellant SGI and claimed SGI was negligent or in breach of contract or contributory negligence pursuant to the Contributory Negligence Act for failing to issue a policy of insurance in accordance with the application submitted to SGI by Sebastian on behalf of the Homeowners. The trial judge concluded Sebastian and TWC were negligent and liable for the loss suffered by the Homeowners. Further, the trial judge concluded that the insurer, SGI, owed a duty of care to both Sebastian and TWC and the Homeowners to properly underwrite and deal with the application for insurance. The trial judge concluded SGI contributed equally to the Homeowners' loss by 'their negligent acts' and was responsible to pay 50% of the judgment. The negligence of Sebastian and TWC is not disputed in this appeal. The Homeowners have been paid the amount owed under the judgment and advised they have no interest in the matter and did not participate in the appeal. SGI appeals and submits the trial judge erred in determining that SGI: (a) owed a duty of care to the insureds, Homeowners, and to the broker when it received an application for insurance in 'all the circumstances'; and (b) breached its duty of care. HELD: That portion of the judgment finding that SGI is liable for 50% of the damages payable to the Homeowners is set aside and the Third Party Claim is dismissed. Accordingly, the appeal is allowed with costs to the Appellant. The trial judge correctly placed the duty of care on the intermediary, Sebastian. It is clear the insurer relies on the broker to apply for the coverage in accordance with his clients' (i.e., the insureds') wishes and needs. There was no other evidence before the Court to establish the standard of care, the basis for imposing a duty at law where none has previously existed, or the subsequent breach of that duty by the insurer, SGI, in connection to the application for insurance submitted by Sebastian. The Court concluded there was nothing in this transaction which warrants the creation of a duty of care owed by the insurer to a broker applying for insurance on behalf of his clients.

4_2009skca44.txt

nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 138 Date: 20091216 Between: Docket: 1219 HDL Investments Inc. et al and City of Regina and Saskatchewan Assessment Management Agency Respondents Coram: Cameron, Hunter and Wilkinson JJ.A. Counsel: Leonard D. Andrychuk, Q.C for the Appellants Byron Werry for the Respondents Appeal: From: The Saskatchewan Municipal Board Assessment Appeals Committee Heard: October 30, 2008 Disposition: Appeal Dismissed Written Reasons: December 16, 2009 Written Reasons: The Court CAMERON J.A [1] This appeal concerns the assessment for municipal tax purposes of a building located in the City of Regina and used commercially as an enclosed shopping mall, known as the “Normanview Mall”. The building, which is owned by the appellant company, HDL Investments Inc., was assessed in each of the years 2003 and 2004 on the basis of its “fair value” as determined by the City Assessor. The company was dissatisfied with the Assessor’s determination of fair value and appealed the assessment to the local Board of Revision, then to the Assessment Appeals Committee of the Saskatchewan Municipal Board. The appeals were allowed in part, but the company remained dissatisfied. So it applied for leave to appeal to this Court under section 33.1 of The Municipal Board Act, S.S. 1988-89 c. M-23.2. It obtained leave to appeal on several grounds alleging error of law on the part of the Committee. All relate to the determination of the fair value of the building and, more particularly, to the market adjustment factor used in that determination. [2] The City Assessor determined the fair value of the building by the replacement cost method prescribed by The Saskatchewan Assessment Manual. This method was described as follows by Sherstobitoff J.A. in Cadillac Fairview Corp. v. Saskatoon (City), 2000 SKCA 84 (CanLII), [2000] 11 W.W.R. 89: nan Under the manual, an assessor is required to value improvements at their replacement cost according to the classifications and schedules of costs set out in the manual. From the replacement cost, the assessor is required to deduct depreciation, which includes any physical deterioration and any abnormal functional or economic obsolescence, calculated from formulas prescribed in the manual. The assessor is then to calculate and apply market adjustment factor in accordance with the manual. The result is the "fair value" at which the improvements must be assessed. 10 The market adjustment factor, or MAF, is intended to modify what would otherwise be "fair value" derived alone from replacement cost, less depreciation. It introduces an element of market value in the interests of achieving comparative "fair value" that is closer to market value than it would otherwise be, bearing in mind that the dominant consideration in valuing improvements for municipal taxation purposes is equity in the nature of comparative fairness. 11 According to the manual, the MAF is calculated from sales of comparable properties in the same or similar neighbourhoods. The assessor is required to analyse arms-length sales to arrive at median ratio of market value, as reflected by sales, to depreciated replacement cost, calculated in accordance with the manual. The ratio established for group of properties is the MAF. The object is to bring the fair value of improvements close to market value in the interest of achieving greater equity. [3] With this method in mind, the City Assessor calculated the replacement cost of the building, deducted depreciation, and multiplied the resulting figure by market adjustment factor, or MAF, of 1.31. He derived this MAF from the sales of four other enclosed shopping malls located in the City of Regina: Sherwood Village Mall, Northgate Mall, Southland Mall, and Victoria Square Mall. More specifically he derived this MAF from the sale price of each as determined by him on application of the governing provisions of Documents 4.1.6, 1.1.6, and 1.1.2(c) of the Assessment Manual. [4] Document 4.1.6 requires an assessor, when determining market adjustment factors by the sales comparison method, to “determine…the sale price” pertaining to the sale of comparable properties. Document 1.1.6 states that “each sale price” used to this end must: 1) result from an arm’s length sale; AND EITHER 2) satisfy each of the following criteria; a) represent the fee simple interest in the property; b) not include atypical financing terms and conditions; c) not include non-realty items such as personal property, business concerns and other items that are not considered real property; d) not include atypical conditions of sale; and e) represent market conditions as of the base date; OR 3) with respect to each of the criteria listed in point that is not satisfied, be capable of being adjusted, if warranted, and in fact be adjusted, if warranted, in accordance with the applicable rules and calculation procedures relating to “Sale Price Adjustments”. Document 1.1.2 (c) defines the term “arm’s length sale” to mean: (i) transfer of real property for cash or cash equivalents in an open market between willing, unrestricted, unrelated, knowledgeable, seller and buyer who are both seeking to maximize their position; and (ii) registered in accordance with The Land Titles Act on or before December 31, 1998; [5] With these requirements in mind the City Assessor sought and obtained information relating to the sales of each of the malls he relied upon to calculate the MAF. He did so by means of sale verification questionnaire he forwarded to the parties following the sales, asking them about the price paid, the relationship between them, the terms of the sale, and so on. Based on the responses he came up with the MAF in issue. [6] Thus the assessment of the Normanview Mall came to rest on the City Assessor’s determination of its fair value, which in turn came to rest on his determination and application of MAF of 1.31 derived from the sales of four other enclosed shopping malls, including the Northgate, Southland, and Victoria Square Malls. [7] The appellant company thought the City Assessor had erred in including the sale of these three malls in the array of sales he used to calculate the MAF and had therefore erred in determining the fair value of the building. It also thought that, even if the Assessor had correctly included the three sales, he erred in failing to fully adjust the sale price of the Northgate and Southland Mall sales to reflect typical market value transactions as required by the adjustment provisions of Document 1.1.6 of the Manual. Hence the company appealed its 2003 assessment to the Board of Revision. The Board dismissed the appeal, and the company then appealed to the Assessment Appeals Committee. [8] While the appeal to the Assessment Appeals Committee was pending, the 2004 assessment came down. It drew the same objections from the company and spawned similar appeal to the Board of Revision. This time the Board partially allowed the appeal. Based on new information that had come to light regarding the sale of the Northgate Mall, the Board held that the Assessor could not use this sale in calculating the MAF. It went on to hold, as it had before, that he could use the sales of the Southland and Victoria Square Malls for this purpose. In addition, it held that he need not adjust the sale price of the Southland Mall any further but thought he should make further adjustment, however slight, to the sale price of the Victoria Square Mall. In the result, the Board ordered the Assessor to rework the assessment, especially in light of the removal of the sale the Northgate Mall from the array of sales from which the MAF was to be derived. The company remained dissatisfied and again appealed to the Assessment Appeals Committee. [9] The Committee heard the two appeals together. It, too, thought the sale of the Northgate Mall did not qualify for inclusion in the array of sales from which the MAF was derived. As for the sales pertaining to the Southland and Victoria Square Malls, the Committee was not convinced the Board of Revision had erred in approving the Assessor’s use of these sales in calculating the MAF. Nor was the Committee convinced the sale prices warranted further adjustment. In the result, the Committee reduced the MAF from 1.31 to 1.06 and directed the Assessor to re-determine the fair value of the building for the purposes of the 2003 and 2004 assessments. [10] The reduction in the MAF had significant impact on the assessments, but still the company remained dissatisfied. Hence it initiated the appeal to this Court. It obtained leave to appeal on the grounds the Committee erred in law as follows: 1. It misinterpreted or misapplied Documents 1.1.2(c) and 1.1.6 of the manual in using the sale of the Southland Mall to determine the MAF. 2. It failed to decide an issue on appeal before it, namely whether the transfer of the Victoria Square Mall was an “arm’s length sale” within the meaning of that term as defied in Document 1.1.2(c). 3. It misinterpreted or misapplied section 171 of The Cities Act and Document 1.1.6 of the Manual in finding that the City Assessor could rely as he did on the sales verification questionnaires to determine whether the sale prices of the Southland and Victoria Square Mall sales required adjustment. 4. It ignored evidence in deciding that the sale price pertaining to the sale of the Southland Mall did not require adjustment pursuant to Document 1.1.6. 5. It misconstrued the decisions of the Board of Revision, or ignored evidence, in deciding that the sale of the Victoria Square Mall did not require adjustment pursuant to Document 1.1.6. [11] The grounds take issue one way or another with the inclusion of the sales of the Southland and Victoria Square Malls in the array of sales from which the MAF was derived or, alternatively, with the adjustment of the sale price of these properties. The grounds are perhaps most efficiently addressed having regard, first, for the sale of the Southland Mall and the issues to which this sale gave rise on appeal, and then to the sale of the Victoria Square Mall and the issues associated with that sale. I. The Southland Mall Sale [12] On July 31, 1991 Ontrea Inc., the investment arm of the Ontario Teachers Pension Fund, purchased 50% interest from Cadillac Fairview Corporation Limited in three shopping malls, one located in Toronto (the Hillcrest Mall), one in Winnipeg (the Polo Park Mall), and one in Regina (the Southland Mall). The sale was made by way of single agreement featuring single purchase price of $177,500,000. Such sales are commonly referred to as “portfolio sales.” While the sale featured single sale price, the Agreement of Purchase and Sale allocated portion of the price to the acquisition of the interest in each of the Malls. It allocated $19,000,000 to the acquisition of the 50% interest in the Southland Mall. [13] Following the completion of the sale, Cadillac Fairview transferred an undivided one half interest in the Southland Mall to Ontrea. The affidavit of value accompanying the registration of the transfer stated that the value of the property was $19,000,000 in aggregate, as did the certificates of title that issued. [14] Upon being notified of the transfer by the Land Titles Office, the City Assessor asked Ontrea to complete questionnaire, commonly known as Sale Verification Form. He did so in reliance upon sections 171 and 172 of The Cities Act, S.S. 2002, c.C-11.1. These sections enable municipal tax assessors to gather the information they need to perform their assessment duties. [15] Thus section 171 empowers assessors to request certain information or documents from persons expected to be in possession thereof. For example, subsection 171(1) empowers an assessor to request "any information or document that relates to or might relate to the value of any property from any person who owns, uses, occupies, manages, or disposes of the property." The section then goes on to impose correlative duty upon these persons to supply the assessor with the requested information or documents. Subsection 171(4), for instance, requires these persons, within prescribed time, to provide the assessor with all of the requested information and documents that are in the possession or control of that person. [16] Then there is section 172, the object of which is to buttress this power of the assessor and secure the performance of this duty of the person. Section 172 renders it an offence, under subsections (1) and (2), to fail to furnish the assessor with relevant information or documents, or to willfully furnish the assessor with false information. In addition subsection 172(5) bars consideration, on the appeal of an assessment, of any information that is substantially at variance with information provided by the appellant pursuant to section 171. [17] It was in reliance on these provisions, then, that the Assessor requested completion of the Sale Verification Form. He did so for the purpose, among others, of allowing him to determine an appropriate market adjustment factor for use in assessing enclosed shopping malls. And he did so with an eye to the requirements of Documents 4.1.6, 1.1.6, and 1.1.2(c) of the Assessment Manual. In the light of these requirements the Sale Verification Form requested disclosure of the price paid for the property, the relationship between the parties, the nature of the financing associated with the sale, the relationship between the price paid and the market value, and so on. In response, Cadillac Fairview, on behalf of itself and Ontrea, wrote the Assessor, saying this: The parties apportioned the sale price of $177,500,000 among the three Malls, allocating $19,000,000 to the sale of the interest in the Southland Mall. The sale was recorded as “a cash transaction” with no external financing involved. The sale price was believed to represent “the fair market value” of the properties and had been apportioned among the properties on the basis of their 1991 “net operating income capitalized at an appropriate rate.” [18] In reliance on this information, and the affidavit of value accompanying the transfer of title, the Assessor concluded that the “sale price” of the 50% interest in the Southland Mall was $19,000,000 and resulted from an “arm’s length sale”. He also concluded that the sale price represented half the fee simple interest in the property, did not include any atypical financing or other conditions of sale, and did not include any non-realty items. So he was satisfied no adjustment of the sale price was required, except for adjustments to reflect the fact, first, that about seven years had elapsed between the date of the sale (July 31, 1991) and the base date for the calculations envisioned by the Manual (June 30, 1998); and, second, that the sale involved only 50% interest, making it necessary to double the sale price for the purpose of working with it in the calculation of the MAF. [19] Thus, the Assessor relied upon the sale pertaining to the Southland Mall in calculating the MAF applicable to enclosed shopping malls, and decided the sale price did not require any but the two adjustments referred to above. In the result, and having regard for the three other sales he relied upon, he came up with MAF of 1.31. He applied this MAF in each of the following years up to and including the years 2003 and 2004. [20] The Board of Revision, in its review of the 2003 and 2004 assessments for error on the part of the Assessor, could see nothing requiring him to either exclude this sale from consideration in calculating the MAF or to adjust the sale price beyond the adjustments he had already made. Nor did the Assessment Appeals Committee find any material error on the part of the Board of Revision regarding the sale. [21] That, then, brings us to the company’s dissatisfaction with the decision of the Committee regarding this sale. The company contends the Committee erred in law in upholding the Board’s conclusions to the effect (a) that the sale qualified for inclusion in the array of sales from which the MAF was derived or, alternatively, (b) that the sale price did not require further adjustment. Let us consider these in turn. (a) The inclusion of the sale [22] In the submission of the appellant company, the Committee erred in law in several respects in upholding the Board’s decision that the sale of the Southland Mall qualified for inclusion in the determination of an appropriate MAF. [23] First, the company says the Committee erred in law in failing to recognize that this sale, contrary to what the Board made of it, did not amount to an “an arm’s length sale” because Ontrea was not “willing” buyer. In the submission of the company, Ontrea was not willing buyer inasmuch it was under duress in the sense it could not have purchased an interest in the Toronto and Winnipeg malls (an interest it wanted), without at the same time agreeing to purchase an interest in the Regina mall (an interest it did not want). In addressing the matter the Committee said this: The Board gave little weight to the notion that the Ontario Teachers Pension Fund (Ontrea) was under some duress, and were required to take the Southland Mall as part of the “package” and further to retain the services of the former owner as managers. The Committee agrees with the Board on this point, it may well have been part of the agreement but there was no evidence to indicate that the buyer could not walk away from the deal [24] Even assuming the Committee’s decision in this regard gives rise to question of law and not of fact, we are by no means persuaded to the view the Committee erred. Although Ontrea, sophisticated corporate investor, may have preferred not to acquire the interest in the Regina mall, preferring instead to acquire an interest in only the Toronto and Winnipeg malls, the company could hardly have been found to be under duress. And in our opinion the company cannot be said on the facts of the case to have been anything but “willing, unrestricted, unrelated, and knowledgeable” buyer within the meaning of the definition of the term “arm’s length sale” found in Document 1.1.2 (c) of the Assessment Manual. [25] Second, the company says the Committee erred in law by failing to appreciate that the sale pertaining to the Southland Mall was part of portfolio sale that included properties located outside Saskatchewan and could not, therefore, be used for the purpose of calculating the MAF. It could not be used because Document 1.1.6 of the Manual only allows for the use of “sales of property located in the Province of Saskatchewan.” [26] This submission undoubtedly raises question of law, but the idea that such portfolio sales cannot be used for this purpose was laid to rest by this Court in HDL Investments Inc. et al v. City of Regina and Saskatchewan Assessment Management Agency, 2008 SKCA 47 (CanLII), 310 Sask. R. 44. The reasons for judgment of Jackson J.A. on behalf of the Court in that case (paras. [50] to [60]) make it clear that an assessor may have regard for the sale of property located within the municipality even though the sale be part of portfolio sale that includes other properties located outside the Province. The case stands for the general proposition that if the sale price of such property can be ascertained and verified by an assessor then the sale price can be used for the purposes of determining an appropriate market adjustment factor by the sales comparison method. [27] Third, the company says the Committee erred in law in failing to give effect to the fact the City Assessor did not “determine the sale price” of the interest in the Southland Mall as required by the Assessment Manual. Instead the Assessor merely substituted for the sale price the vendor and purchaser’s allocation of $19,000,000 to the purchase of this interest, in effect abdicating his responsibilities. Moreover, this allocation was mere estimate of the value of the property, according to the argument, and an unreliable estimate at that, for the parties to the transaction used an unrealistic capitalization rate of 9% for the purpose of the allocation, rather than the realistic rate of 12.75%. Had they used the latter the value would have amounted to $12,900,000, not $19,000,000. [28] To the extent this submission raises question of law we do not agree with it. The City Assessor, acting on the authority of sections 171 and 172 of The Cities Act, sought and obtained information from the parties to the transaction for the three-fold purpose of putting him in position to determine: (i) whether the $19,000,000 sworn to in the affidavits of value and recorded on the certificates of title constituted the “sale price”; (ii) whether the sale price resulted from an “arm’s length sale”; and (iii) whether and to what extent the sale price warranted adjustment. [29] On the basis of the information he obtained, the Assessor concluded that the $19,000,000 constituted the sale price of the property. In other words he “determined…the sale price” having regard for the information at his command, including the information supplied to him by the parties to the transaction. Hence the Board of Revision was not satisfied that the Assessor had erred in relation to the determination of the sale price. Nor was the Committee convinced the Board had erred. In arriving at its decision the Committee noted that the very purpose of the sale verification step taken by the Assessor, and the information it yielded, was to enable him make such determination in accordance with the provisions of the Assessment Manual. [30] Picking up on the Committee’s reliance of the sale verification information in arriving at its conclusion, the appellant company submitted that as matter of law the Committee relied excessively on the sale verification and the information it yielded, ascribing more importance to this information than is warranted by the Assessment Manual or section 171 of The Cities Act. For the reasons that follow we do not agree. [31] To begin with, the Committee did not misapprehend the importance, generally, of the sale verification process and the information it yields. The importance lies in the fact municipal assessors are highly dependent on this information in the performance of their assessment duties and are called upon to make number of decisions largely on the basis of fact that emerges through this process, process provided for by sections 171 and 172 of The Cities Act. The import of these sections was considered by this Court in City of Saskatoon v. Boardwalk Property Holdings Ltd and Saskatchewan Assessment Management Agency, 2008 SKCA 174 (CanLII), 314 Sask. R. 290. Speaking on behalf of the Court in that case said this: [11] These provisions are vital to the assessment regime. It could not function without them, given the need for municipal tax assessors to determine the fair value of improvements in accordance with the principles, rules and formulas of the Saskatchewan Assessment Manual… [12] An assessor's duty to determine and apply an appropriate market adjustment factor in arriving at the fair value of an improvement illustrates, as well as any, the purpose of sections 171 and 172 of the Act and their importance to the assessment regime. The proper performance of this duty is wholly dependent upon the assessor having access to information regarding property sales. Hence, owners and others in possession of information relating to the value of any property, including information and documents pertaining to the purchase and sale of property, must furnish the assessor with that information pursuant to section 171. An owner who fails to do so, or who wilfully furnishes the assessor with false information, is guilty of an offence under section 172. Not only that, should an assessment appeal be taken, section 172 bars boards of revision, as well as the Assessment Appeals Committee, from considering evidence of information that is substantially at variance with the information provided to the assessor. [32] Hence, the sale verification information obtained by the Assessor in relation to the sale of the Southland Mall was of considerable importance and merited considerable weight. This is not to say it was open to either the Board of Revision or the Committee to have regard for the sale verification information to the exclusion of such other information before the Board as was relevant and not excluded from consideration by subsection 172(5) of The Cities Act. However, it must be born in mind that weighing evidence in the context of fact-finding is primarily the province of the fact-finder and, in the absence of the unreasonable, does not generally open the door to interference. It must also be born in mind that there exists presumption in favour of the correctness of an assessment and therefore an onus on the appellant to establish that the Assessor erred: Estevan Coal Corporation v. R.M. of Estevan No. 5, 2000 SKCA 82 (CanLII), [2000] W.W.R. 474. [33] With this mind, we note that, while the Committee relied heavily on the sale verification information in upholding the decision of the Board of Revision regarding the sale price of the Southland Mall, the Committee did not reach this conclusion on the basis of the sale verification information to the exclusion of other relevant information open to consideration. This is clear from the reasons for its decision. It said this: Unlike the Northgate sale, no evidence was brought forward to the Board or Committee concerning the Southland sale that would render the information provided in the verification form invalid. [34] It also said that the way in which Cadillac Fairview and Ontrea had allocated the overall purchase price among the various properties included in the portfolio sale was consistent with the evidence as to how this ought to be done, saying: An expert witness for the appellant testified that the proper way to establish value of the portfolio is to value the individual parts and then sum them to arrive at the total. The evidence presented in the form of the sales agreement for the portfolio indicates this is exactly what happened in this case. The sales agreement indicates that indeed each of the malls in the portfolio was valued separately using its own net operating income multiplied by capitalization rate that reflects the economic conditions for each mall. This would indicate to the committee the conditions that affected the value of the Southland Mall were taken into consideration at the time…. [35] Finally, to suggest that Cadillac Fairview and Ontrea used an unrealistic capitalization rate in allocating $19,000,000 of the portfolio sale price to the Southland Mall sale (and overvalued the property in consequence), is largely beside the point. The point is not whether Ontrea paid more for the property relative to what someone else, over decade later, thought it was worth. The point is how much Ontrea in fact paid for its share of the fee simple interest in the property, assuming it acquired its interest on an arm’s length sale. Beyond that the point is whether and to what extent the amount paid required adjustment pursuant to Document 1.1.6. [36] That, then, brings us to the issue of whether the Committee erred in law in upholding the decision of the Board of Revision regarding the adjustment of the sale price of the Southland Mall. (b) The adjustment of the sale price [37] As noted above, the Assessor made two adjustments to the sale price, one to account for the time that had elapsed between the date of the sale and the base date, and the other to account for the fact the sale involved 50% interest in the property. Beyond this he concluded that no further adjustment was required. In other words he concluded, based largely upon the affidavit of value accompanying the transfer and upon the sale verification information he obtained from Cadillac Fairview and Ontrea, that the sale price satisfied the remaining criteria of Document 1.1.6, namely that: (a) it represented the fee simple interest in the property, (b) did not include atypical financing terms and conditions; (c) did not include any non-realty items; and (d) did not include atypical conditions of sale. [38] Let us consider in greater detail the basis upon which the Assessor reached this conclusion. The affidavit of value expressly stated that “the value of the parcel of land together with all buildings and other improvements” was $19,000,000 in aggregate. And the certificates of title that issued following the sale expressly linked the $19,000,000 to the “fee simple interest” in the property. In addition, the sale verification information supplied by Cadillac Fairview and Ontrea on the heels of the sale expressly disclosed that the sale price reflected the fair market value of the property; that the sale was not accompanied by any atypical financing terms or conditions; and that the sale was recorded as cash transaction. There is nothing whatever in any of this to suggest the price included any non-realty item or that the sale was accompanied by any atypical conditions. Indeed, the clear implication is to the contrary. And the person who supplied the sale verification information on behalf of Cadillac Fairview and Ontrea, both sophisticated corporations, was identified as the “Manager, Assessment Valuations” of Cadillac Fairview, fact that served to lend an added measure of reliability and weight to the sale verification information. [39] Again, the appellant company contended that the Committee made too much of the sale verification information in deciding that the Board had not erred in upholding the Assessor’s conclusion that the sale price did not require further adjustment. And again it was said that the Assessor in effect abdicated his responsibilities by effectively leaving it to the parties to the transaction to determine if any further adjustments were required. For reasons already expressed, we do not generally agree with these propositions. [40] Indeed, we, too, are of the opinion it was open to the Assessor, based on the affidavit of value, the certificates of title, and the sale verification information he obtained on the heels of the sale, to reasonably conclude that no further adjustments to the sale price were required. This is not to say his conclusion was beyond effective challenge on appeal to the Board of Revision, subject to the presumption in favour of the correctness of an assessment and the resulting onus on the appellant to show it was made in error. However, based on the evidence adduced before the Board, the company failed to satisfy the Board that the sale price warranted any adjustment beyond that already made by the Assessor, and failed to convince the Committee that the Board had erred in this regard. [41] That is all very well, according to the company, but having regard for the whole of the evidence before the Board, both the Board and the Committee fell into error. The Committee is said to have erred in law in two respects. First, it failed to appreciate that the sale price included “non-realty item”. Second, it failed to decide whether the Board erred in finding that the sale price was unaffected by any “atypical financing terms” or any “atypical condition of sale”. [42] As for the first, the company says that on the whole of the evidence the sale price clearly included mark-up or premium that amounted to “non-realty item”. The argument in support of this proposition unfolded along these lines: Ontrea agreed to pay Cadillac Fairview $19,000,000 for 50% interest it the Mall on the undertaking by Cadillac Fairview to continue to manage the Mall. This undertaking was of significant value because of Cadillac Fairview’s expertise and muscle in the market place, and was rolled into the purchase price, constituted premium, and called for adjustment of the sale price to account for this “non-realty item”. [43] Whether Ontrea paid such premium is essentially matter of fact. The Board of Revision found that no such premium had been paid, and the Committee upheld this finding. In our judgment this finding cannot be said to have been so devoid of evidentiary support as to expose it to interference. [44] True, there was some opinion evidence that the price of $19,000,000 included premium attributable to the continued management of the Mall by Cadillac Fairview, though no one would venture an opinion about whether and to what extent this might be quantified. Some of the opinion evidence was of questionable admissibility, some of questionable reliability, and some of questionable weight, though it is unnecessary to elaborate in light of the fact the appeal to this Court is limited to questions of law or jurisdiction, and in light of what follows. [45] The Agreement of Purchase and Sale makes no mention of any such premium even though the terms used in the Agreement are defined at length and with precision. Nor does the allocation of the purchase price, recorded in the Agreement and made on the basis of the capitalized net income generated by the Mall, make mention of the payment of such premium. Nor does the affidavit of value accompanying the transfer (and the expert opinion evidence of its import), suggest that non-realty item of this nature found its way into the sale price. Indeed, the implication is to the contrary. Nor does the sale verification information supplied by Cadillac Fairview and Ontrea shortly after the completion of the sale suggest the payment of any such premium. Moreover, the evidence disclosed that separate management agreement was entered into on the closing of the sale (as anticipated at the time of the sale), wherein it was agreed that Cadillac Fairview would manage the Mall in return for 4% of the gross revenue derived from the Mall, plus expenses. [46] The point is threefold: Having regard for the whole of the evidence, together with the presumption in favour of the correctness of the assessment and the resulting onus upon the appellant to demonstrate error, we are of the opinion it was open to the Board of Revision to find that no such premium had in fact been paid; that it was not open to the Committee, in reviewing the Board’s decision for error, to interfere with this finding of fact; and that it is not open to us, in reviewing the Committee’s decision for error of law, to reverse the Committee’s decision in this respect. [47] With that, we may turn to the second of the errors the Committee is said to have made in relation to the adjustment of the sale price of the Southland Mall, namely that it failed to decide whether the Board erred in finding that the sale price was unaffected by any “atypical financing” or “atypical condition of sale”. [48] The submission in support of this proposition is founded on evidence before the Board demonstrating that on the closing of the sale Cadillac Fairview and Ontrea entered into “Co-owners Agreement”, as well as number of supplementary agreements to implement the terms of that Agreement. Under the Co-owners Agreement, the two corporations, as co-owners of the Mall and the leases pertaining to the Mall, agreed upon their respective rights, obligations, entitlements, and benefits, including the means to secure performance as against one another, namely by means of charge, pledge, debenture, buy-sell, and so on covering their respective 50% interests. They also agreed to lease the Mall to an operating tenant, Southland Leaseholds, subsidiary of the two corporations, and to cause Southland Leaseholds to enter into management agreement with Cadillac Fairview providing for the management of the Mall by the latter for the prescribed fee of 4% of gross revenue, plus out-of-pocket expenses. [49] Based upon the foregoing, the appellant company contended that, notwithstanding the indications to the contrary in the sale verification information obtained by the Assessor soon after the sale, it is apparent the sale featured number of atypical financing terms or atypical conditions of sale. The Assessor did not think so, having been furnished several years later with the Co-owners Agreement and those associated with it, nor did the Board of Revision. Having regard for the way in which this issue was presumably put to the Board, it saw nothing in the Agreement of Purchase and Sale, the Co-owners Agreement, and the agreements arising out of the latter, to warrant further adjustment of the sale price. It said this: The agent also asserts that the sale price should be adjusted for atypical financing. Clause 6.14 of the agreement provides that the Agreement for Sale constitutes the entire contract with respect to the transaction. The fact that the parties entered into subsequent dealings of complex nature to conduct their business is irrelevant for assessment purposes to the transfer of an ownership interest and the leasehold interests obtained under the Agreement for Sale. The transaction as provided for in the Agreement for Sale was cash purchase. The agent argued that cash purchase in itself was not market norm. In determining what is typical, the Board must consider the marketplace for shopping malls not the marketplace in general. Large corporations and pension funds purchase shopping malls. Pension funds have enough money to be able to make cash purchases and cash purchase of shopping mall by pension fund is not atypical. No adjustment to the sale price needs to be made for cash purchase. [50] These findings were not expressly addressed by the Committee, though it is not clear why. Perhaps the matter was not argued or, if argued, was thought to be obviously lacking in merit. Or perhaps it was overlooked. Whatever the explanation, this much is clear: The matter was raised as ground of appeal and, on the assumption it was argued and not abandoned, the Committee was obliged to determine it. And not having done so, the Committee erred in law: Cairns Developers Ltd. v. City of Regina and Saskatchewan Assessment Management Agency, 2000 SKCA 89 (CanLII); 199 Sask. R. 51. [51] The question, then, is one of remedy. Must this branch of the case be remitted to the Committee for decision, or can we decide it? There seems no good reason to suppose we cannot do so, bearing in mind the nature of the issue and what was said of our jurisdiction in Cairns Developers Ltd. v. City of Regina and Saskatchewan Assessment Management Agency. Since the Board found that the Assessor had not erred in concluding that the sale price did not warrant further adjustment pursuant to the governing provisions of Document 1.1.6 of the Manual, the issue is whether this finding is unreasonable or unsupported by the evidence, or is grounded in misapprehension of these provisions. This amounts to question of law, so it is within our jurisdiction to decide it. [52] This said, one might quibble with the Board’s reasoning at turn or two, but in our opinion there exists no tenable basis to interfere with its decision in this respect. It was open to the Board, having regard for the sale verification information, the Agreement of Purchase and Sale, and the Co-owner’s Agreement, to reasonably conclude that the Appellant company had failed to demonstrate error on the part of the Assessor in deciding that no adjustment for atypical financing or atypical conditions of sale was required. [53] As noted by the Board, what is typical or atypical depends on the context in which the issue arises. In this instance, the issue arose in the context of cash sale of 50% interest in shopping mall in operation at the time of the sale. Since the mall was then in operation, naturally there were leases in existence, leases which in the ordinary course fell to be assigned to and assumed by the purchaser (to the extent of its interest), on completion of the sale. And naturally it became necessary in the ordinary course for the two owners to agree upon the allocation of the benefits and burdens of equal ownership of the mall, including the means to secure, as between one another, the realization of the benefits and the assumption of the burdens. Likewise, it became necessary in the ordinary course for the two owners to agree upon the management of the mall. To this end they agreed, first, to incorporate company and lease the land and building to that company as operating tenant and, second, to cause that company to engage the vendor to manage the property. [54] On the face of it, there is nothing apparently atypical in any of this if one adopts the notion, as the Board correctly did, that what is or is not atypical has to be determined in context. Just as importantly, there is nothing in any of this to sustain the notion the Board erred in finding that these post-sale agreements were not shown to have affected the sale price of the 50% interest in the land and building purchased by Ontrea pursuant to the Agreement of Purchase and Sale. There is, of course distinction between, on the one hand, the sale of the 50% interest in the land and building and, on the other, the business concerns that followed in the wake of that sale. The Co-owners Agreement and the steps taken to implement it had to do with the latter and did not serve apparently to affect the sale price of the land and building. So we are of the opinion there is no tenable basis to interfere with the decision of the Board in this regard. [55] For these reasons we are of the view that, while the Committee may have erred in failing to decide the ground of appeal taking issue with the adjustment of the sale price, the error is immaterial. [56] On the whole, then, we can see no basis for interfering with the Committee’s conclusions that (a) the sale pertaining to the Southland Mall qualified for inclusion in the array of sales from which the MAF was to be derived and (b) that the sale price did not warrant adjustment beyond the two adjustments made by the Assessor. 2. The Sale of the Victoria Square Mall [57] On January 22, 1992 Edgefund Realty Investment Corporation transferred title to the Victoria Square Mall to Bellfund Realty 420 Corporation. The certificate of title that issued on registration of the transfer stated the value of the property to be $18,950,000. On being informed of the transfer, the City Assessor asked Bellfund Realty 420 to complete the usual Sale Verification Form. Harry John Riva, as agent for the corporation, completed the Form and returned it to the Assessor, informing him that: The sale price was $18,985,000 as agreed upon between the parties on April 4, 1991. Payment of the price was financed in the amounts, first, of $11,761,000 at the rate of 11% for term of approximately one and half years and, second, of $7,224,000 at the rate 3% for term of approximately twelve years. The price was attributed to the land and building in the respective amounts of $4,321,000 and $14,664,000. The sale was not made between related businesses and neither the seller nor the buyer was compelled to act. The total sale price represented the fair market value of the property. [58] Having been supplied with this information, the Assessor concluded that the sale price was $18,985,000, that it resulted from an arm’s length sale, and that it required no adjustment except to account for the time that had elapsed between the date of the sale (January 22, 1992) and the base date (June 30, 1998). In the result, the Assessor thereafter included this sale in determining the MAF he used in assessing enclosed shopping malls. [59] Some eleven years later, when the MAF was being challenged as incorrect, Mr Riva addressed this sale in an affidavit sworn on June 5th, 2003 “for submission to the Assessment Appeal Committee of the Saskatchewan Municipal Board.” He did so as vice-president and corporate counsel for Bimcor Inc., company engaged in the business of providing advice and management to pension fund corporations such as Bellfund Realty. He said he was involved in the Victoria Square Mall transaction (presumably as an advisor to Bellfund Realty, since he did not purport to have any connection to Edgefund Realty). [60] He then went on to describe how Edgefund Realty had come to own the Mall in the first place. He did not say how he had come by this knowledge. But he said Edgefund Realty had bought the land and building from Cairns Homes Limited (in 1984 it seems) on cash-to-mortgage basis, saying Edgefund Realty assumed an existing mortgage on the property (presumably 1983 mortgage by Cairns Homes in favour of Investors Syndicate in the original amount of $12,100,000) and paid the balance of the purchase price with cash raised though the sale of bonds to three pension funds, Northern Telecom Pension Trust Fund, Bell Canada Pension Fund, and CBC Pension Fund. The obligation under the bonds were secured by trust company (National Trust Company) which took second mortgage on the property (in the amount of $7,500,000 it seems) to secure its potential liability on the bonds. At the time Edgefund Realty bought the Mall from Cairns Homes, according to Mr Riva, pension funds were prohibited by law from buying real estate encumbered by third-party mortgage, so companies such as Edgefund Realty would buy properties such as this on financing terms such as these, making it possible for pension funds to participate in the real estate market in this way. [61] Mr Riva continued, saying that by 1991 the law had changed, so when Edgefund Realty decided in 1991 to sell the Mall, Bellfund Realty purchased it. It purchased it subject to the two mortgages, and paid fee to Edgefund Realty in connection with the transaction. He did not specify the amount of the fee or the rationale for its payment. However, he did say that Bellfund Realty, which was wholly owned by the three pension funds, bought the Mall on their behalf. He also said that after the completion of the sale the three pension funds forgave the outstanding indebtedness on the bonds. [62] Mr Riva went on in his affidavit to venture the opinion (or advance the argument) that the transaction between Edgefund Realty and Bellfund Realty was not an arm’s length sale for the reason, among others, that the property had not been exposed to the open market and that the sale constituted conversion of the bond holder’s interest in the property to an ownership interest. [63] He also went on, in justification of the nature of his response to the Sale Verification Form he had completed some eleven years earlier, to say that the information was true but incomplete because the Sale Verification Form did not require him to address such matters as the relationship between the parties, the exposure of the property to the market, the method by which the parties arrived at the sale price, and the basis upon which they arrived at the value of the property. They arrived at the value, he added, by means primarily of an income based appraisal, though other methods of valuing the property were also employed. [64] Mr Riva’s affidavit made its way before the Board of Revision on the appeal of the 2004 assessment. However, the agent representing the appellant company did not call him to testify. Nor did the agent produce the Agreement of Purchase and Sale between Edgefund Realty and Bellfund Realty. So based largely on the affidavit the agent contended that the transaction did not constitute “sale” but “bond redemption” and that, even if it were otherwise, the sale was not made “at arm’s length”. The Assessor thought otherwise. And the Board was not satisfied the Assessor was wrong about this. [65] In arriving at its conclusion, the Board noted in its 2004 decision that the transaction relating to the Victoria Square Mall clearly entailed change of ownership and (even though the Agreement of Purchase and Sale had not been produced) it was evident that Edgefund sold the property to Bellfund and Bellfund paid for it. How Bellfund paid for it, the Board said, “should not cloud the essence of the transaction.” And how Bellfund choose to handle the financing of the purchase after the fact “does not affect the transfer of the property between unrelated businesses (as was verified by Bellfund)—between willing, knowledgeable, and unrestricted parties for fair market value.” [66] Hence, the Board found that the Assessor had not erred in treating the sale of the Victoria Mall as an arms length sale, concluding in consequence that he had not erred in relying upon this sale in calculating the MAF. [67] The Board then went on of its own motion to order the Assessor to adjust the sale price, however slightly, by increasing it to account for the fact the two mortgages assumed by the purchaser carried, in the first instance, higher than market-rate of interest and, in the second, lower than market-rate. The Board did so in light of the Assessor’s testimony, and in doing so it suggested that such adjustment, while unlikely to substantially affect the MAF, was nevertheless required in light of the mandatory nature of the adjustment provisions of Document 1.1.6 of the Manual. In response, the Assessor increased the sale price and, in turn, increased the MAF specifically attributable to this property (the “target MAF” as it is called). He increased the target MAF from 1.06 to 1.07. [68] Dissatisfied with the Board’s treatment of the sale of the Victoria Square Mall, the appellant company appealed to the Committee. It did so on the grounds in aggregate that the Board erred in finding (in 2003 or 2004 as the case may be) that: (i) the transaction constituted sale; (ii) the sale was made at arm’s length; and (iii) the sale price warranted adjustment, however slight. The first was apparently abandoned, leaving only the second and third to be dealt with by the Committee. [69] In the reasons for its decision the Committee said nothing of the second, having to do with whether or not the sale constituted an arm’s length sale. Instead, it concentrated on whether the sale price required adjustment, not by reason of the rates of interest on the mortgages (as thought by the Board of Revision), but by reason of the bond redemption associated with the sale (as contended for by the appellant). The Committee said this: …the appellant has alleged that there needs to be an adjustment made because the sale [featured] redemption of bonds as part of the financing arrangement in the sale of the mall. The purchaser did not think it significant enough to note in the sale verification questionnaire. There was no “red flag” raised by the answers given that there was need for any further adjustments. The Board found it hard to believe that the filling out of the forms would be taken lightly by the purchaser and found that the assessor had used due diligence in determining that the sale price needed no adjustment for redemption of the bonds. The Committee finds that the Board did not err on this point and the sale of the Victoria Square should remain as part of the sales analysis in the determination of the MAF…. [70] This is all the Committee had to say about the subject of adjustments. In other words it said nothing, at least expressly, about the Board’s order requiring the Assessor to adjust the sale price, however slightly, to account for the fact the two mortgages against the title to the property carried, on the one hand, higher than market-rate of interest and, on the other, lower than market-rate. While the Committee did not expressly mention the matter, it appears to have given effect to the ground of appeal placing the matter in issue, for the Committee directed the Assessor to use target MAF of 1.06, not 1.07. [71] It concluded by saying three sales were to be used to determine the median MAF, namely the sale of the Sherwood Village Mall (about which there was no dispute) and the sales of the Southland and Victoria Square Malls. These sales, it said, yielded median MAF of 1.06, saying this is the MAF that was to be used by the Assessor in determining the fair value of enclosed shopping centres such as the Normanview Mall. [72] The grounds of appeal upon which the appellant company obtained leave to appeal the Committee’s decision regarding the sale of the Victoria Square Mall relate one way or another as did those regarding the sale of the Southland Mall, to: (a) the inclusion of the sale of the Victoria Square Mall in the array of sales from which the MAF was derived and (b) the adjustment of the sale price. (a) The inclusion of the sale [73] As remarked upon earlier, the Board of Revision was not satisfied the Assessor erred in treating the sale as an “arm’s length sale”, within the meaning of the definition of that term in Document 1.1.2(c). In other words the Board was not satisfied that the sale fell to be excluded from the array of sales relied upon by the Assessor in determining the MAF. [74] In reviewing the decisions of the Board, the Committee did not address the question of whether it might have erred in this regard. Again, it is not clear from the record why the Committee did not do so. Assuming the ground of appeal pertaining to the matter was not abandoned and was argued, it was incumbent upon the Committee to decide the question. And on that assumption its failure to do so constitutes error: Cairns Developers Ltd. v. City of Regina and Saskatchewan Assessment Management Agency. [75] Once again, bearing in mind the nature of the matter there is no reason to suppose we should remit this branch of the case to the Committee for decision. Since the Board found that the Assessor did not err in treating this sale as an “arm’s length sale” within the meaning of Document 1.1.2(c) of the Manual, the issue is whether this finding is unreasonable or unsupported by the evidence, or is based on misinterpretation or misapplication of the requisites of Document 1.1.2(c). As before, this amounts to question of law and is therefore within the jurisdiction of the Court to determine. [76] Turning to the determination of the question, we observe that the evidence before the Board consisted of the sale verification information supplied to the Assessor by Bellfund Realty in response to the Sale Verification Form, together with the affidavit of Mr Riva. Leaving aside the affidavit for the moment, the sale verification information certainly provided the Board with an ample evidentiary basis for concluding that the Assessor had not erred in treating the sale as an arm’s length sale. The issue, then, is whether the affidavit served to shed decidedly different light upon the question of whether the sale amounted to an arm’s length transaction. [77] In considering the issue, it must be remembered that it was open to the Board, in weighing the evidence before it, to ascribe greater weight to the sale verification information than to the information contained in Mr Riva’s affidavit. After all, he was not called to testify; nor did he or any one else produce the Agreement of Sale and Purchase between Edgefund Realty and Bellfund Realty even though that Agreement constituted the very foundation for the sale. Nor did he identify the source of his purported knowledge of the 1984 sale of the property by Cairns Homes to Edgefund Realty. And his affidavit amounts on the whole to an amalgam of factual assertion, opinion, assumption, argument, and justification. Justification, that is, for his earlier failure to provide the Assessor with more information about whether the sale price resulted from an arm’s length sale. [78] His justification, it may be noted, was not entirely accurate. Moreover it was somewhat disingenuous. He said the Sale Verification Form he completed did not require him to address such matters as the relationship between the parties. That is not so. The Sale Verification Form asked whether the parties were related and whether either was compelled to buy or sell the property as the case may be. And in response, he stated that the parties were not related and not compelled to act. He also said in his affidavit that the Sale Verification Form did not require him to address such matters as the method by which the parties arrived at the sale price, and the basis upon which they arrived at the value of the property. At the least this borders on the disingenuous, because in response to the Sale Verification Form he stated that the sale price amounted to the outstanding indebtedness on the property; suggested that the sale was unattended by any creative financing; and broke the price down between the land, on the one hand, and the building, on the other. In addition, he stated that the sale price represented the fair market value of the property. [79] Having regard for the foregoing, we cannot say that the decision of the Board in the respect under consideration is unsupported by the evidence. Nor can we say the decision is unreasonable in the sense the Board could not reasonably have concluded, based on the evidence and the weight ascribed to it, that the appellant company failed to demonstrate that the sale was not an arm’s length sale. [80] What remains, then, is to consider whether the Board misconstrued or misapplied the term “arm’s length sale” as defined in Document 1.1.2(c). Let us consider this having regard for the several indicia or elements of the definition. [81] To begin with, the term is defined in large part to mean “a transfer of real property for cash or cash equivalents…between willing, unrestricted, unrelated, knowledgeable” buyer and seller. There is little if anything to suggest the Board misconstrued or misapplied these indicia. The sale obviously featured transfer for cash or cash equivalent, and it was quite clearly made between willing and knowledgeable corporations. According to the completed Sale Verification Form, the buyer and seller were unrelated and free of compulsion. [82] Still, the appellant company contended that Edgefund Realty and Bellfund Realty were neither unrelated nor unrestricted. The pension funds, it was said, were in effect the beneficial owners of the Mall and in effect sold it to Bellfund Realty, an entity owned by them. We do not agree. Edgefund Realty was an independent corporation, independent that is of the pension funds and Bellfund Realty. Neither owned shares in Edgefund Realty and it owned the Mall in its own right. True it owned it subject to the two mortgages, one of which secured the obligation under the bonds. The fact the pension funds held the bonds is meaningless in the context of whether Edgefund Realty and Bellfund Realty were related. It is also meaningless in the context of whether either corporation was restricted. The appellant contended otherwise, suggesting it was not open to Edgefund Realty to sell the property without first obtaining the approval of the pension funds. It is not clear why Edgefund might have needed such approval, and this amounts to questionable matter of fact in light of the evidence. To suggest we might reverse the decision of the Board on this basis is untenable. Moreover, there is no evidence to the effect Edgefund Realty was not free to sell the property to anyone else on the same terms upon which it sold the property to Bellfund Realty. [83] Moving the analysis along, then, the definition of “arm’s length sale” also stipulates that both buyer and seller must be “seeking to maximize their position.” The appellant contended that the Board misapplied this element of the definition, for Edgefund Realty could not be seen to have been intent on maximizing its position, not in light of the fact it derived nothing from the sale. This contention can go nowhere in light of the evidence, including the evidence that the corporation obtained relief from the liabilities associated with its ownership of the property, received fee in connection with the sale, and sold the property for fair market value. [84] Thus far into the analysis, it is clear that we do not subscribe to the notion the Board misconstrued or misapplied those elements of the definition of “arm’s length sale” requiring that the sale feature “transfer of real property for cash or cash equivalents…between willing, unrestricted, unrelated, knowledgeable, seller and buyer who are both seeking to maximize their position”. And since, the sale was accompanied by transfer “registered in accordance with The Land Titles Act on or before December 31, 2002”, in the words of the second part of the definition, there remains only one conceivable basis for supposing the Board might have erred as alleged: That it misinterpreted or misapplied the first of the indicia of an “arm’s length sale”, namely that the sale feature transfer of real property for cash or its equivalents “in an open market.” [85] Hence the analysis reduces to whether the Board, faced with Mr Riva’s statement in his affidavit that the Victoria Square Mall was not exposed to the open market, erred in finding that the sale amounted to transfer “in an open market”. In saying the property was not exposed to the open market, Mr Riva presumably meant that it had not been listed for sale or advertised for sale. Assuming this to be the fact (notwithstanding the frailties associated with the affidavit), the question is whether the sale, not having been preceded by listing of the property for sale, or by advertisement, or by some other means of bringing the prospective sale to the attention of other potential buyers, satisfies the requirement of the phrase “in an open market”. [86] What this phrase was intended to add to the heavily laden definition of “arm’s length sale” is not entirely clear. The definition otherwise speaks to transfer for cash or its equivalents between willing, unrestricted, unrelated, and knowledgeable buyer and seller, both seeking to maximize their position. sale that meets these criteria goes long way toward constituting an arm’s length sale in the classical sense. Yet, the phrase “in an open market” must have been intended to add something to the definition. [87] What it was intended to add, or not add, is perhaps best considered in light of the purpose of the provisions of Documents 1.1.2(c) and 1.1.6. Their purpose lies in ensuring the appropriate determination of neighbourhood MAF by the sales comparison method, MAF that reflects the market value of the properties comprising the array of sales used to determine the MAF. As noted in Cadillac Fairview Corp v. Saskatoon (City) (cited earlier), the object of determining and applying market adjustment factor is “to bring the fair value of improvements close to the market value in the interests of greater equity” in assessment. “Market value”, in the context of the scheme of the Manual, is most reliably reflected in the sale prices of comparable properties, provided the prices derive from arm’s length sales, as contemplated by Document 1.1.2(c), and reflect typical market value transactions, as contemplated by Document 1.1.6. So the purpose of the provisions of these Documents is to ensure that the sale price of comparable property is reasonably reflective of the market value of that property before being used in determining an appropriate median MAF. [88] Viewed in this context, the phrase “in an open market” may be seen to have been intended in significant part to ensure that sale “in restricted market” is not used for MAF calculation purposes. Why? Because the sale price of property sold in restricted market, in contradistinction to an open market, is not apt to be sufficiently indicative of the market value of that property to be relied upon for the purpose of determining market adjustment factor by the sales comparison method. restricted market, it might be noted, would include one confined to limited class of potential purchaser, as for example market confined to members of certain sect, let us say, or of certain fraternal organization or family or some such limited class of potential purchasers. [89] The Committee seems to be of similar mind. In City of Regina v. Continental Saxon Holdings Ltd (Appeal 0305/2001and 0326/2001), the Committee said this: 37 The owners argued that in order to meet the definition of arm’s length sale the property has to be advertised on the open market. In the arguments, however, two concepts [open market and exposure to the market] were somehow married by referring to “open exposure”. 38 But the two are separate features of an arm’s length sale. 39 For the Southland or the Northgate sales, the owners did not show that either sale was in any way limited to this purchaser or that the vendor was not “open” to receive or decline offers from any potential purchaser. 40 As to the second requirement of reasonable exposure, lack of exposure is not fatal to the use of sale in the calculation of MAF. If the lack of exposure has an effect that can be measured, then the sale is to be adjusted by that amount, as noted above. [90] It is more difficult at times to identify what statutory phrase or its equivalent means, than what it does not mean. And it is often unwise to remark upon what phrase encompasses, as opposed to what it does not encompass, when there is no need to do so. That is the case here, where the question is whether the phrase in issue operates to exclude from consideration an otherwise arm’s length sale made in the absence of advertising the property for sale, or listing it for sale, or otherwise bringing the prospective sale to the attention of other potential buyers. It will suffice, then, for us to express the opinion the phrase was not intended to operate to exclude such sales. Why? Because that would serve to remove from consideration many otherwise arm’s length sales, sales that are just as indicative of market value as those made following listing, advertisement or whatever. In other words, and in many instances, this would serve to defeat the purpose of the provisions of Documents 1.1.2(c) and 1.1.6. [91] The appellant cited two cases to support its position that the phrase “in an open market” ought be construed to require exposure to the market by advertisement or listing or the equivalent, namely: Canadian Pacific Railway v. Windebank [1917] 1W.W.R. 447 (Man. C.A.); and Wallace v. New Brunswick (Minister of Transportation) (1984), 31 L.C.R 39, (N.B.Q.B.). Given the factual and legal context in which each of those cases played out, we did not find either particularly helpful. This is especially so of the former, but even the latter is distinguishable on the basis of its factual and legislative underlay. [92] On the whole, then, we do not think the decision of the Board, to the extent it sanctioned the Assessor’s use of the Victoria Square Mall in calculating the MAF, is unreasonable or unsupported by the evidence, or is grounded in misinterpretation or misapplication of the governing provisions of the Manual. It follows that such error as the Committee may have made in failing to address the matter is immaterial. (b) The adjustment of the sale price [93] According to the appellant’s fifth and last ground of appeal, the Committee misconstrued the decisions of the Board of Revision, or ignored evidence, in deciding that the sale of the Victoria Square Mall did not require adjustment pursuant to Document 1.1.6. In considering this, it is important to note that this ground of appeal, as advanced on argument before the Court, takes issue with the Committee’s decision in relation only to the order of the Board requiring the Assessor to adjust the sale price to account for the atypical rates of interest on the mortgages. [94] Recall that the Board, in its 2004 decision, ordered the Assessor to adjust the sale price of the Victoria Square Mall, however slightly, to account for the rates of interest on the two mortgages. In doing so, the Board observed that the Assessor had testified to thinking the sale price should have been adjusted to reflect the fact the first mortgage carried higher than market-rate of interest, whereas the second carried lower than market-rate. The Board also observed that the Assessor had testified to thinking such adjustment would serve to slightly increase the sale price but would not significantly affect the MAF. In the light of this testimony, and the mandatory nature of the language of the adjustment provisions of Document 1.1.6, the Board thought it had no choice but to order him to adjust the sale price, “however slight the adjustment will be, for the atypical interest rates on the mortgages”. [95] The Board thought it had no choice in the matter even though, according to the Assessor’s testimony, such adjustment would serve to increase the sale price of the Victoria Square Mall. An increase in the sale price was predestined to increase the MAF specifically pertaining to the sale of the Victoria Square Mall (the “target MAF” as it is called) and therefore the median MAF derived from this and the other sales used by the Assessor in calculating the median MAF. Indeed, the Assessor, acting on the order of the Board, apparently increased the target MAF from 1.06 to 1.07. [96] The implications of making this order seem to have been overlooked by the Board. The order was inevitably bound to lead to an increase in the sale price and, in turn, an increase in the target MAF and the median MAF, the fair value of the subject property, and the assessment. The significance of this lies in the fact the appeal to the Board was taken by the taxpayer, not the City, meaning it was not open to the Board in the absence of cross-appeal by the City to increase the assessment. [97] Presumably, this is what the appellant company had in mind in appealing to the Committee on the ground the Board erred in ordering the Assessor to make this adjustment. And it would seem the Committee thought the Board should not have done so. While the Committee did not specifically address the matter, it found that the sale was to be used on the basis of target MAF of 1.06, not 1.07. Thus, it appears to have concluded, for whatever reason, that the Board ought not to have made the order. If this be right—and it appears to be so—the appellant succeeded in convincing the Committee not to act on the adjustment ordered by the Board. [98] Yet, the appellant, in advancing the ground of appeal under consideration, complained about the Committee’s decision in this regard. The Committee, it said, should have recognized that an adjustment of this nature was required, not one that would serve to increase the sale price as the Board thought, but one that would serve to decrease it, and decrease it substantially. So, the matter morphed into something else by the time it reached the Court. [99] In the circumstances, we are of the opinion it is not open to the appellant, having succeeded in convincing the Committee to disallow the increase in the sale price ordered by the Board, to now claim that the Committee misunderstood the Board’s decision, or overlooked evidence, and that the sale price should be decreased, and decreased substantially, to account for the atypical rates of interest on the mortgages. This would entail opening up the case on this issue, requiring the issue to be remitted to the Board for rehearing and determination, despite the fact the appellant did not appeal to the Board on this basis. Even if it were otherwise, we are not convinced the Committee erred in law by misconstruing the decision of the Board, as alleged in the ground of appeal under consideration, or overlooked evidence. Indeed, it is difficult to credit the premises of this ground of appeal. [100] For these reasons then, we are the opinion this ground of appeal, as argued before the Court, cannot succeed. [101] It follows that the appeal in relation to the treatment of the sale of the Victoria Square Mall fails, as does the appeal concerning the sale of the Southland Mall. There will be judgment accordingly, dismissing the appeal in its entirety, with costs to the respondent, such costs to be taxed in the usual way. [102] In leaving the case, we observe that other companies, owning or operating similar malls, also took issue with their 2003 and 2004 assessments. They, too, appealed to the Board of Revision and then to the Assessment Appeals Committee. And they, too, were granted leave to appeal to this Court. They were granted leave to appeal on the same grounds as those raised by HDL Investments. Counsel for the companies agreed to treat the appeal by HDL Investments as representative of the other appeals and to be bound by the result of this appeal. So the other appeals are also dismissed, with costs in favour of the respondent, such costs to be taxed by the Registrar in accordance with the usual practice. Dated this 16th day of December 2009. “Cameron J.A.” Cameron J.A concur: “Hunter J.A.” Hunter J.A “Cameron J.A.” for Wilkinson J.A.

This appeal concerns the assessment for municipal purposes of a building located in the City of Regina and used commercially as an enclosed shopping mall. The building was assessed in each of the years 2003 and 2004 on the basis of its 'fair value' as determined by the City Assessor. The owner of the building, the corporate appellant, was dissatisfied with the Assessor's determination of fair value and appealed the assessment to the local Board of Revision, then to the Assessment Appeals Committee of the Saskatchewan Municipal board. The appeals were allowed in part, but the corporate appellant remained dissatisfied. It applied for leave to appeal to this Court pursuant to s. 33.1 of The Municipal Board Act. The issues on appeal all relate to the determination of the fair value of the building and, more particularly, to the market adjustment factor used in that determination. The grounds take issue one way or another with the inclusion of the sales of the Southland and Victoria Square Malls in the array of sales from which the MAF was derived, or alternatively, with the adjustment of the sale price of these properties. HELD: Appeal dismissed. The appeal in relation to the treatment of the sale of the Victoria Square Mall fails, as does the appeal concerning the sale of the Southland Mall. The Court notes that other companies, owning or operating similar malls, also took issue with their 2003 and 2004 assessments. They, too, appealed to the Board of Revision and then to the Assessment Appeals Committee. They too were granted leave to appeal to this Court on the same grounds as the appellant in this case. Counsel for the companies agreed to treat this appeal as representative of the other appeals and to be bound by the result of this appeal. These other appeals are also dismissed.

e_2009skca138.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 376 Date: 2007 10 22 Docket: DIV. No. 06883 of 2004 Judicial Centre: Prince Albert BETWEEN: TIMOTHY PAUL FEIST and SUSAN ALLYSON FEIST Counsel: R.G. Parchomchuk for the petitioner G.B. Heinrichs for the respondent JUDGMENT KONKIN J. October 22, 2007 [1] On this matter there are two applications brought before the court, the first by the petitioner, Timothy Feist, for an order varying the child support order granted by Mr. Justice R.D. Maher on the 3rd day of August, 2005 by: (a) Varying the child maintenance to reflect the current income of the respondent, such variation to be made as of the 1st day of May, 2007; (b) To order the respondent to pay her proportionate share of s. expenses pursuant to the Federal Child Support Guidelines, SOR/97-175; and (c) Costs of this application fixed in the amount of $1,500. [2] The second application is brought by the respondent, Susan Feist, for an order varying the custody order of Mr. Justice R.D. Maher, dated the 3rd day of August, 2005 by changing the primary residence from the petitioner to the respondent. [3] In dealing with the second application first, the test for variation has been set out in cases such as Talbot v. Henry (1990), 1990 CanLII 2648 (SK CA), 84 Sask. R. 170 (C.A.), where at para. 25, the court states: [25] Thus there is two-stage inquiry: (1) The reviewing judge must determine whether there has been change in the condition, means, needs or other circumstances of the children. In determining whether there has been change, substantially different considerations apply. The parties are not in pari passu, and the person seeking to vary the order bears the onus as described above of demonstrating material change which will adversely affect the needs of the children. If there has been no material change, the inquiry ends there and the order remains. (2) If the applicant has demonstrated material change in the conditions, means, needs or other circumstances of the child, the court must decide whether the material change is such that the best interests of the child require variation of the order. In other words, if there has been material change, then the only consideration with reference to that change is the best interests of the child. [4] In this case, the applicant mother argues that there has now been clear declaration in two separate writings of the oldest child’s desire to have primary residence change from her father to her mother. Further, there is some evidence that the younger child wishes to also live with her mother or, at the least, live in the same residence as her older sister. [5] The other relevant factors in this case are as follows: (a) By interim order dated July 21, 2004, Rothery J. determined that primary residence of the two children, Jill and Kara, would be with the father, Timothy, with liberal access to the mother, Susan. (b) Pursuant to an order of the court, custody and access report in anticipation of trial was prepared and filed with the court on June 10, 2005. This report recommended amongst other things, that should Timothy live in Nipawin and Susan elsewhere, that the principal residence of the girls should remain in Nipawin with their father. (c) Pursuant to divorce judgment of the 3rd day of August, 2005, the parties were awarded joint custody of the two children with primary residence to be with the father, Timothy. [6] Counsel for the father filed number of cases with the court including Bzowey v. Bzowey, 2005 SKQB 12 (CanLII), 136 A.C.W.S. (3d) 1082, and Beutler v. Maki, 2002 SKQB 513 (CanLII), 226 Sask. R. 280. In both the referenced cases, an application had been made to vary custody and access order which had been made five years previous. In both cases, the age of the child in question was similar to the age of the oldest child, Jill, in this application. In Bzowey, the child for whom an order was sought was 11 years of age. In Beutler, the child was 12. [7] In both Bzowey and Beutler, the application was brought on the point that the child in question sought change in the primary care, to have the order varied so that the child could live with the other parent. [8] In Bzowey v. Bzowey, Wilson J. states at paras. 14 It is well established that before court should consider the merits of an application for variation of custody, the court must be satisfied that there has been material change in the circumstances of the child since the last custody order was made (Wilson v. Grassick (1994), 1994 CanLII 4709 (SK CA), R.F.L. (4th) 291 (Sask. C.A.) cited with approval in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27). It is also well established that change alone is not enough the change must have altered the child’s needs or the ability of the parents to meet those needs in fundamental way. As set out by the Supreme Court of Canada in Gordon v. Goertz, the question is whether the previous order might have been different had the circumstances now existing prevailed earlier. 15 The change in circumstance raised by Mr. Bzowey is that the wishes of Tomas should now be considered by the court, given his age. Mr. Bzowey argues that Tomas was only six years old at the date of the order providing Ms. Orr custody of the children and is now 11 years old. Mr. Bzowey says that the wishes of Tomas can now be considered by court and that, given his age, could be given weight by the court. 16 On the evidence before me am unable to decide whether Tomas has genuine desire to live with his father or whether Ms. Orr’s assessment of the situation is more accurate. There is simply too much conflict on the evidence before me to make determination. In circumstances where the court is faced with such conflict on the affidavits, hearing is often ordered. However, have concluded hearing is not necessary in this matter. Even if accept Mr. Bzowey’s position that Tomas has genuine desire to live with Mr. Bzowey, am not convinced that Tomas’s wish, given his age, can be considered material change in circumstances such as to move to the next stage. 17 In Johns v. Hinkson (1996), 1996 CanLII 6863 (SK QB), 151 Sask. R. 168 (Sask. Q.B.) Gerein J. (as he was then) succinctly states the current approach of the court to the “wishes of the children” issue: [9] There is no principle of law that the wish of child is absolute and in itself determines the issue of custody. Such an approach would ignore the statutory mandate to “. take into consideration only the best interests of the child”. In my opinion the correct approach is to take into account all the circumstances, including the wish of the child. The weight to be given to that wish will depend on number of things including the maturity, experience and age of the child. The last will frequently, but not always, bear some relationship to the child’s maturity. However, in all instances the wish of the child must correspond with what is in his or her best interests if it is to be adopted and put into effect. [9] am of the view that this case sets out the correct principles for consideration of this matter, and the facts in that case are remarkably similar. In each case, the court is asked to make the change based solely on the wishes of the child. There is even evidence from the custody and access report from 2005 that the children, or at least the older child, Jill, expressed similar sentiments about living with her mother, albeit then perhaps on trial basis. It cannot even be strenuously argued that the wishes of the child, Jill, have in fact changed. Those considerations were before the court in the form of custody and access report when the decision was made in 2005. also note from the report of 2005 that there was concern from the assessor that at least Jill may be expressing wishes and desires that may not necessarily be hers but may be made by her in an attempt to express the mother’s wishes or desires. [10] The court should be loathe to make variation order solely on the expressed wishes of child of 11 or 12 years of age without some evidence as to why that current expression of interest has been stated. It may well be that the child truly does wish change. It may also be that the child, as was referred to in the custody and access report, may be simply reflecting the views and therefore the pressures placed on that child by the non-custodial parent. If court is to make variation order based solely on the current statement of child of this age, then is the court required to make that variation every time that child changes his or her mind and writes different letter. [11] In the Beutler v. Maki case, the court found that the child truly had changed his wish from the time that the order had been made some five years previous. The court found that this was fresh desire to change residence from one parent to the other. As Dickson J. stated at para. [27] The father therefore bears the onus of demonstrating that Taylor’s wish to live with him is material change in the condition, needs or other circumstances of the boy which has adversely affected him. am hard put to recognize the mere expression of Taylor’s wish, no matter how many adjectives counsel may attach to it, to be material change in his condition or needs that will adversely affect his best interest if not addressed by an order vesting custody in his father. [12] Likewise in this case, no evidence has been put forward about the negative impact of the continuation of the current order. The simple fact is the applicant comes to court arguing that the order should be changed because the oldest daughter at least wishes it to be changed, and because she is mature and thoughtful child for her age. [13] With all respect, cannot agree. agree with cases such as Bzowey and Beutler to conclude that there has been no material change demonstrated. In this case, there is strong indication that at the time the decision was made in 2005, Jill had expressed desire to try living with her mother. She now expresses this desire in stronger terms, but it is not change. [14] These children were born, have grown up, and continue to live, go to school and have friends in Nipawin. There is no information before the court to suggest that this is no longer in the best interests of these children. [15] I find that as no material change has been demonstrated, this application must be dismissed. [16] With regard to the application by the father for change in child support, as the mother in her affidavit material confirms that she has in fact commenced as of June 2007, to pay support based on her new income, and as there is agreement between the parties, each from their own affidavit material, that that current support level should be $619 per month, the order of Mr. Justice Maher of August 3, 2005, shall be amended to reflect that the gross annual income of the respondent, Susan Allyson Feist, is determined to be $44,303.81. The order shall further be varied to increase the amount of child support being paid by Susan from $559 per month to $619 per month, and the proportionate share of s. expenses shall raise from 41% to 43% for Susan. [17] There shall be no order as to costs in this matter. J. D.B. KONKIN

The respondent applies for an order varying the custody order by changing the primary residence from the petitioner to the respondent. HELD: 1) The present circumstances are remarkably similar to the circumstances in Bzowey v. Bzowey, 2005 SKQB 12. In both cases, the Court is asked to make the change based solely on the wishes of the child. There is even evidence from the custody and access report from 2005 that the children, or at least the older child, Jill, expressed similar sentiments about living with her mother. It cannot even be strenuously argued that the wishes of the child, Jill, have in fact changed. Those considerations were before the Court in the form of the custody and access report when the decision was made in 2005. 2) The Court should be loathe to make a variation order solely on the expressed wishes of a child of 11 or 12 years of age without some evidence as to why that current expression of interest has been stated. It may well be that the child truly does wish a change. It may also be that the child, as was referred to in the custody and access report, may be simply reflecting the views and therefore the pressures placed on the child by the non-custodial parent. 3) No evidence has been put forward about the negative impact of the continuation of the current order. There is no information before the Court to suggest that the current situation is no longer in the best interests of the children. No material change has been demonstrated. The application is dismissed.

2007skqb376.txt

E.J. GUNN NOVA SCOTIA COURT OF APPEAL Citation: R. v. J.E.S., 2009 NSCA 91 Date: 20090911 Docket: CAC 315311 Registry: Halifax v. Her Majesty The Queen Respondent Restriction on publication: Pursuant to s. 110(1) and s. 111(1) of the Youth Criminal Justice Act. Judge: The Honourable Justice Elizabeth Roscoe Application Heard: September 3, 2009, in Chambers Held: Application for release pending appeal is dismissed Counsel: Chandra Gosine, for the appellant Peter Rosinski, for the respondent Pursuant to s. 110(1) and 111(1) of the Youth Criminal Justice Act. PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 110(1) and s. 111(1) of the YOUTH CRIMINAL JUSTICE ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. (1) Subject to this section, no person shall publish the name of young person, or any other information related to young person, if it would identify the young person as young person dealt with under this Act. (1) Subject to this section, no person shall publish the name of child or young person, or any other information related to child or young person, if it would identify the child or young person as having been victim of, or as having appeared as witness in connection with, an offence committed or alleged to have been committed by young person. Decision: [1] J.E.S., aged 16, pleaded guilty to aggravated assault contrary to s. 268(1) of the Criminal Code. On July 15, 2009 he was sentenced by Youth Court Judge Jamie S. Campbell to serve total sentence of 365 days, comprised of 243 days custody followed by 122 days supervision in the community. Nine month’s credit was given for the six months he spent on remand, so the total sentence is, in effect, 21 months, four months of which is non-custodial. J.E.S. has appealed his sentence and applies for release pending appeal pursuant to s. 679 of the Criminal Code. The appeal has been scheduled to be heard on November 13, 2009. [2] Judge Campbell described the offence in the sentencing decision as follows: The crime here was of potentially lethal violence. The circumstances surrounding it are, to say the least, perplexing. It was not moment of poor judgement. It was not momentary lapse of self control. J.E.S. took gun in anticipation of fight. Apparently he made what he thought was pre-emptive strike, though it seems against young man he didn’t even know. [3] The victim of the crime was young person standing on street corner who was shot in the back with rifle fired by J.E.S. in drive-by shooting. [4] J.E.S. has appealed his sentence but not the conviction. The grounds of appeal are: 1. The learned Trial Judge emphasised the element of general deterrence when prohibited from doing so under the Y.C.J.A. 2. The learned Trial Judge imposed sentence which is clearly unfit under the principles of sentence under the Y.C.J.A., the preamble and the declaration of principles. [5] The relevant sections of the Criminal Code provide: 679 (1) judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if, ... (b) in the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal ... (4) In the case of an appeal referred to in paragraph (1)(b), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal or until otherwise ordered by judge of the court of appeal if the appellant establishes that (a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. [6] Further to s. 679(1)(b), and Civil Procedure Rule 91.24(1), it is necessary that leave to appeal be granted before release pending appeal. To grant leave, should be satisfied that the grounds are not frivolous and that they raise arguable issues: R. v. MacIntyre, 2003 NSCA 68 (CanLII), R. v. Smith, 2005 NSCA 45 (CanLII). The Crown does not oppose the leave application and am satisfied that the grounds of appeal are not frivolous, and therefore grant leave to appeal. [7] At the hearing of the bail application, counsel for the appellant called Mr. Mark Crosby of the Youth Probation Office as witness. Mr. Crosby testified that if J.E.S. is released pending appeal he would be accepted into the Youth Bail Supervision Program. That program provides for intensive supervision including weekly reporting in person, daily telephone contact, curfew checks, random home and school visits, and the use of an electronic GPS bracelet which continually tracks the location of the young person. J.E.S. and his mother have agreed to his participation in this program if he is released pending appeal. [8] Counsel for the appellant submitted that since the appellant is young person, s. 679 of the Criminal Code should be interpreted in accordance with the principles set out the Youth Criminal Justice Act. No authority, specific to release pending appeal, was cited by counsel to support this argument. One case found subsequent to the hearing, R. v. D. C., 2005 ABCA 280 (CanLII), does assist the appellant’s position. In that case, Berger, J.A. released the young person pending sentence appeal, after finding that strict conditions of release would “in all of the circumstances, best achieve the objects and purposes of the Youth Criminal Justice Act pending the Applicant’s appeal.” [See 8.] In that case, the young person had served all but seven weeks of six-month custodial sentence at the time of the application for release pending appeal. [9] will therefore be informed and guided by the principles as set out in s. of the Y.C.J.A. in determining whether the appellant should be released pending appeal. Those principles are stated as follows: (1) The following principles apply in this Act: (a) the youth criminal justice system is intended to (i) prevent crime by addressing the circumstances underlying young person's offending behaviour, (ii) rehabilitate young persons who commit offences and reintegrate them into society, and (iii) ensure that young person is subject to meaningful consequences for his or her offence in order to promote the long‑term protection of the public; (b) the criminal justice system for young persons must be separate from that of adults and emphasize the following: (i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons' perception of time; (c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person's rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and (d) special considerations apply in respect of proceedings against young persons and, in particular, (i) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. (2) This Act shall be liberally construed so as to ensure that young persons are dealt with in accordance with the principles set out in subsection (1). [10] Most of these principles are more relevant at the pre-trial, trial and sentencing stages of proceeding than at this time. The appellant, J.E.S., has the onus of establishing each of the three conditions of s. 679(4) on balance of probabilities. In my view, none of the principles of the Y.C.J.A. dictate that the burden should be lessened or shifted to the Crown. The principles relevant to this matter require that deal with his application and set down the appeal as soon as possible, take into account the appellant’s reduced level of maturity, and ensure that he is treated fairly. [11] At this stage of the proceeding, the appellant no longer has the benefit of the presumption of innocence. The Crown is opposed to the release of the appellant, and submits that the appellant has not established any of the three conditions. [12] The “unnecessary hardship” condition was explained by Saunders J.A., in R. v. Bennett, 2006 NSCA 86 (CanLII): [16] In R. v. J.D., (1996) N.S.J. No. 176, Flinn, J.A. for this court discussed the threshold for establishing under s. 679(4)(a) whether an appeal is sufficiently meritorious that failure to allow bail pending appeal would cause unnecessary hardship. He quoted from The Law of Bail in Canada, (Gary T. Trotter, Toronto: Carswell, 1992), and agreed that the onus on an appellant under s. 679(4)(a) of the Criminal Code is “much more stringent” than for an appeal against conviction. He also implicitly accepted the following statement from that text at ¶23: The applicant must demonstrate that the appeal is sufficiently meritorious such that, if the accused is not released from custody, he or she will have already served the sentence as imposed, or what would have been fit sentence, prior to the hearing of the appeal. It prevents the applicant from serving more time in custody than that which is subsequently determined to be appropriate in the sense, there is unavoidable speculative dimension of this criterion. [13] J.E.S. says in his affidavit that he will suffer unnecessary hardship if kept in custody until his appeal is heard because he will fall behind in his schoolwork and be unable to complete his high school education in a timely fashion. Prior to being remanded, J.E.S. was not attending school because he had been asked to leave the high school he had previously attended as a result of concern for his and other students’ safety after threats had been made against him. While in custody at the Nova Scotia Youth Centre in Waterville, J.E.S. has been studying grade 10 Math and English and, according to his pre-sentence report, he also attends substance abuse and anger management programs. [14] The second condition that J.E.S. must meet is he would surrender himself in accordance with any release order. review of his record indicates that he has history of flaunting court orders. On the day that he committed the drive-by shooting in this case, he was on two probation orders that prohibited him from possessing firearms and was also subject to firearms prohibition order. As well, he was on an undertaking to keep the peace and be of good behaviour. He has been convicted of five breaches of probation, two breaches of undertaking, and two resisting arrest/obstruction charges. Furthermore, he has prior record for violent offences. [15] J.E.S. must also prove that his detention is not necessary in the public interest. This condition was described by Justice Bateman recently in R. v. Marshall, 2008 NSCA 41 (CanLII): 24 In R. v. Demyen (1975), 1975 CanLII 1338 (SK CA), 26 C.C.C. (2d) 324 (Sask. C.A.), Culliton, C.J.S., in discussing the meaning of "detention in the public interest", said at p. 326: am convinced that the effective enforcement and administration of the criminal law can only be achieved if the Courts, Judges and police officers, and law enforcement agencies have and maintain the confidence and respect of the public. Any action by the Courts, Judges, police officers, or law enforcement agencies which may detrimentally affect that public confidence and respect would be contrary to the public interest.... (Cited with approval by Arbour J.A. in R. v. Farinacci, 1993 CanLII 3385 (ON CA), [1993] O.J. No. 2627 (Q.L.), 86 C.C.C. (3d) 32 (C.A.)). [16] The appellant J.E.S, has clearly not met all three requirements for release pending his sentence appeal. He is able to attend high school classes in the youth facility while he awaits his appeal, so he is making some progress towards his education. Although the number of subjects available is limited, he is receiving individualized attention several times week. Furthermore, even if his sentence appeal is successful, by the time the appeal is heard on November 13th, he will have only served about four months custody since the date of sentencing by the Youth Court. The appellant has not satisfied the onus which is upon him to establish that his appeal has sufficient merit that, in the circumstances, would cause unnecessary hardship if he were detained in custody until November. In coming to this conclusion have considered the serious nature of the offence here, the principles of the Y.C.J.A. listed above, the appellant’s criminal record, the reasons for sentence given by Judge Campbell, and the general reluctance of this Court to interfere with youth sentences unless it is clearly excessive or based on wrong principles. The appellant has not satisfied me that his appeal is sufficiently meritorious that, by the time his appeal is heard, he will likely already have served more than what is determined to be a fit sentence, and thereby suffer undue hardship if he is not released. [17] With respect to the second condition, in light of his pattern of flagrant disregard of court orders, am very concerned that the appellant would not abide by the conditions of any release order or surrender himself as required. However, the program described by Mr. Crosby certainly appears to provide much closer supervision than J.E.S. has had in the past, and J.E.S. professes to have “turned new leaf” regarding his former negative peer group. am therefore prepared to accept that the second condition has been met. [18] However, given the circumstances of the aggravated assault offence, his record of violent offences, and the numerous breaches of court orders, I am not persuaded that his release would be in the public interest. The appellant’s release so soon after being sentenced, in order for him to attend school in the community, would tend to undermine public confidence in the administration of justice. [19] The application for release pending appeal is therefore dismissed. Roscoe, J.A.

The young person appealed his sentence on an aggravated assault conviction following a drive-by shooting and applied for release pending appeal. Although he alleged that he would suffer unnecessary hardship if kept in custody because he would fall behind in his schoolwork, prior to being remanded the youth had been asked to leave his high school as a result of safety concerns in the school. Application for release pending appeal dismissed. The young person would not suffer unnecessary hardship as he was able to attend high school classes several times per week in the youth facility while he awaited his appeal and, even if his appeal was successful, he would only have served four months custody before it was heard. Given the circumstances of the aggravated assault and his record of violent offences and numerous breaches of court orders, the court was not persuaded that the youth's release would be in the public interest.

9_2009nsca91.txt

J. U.F.C. A.D. 1992 No. 996 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ANNA MAY SHRIMPTON and RONALD SHRIMPTON RESPONDENT Merri-Ellen Wright for the applicant (petitioner) M. Henderson for the respondent FIAT NOBLE J. January 7, 1994 Following a trial before me in November of 1993, Iissued a judgment on December 3, 1993 dealing with a number of issuesincluding the division of matrimonial property. When the evidence concluded but before heard argument, issued the following fiat: Order that there be nothing removed from the matrimonial home or any other assets disposed of until further ordered. (Continuation of Dickson, J.'s order of June 14/93). Matter is adjourned for argument to Wednesday, November 10th/93 at 12 noon. Written briefs on distribution of matrimonial property to be filed by Tuesday, Nov. 9th/93. (emphasis is mine) This motion came before me on short notice, apparently with consent of the respondent's counsel but subject to his procedural objections which shall deal with in moment. The motion is really in two parts: the first seeks variation of my written judgment of December last; the second part seeks an order pursuant to Rule 344 to prevent the respondent from violating my order of November that nothing be removed from the matrimonial home or other assets disposed of. There are other prayers for relief in the notice of motion which reads as follows: 1.an Order pursuant to the inherent jurisdiction of this Court to amend the Judgment of this Honorable Court herein, dated December 3, 1993, for the purpose of taking into consideration the sum of $23,106.02 as matrimonial property subject to division; 2.an Order pursuant to Rule 344 of the Queen\'s Bench Rules:(a) Itemizing the household contents and personal items removedby the Respondent from the matrimonial home in order to allow for aWrit of Delivery; (b) an Order prohibiting the Respondent from disposing of any ofthe assets that the Respondent removed from the matrimonial home; (c) An Order requiring the Respondent to pay all outstandingutility payments and other expenses associated with his occupation ofthe matrimonial home up to and including December 26, 1993, as wellas any losses experienced as the result of no insurance coveragebetween September 28, 1993 and December 29, 1993; 3.an Order pursuant to Rule 372 of the Queen's Bench Rules committing the Respondent, Ronald Shrimpton, to goal for contempt of the Court Orders of Mr. Justice Noble dated November and December 3, 1993; 4.an Order for solicitor client costs of this application and all costs or poundage levied by the Sheriff; 5.an Order pursuant to Queen's Bench Rule 534 abridging the time for service of the within Notice of Motion. Counsel for the respondent took issue with the jurisdiction of the Court to deal with the relief sought by the applicant on the ground that no formal extension of my judgment of December has ever been issued. In my opinion the law permits the court both to vary its judgment and to give directions on how the judgment should be carried out whether or not formal order is issued by the Court. See: Shaw v. Regina et al, 1943 CanLII 154 (SK CA), [1944] D.L.R. 223 which has long been the law in this province. So in my opinion can entertain that part of the motion seeking variation of my judgment Clause No. of the notice of motion. As for the second part of the applicant's prayer for relief ie: Clauses 3(a), (b), (c) and 5, this relates not to my judgment of December 3, but my prohibition order of November 5, so even if am wrong in concluding can entertain an application for directions on how my judgment is to be carried out, it matters not since the respondent is clearly in violation of my order of November 5. Issue No. Should vary my judgment to include in the list of matrimonial property for distribution $23,106.02 as the applicant requests? have reviewed my notes taken at the trial as well as my remarks about these monies (which initially came from the sale of the respondent's interest in farm company called Key International Supply Corp.) on pp. and of my judgment. am not inclined to vary my conclusions as stated there. was not satisfied that the respondent attempted to hide these funds. When he sold the condo he did receive around $23,000.00, but these funds went into his account after the final separation of the parties. However, there is no indication that the respondent had any great amount of cash on hand even after he received these purchase monies. do know that from the end of January to the final separation at the end of May, great deal of money was squandered which the wife was aware of and benefitted from to some degree. So conclude that one way or the other the $23,000.00 received by the respondent was to large degree offset by debits incurred while they were together. In any event it is not clear and therefore decline to grant this part of the motion. The balance of the issues: (Items 2, 3, and 5) When the respondent finally moved out the matrimonial home, he took great number of assets with him. It is important to note that at trial the respondent indicated he had earlier removed some seven items with total value of $2,725.00 from the home. He testified that that was all he wanted implying, clearly in my view, that his wife could have the rest of the household furnishings then situated in the house. It was for this reason divided the household goods, jewellery and antiques in the manner did (see: pp. 10 and 11 of my judgment). Because at trial the respondent had possession of the house, counsel for the petitioner sought the order of November (supra) prohibiting anything from being removed or sold except with approval of the court. It is now clear the respondent has violated that order of November 5. suggested that he might forthwith return all the items in his possession that the petitioner indicates she found missing when she took possession of the house on December 26 last. Counsel indicated his client was not in the city and he would require week to ten days to comply with any order might make in that regard. This, notwithstanding he moved out on December 21, and apparently he has not even unpacked good part of what he took away. This is not satisfactory. Since the respondent does not want to co-operate, the court is left with no alternative but to assist the petitioner in regaining the assets taken out of the house by granting the order sought subject to one or two modifications. The applicant has attached to her affidavit list of items she claims are missing (see Exhibit "E" to her affidavit). Under para. 2(a) of her prayer for relief, direct that the items listed in said Exhibit "E" to the applicant's affidavit filed excluding the four items listed under the heading "Ryan's Room" shall be declared the list of household contents and personal items removed by the respondent from the matrimonial home when he gave up possession to the petitioner. The petitioner shall have leave to exercise any legal remedy available to her to have the said list of items returned to her forthwith including the issue of writ of delivery. Under para. 2(b) of the prayer for relief, the respondent is hereby ordered to return the "list of items" referred to above forthwith. He is further ordered not to dispose of any of the said items without leave of the Court. Under para. 2(c) of the prayer for relief, hereby order that the respondent pay all outstanding utility payments and other expenses associated with his occupation of the matrimonial home up to and including December 26, 1993, as well as any losses experienced as the result of no insurance coverage between September 28, 1993 and December 29, 1993. Under para. of the prayer for relief, decline to cite the respondent for contempt at this stage of the proceedings but adjourn this whole matter over to the regular chamber day on January 14, 1994 at which time this matter, at the discretion of counsel for the petitioner, can be pursued further. Under para. of the prayer for relief, the petitioner shall have her costs of this application to be taxed on solicitor and client basis and shall include any costs of poundage or other fees levied by the sheriff. Finally, since will not be available to counsel after January 10 next, adjourn any other issues that may arise out of this motion to the chamber judge on January 14 for resolution by him or her as the case may be.

FIAT Matrimonial property dispute. A previous order had prohibited the removal of any assets from the matrimonial home and the disposal of all other assets. By this fiat an order was granted pursuant to Queen's Bench Rule 344 itemizing the household contents and personal items removed by the respondent from the matrimonial home in order to allow for a Writ of Delivery and prohibiting the respondent from disposing of any of the assets that the respondent had removed from the matrimonial home and also requiring him to pay all outstanding utility payments and other expenses associated with his occupation of the matrimonial home. The judge declined to cite the respondent for contempt.

4_1994canlii5146.txt

J. C.A. No. 110144 NOVA SCOTIA COURT OF APPEAL Clarke, C.J.N.S.; Chipman and Pugsley, JJ.A. BETWEEN: ATTORNEY GENERAL OF NOVA SCOTIA and STACY GLASGOW Respondent John D. Wood for the Appellant The Respondent in Person Appeal Heard: February 8, 1995 Judgment Delivered: February 8, 1995 THE COURT: Appeal dismissed from decision of Nova Scotia Utility and Review Board concerning an award of compensation pursuant to the Victims\' Rights and Services Act, per oral reasons for judgment delivered by Clarke, C.J.N.S.; Chipman and Pugsley, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: CLARKE, C.J.N.S.: Mr. Glasgow applied for criminal injuries compensation pursuant to the Victims\' Rights and Services Act, S.N.S. 1989, c. 14, as amended. He alleged that he was wrongly assaulted and as result he was entitled to compensation for the losses he suffered. On September 10, 1993, Mr. Glasgow was involved in an angry exchange of words with Mr. Johnson. He asked Mr. Johnson if he wanted to fight. No fight ensued. As Mr. Glasgow turned away Mr. Johnson delivered "sucker‑punch" which broke Mr. Glasgow's jaw. Mr. Glasgow ended up in hospital. He incurred dental expenses and lost wages. In response to his application, the Victims' Services Division wrote Mr. Glasgow in part as follows: The police investigation has indicated that they will not be proceeding with criminal charges. The investigation did not provide evidence that criminal offence occurred. Because the program is unable to confirm through the criminal justice system that you are a victim of crime, we are unable to make a compensation award. Mr. Glasgow appealed to the Nova Scotia Utility and Review Board. The Board held de novo hearing which it is entitled to do under the Act. In decision dated September 20, 1994, the Vice‑Chair of the Board allowed the appeal. She found Mr. Glasgow was "victim" in the meaning of s. 2(e) which provides: (e) "victim" means an individual who has suffered bodily harm, mental or nervous shock, pain, suffering, economic loss or deprivation of property as the result of an act or omission that forms the basis of an offence and includes, where the individual is dead, ill or otherwise incapable of exercising the rights granted by this Act, the spouse or next of kin of that person or anyone who has, in law or in fact, the custody or guardianship of that person or who is responsible for the care or support of that person. In this respect, the Board wrote: There is nothing ln the Act which suggests that a person is not a victim because the police failed to lay a charge. In some instances the victim will not know his attacker and despite investigation the police will be unable to determine who to charge. In the Board's opinion, Mr. Glasgow does qualify as victim within the meaning of s. 2(e) of the Act. The Board then considered an application of 11A(1)(a) and (d) and 11L(3) of this Act. Of these sections the Vice Chair wrote: Section 11A(1)(a) and (d) of the Act states as follows: 11A(1) Where person is injured or killed by an Act or omission in the Province of another person occurring in or resulting from (a) the commission of an offence within the description of any criminal offence mentioned in the Schedule to this Act; the Director, on application to the Director in accordance with the regulations and on consideration of such evidence as the Director may require, may, as the Director considers proper, award compensation to (d) the person injured or killed or that person's estate; The offence of causing bodily harm is listed in the Schedule to the Act. The Board notes that the s. 11A does not use the term "victim" in describing who has been injured or killed. The Board also notes that Cst. Johnston referred to Mr. Glasgow as victim. The Director should use the terminology in s. 11(A) when deciding whether or not to award compensation. Section 11D(1) of the Act allows the Director to take into account the circumstances and any behaviour of the injured person that directly or indirectly contributed to the injury. It states as follows: 11 D(1) In determining whether to award compensation and the amount thereof, the Director shall consider and take into account all such circumstances as the Director considers relevant to the making of the award and, without limiting the generality of the foregoing, the Director shall consider and take into account any behaviour of the person injured or killed that directly or indirectly contributed to that person's injury or death. Under s. 11 L(3) of the Act the Board may make any decision that the Director could have made. After reviewing the evidence and determining Mr. Glasgow "was injured as result of the commission of an offence of causing bodily harm", the Board applied s. 11D(1) which is quoted above. In doing so it determined that based on the evidence, the behaviour of Mr. Glasgow in the series of events contributed to his loss. Accordingly the Board reduced his claim for dental costs and lost wages by 50%. The appellant has now appealed from the decision and award of the Board contending that lt misapprehended the evidence, misinterpreted the relevant law and erred first, by awarding compensation to Mr. Glasgow and second, by reducing lt by 50%. The appeal provisions are set forth in s. 11 L(3) and (4). They state: (3) The person or tribunal hearing the appeal may make any decision that the Director could have made; (4) decision made upon appeal is final except that an appeal lies therefrom to the Appeal Division of the Supreme Court on any question of law. In our opinion the Board correctly interpreted its jurisdiction. Thereafter it made findings of fact that were within its jurisdiction. The record reveals there was ample evidence arising from the de novo hearing to support its findings. We find no error in law was committed by the Board. In these circumstances the decision of the Board is protected by the finality provision the Legislature has impressed upon lt. Accordingly the appeal is dismissed. The respondent is awarded costs of $100.00. C.J.N.S. Concurred in: Chipman, J.A. Pugsley, J.A. CR‑94‑03 NOVA SCOTIA UTILITY AND REVIEW BOARD IN THE MATTER OF THE VICTIMS' RIGHTS AND SERVICES ACT and IN THE MATTER OF AN APPEAL by STACY GLASGOW from decision of the DIRECTOR OF VICTIM SERVICES, made May 13, 1994, which denied compensation. BEFORE: Linda D. Garber, Vice‑chair COUNSEL: STACY GLASGOW Stacy Glasgow and Terry Slauenwhite ATTORNEY GENERAL John D. Wood, L.L.B. HEARING DATE: August 25, 1994 DECISION DATE: September 20, 1994 DECISION: Appeal allowed This page contained graphical images which may only be viewed in the original decision. Document 12161 C.A. No. 110144 NOVA SCOTIA COURT OF APPEAL BETWEEN: ATTORNEY GENERAL OF NOVA SCOTIA and STACY GLASGOW Respondent REASONS FOR JUDGMENT BY: CLARKE, C.J.N.S. (Orally)

This was an appeal from the decision of the Nova Scotia Utility and Review Board allowing an appeal from the decision of the Victims' Services Division denying compensation to the respondent on the basis the police had not proceeded with criminal charges for an assault which had occurred. Dismissing the appeal, that the Board had correctly interpreted its jurisdiction and made findings amply supported by the evidence arising from the de novo hearing. Failure of the police to lay a charge against the attacker did not disqualify the applicant from compensation if it was otherwise supported by the evidence.

1995canlii4337.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 203 Date: 2017 07 06 Docket: QBG 1612 of 2014 Judicial Centre: Regina BETWEEN: SHELDON SCHUTTE Appearing: Sheldon Schutte self-represented plaintiff Will Egan for the defendant JUDGMENT GUNN J. July 6, 2017 [1] SaskTel brings an application seeking an order striking the defendant’s Statement of Claim under Rule 7-9(1)(a) of The Queen’s Bench Rules on the basis that under Rule 7-9(2)(a) the Statement of Claim discloses no reasonable claim and for an order for costs. The Proceedings [2] Sheldon Schutte filed claim on July 23, 2014 against SaskTel. The Statement of Claim contains the following information: 1. Identify the name and place of residence of each plaintiff. If suing in representative capacity on behalf of party, identify that party and describe the representative capacity; 2. Identify the name and place of residence of each defendant; 3. Set out concise statement of the material facts, but not the evidence, giving rise to the claim; 4. Set out each remedy sought and indicate against which defendants that remedy is sought: 1. “Sasktel and Sasktel Union wage lose, WCB are paying me 1/8 of the wage that use to make.” Sasktel Dated at Regina, SK, Saskatchewan, this 28 day of July, 2014. [3] Service of the Statement of Claim was accepted by SaskTel on July 28, 2014. [4] SaskTel filed Notice of Intent to Defend on August 13, 2014, along with Demand for Particulars. SaskTel requested the following information: 1. What specific facts are you alleging or relying on to create any possible claim against SaskTel? 2. What is the specific time frame for the events referred to in Paragraph above? 3. What is the nature of the legal remedy you are claiming? 4. What is the nature of the damages claimed? 5. What is the amount of damages and how is that amount claimed? [5] SaskTel filed Statement of Defence on August 26, 2014. The Statement of Defence provides the following in part: 1. The Defendant, SaskTel, denies each and every allegation of the Plaintiff’s Claim, except where expressly admitted. 2. The Defendant specifically denies paragraph 4.1 of the Plaintiff’s Claim that he suffered any wage loss attributable to SaskTel. 3. The Defendant states that the Plaintiff was last employed by SaskTel in temporary position (term) that lasted from April 2, 1990 to November 30, 1990. 4. The Defendant states that it appears that the Plaintiff’s Claim may allege that he was injured at work during his time at SasktTel, while the Plaintiff does not admit this fact, if the Claim is allegedly based on such injury, then the Defendant pleads The Workers’ Compensation Act, 2013 R.S.S. Ch. W17.11 as amended and states that the Plaintiff’s only possible claim is for workers compensation benefits from the Workers’ Compensation Board. 5. The Defendant states that the Plaintiff’s Claim does not disclose any reasonable cause of action against the Defendant. 6. The Defendant further states that the Claim apparently is about events from 1990 and therefore any claim is statute barred under The Limitations Act R.S.S. Ch 16.1 as amended. 7-9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the following: (a) that all or any part of pleading or other document be struck out; (2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (a) discloses no reasonable claim or defence, as the case may be; [6] In Imperial Tobacco Canada Ltd., 2011 SCC 42 (CanLII), [2011] SCR 45 Chief Justice McLachlin said the following: 17 ...A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), [2003] S.C.R. 263, at para. 15; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] S.C.R. 959, at p. 980. Another way of putting the test is that the claim has no reasonable prospect of success. Where reasonable prospect of success exists, the matter should be allowed to proceed to trial: see, generally, Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 (CanLII), [2007] S.C.R.83; Odhavji Estate; Hunt; Attorney General of Canada v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] S.C.R. 735. 19 The power to strike out claims that have no reasonable prospect of success is valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial. [7] On an application to strike, the facts set forth in the Statement of Claim are considered to be true unless manifestly incapable of proof. It is incumbent on the plaintiff to clearly plead the facts upon which he relies in making his claim. CONCLUSION [8] Having reviewed the pleadings carefully, I conclude that Mr. Schutte’s claims against SaskTel have no reasonable prospect of success and should be struck. SaskTel is awarded its costs.

Civil Procedure – Pleadings – Statement of Claim – Application to Strike The defendant applied for an order striking the plaintiff’s statement of claim under Queen’s Bench rule 7-9(1)(a) on the basis that under rule 7-9(2)(a) it disclosed no reasonable cause of action. HELD: The application was granted. The court reviewed the pleadings drafted by the self-represented plaintiff and found his claims had no reasonable prospect of success and struck them.

7_2017skqb203.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 345 Date: 2015 10 30 Docket: QBG 1907/2013 Judicial Centre: Regina BETWEEN: JASON SANDOFF AND CINDY RETALLICK and LOBLAW COMPANIES LIMITED AND LOBLAWS INC. Counsel: E.F. Anthony Merchant, Q.C. for the plaintiffs Robert Leurer, Q.C. and Markus Kremer for the defendants JUDGMENT KEENE J. October 30, 2015 I. THE CLAIM, DEFENCE AND APPLICATIONS [1] The original plaintiff, Mr. Sandoff, issued his claim under The Class Actions Act, SS 2001, C-12.01 on October 8, 2013. This claim was subsequently amended and will refer to the amended paragraph numbers. The claim seeks damages against the defendants, Loblaw Companies Limited and Loblaws Inc. [Loblaws]. The claim in part states: 10. This claim concerns the misleading and deceptive advertising of “Low Sodium” beverages by Loblaws and seeks to recover damages on behalf of those who purchased the Defendants’ “Low Sodium” beverages (the “Class” or “Class Members”) but ultimately received beverages which were no lower or not appreciably lower in sodium than other, non-“Low Sodium” products. 17. The Low Sodium Products do in fact have minimal sodium content; however, their sodium content is equivalent to, or greater than, that of comparable alternative products, and not “low” in relative sense. 18. The application of the Low Sodium Label to Low Sodium Products is deceptive and misleading in that it implies the presence of reduced, healthier amount of sodium when, in fact, the sodium content of the Low Sodium Products is similar to, if not greater than, the sodium content of other, regularly packaged products who do not include Low Sodium Label (the “Misrepresentation”). 19. On August 29th, 2013 at approximately 6:53 p.m., the Plaintiff purchased Low Sodium Product, and more specifically, PC Diet Cola (Caffeine-Free) (UPC code 6038309182) drink, from the “Independent” (Your Independent Grocer) store located at 1341 Broadway Avenue in Regina, Saskatchewan (“Plaintiff Sandoff’s Purchased Product”) was purchased on the Plaintiff, Jason Sandoff’s, behalf. The packaging of the Plaintiff Sandoff’s Purchased Product indicated that it was Low Sodium Product, and the Plaintiff believed he was purchasing Low Sodium Product. 20. On December 12th, 2014 at approximately 3:55 pm, Cindy Retallick purchased Low Sodium Beverage, specifically PC Diet Cola (Caffeine-Free) (UPC code 6038378705) drink, from the Real Canadian Superstore located at 4450 Rochdale Boulevard in Regina, Saskatchewan (“Retallick’s Purchased Product”). 21. The packaging of Retallick’s Purchased Product indicated that they were Low Sodium Products. [Alterations as they appear on amended claim] [2] By way of clarification “PC” is brand manufactured and sold by Loblaws. Ms. Retallick was added as plaintiff in the amendment. [3] The claim goes on to make claims of negligence, breach of warranty, violations of the Competition Act, RSC 1985, C-34, violations of various provincial consumer protection legislation, other statutory violations (i.e. the Consumer Packaging and Labelling Act, RSC 1985, C-38 and the Food and Drugs Act, RSC 1985, F-27), unjust enrichment, waiver of tort and exemplary and punitive damages. [4] Loblaws served its statement of defence and application for summary judgment (with supporting affidavit of Ms. Sherry Casey) on September 24, 2014. The defendants deny any liability to the plaintiffs or any member of the proposed class on the basis that the “low sodium” label is factually correct and that no reasonable person would have assumed that the “low sodium” label meant that the PC Low Sodium Beverages are lower in sodium than other alternate products. [5] The plaintiffs abandoned their claims under negligence, sale of goods legislation, and breach of warranty after hearing the oral submissions of defence counsel. [6] The original plaintiff, Mr. Sandoff, filed his notice of application for certification on September 16, 2015. This notice was amended during the hearing held before myself. The parts of the notice that were amended (save for some minor changes) are as follows: (b) defining the class as “Individuals who purchased “Low Sodium” beverages “all persons in Canada who, on or after October 8th, 2011, purchased Diet Cola, Low Sodium, Caffeine Free or PC Club Soda, Low Sodium (“Low Sodium Beverages”) from Loblaws in Canada.” nan (d) stating the nature of the claims asserted on behalf of class members for breach of consumer protection and sale of goods legislation, breach of warranty, negligence the Competition Act, and waiver of tort on the grounds that: (1) the Defendants made deceptive and misleading advertisement and representation by selling “Low the Low Sodium” Beverages which the Defendants knew or should have known were no lower or appreciably lower in sodium than other non-“Low Sodium” beverages. nan (f) certifying the following issues as common issues: (1) Are “Low Low Sodium” Beverages from Loblaws lower or appreciably lower in sodium than other, non-“Low Sodium” beverages [soft drinks]? (Amended third time by consent post hearing.) (2) Did the Defendants engage in conduct that constitutes deceptive acts or practices contrary to the application applicable consumer protection or sale of goods legislation, by marketing or selling the Low Sodium Beverages that were advertised as “Low Sodium” but we no lower or not appreciable lower in sodium than, non-“Low Sodium” beverages? [Alterations as they appear on amended application] [7] The plaintiffs have filed the affidavit of Ms. Retallick, David Landry and two affidavits of Rhonda Harper (which are essentially the same). As stated above, the defendants rely on the affidavit of Ms. Casey. II. THE FACTS AS PLED AND ADMITTED [8] As set out above, the plaintiffs admit that the “Low Sodium Products” do in fact have minimal sodium content (See para. 17 of the amended claim). [9] Controversy arose during the hearing as to the extent of the defendants’ admission of para. 16 of the plaintiffs’ amended claim (See para. 2, statement of defence). Paragraph 16 of the amended claim states: 16. PC incorporates messaging on the packaging of some items which denotes them as having “Low Sodium” (the “Low Sodium Label”), including but not limited to the following items (“Low Sodium Products”): Example UPC a) Diet Cola Low Sodium, Caffeine Free (2L) b) Diet Cola Caffeine Free (2L) Caffeine Free (can) c) Diet Cola Caffeine Free (12 pk) Caffeine Free (can) d) PC Club Soda Low Sodium (2L) e) PC Club Soda Low Sodium (can) f) PC Club Soda Low Sodium (12 pk) 15 mg [Emphasis Added] [10] It appears that when defence counsel drafted the statement of defence they understood this paragraph to mean that all of the listed items were indeed labelled “Low Sodium”. Unfortunately, the draftor of the statement of claim did not add the PC brand name to each listed drink nor did he add the description “Low Sodium”. Somehow this led counsel for the plaintiffs to believe there had been an admission by the defendants that the listed drinks were “identical” except one drink was labelled “Low Sodium” and another drink was not. This resulted in the plaintiffs arguing in their brief on summary judgment: 1. The Defendants acknowledge that they have put identical products on the market but labelled these identical products differently. There is expert evidence submitted by the Plaintiffs explaining how this is misleading to consumers. The expert evidence of the Plaintiffs in uncontroverted. 2. The facts are undisputed. manufacturer put two identical products on the market but labelled them differently. Intuitively, it is clear that this is misleading. The only reason to label and market identical products differently is to create the illusion that the identical products are different. 3. While the Defendants have gone to great length to try and confuse the issue, the issue is simple. It is misleading to label identical products differently. (Plaintiffs’ brief re: summary judgment dated August 24, 2015) [11] The reply brief on the summary judgment application filed by the defendants challenged this assertion (paras. 20-23). In my opinion at that stage it should have been apparent to the plaintiffs that no such admission had been made. Despite this the plaintiffs persisted in this interpretation of their para. 16 of the claim and continued to rely on the supposed admission. [12] Clearly the defendants did not intend to make any such admission. The wording used by the plaintiffs in para. 16 of their claim is plain and obvious. Paragraph 16 can only be interpreted to mean all of the drinks (no matter how the plaintiffs chose to describe them) are labelled “Low Sodium”. Again, the wording is: “the packaging of some items which denotes them as having “Low Sodium” (the “Low Sodium Label”), including…”. This can only mean the items listed have the low sodium label. note there are only two types of beverages listed here, Diet Cola Low Sodium Caffeine Free and PC Club Soda that are packaged in different sized beverage containers. This accords with Ms. Casey’s affidavit evidence (See: para. of her affidavit) that there are only two products sold by Loblaws with the low sodium label namely Diet Cola Caffeine Free and PC Club Soda labelled low sodium (although as set out above packaged in different sized containers). Ms. Kendall Lee Mackay’s affidavit supports this as well (see para. of her affidavit). [13] Further, because of this turn of events granted counsel for the plaintiffs 14 days to provide evidence that my understanding is not correct. received nothing. Therefore, am confident that defence counsels’ reading of para. 16 is correct and proper admission was made (i.e. all the listed beverages have the “Low Sodium” label) and the plaintiffs’ argument set out in their brief has no factual basis. III. AFFIDAVIT EVIDENCE Ms. Casey’s Evidence [14] Ms. Casey’s affidavit provides the following uncontroverted evidence: Loblaws produces and markets two “low sodium” products: PC Club Soda Low Sodium and PC Diet Cola Caffeine Free/Low Sodium (para. 5); The Canadian Food Inspection Agency [CFIA] regulates the compositional and labelling standards for all foods sold in Canada. CFIA is governed by the regulations under the Food and Drugs Act, RSC 1985, F-27, the Food and Drugs Regulations, CRC 870 [Food and Drug Regulations] and the Consumer Packaging and Labelling Act, RSC 1985, C-38 (para. 16); Loblaws, using the labelling requirements provided on the CFIA website, ensures all of its food products are correctly labelled in accordance with the Food and Drugs Regulations (para. 17); Labelling food “low sodium” is considered to be “nutrient content” claim under the Food and Drugs Regulations. Nutrient content claims are statements which describe, directly or indirectly, the level of nutrient in specific food or beverage that will permit the manufacturer to make particular claim. Nutrient content claims are permitted, provided that the product meets certain compositional and labelling requirements. The CFIA website specifies labelling requirements for nutrient content claims and also specifies the placement and content of all advisement on food (para. 18); The Food and Drugs Regulations allow manufacturers to label soft drinks as “Low Sodium” if the drinks contain less than 140 mg of sodium per 355 ml. PC Low Sodium Beverages contain approximately 20 mg per 355 ml or 14% of the sodium limit set out by the Food and Drugs Regulations for products labelled as “low sodium”. This amounts to 1/7 of what would be permissible (paras. 19-21); Loblaws requires its vendors to conduct nutrient testing on their products to validate the label information. This is to ensure that the compositional requirements of PC products continue to meet the requirements imposed by the Food and Drugs Regulations (para. 22); The packaging of PC Low Sodium Beverages not only indicates the products are “low sodium” but also includes nutritional facts label that describes the actual amount of sodium in each product. All PC Low Sodium Beverages and all other beverage products sold in Canada by Loblaws’ competitors have such labels/and or packaging (para. 23, exhibit c); Loblaws has never branded or represented PC Low Sodium Beverages as being lower in sodium than other beverages even though they are lower in sodium than many other products made by Loblaws’ competitors. PC Low Sodium Beverages (containing 20 mg of sodium/355 ml) are lower in sodium than many competitors (paras. 26, 28-29, exhibit D); On average the PC Low Sodium Beverages are no more expensive than comparable products and Loblaws does not charge extra for low sodium soft drinks (paras. 32-33). [15] note that Ms. Casey has reviewed the claim. She has senior position at Loblaws that appears directly connected to the type of issues and allegations set forth in the claim. She details her background and indicates her education, employment and oversight role regarding the PC product line. Overall, her evidence was direct, useful and on point. As stated, do not see any of her evidence as being contradicted or diminished in any fashion. Mr. Sandoff [16] Mr. Sandoff did not file an affidavit in response to either the summary judgment application or the certification application. note (as set out above) that para. 19 of the claim states that Mr. Sandoff did not actually buy the soft drink. It appears an unnamed person did. Perhaps that is why we heard nothing more from Mr. Sandoff. Ms. Retallick [17] Ms. Retallick did file an affidavit ostensibly to support the certification application (see para. 32 of her affidavit). She describes purchasing (four days before the amendment to the claim was made) the PC Low Sodium Beverage as follows: She states she purchased Low Sodium Beverage, PC Diet Cola (Caffeine Free) (UPC code 6038378705) confirming para. 20 of her claim (para. of her affidavit); Ms. Retallick goes on to depose (paras. 5-7 of her affidavit): 5. The packaging of the beverage indicated that it was “Low Sodium” Beverage, which suggested that was purchasing beverage that was lower in sodium than beverages that were not labelled as “Low Sodium”. 6. Other similar beverages sold by PC and other manufacturers, available at that store, did not claim to be Low Sodium Beverages. Purchasers would reasonably understand based on the Defendants difference in labelling, that the Purchased Beverage contained less sodium than other PC beverages that did not advertise that they were Low Sodium beverages. 7. did not obtain beverage which was materially lower in sodium content than other beverages that did not have the Low Sodium Label. [18] Defence counsel points out in their brief filed July 27, 2015: 18. It is important to note that Ms. Retallick does not allege that: (a) She purchased the PC Low Sodium Beverages because it was labelled “low sodium”; (b) She was misled by the “low sodium” label; (c) The PC Law Sodium Beverage was higher in sodium than she expected it to be; or (d) The attributes of the product she obtained (as opposed to the relative attributes of competing products) were in any way different from those she had been led to expect. [Emphasis in original] [19] Ms. Harper provided two affidavits for the plaintiffs. The affidavits are essentially the same and need only consider the September 18, 2015 affidavit. [20] Defence counsel critically describes the content of Ms. Harper’s affidavit as follows: 19. The Plaintiffs also rely upon purported expert report from Rhonda Harper. It is important to note that Ms. Harper conducted no independent research or surveys in order to prepare her report. There is no indication that she had spoken to either Plaintiff or single member of the proposed class. The majority of her affidavit summarizes the contents of academic articles about marketing and consumer behaviour. Affidavit of Rhonda Harper, sworn February 20, 2015 (“Harper Affidavit”). 20. In only one paragraph of her affidavit does Ms. Harper purport to give an expert opinion: 18. In the case at hand, it is my expert opinion that the Defendant knowingly leveraged the national awareness campaign for sodium-reduction among Canadians, misrepresented its product as “low-sodium” versus the other in its category and misled consumers into purchasing its product based on this claim. Consumers collectively would expect difference in “low sodium” product from others in the line as being meaninfully [sic] higher in sodium. The messaging is not that it is low, and so are other similar products, but that it is meaninfully [sic] lower. Harper Affidavit, para 18 [Defendants brief filed July 27, 2015] [21] find myself in agreement with this criticism. reading of her exhibited report supports the conclusion that she did not specifically direct her mind in meaningful fashion to the claim, the Canadian statues or regulations or in short, the matters at hand. Her conclusion set out in para. 18 of her affidavit seems to be without proper foundation or basis. Again, defence counsel properly sums this up in their brief: 21. The first sentence of the paragraph quoted above represents conclusion with respect to the ultimate issue in this case, whether Loblaws misled consumers. The closer an expert opinion comes to expressing view with respect to the ultimate issue in case, the more stringently the criteria of reliability and necessity must be applied, as it risks usurping the role of the trier of fact. In this case, Ms. Harper has provided no basis for her conclusion. She has no knowledge of Loblaws’ intentions, yet states that it “knowingly” misrepresented its product. She has not spoken to single consumer of the PC Low Sodium Beverages, yet states that they have been misled. In these circumstances, her opinion can be given no weight. Sekhon, 2014 SCC 15 (CanLII) at paras 43 to 48 and at paras 74 to 76 (dissenting on other grounds) 22. Like the affidavit of Ms. Retallick, however, the balance of this paragraph is significant for what it does not state. Specifically, Ms. Harper does not claim that: (a) Loblaws has made any statement that is not factually accurate; (b) Loblaws has ever stated that the PC Low Sodium Products are “lower” in sodium than any other products or are the “lowest sodium” products available; or (c) Consumers who buy PC Low Sodium Beverages are misled as to the sodium content of the product that they are purchasing, as opposed to mistakenly assuming that certain other products are higher in sodium. [Emphasis in original] [22] Therefore, place little weight in her opinion. There is no evidence that the plaintiffs were misled about the sodium content of the drink they purchased, nor did they rely upon the low sodium label when making the purchase and find they did not suffer any damages. IV. THE ISSUES AND ANALYSIS Is Summary Judgment Appropriately Heard Before Certification? [23] Since there are two applications (the defendants’ application for summary judgment and the plaintiffs’ application for certification) am called upon to determine which application should be considered first. [24] The defendants submit that this case is suitable for summary judgment prior to certification because the facts are not disputed and the determination of single legal issue will decide whether the plaintiffs have tenable cause of action. [25] The defendants state that pre-certification summary judgment application is appropriate if there is no genuine issue for trial because: a. The plaintiffs have failed to show genuine ability to prove one or more factual elements to legal cause of action; b. The complaint lacks legal merit; or c. The defendants have an obvious defence to the claim. [para. 26 of the defendants’ brief on summary judgment dated July 27, 2015] [26] It seems that the plaintiffs are in agreement that this case is suitable for summary judgment and note from their brief filed in response to the summary judgment application: 7. It is very unusual for summary judgment to be suitable in the class action context. This is the one in hundred class action case where summary judgment is suitable. 8. The test for summary judgment is met in this case because the application turns on straight forward question of law and the relevant facts are undisputed. In Hryniak v. Mauldin, 2014 SCC (CanLII) [Hryniak] the Supreme Court of Canada sets out two separate issues to address when considering if summary judgment is appropriate (i) whether genuine issue exists; and (ii) if genuine issue does exist, whether its resolution requires conventional trial. 9. Here there is genuine issue. The genuine issue is whether or not it is misleading to label identical products differently. Although genuine issue exists, its resolution does not require conventional trial…. [Emphasis Added] [27] Unfortunately (for the plaintiffs) it seems they have simply misconstrued their own pleadings and seized upon what they believed (but as stated above, incorrectly) was an admission that then emerged as the singular plank in their case. [28] However, dispute the deflation of this argument, the plaintiffs continued with their defence to summary judgment and with the certification hearing. will quickly add at this point that the plaintiffs’ submission that they should receive summary judgment in favour of their claim is clearly without merit. There is no evidence to support this. will continue with the consideration of the defendants’ application for summary judgment to dismiss the claim. [29] agree with defence counsel that there is considerable authority for this Court to hear summary judgment application prior to the certification application. At this point, wish to note that it is only the named plaintiffs that would be subject to this dismissal. There is no application before me with respect to the claims as class as whole. It would be potentially open for other representative plaintiffs to come forward, by issuing new claim under The Class Actions Act. [30] In Roberts Properties Inc. Saskatchewan Power Corp., 2014 SKQB 245 (CanLII), 453 Sask 115 [Roberts], Justice Dawson granted the defendants’ application to strike claim brought under The Class Actions Act pursuant to former Queen’s Bench Rule 173(a), (c) and (e) prior to certification. The plaintiffs in our case argue that Roberts and Filson Canada (Attorney General), 2014 SKQB 164 (CanLII), 447 Sask 219 [Filson], affirmed 2015 SKCA 80 (CanLII), relied on by the defendants, should be distinguished because there are different Rules in play in those cases than here. agree that the Rules may be different but the principle is the same (i.e. the request to dispose of claim before certification). Accordingly, find Roberts and Filson support the defendants request to have the summary judgment application heard and determined before the certification application is determined. [31] Additionally, note other jurisdictions have allowed summary applications to precede the certification hearing. note Justice Martin’s comments in Stewart Enterprise Universal Inc., 2010 ABQB 259 (CanLII), 489 AR 153 where the court stated: 36 While it may be preferable to deal with most applications at the certification hearing, there are sometimes good and compelling reasons for them to be addressed earlier. Efficiency and judicial economy are important, but they are not the only values. Further, motions taken before the certification hearing may in fact contribute to efficiency, judicial economy by narrowing and streamlining the issues and reducing the number of parties. The Alberta Court of Appeal in Tottrup v. Alberta (Minister of Environment), 2000 ABCA 121 (CanLII), 255 A.R. 204 at para. emphasized that robust rules are required for pretrial applications that seek to resolve claims. While that case did not involve the CPA, robust rules ensure plaintiffs have valid causes of action that are properly plead, which both operate to conserve court resources. 37 In addition, it is essential that the process is fair to all parties. In Dutton at para. 26 the Supreme Court noted the important role class actions play in today's world, but also stated that "[t]he class action offers means of efficiently resolving such disputes in manner that is fair to all parties." nan 39 Numerous factors will bear on the exercise of discretion and the assessment of efficiency, economy and fairness. Among them is how quickly the matter is proceeding and whether the certification hearing is being pursued in accordance with the presumptive time lines in the legislation. Defendants in potential class-action have at least the same interest as defendants in individual actions in the timely resolution of disputes. The Rules of Court provide defendants with variety of tools to address claims made against them and defendants ought to remain free to choose the timing of their applications as part of their general ability to advance their case. While first past the post system is not the answer, as it values form and speed over substance, plaintiff concerned with litigation by instalments may help forestall that possibility by making an application for certification within the suggested time frame. (See also: Jackson Canadian National Railway, 2013 ABCA 440 (CanLII), [2014] WWR 427; Player Estate Janssen-Ortho Inc., 2014 BCSC 1122 (CanLII) at para 174; and P. (W.) Alberta, 2014 ABCA 404 (CanLII), [2015] WWR 430). [32] Accordingly, I am quite comfortable in following this judicial authority and determining the defendants’ summary judgment application prior to having to decide the plaintiffs’ application for certification. Defendants’ Application for Summary Judgment [33] The applicable Queen’s Bench Rules are: 7-2 party may apply, with supporting affidavit material or other evidence, for summary judgment on all or some of the issues raised in the pleadings at any time after the defendant has filed statement of defence but before the time and place for trial have been set. 7-5(1) The Court may grant summary judgment if: (a) the Court is satisfied that there is no genuine issue requiring trial with respect to claim or defence [34] Regarding Rule 7-5(1)(a) (i.e. genuine issue) Justice Karakatsanis in Hryniak Mauldin, 2014 SCC (CanLII), [2014] SCR 87 stated: 49 There will be no genuine issue requiring trial when the judge is able to reach fair and just determination on the merits on motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is proportionate, more expeditious and less expensive means to achieve just result. [35] Justice Barrington-Foote in Tchozewski Lamontagne, 2014 SKQB 71 (CanLII), 440 Sask 34 [Tchozewski] writes: 30 The central question posed on Rule 7-2 application, accordingly, is whether summary judgment will achieve what Karakatsanis J. calls (at para. 28) the "principal goal", and Popescul C.J.Q.B calls "the overarching consideration" (at para. 49, Pervez): that is, fair process that results in just adjudication of the dispute before the court. The answer to this question calls for an analysis of the affidavit and other evidence presented and the issues raised by the application, in the context of the litigation as whole. In Hyrniak, Karakatsanis J. breaks that analysis down into discrete steps and key principles "roadmap" based on the various elements of the summary judgment rules. In brief, the key elements of that roadmap, in the context of Rule 7-2 application, are as follows: nan 3. The issue is not whether the summary judgment process is as thorough or the evidence is as complete as at trial. It is whether the judge is confident he or she can find the facts and apply the relevant legal principles so as to fairly resolve the dispute. If the judge has that confidence, proceeding to trial is generally not proportionate, timely or cost effective. process that does not give the judge confidence in his or her conclusions, on the other hand, is never proportionate. (Hryniak, paras. 50 and 57) [36] The Tchozewski case provides “roadmap” to be used in summary judgment cases (see para. 30). [37] I find the following facts are not in dispute (i.e. the plaintiffs have not provided contrary evidence and I accept evidence provided by the defendants): i. The plaintiffs acknowledge that the PC Low Sodium Beverages contain minimal sodium (Ms. Casey’s evidence is that they contain 14% of the sodium permitted); ii. The plaintiffs have not provided evidence that Loblaws made any comparative claims stating that its PC Low Sodium Beverages were lower in sodium than any other beverages whether they were made by Loblaws or competitors; iii. The plaintiffs have not contradicted or challenged Ms. Casey’s evidence that all PC Low Sodium Beverages sold in Canada (as well as any competing beverages) have nutritional label setting out the amount of sodium the beverage contains for the consumer to read. [38] Loblaws correctly submits (p. 12 of the defendants’ brief of law for summary judgment): (d) The Plaintiffs have led no evidence that: (i) The Plaintiffs personally were misled in any way by the “low sodium” label; (ii) Any consumers were misled as to any of the attributes of the PC Low Sodium Beverages (as opposed to the relative attributes of competing products); (iii) The Plaintiffs relied upon the “low sodium” representation when purchasing the PC Low Sodium Beverages; or (iv) The Plaintiffs have suffered any damages. [39] have come to the same conclusion as the defendants when they state: 41. In light of this substantial agreement between the parties, the only issue in this action, and on this application, is whether reasonable customer would be misled by “low sodium” label about the attributes of product so labelled. This is legal question to be decided on an objective standard. [Defendants’ brief dated July 27, 2015] [40] Defence counsel in their brief examined this issue and submit: 42. While the Plaintiffs assert several different causes of action in the Statement of Claim, there is considerable overlap among the elements required to establish each claim. In particular, each one requires the Plaintiffs to prove one or more of the following: (a) That the “low sodium” label is inaccurate (i.e. that Loblaws has made “False Representation”); (b) That reasonable customer would have been misled by the “low sodium” label into believing that the PC Low Sodium Beverages were lower in sodium than competing products and that this would have caused the customer to be misled about the attributes of the PC Low Sodium Beverages (i.e. that Loblaws has made “Misleading Representation”); and (c) That the Plaintiffs relied upon the “low sodium” label to their detriment and suffered damages as result (i.e. that the Plaintiffs have suffered “Damages”). 43. Based upon uncontroverted evidence on this motion, the Plaintiffs cannot establish any of these elements and the Statement of Claim raises no genuine issue requiring trial. [Defendants’ brief dated July 27, 2015] [41] Again, agree with and come to the same conclusion as defence counsel that: The plaintiffs have not proven the “low sodium” label is inaccurate; There was no misleading representation about PC Low Sodium Beverages. It appears plaintiffs’ counsel offers the novel argument that because Loblaws competitors do not label their beverages as “low sodium” that results in consumers being misled by Loblaws. cannot accept this premise. Surely truthfully and accurately labelling your product (even though your competitor chooses not to) does not mean you are misleading anyone. Again, note it was the cornerstone of the plaintiffs’ claim that identical products were labelled differently (i.e. one saying low sodium and the other identical product not so labelled). can envision how that may potentially be misleading, but this is not the case before me (see above para. 12). find that there was nothing misleading about the packaging complained of; Consumers could have checked the nutritional labels in any event to read the sodium levels and used their own common sense to make informed decisions; and • There is no evidence that either plaintiffs (or for that matter any member of the proposed class) suffered any damages as a result of purchasing the PC Low Sodium Beverages. The plaintiffs bought what they expected (or could reasonably expect) to receive: low sodium beverage at essentially the same price as other soft drinks. [42] have set out above my finding that there is no genuine issue regarding trial. However, because the plaintiffs pled broad range of statutory breach allegations (although perhaps reducing their claim in the amended notice of application for certification) will go through these claims. Alleged Breach of the Food and Drugs Act or the Consumer Packaging and Labelling Act [43] The plaintiffs alleged that Loblaws breached the Food and Drugs Act, the Food and Drugs Regulations and the Consumer Packaging and Labelling Act. [44] The Food and Drugs Act states in s. 5(1): 5. (1) No person shall label, package, treat, process, sell or advertise any food in manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety. [45] The Consumer Packaging and Labelling Act provides in s. 7(1): 7. (1) No dealer shall apply to any prepackaged product or sell, import into Canada or advertise any prepackaged product that has applied to it label containing any false or misleading representation that relates to or may reasonably be regarded as relating to that product. [46] find that the plaintiffs’ claims cannot succeed under the above statutes. The “low sodium” label on the PC Low Sodium Beverages is neither false representation, misleading representation or deception. As found above: the sodium content meets the requirements to be properly called “low sodium” and in fact is about 1/7 of the maximum level. Alleged Breach of the Competition Act [47] The plaintiffs plead s. 36 and 52 of the Competition Act. In reverse order, the statue provides: 52. (1) No person shall, for the purpose of promoting, directly or indirectly, the supply or use of product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make representation to the public that is false or misleading in material respect. nan 36. (1) Any person who has suffered loss or damage as result of (a) conduct that is contrary to any provision of Part VI, or… may, in any court of competent jurisdiction, sue for and recover from the person who engaged in the conduct or failed to comply with the order an amount equal to the loss or damage proved to have been suffered by him, together with any additional amount that the court may allow not exceeding the full cost to him of any investigation in connection with the matter and of proceedings under this section. [48] Accordingly, s. 52(1) creates quasi-criminal offence and s. 36(1) creates civil right of action. To be successful, the plaintiffs must show: i. Loblaws committed the offence described in s. 52 of the Competition Act; ii. The plaintiffs reasonably relied upon their misrepresentation; and iii. The plaintiffs suffered damages as result (See Magill Expedia Canada Corp., 2010 ONSC 5247 (CanLII) at para 108). [49] find that the plaintiffs claim under the Competition Act cannot succeed because: As set out above the “low sodium” label when attached to PC Low Sodium Beverages is neither false representation nor misleading representation; Ms. Casey’s evidence establishes that Loblaws carefully informs itself of the regulations and indeed follows these directions. There is no evidence that the defendants acted “knowingly or recklessly” in labelling the PC Low Sodium Beverages as “low sodium”. Therefore, any claim arising out of s. 52 of the Competition Act would be dismissed; Reasonable reliance is requirement for successful claim under s. 36 of the Competition Act. The plaintiffs seem to concede there was no “reliance” in this case and thereby dropped their claim in negligence. However beyond that, find that no reasonable person could have relied upon the “low sodium” label to conclude that the PC Low Sodium Beverages had characteristics different from those that the product actually has. Therefore, there is no prospect that claim under s. 36 of the Competition Act could have succeeded; As set out above the plaintiffs have not proven they have suffered any damages which is also required under s. 36 of the Competition Act; Additionally, Wakelam Johnson Johnson, 2014 BCCA 36 (CanLII) at paras 90-92, [2014] WWR 7, establishes that s. 36 of the Competition Act provides the exclusive remedy for breaches of s. 52 of the Competition Act. Therefore, the plaintiffs have no right to seek restitutionary remedies (such as unjust enrichment) for breaches of the Competition Act. Alleged Breaches of Consumer Protection Legislation [50] The plaintiffs claim that Loblaws has violated number of pieces of consumer protection legislation (See paras. 43-51 of the amended claim). These statutes are listed in para. 43 of the claim as: 43. The Plaintiffs pleads and relies rely on the provisions of consumer protection legislation in jurisdictions across Canada (collectively, “Consumer Protection Legislation”) including” a. Business Practices and Consumer Protection Act, S.B.C. 2004, c.2 (“BC BPCPA”); b. Fair Trading Act, R.S.A. 2000 c. F-2, as am (“AB FTA”); c. The Consumer Protection Act, SS 1996, c. C-30.1, as am. (“SK CPA”); d. The Business Practices Act, C.C.S.M., B-120, as am. (“MB BPA”); e. Consumer Protection Act, 2002, S.O. 2005, c. 30, Sched. A., as am. (“ON CPA”); f. Consumer Protection Act, R.S.Q. c. P-40.1, as am. (“QC CPA”); g. Consumer Product Warranty and Liability Act, S.N.B. 1978, c. C-18.1 (“NB CPWLA”); h. Business Practices Act, R.S.P.E.I. 1988, c. B-7, as am. (“PEI BPA”); and i. Consumer Protection and Business Practices Act, SNL 2009, C-31.1 (“NFLD CPBPA”). [Alteration as it appears in amended claim] [51] find that all of the above statutes require the plaintiffs to prove that the supplier has made representation that was untrue, deceptive or misleading. For the reasons already provided, these claims under these Acts cannot succeed. Additionally, reading of the cited British Columbia, Alberta, Saskatchewan and Newfoundland and Labrador statutes reveals the plaintiffs would have to establish that they have suffered damages or loss as result of the violation of the applicable Acts. have already found that the plaintiffs have not provided any evidence of this. [52] The plaintiffs seem to cling to the Business Practices and Consumer Protection Act, SBC 2004, of British Columbia arguing “reliance” is not required in British Columbia under s. 172 of that Act (See tab of the plaintiffs’ extracts of argument). However, that argument fails. Defence counsel skilfully took the court through series of cases in oral argument regarding this issue. accept the answer to this issue as set out in the defendants certification brief at para. 81. similar requirement applies under sections 171 and 172(3)(a) of British Columbia’s Business Practices and Consumer Protection Act. It has been held in number of cases that claims under section 171 require proof of individual reliance, causation and loss. Claims under section 172(3), by contrast, are of public nature, and not intended primarily to provide individual remedies. While section 172(3)(a) of the Act permits court to order supplier to restore money to person in the case of certain contraventions of that Act or its regulations, such order are only available if the plaintiff can establish: (i) the existence of constructive trust over an identifiable fund of money; or (ii) that they have personally suffered loss or damage cognizable in law. The Plaintiffs in this case cannot establish either requirement. Any revenues earned by Loblaws from the sale of PC Low Sodium Beverages will have been comingled with other funds, and the Plaintiffs have failed to plead that they have suffered compensable damages as result of the marketing of these products as “low sodium”. Clark Energy Brands Inc., 2014 BCSC 1891 (CanLII), at paras 41, 47 and 126. Ileman at paras 52 and 60 to 61; Wakelam at para 69. [53] Therefore, have concluded that there is no genuine issue requiring trial regarding: i. Any alleged breach of the Food and Drugs Act, or the Consumer Packaging and Labelling Act by Loblaws; ii. Any alleged breach of the Competition Act by Loblaws; and iii. Any alleged breach of any applicable consumer protection legislation by Loblaws. Waiver of Tort, Unjust Enrichment, and Punitive and Exemplary Damages [54] have grouped these claims here and find that none would apply or could be sustained in this claim. particularly note the claim for punitive or exemplary damages has no basis. Ms. Casey’s affidavit sets out that Loblaws mindfully followed the regulations as prescribed. cannot see how they could be held accountable for punitive or exemplary damages. Conclusion Regarding Summary Judgment Application [55] The plaintiffs seem to have placed all of their eggs in one basket when they boldly declared: “it is misleading to label identical products differently”. This was not in any way supported by their pleadings or any affidavit evidence. On that basis alone the summary judgment dismissing their claim should be granted. There is simply no genuine issue requiring a trial. However, have gone through the claim of the plaintiffs and found that none of the claims pled or found in the notice of application for certification ultimately produce genuine issue for trial. Following Justice Barrington-Foote’s comments in Tchozewski, find that am confident that have found the facts and applied the relevant legal principles and can fairly resolve the dispute on the basis of the materials before me. Proceeding to trial is not necessary and would not be proportionate, timely or cost effective. Therefore, I grant the defendants’ application for summary judgment dismissing the plaintiffs’ entire claim. Application for Certification [56] Since I have granted the defendants’ summary judgment application, I do not need to decide the plaintiffs’ application for certification. To complete this matter, because the plaintiffs’ claim is dismissed, I must therefore dismiss the application for certification as well and so order. [57] The defendants claim costs for their summary judgment application. They have been successful. The parties have made extensive comment in their briefs regarding costs. This seems to have been top of mind for all counsel. recognize the cost issue applies to both the summary judgment application and the dismissed certification application that heard. [58] am guided by the recent decision of Justice Schwann in Harvey Western Canada Lottery Corp., 2015 SKQB 102 (CanLII), [2015] WWR 391 where she states: 64 There is strong appellate authority in support of the proposition that s. 40 of the CAA does not prohibit an award of costs on pre-certification applications. (Alves 116; Englund v. Pfizer Canada Inc., 2007 SKCA 62 (CanLII), 299 Sask. R. 298 (Sask. C.A.)) 65 Roberts Properties Inc. v. Saskatchewan Power Corp., 2014 SKQB 245 (CanLII) (Sask. Q.B.) is the most recent decision where this issue arose. Following thorough overview of appellate level cases on this issue, Dawson J. reaffirmed the principle that s. 40 of the CAA does not preclude an award of costs on motion to strike which she found not directly connected to the certification application. Instead, the application to strike was subject to the general rules in relation to awarding costs. She said at para. 92 Although the reasoning in Campbell, supra, is interesting, the Saskatchewan jurisprudence establishes that s. 40 of The Class Actions Act does not operate to prohibit an award of costs, where separate application is considered by the court prior to certification, even if they are argued at the same time. In the Alves trilogy (2011 SKCA 116, 2011 SKCA 117 (CanLII) and 2011 SKCA 118 (CanLII)), there were several applications in the larger context of class action proceeding that were heard before the certification application, but after the motion or certification was filed and served, and while the certification motion was before the court. Justice Richards made it clear that s. 40 did not constitute bar to awarding costs in such circumstances. [Emphasis added] 66 The within application is clearly pre-certification and not directly tied to the certification hearing. Accordingly, applying the prevailing jurisprudence, s. 40 of the CAA is not an impediment to an award of costs. [59] Accordingly, see no reason why the defendants (Loblaws) should not receive their costs for their successful summary judgment application and so order. In regards to the certification hearing, prefer not to order any costs although that application was heard in its entirety. do note that the plaintiffs abandoned major plank in their claim (negligence) after hearing the oral presentation of defence counsel. However, despite this, have decided not to order costs for the certification application.

HELD: The court granted summary judgment for the defendants. It held that it could determine the defendants’ application prior to the plaintiffs’ application for certification. The court found that the facts were not in dispute and there was no evidence that the plaintiffs or any members of the proposed class had suffered any damages. The plaintiffs’ argument that it was misleading to label identical products differently was not supported by their pleadings or any affidavit evidence. There was no genuine issue requiring a trial. The court reviewed the various alleged breaches of statute and dismissed them. It was not necessary to decide the application for certification.

e_2015skqb345.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 85 Date: 2013-08-15 Between: Docket: CACV2436 Clifton Francis Appellant/Respondent and Danita Lynn Taniskishayinew Respondent/Applicant and Patricia Smoke Respondent/Non-party Before: Caldwell J.A., in chambers Counsel: Shandel C. Wilson, on behalf of the appellant/respondent Danita Lynn Taniskishayinew, on her own behalf Appeal: From: 2013 SKQB 212 (CanLII) Heard: August 14, 2013 Disposition: Application granted Written Reasons: August 14, 2013 By: The Honourable Mr. Justice Caldwell Caldwell J.A. [1] The applicant mother seeks a lifting of the stay of execution on the judgment of the trial judge (indexed as 2013 SKQB 212 (CanLII)) which was automatically imposed upon the father’s appeal from that decision. In her judgment, the trial judge awarded the mother custody of the parties’ son with the child to have access to the father for one extended weekend per month during the regular school year and for one half of major school breaks, with each party to share and assist in the transportation of their son for the purposes of access. [2] In her reasons for judgment, the trial judge addressed whether it would be in the best interests of the child to grant custody to the father or to the mother in accordance with the factors set out in s. of The Children’s Law Act, 1997, S.S. 1997, c. C-8.2. The trial judge’s conclusions in that respect were as follows: [38] intend to first address the factor which in my view is the most important, and in many cases determinative when deciding that which is in child’s best interests. It is set out in s. 8(a)(i) of the Act and relates to the “quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child.” [Emphasis in original] [41] It is not possible to conclude that Mackenzie can be bonded or attached to either of his parents in any meaningful way. From the time that Mackenzie was toddler until he was 10 or 11 years old, both of his parents abdicated their parental responsibilities in favour of his grandmother, Patricia. Danita did so because of substance abuse and transient lifestyle. Clifton did so apparently out of selfishness and disinterest. To large extent, until 2011, both Danita and Clifton were strangers in Mackenzie’s life. Danita chose not to exercise the access agreed to by her and Patricia in 2006 for almost five years. Clifton made less than satisfactory efforts to inquire about the well being or circumstances of his son until Patricia contacted him to take Mackenzie over the Christmas season in 2010. By then, Clifton had not bothered to have any involvement with Mackenzie from the time he was an infant. Even after that, Clifton did not maintain any contact until Patricia again contacted him to come and take Mackenzie to Moose Jaw in June 2011. [42] Both Danita and Clifton glossed over their evidence when attempting to explain why they had been absent for so much of Mackenzie’s life. Danita blamed Patricia saying that she had denied her access to Mackenzie in 2007. Yet her own witnesses verified that for period of that time, Danita was homeless and living in vehicle. Patricia may have had good cause to deny access. Similarly, Clifton was less than forthright on this issue. He said he did not know where Danita was living and did not know how to effect contact with Mackenzie. He did know, however, where Danita’s father lived, and with minimum of effort, could have initiated contact. suspect that Clifton’s lack of involvement was due more to concern that he would be held responsible to assist in the financial support of Mackenzie rather than anything else. This is the pattern that he has followed with both James and Aryana. [43] The person who raised Mackenzie from the time that he was toddler until June, 2011 was Patricia. Unfortunately at that time, for unexplained reasons, Patricia also abandoned Mackenzie and no longer has any contact with him. The only person who has been constant in Mackenzie’s life is his little sister Mackaylia. All of the important adults who have been, or should have been, concerned about him have failed him in every significant way. It is not difficult to conclude that from Mackenzie’s perspective, he must view his relationship with any of these adults as tenuous at best. [44] As to the other factors to be considered under s. of the Act, little more can be said. As noted above, scant evidence was provided regarding the personality, character or emotional needs of Mackenzie. While Clifton attested to the fact that Mackenzie is doing well in school, he provided no independent evidence of that assertion, not even report card. The evidence of both Danita and Clifton was insufficient to undertake any informed analysis of the remaining considerations required by the legislation. Their testimony focussed more on their own personal struggles rather than the needs and circumstances of Mackenzie perhaps justified in their particular circumstances, but nonetheless disturbing. [45] This is one of those rare cases where decision must be made between two parents who have in the past both been inadequate and uninvolved parents. But fortunately, they appear to have improved their situations to the point where they can adequately parent Mackenzie. Both have suitable accommodations and am satisfied that alcoholism or other addictions are not at this time an issue in either household. Clifton’s criminal activity is in the distant past. Any concern about gambling in Danita’s home was sufficiently addressed by Richard. While both he and Danita play VLT’s from time to time, it is only with extra money that they acquire by collecting bottles. There was no evidence that would support Clifton’s assertion that Yellow Quill First Nation is less safe place to raise children than Moose Jaw. [46] Given the lack of involvement by both of them with Mackenzie until 2011, there is little to distinguish either Danita or Clifton as better custodial parent. Neither of them have any particular attribute that would “tip the balance”. Both are equally at fault for neglecting and ignoring Mackenzie for most of his life. [47] Having said that, there are two important factors which lead me to the conclusion that it will be in Mackenzie’s best interests if he is placed in the custody of his mother. The first is the issue of access. Clifton has been unwilling to facilitate contact between Mackenzie and his mother. While his claim to be unable to do so because of financial restrictions has some merit, he has been resistant to any reasonable compromise offered by Danita. He is trained as truck driver, and has been employed in that capacity in the past. His decision to quit his employment to assist Amber with child care was reasonable at the time, but it cannot continue indefinitely. Danita has similar financial constraints, but has always sought out resources to help her with transporting Mackenzie either at the start or end of her access times. Through his evidence and the previous Court record, have no confidence that Clifton will accommodate Danita’s access in the future should he be granted custody, irrespective of his financial situation. Given the unfortunate circumstances of Mackenzie to this point, it is imperative that Mackenzie be provided the opportunity to have regular and consistent contact with both his parents. am convinced that Danita is the parent who is better able to understand and facilitate this need in the best interests of Mackenzie. [48] Secondly and equally, if not more important in this case, is the consideration set out in s. 8(a)(i) of the Act, and in particular, that portion that emphasized above in para. 38 “the quality of the relationship that the child has with the person seeking custody and any other person who may have close connection with the child.” As have indicated previously, Mackenzie was essentially abandoned by both Danita and Clifton. Patricia raised him throughout his formative years until she also rejected him in 2011. The person who am convinced has the closest and most enduring connection to Mackenzie is his sister Mackaylia. She has been the only constant in his life, he grew up with her, and he should be able to live with her. Mackenzie’s relationship with his young brothers in Clifton’s home is also important, but he has not yet formed the bond with them that he has with his sister. [49] am heartened in making this decision by the fact that the evidence is clear that Mackaylia is doing well in the care of Danita and Richard. She is succeeding academically and socially. Hopefully Mackenzie will have the same opportunity. [3] When respondent applies to lift stay of execution arising under Rule 15(1), the general objectives of the Court are to prevent injustice, to ensure that the result is as fair and equitable as possible for all sides, to minimize prejudice, and to balance competing interests: Gerski v. Gerski, 2006 SKCA 66 (CanLII), 285 Sask. R. 121. However, where matters concerning child may be considered the focus of the order appealed from, the primary objective of the Court is to determine whether it is in the best interests of the child to lift the stay of that order or to allow it to remain in place. In Wiegers v. Gray, 2007 SKCA 30 (CanLII), Cameron J.A. described the central question before the court in these terms: [1] It is thus necessary to approach these applications from the perspective of the child and the child’s welfare. Generally, the central question is how the child is apt to be affected, should the stay be lifted or allowed to remain in place pending the determination of the appeal, having regard for such considerations as the potential for harmful disruption in the life of the child should the appeal succeed. [4] As is clear from the trial judge’s reasons, until 2011 both parties exhibited lack of interest in their child; moreover, the trial judge found there to be little to distinguish either the mother or the father as the better custodial parent and she concluded that both parties could adequately provide for the child. However, the trial judge had no confidence that the father would facilitate the mother’s access to their son as he had repeatedly failed to do so in the past. On the other hand, she found that the mother had taken steps to facilitate access. But, and most importantly, the trial judge found the one constant relationship in the child’s life is with his sister, who currently resides with the mother. On the evidence adduced before her the trial judge found this sibling relationship to be the single most important factor under s. of The Children’s Law Act, 1997. And, in keeping with that finding, she found it to be in the child’s best interest that to foster that relationship by granting custody to the mother. [5] As the trial judge noted, there is paucity of evidence as to many of the factors set forth in s. 8(a) of The Children’s Law Act, 1997. The meagre evidence before the trial judge was not much supplemented by the materials submitted in respect of the within application. Nevertheless, conclude that the maintenance of the child’s relationship with his sister is the foremost consideration before the court in determination of what is in the child’s best interests. As the trial judge noted, that relationship is the only constant in the child’s life. The father’s seeming inability to facilitate the child’s access to his mother, and therefore to his sister, especially where access has been ordered by the court, is of considerable concern. Additionally, note that the school year will commence shortly and, in that respect, the lifting of the stay would allow the child to settle into routine and schedule during the school year, pending the hearing of the appeal. [6] In sum, given the facts of this matter, I can foresee no harm to the child or any significant disruption in his life if the stay is lifted. However, as noted in chambers, this means that the child is to have his access time with the father for the remainder of August, in accordance with the terms of the trial judge’s decision. The mother acknowledged this to be the case. [7] Accordingly, find it to be in the best interests of the child to lift the stay of execution imposed on the judgment under Rule 15(1). This, of course, puts the incentive on the father to perfect his appeal, should he still wish to do so. In that regard, if the father should perfect his appeal, order that the mother shall serve and file her written argument, if any, within 15 days after receipt of the father’s factum (or written argument if that be the case) and appeal book. Finally, although I recognise that doing so has the potential to give rise to more problems than it may address, I also lift the stay of proceedings arising pursuant to Rule 15(4).[8] Costs shall be in the cause. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of August, A.D. 2013. “Caldwell J.A.” Caldwell J.A.

The respondent mother applied to lift the stay of execution imposed by Court of Appeal Rule 15(1) when the appellant father appealed the trial judge's decision to award custody of the parties' son to the mother with the child to have access to the father for one extended weekend per month during the school year (see: 2013 SKQB 212). The trial judge had found that both parties had exhibited a lack of interest in their child and there was little to distinguish either of them as the better custodial parent. As the mother had facilitated the father's access to the child and he had not demonstrated the same willingness and that the most important relationship in the child's life was with his sister, who resides with the mother, the trial judge found that it was in the child's best interest to foster that relationship and grant custody to the mother. HELD: The Court granted the application. There would be no harm to the child if the stay was lifted. The father was directed to perfect his appeal and the stay of proceedings arising from Court of Appeal Rule 15(4) was also lifted.

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QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 467 Date: 2010 12 20 Docket: Q.B.G. No. 1827 of 2010 Judicial Centre: Saskatoon BETWEEN: SEIU-West and Barbara Cape on behalf of SEIU-West and its members, and CYPRESS REGIONAL HEALTH AUTHORITY, FIVE HILLS REGIONAL HEALTH AUTHORITY, HEARTLAND REGIONAL HEALTH AUTHORITY and SASKATOON REGIONAL HEALTH AUTHORITY, Counsel: Drew S. Plaxton and Andrea Rohrke, student-at-law, for the plaintiffs Evert Van Olst and Kevin W. Zimmerman, for Saskatoon Regional Health Authority Michael J. Phillips and Dale K. Hallson, for the defendants, Cypress, Five Hills and Heartland JUDGMENT KOCH J. December 20, 2010 [1] The plaintiff union, SEIU-West, represents approximately 11,000 health care workers employed by the four defendant regional health authorities and their affiliates. The plaintiff, Barbara Cape, is the president of SEIU-West. [2] The current collective bargaining agreement (CBA) covers the period April 1, 2008 to March 31, 2012. tentative agreement was reached on August 13, 2010 and ratified by the union membership on September 16, 2010. However the formal CBA, very lengthy and complex document, was not signed until October 25, 2010. As the CBA provides for wage adjustments going back to April 1, 2008, it requires substantial lump-sum adjustment payment for many of the employees. Collective bargaining and payroll administration is carried out on behalf of the defendants by Saskatchewan Health Care Association (known as SAHO). Understandably compiling the lump-sum retroactive payments is complex. Many of the affected employees served in different capacities at different times for different participating employer entities at different wage scales. The compilation of the entitlement of each affected employee is elaborate and must be done by well-trained personnel. Similar situations have arisen on previous occasions. Retroactive adjustments have always been treated as income in the calendar year in which they are paid even though they are earned at least partially in previous calendar years. The parties have found this to be acceptable and it has had the approval of Canada Revenue Agency (CRA). [3] Unfortunately new problem has arisen with regard to the retroactive adjustment payments arising from the current CBA. Previous agreements have always been finalized earlier in the calendar year, so there has never been an occasion where the retroactive payments could not be made before the end of the calendar year in which the new CBA was signed. Except in the case of one irrelevant exception the retroactive payments have always been made about 12 weeks after the signing of new CBA. In the present circumstances detailed agenda for the steps involved in the compilation process has been determined on behalf of the employer and disclosed to the plaintiffs. Credibly in my view it provides for projected payment date of January 21, 2011, significantly beyond the end of the 2010 calendar year. [4] This has important implications for some of the employees, specifically those whose retirement occurs in 2010, 2011 and 2015. Retirement pensions are based on the employee’s income in the last four full calendar years leading up to retirement. What this means for an employee retiring in 2010, barring creative solution arrived at by negotiation with the concurrence of CRA, is that the retroactive payment does not form part of the retiree’s 2010 income. The retiring employee’s pension is accordingly reduced. In the case of persons retiring in 2011, the only way for the retiree to avoid pension reduction will be to retire at the calendar year-end, even if the employee prefers an earlier date. What if the employee reaches the contractual age limit before the calendar year-end? [5] The CBA includes customary provisions for grievance/arbitration processes to deal with problems such as this. The submission of such issues to grievance/arbitration is supported by s. 25 of The Trade Union Act, R.S.S. 1978, c. T-17. In the case of Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] S.C.R. 929, the Supreme Court has determined that in such circumstances the courts must decline jurisdiction in favour of the grievance arbitration process. The Supreme Court expressly rejected what had come to be known as the concurrent jurisdiction model and also the overlapping jurisdiction model. have addressed this issue in some detail in Eckel v. Saskatoon (City), 2009 SKQB 287 (CanLII). Nothing in the submissions of counsel on this occasion, or in intervening jurisprudence of which am aware, makes it necessary for me to do so again. [6] The Weber principle notwithstanding, the present plaintiffs have commenced an action seeking an order of the court to require the defendants to pay the retroactive adjustment payments within the present calendar year. They are applying for an interlocutory mandatory injunction. In the statement of claim and in their motion the plaintiffs seek:(1) a mandatory interlocutory injunction requiring defendants to make the retroactive adjustment payments before the end of this year;(2) in the alternative, a mandatory interlocutory injunction to compel the defendants to make the payments before the end of this year on a “best approximation” basis; (3) in the further alternative, an order requiring the parties to proceed with an expedited arbitration before an arbitrator appointed by the court. [7] The defendants respond with motions to strike and dismiss the statement of claim pursuant to Rules 99 and 173 of The Queen’s Bench Rules on the ground that the essential character of the issue raised concerns the terms and conditions of employment which, in accordance with the CBA, are beyond the jurisdiction of the court. [8] will address the defendants’ motion first. If the defendants succeed the plaintiffs’ application becomes moot. [9] The plaintiffs concede that the court is without jurisdiction to determine the issue pleaded based on the CBA and the Weber principle. They contend however that the statement of claim, while it does not assert viable cause of action, can nevertheless serve as platform for the present application for interlocutory relief. [10] Historically the law is abundantly clear that the courts could not grant an interlocutory relief in the absence of claim for substantive relief. Interlocutory relief is ancillary to the substantive relief and without the latter the former cannot subsist. An interlocutory injunction is simply not cause of action and cannot stand on its own. See: Siskina (Cargo Owners) v. Distos S.A., [1979] A.C. 210 (H.L.); and Saskatchewan Joint Board Retail Wholesale and Department Store Union v. Dairy Producers Co-operative Ltd. (1990), 1990 CanLII 7774 (SK CA), 87 Sask. R. 241 (C.A.). That seemingly straightforward jurisprudence changed significantly as the result of subsequent decision of the House of Lords in the case of Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd., [1993] W.L.R. 262 (H.L.), which was followed in the Supreme Court of Canada in the case of Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] S.C.R. 495. The essential thrust of the Brotherhood case is that the residual discretionary jurisdiction of the courts of inherent jurisdiction to grant relief not available under statutory arbitration scheme is to continue to exist. As interpret Brotherhood and other cases in which it was followed, the superior courts are entitled in certain circumstances to supplement or augment the jurisdiction of other tribunals of exclusive jurisdiction. take this to mean that although the Supreme Court of Canada has clearly in Weber rejected the concepts of concurrent jurisdiction and overlapping jurisdiction the superior court continues to have some kind of parallel jurisdiction to augment the jurisdiction of alternative exclusive jurisdiction tribunals when the latter are unable for practical reasons to exercise jurisdiction or to exercise jurisdiction promptly and efficiently. [11] It appears to follow that the claim now before the court is not necessarily nullity. Although it can otherwise appropriately be struck pursuant to Rules 99 and 173 it can nevertheless subsist if only to provide platform of pleading to support an application for interlocutory relief. [12] Accordingly the defendants’ motions to strike are dismissed. [13] It then becomes necessary to determine whether the plaintiffs are entitled to mandatory injunctive relief. [14] As with all interlocutory applications for mandatory injunctive relief the plaintiffs must establish that there is strong prima facie case; secondly, that without injunctive relief there will be irreparable harm; and thirdly, that the balance of convenience between the parties as to harm arising from the relief or from the failing to grant relief favours the granting of the relief. [15] The defendants submit that, whatever the proper forum for the plaintiffs to obtain relief, the plaintiffs have not asserted a prima facie case, certainly not a strong prima facie case. The defendants contend that the plaintiffs’ claim is not based on any specific term of the CBA that the plaintiffs allege the defendants to have breached or are about to breach. There is no deadline specified in the agreement, for the retroactive payments, no positive obligation to make the payments by any particular date. Therefore there is no basis upon which the court can impose chronological deadline. It seems obvious that in the context of the myriad of detail required to finalize the CBA the parties, the plaintiff union in particular, did not consider or at least did not adequately consider, the chronological problem that was soon to emerge, and its unfortunate implications. The plaintiffs have not persuaded me that there is a strong prime facie case. There may well be, as contended on behalf of the plaintiffs, a serious issue to be arbitrated but for the purposes of the present application I find that it is not adequately framed in the pleadings and in the evidence before me to meet the applicable test. [16] I accept that there might be irreparable harm for some employees, an example of which was provided to me in the evidence submitted on behalf of the plaintiffs. In general terms though the losses which, individual employees may incur should easily be covered by damages. Indeed note that in the grievance filed concurrently on behalf of the plaintiff union there is claim for damages on behalf of the affected employees. do however take note of the submission that it may be difficult to quantify, for the purposes of assessing damages, the monetary value to some of the 2011 retirees of imposing practical limits on their choices of dates on which to retire. [17] If the case cannot be resolved on the foregoing criteria, must resort to an assessment of the balance of convenience. In this regard the defendants have provided abundant evidence that in practical terms the imposition of a deadline less than two weeks from now cannot conceivably be met. The plaintiffs have presented evidence to the contrary but it is obvious they are quite unable from their perspective to assess the degree to which mandatory chronological relief will be beyond the ability of the defendants to comply with and fulfil. [18] Although it is not essential to my decision, should comment on the concern expressed on behalf of the plaintiffs as to an undertaking as to damages which might be required in support of an interim or interlocutory mandatory injunction. Had seen fit to grant the injunctive relief do not believe that such an undertaking would have been required. do not believe the defendants to have contended otherwise. [19] I find that it is not appropriate for me to grant an injunction requiring the defendants to make the required retroactive assessment payments before the end of 2010. Neither do I see any reasonable prospect of a solution to the problem by making payments on a “best approximation” of entitlement. That is viable solution to the problem. am not persuaded that it can be done by an earlier time than fully compiled payments. In the long run the results of such solution are likely to be troublesome and chaotic. [20] As to the alternative of directing an expedited arbitration and appointing an arbitrator to conduct it, I am of the view that I am without jurisdiction to do that. More particularly, if the court were to encroach on the arbitration process in the way that has been proposed by the plaintiffs the result would be inconsistent with the determination of the Supreme Court in the Weber case that the model of overlapping jurisdiction is no longer to be followed. [21] The defendants’ motion is dismissed. The plaintiffs’ motion is dismissed. appreciate the thorough research and able submissions of counsel. will entertain submissions as to costs if counsel so request.

Employees were entitled to wage adjustments under the collective bargaining agreement. The plaintiff union brought an application for an interlocutory injunction requiring the defendant to pay employees who were retiring in 2010 their wage adjustments in the current calendar year. This was an issue because it would affect pensions and retirement dates. In the alternative, the union argued the employer should pay the entitlements before the year end on a 'best approximation' basis or be required to proceed to an expedited arbitration. The defendant brought a motion to strike or dismiss the plaintiff's motion under Queen's Bench Rules 99 and 173 on the basis that the issues raised were terms and conditions of the employment contract and outside the jurisdiction of the Court according to the terms of the collective bargaining agreement. HELD: The defendant's application was dismissed because the Court has residual discretionary jurisdiction to grant relief not available under a statutory arbitration scheme. The plaintiff's application for an injunction was also dismissed. While there may be a serious issue to be tried, the pleadings do not set forth a strong prima facie case. While there might be some irreparable harm to some employees, in general terms the losses can be dealt with through damages. It would be impossible for the defendant to meet a deadline two weeks away because of the complexity of the calculations. It is not appropriate to grant an injunction requiring the defendant to make payment before the end of 2010 and it is not reasonable to make payments based on best approximation. The Court has no jurisdiction to force arbitration on the parties.

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QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 403 Date: 2009 10 09 Docket: F.L.D. No. 325 of 2008 Judicial Centre: Saskatoon, Family Law Division BETWEEN: WENDY ROSE MCPHAIL and JEFFREY FRANK HUNT Counsel: Iffat B. Ritter for the petitioner, Wendy Rose McPhail Gregory G. Walen, Q.C. for the respondent, Dr. Jeffrey Frank Hunt Valerie G. Watson for Darcy Rex McPhail JUDGMENT POPESCUL J. October 9, 2009 INTRODUCTION [1] The applicant, Wendy Rose McPhail (“Ms. McPhail”), is 39-year-old licensed practical nurse who is employed with the Mamawetan Health Region in La Ronge, Saskatchewan. She is legally married to Darcy McPhail (“Mr. McPhail”), self-employed carpenter who also lives in La Ronge. [2] They are the biological parents of Jordan Darcy Rex McPhail, date of birth January 9, 1993 (16), Mitchell Kenneth Lloyd McPhail, date of birth May 6, 1995 (14), and Chase Aaron Joshua McPhail, date of birth October 3, 1999 (9). [3] Mr. McPhail and Ms. McPhail separated on October 1, 2001 after Ms. McPhail and the respondent, Dr. Jeffrey Frank Hunt (“Dr. Hunt”), became romantically involved. [4] Ms. McPhail and Dr. Hunt began cohabiting sometime between November 2002 (according to her) and September 2003 (according to him). They separated on July 1, 2008. [5] Ms. McPhail commenced a petition on October 14, 2008, in which she claims relief under The Family Property Act, S.S. 1997, c. F-6.3, The Children’s Law Act, 1997, S.S. 1997, c. C-8.2, and The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. She has now brought an application requesting the following interim relief: 1. An order granting her interim sole custody of the three children, with Dr. Hunt being granted reasonable access to the children upon reasonable notice; 2. An interim order preventing Dr. Hunt from removing the children from Saskatchewan without court order or written permission; 3. An interim order requiring Dr. Hunt to pay base child support of $4,617 per month; 4. An interim order requiring Dr. Hunt to pay his proportionate share of the s. expenses pertaining to the children; 5. An order requiring Dr. Hunt to pay interim spousal support of $2,574 per month; 6. An interim restraining order, preventing Dr. Hunt from communicating with Ms. McPhail; 7. An interim order preventing Dr. Hunt from disposing of family property; 8. An interim order requiring Dr. Hunt to make an interim lump sum interim distribution of family property of $20,000. 9. An interim order granting to Ms. McPhail exclusive possession of the matrimonial home; 10. An interim declaration that Dr. Hunt stood in loco parentis to the three children; [6] Dr. Hunt brought an application requesting that Mr. McPhail be added as respondent to the within action respecting the issue of child support. Dr. Hunt also sought an order requiring Mr. McPhail to file income information as required by the Federal Child Support Guidelines, [Divorce Act Regulations, SOR/97-175]. [7] During the chambers hearing, counsel for Mr. McPhail and Ms. McPhail conceded that it was appropriate for Mr. McPhail to be added as respondent and be required to file financial information. An order to that effect was granted. Also during the chambers hearing, counsel for Ms. McPhail conceded that there was no longer any need for an order of exclusive possession of the matrimonial home because it has been vacated by both parties and is currently listed for sale. As result, an order dismissing that aspect of the application was made. [8] Counsel for Dr. Hunt represented that his client has no intention of selling or further disposing of any further family assets other than the family home, which is listed for sale with the consent of both parties. Accordingly, the application respecting dissipation of assets was adjourned sine die to be brought back to my attention, on three days notice, should Ms. McPhail see the need to revive that aspect of her application. [9] There was no opposition stated with respect to Ms. McPhail’s request for sole custody of the children vis-à-vis Dr. Hunt. Although Dr. Hunt did not specifically consent to Ms. McPhail’s application for sole custody, in light of the position that Dr. Hunt takes on the other issues, there is no opposition to Ms. McPhail’s request, and it is appropriate to grant Ms. McPhail the relief that she seeks respecting sole custody. [10] Accordingly, there will be an order that Ms. McPhail shall have sole custody of her three children, namely: Jordan Darcy Rex McPhail, date of birth January 9, 1993 (16), Mitchell Kenneth Lloyd McPhail, date of birth May 6, 1995 (14), Chase Aaron Joshua McPhail, date of birth October 3, 1999 (9). [11] No specific access was requested by Dr. Hunt and therefore there will be no order with respect to specific access. [12] There was no basis advanced for an order preventing Dr. Hunt from taking the children outside the province and clearly, that was not live issue at the hearing. An order to this effect is not necessary and decline to grant this aspect of Ms. McPhail’s application. ISSUES [13] The three issues remaining to be determined are as follows: 1. Has Ms. McPhail established a prima facie case that Dr. Hunt stood in loco parentis to the children such as to justify an interim child support order? If so, what is the appropriate amount of child support, base and s. 7, that ought to be paid? 2. Has Ms. McPhail established that she is entitled to interim spousal support? If so, what is the appropriate amount that ought to be paid to her? 3. Should this court order an interim distribution of matrimonial property in favor of Ms. McPhail in the amount of $20,000, or if not, in some other amount? 1) Has Ms. McPhail established prima facie case that Dr. Hunt stood in loco parentis to the children such as to justify an interim child support order? If so, what is the appropriate amount of child support, base and s. 7, that ought to be paid? [14] The fact that one is not the biological parent of child does not necessarily mean that one may not be legally required to provide financial support for that child. [15] Section of The Family Maintenance Act, 1997, supra, imposes legal obligation on “every parent” to provide maintenance for his or her child. “Parent” is defined by s. of the Act and includes the following provision: “parent” means: (c) person who has demonstrated settled intention to treat child as child of his or her family.... [16] In V.J.D. v. V.J.S.W., 2008 SKQB 373 (CanLII), 322 Sask. R. 238, concluded that the court can, and should, make interim child support orders in disputed in loco parentis cases where the applicant has made prima facie case for entitlement: [10] It is now well established in this jurisdiction the court can, and should, make an interim order for child support in disputed in loco parentis cases where the applicant has made out prima facie case for entitlement. See D.S. v. M.K. (2007), 2007 SKQB 102 (CanLII), 297 Sask. R. 145; 2007 SKQB 102 (Fam. Div.); A.S. v. A.A., [2004] Sask.R. Uned. 205; 2004 SKQB 441 (CanLII), 12 R.F.L. (6th) 460; 2004 SKQB 441 (Fam. Div.); Prowse-Myers v. Myers, [2004] Sask. R. Uned. 44; 2004 SKQB 139 (CanLII), R.F.L. (6th) 408; 2004 SKQB 139 (Fam. Div.). Section of the Family Maintenance Act, 1997 clearly provides that the court can make “interim or final orders”. [11] Whether or not an applicant has made out prima facie case will depend on an analysis of the relevant factors. Recently, Barclay J. in Hysuick v. Rutledge, [2007] Sask. R. Uned. 62; 2007 SKQB 244 (CanLII), 2007SKQB 244; [2007] S.J. No. 368 (Fam. Div.), summarized succinctly the criteria to be taken into account when determining whether person stands in loco parentis to child. He commented as follows: “[2] The leading cases on the issues of loco parentis are Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999] S.C.R. 242 and Major v. Major (1998), 1998 CanLII 13699 (SK QB), 175 Sask. R. 34 (Sask. Q.B.). “[3] The factors enunciated in the foregoing cases for determining parental status are: a) changing the child’s name to that of the respondent; b) discussing the possibility of adopting the child; c) the child’s reference to the respondent as ‘Dad’ or ‘Mom’; d) the child’s perception of the respondent as father or mother figure; e) the age of the child; f) the duration of the child’s relationship with the respondent; g) whether the respondent participates in disciplining the child; h) whether the respondent provided financial support for the child; i) whether the application is for interim or final support; j) whether there has been any intention to terminate the relationship; k) whether the child has relationship with the noncustodial biological parent; l) whether any other person is obligated to support the child; m) whether the respondent spends time personally with the child; n) whether the respondent is “psychological parent”; o) whether the respondent has ever sought custody of or access to the child; p) the nature of the post separation conduct of the applicant or the respondent, such as denial by the applicant of access to the child by the respondent.” [17] In this case, Ms. McPhail asserts that Dr. Hunt treated the children as his own and acted as their parent. This characterization is refuted by Dr. Hunt. He admits that Ms. McPhail and he lived together and that she became the primary caregiver of the children. However, Dr. Hunt contends that the children’s biological father continued to be significant presence in their life and that he, although involved with the children, never assumed the parental role. [18] After Mr. McPhail and Ms. McPhail separated, they entered into verbal agreement where the children resided one week with Mr. McPhail and one week with Ms. McPhail. That verbal agreement was subsequently modified to accommodate the parents’ respective schedules. The arrangement changed so that the children resided 60% of the time with Ms. McPhail and 40% of the time with Mr. McPhail. In 2006, that parenting arrangement changed, again, so that the children resided with Ms. McPhail approximately 80% of the time, and 20% of the time with Mr. McPhail. Until the spring of 2007, Ms. McPhail and Dr. Hunt resided in residence at 956 Sinotte Crescent, La Ronge, Saskatchewan. This happened to be directly across the street from where Mr. McPhail resided. The children had the opportunity to come and go from both biological parents’ homes. [19] In April of 2007, Ms. McPhail and Dr. Hunt moved to new residence that had just been constructed on Eagle Point Road. They resided at that residence until the separation in July of 2008. After the separation, Dr. Hunt eventually moved to Saskatoon and Ms. McPhail moved back to the residence on Sinotte Crescent, which is owned by company in which she is shareholder. Dr. Hunt has not exercised any access to the children since separation. [20] There is no question that Dr. Hunt did provide financially for the children during the period of time that he did live with Ms. McPhail. They went on holidays together and he did fulfill duties often associated with that of parent, including attending the children’s Christmas concerts, award ceremonies, meet the teacher nights, and the like. Ms. McPhail attached copies of some of the children’s report cards indicating that Dr. Hunt signed these report cards. It is also noted that the report cards were also signed by Mr. McPhail and Ms. McPhail. [21] However, it was never contemplated that the children’s name would be changed or that they would ever be adopted by Dr. Hunt. He did not routinely discipline the children, and when Ms. McPhail went out of town, the children would normally be placed with Mr. McPhail, unless he was also not available. Although Dr. Hunt was involved in the children’s activities, it was almost always in situations where he was accompanying Ms. McPhail to these activities. [22] Although it is clear that Dr. Hunt and Ms. McPhail lived together along with the children and that Dr. Hunt assisted Ms. McPhail in some aspects of caring for the children, the precise nature and quality of the relationship between Dr. Hunt and the children is very much in dispute. Merely because the parties lived together as spouses under the same roof, does not necessarily mean that it automatically follows that the mother’s partner has assumed the role of parent. In the words of Smith J. in Miller v. Pchajek, unreported, affirmed 2005 SKCA (CanLII), 13 R.F.L. (6th) 234: Although these activities are consistent with being parent, they are also consistent with being good-natured partner to the petitioner by extending himself to her child. [23] In this case, based on the affidavit material before me, I conclude that Ms. McPhail has fallen short of establishing a prima facie case that Dr. Hunt stood in loco parentis to the children. Dr. Hunt may have stood in loco parentis to the children, however I cannot determine that on the conflicting affidavit materials currently before me. The ultimate determination will have to be made after trial where the trier of fact will have more complete evidence and will also have the benefit of viva voce testimony tested by cross-examination. Accordingly, find that prima facie case for entitlement has not been established and Ms. McPhail’s request for interim child support for the children is dismissed, without prejudice to her right to claim child support, both retroactive and prospective, for the children should it be subsequently determined that Dr. Hunt was parent within the meaning of The Family Maintenance Act, 1997. 2) Has Ms. McPhail established that she is entitled to interim spousal support? If so, what is the appropriate amount that ought to be paid to her? [24] The issue of Ms. McPhail’s status as spouse, within the meaning of The Family Maintenance Act, 1997, is clear-cut. The definition of “spouse” as contained in s. of the Act, includes the following: “spouse” means: ... (d) person who has cohabited with another person as spouses: (i) continuously for period of not less than two years; or ... [25] There is no dispute that Ms. McPhail and Dr. Hunt cohabited as spouses for in excess of two years, and that she is a “spouse” by virtue of the definition in the Act. This then brings into play s. 5(1) of The Family Maintenance Act, 1997, which defines the spousal maintenance obligation of partners as follows: 5(1) On application, the court may order person to provide maintenance for his or her spouse, in accordance with need, to the extent that the person is capable of doing so. (2) An order for the maintenance of spouse should: (a) recognize any economic advantages or disadvantages to the spouses arising from the spousal relationship or its breakdown; (b) relieve any economic hardship of the spouses arising from the breakdown of the spousal relationship; and (c) in so far as practicable, promote the economic self-sufficiency of each spouse within reasonable period of time. [26] The Family Maintenance Act, 1997, prescribes that the court take into account certain factors when determining the amount of maintenance to be paid. The relevant portion of s. reads as follows: 7(1) In determining the amount, if any, of maintenance to be paid for dependent spouse, the court shall take into account the needs, means and economic circumstances of the parties, including: (a) the age and the physical and mental health of the spouses; (b) the length of time the spouses cohabited; (c) the measures available for the dependent spouse to become financially independent and the length of time and cost involved to enable the dependent spouse to take those measures; and (d) the legal obligation of the respondent to provide maintenance for any other person. [27] Both parties referred me to the case of Marcotte v. Marcotte, 2008 SKQB 223 (CanLII), 315 Sask. R. 280. Although that case dealt with an application for interim spousal support under the Divorce Act, R.S.C. 1985, c. (2nd Supp.), the same principles apply to this interim application brought pursuant to The Family Maintenance Act, 1997. At para. 28, the factors and considerations that are germane to interim applications were discussed: [28] On an interim application such as this, it is often noted that the most appropriate consideration at this early stage of breakdown is “need and ability to pay”. The Divorce Act does not prescribe separate considerations, factors, or objectives for interim spousal support as opposed to final determination of spousal support. The fact that need and ability are considered to be paramount in interim applications is no doubt reflection that an interim order is made before family property division is completed, and also anticipates that attainment of economic self‑sufficiency in overcoming the economic hardship of the marriage breakdown has yet to be achieved. The primary purpose of interim spousal support is to allocate family income in fair and equitable manner during the transition period. Basic principles guiding courts in connection with spousal support are well articulated by the Supreme Court of Canada in decisions such as Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813; 145 N.R. 1; 81 Man. R. (2d) 161; 30 W.A.C. 161, and later in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.R. 420; 236 N.R. 79; 120 B.C.A.C. 211; 196 W.A.C. 211. [28] In this case, Dr. Hunt’s income for 2008 was $267,961.91. His financial statement shows deficit of $3,264.67. However, the deficit is arrived at after factoring in some expenses which perhaps are no longer being incurred, which may have been double counted or for which full consideration ought not be given. For example, he claims $44,400 as rent or mortgage together with property taxes and insurance of $5,436.69 on the family home which is about to be sold. Also, he claims furnishings and equipment of $6,000, R.R.S.P. deductions of $4,800, and $48,000 for line of credit and credit cards. These are likely one time expenses, optional expenses and/or expenses already accounted for in other expense columns. He also claims $12,400 for entertainment, recreation, vacation, and alcohol and tobacco. These expenses can easily be modified by Dr. Hunt in order to make it comfortably possible for Dr. Hunt to pay spousal support, should it be necessary. conclude, therefore, that Dr. Hunt does have the ability to pay. [29] According to Ms. McPhail’s most recent financial statement, her annual income is $71,871.59, including $5,000 in child support that she receives from Mr. McPhail. She claims expenses of $121,810.79, which results in an annual deficit of $50,836.75. Some of the expenses contained in her financial statement ought not, in my view, be given full consideration when determining the amount of interim spousal support. Claims for furnishings and equipment ($5,482), credit cards ($7,800), banking, legal and accounting ($7,900), entertainment and recreation ($3,000), and alcohol and tobacco ($600.00), total $24,782. The furnishing and equipment, and banking, legal and accounting, appear to likely be one time expenditures as opposed to traditional day-to-day expenses. The credit card entry of $7,800 appears to be double entry in that the credit card expense, in and of itself, is not an expense not already covered by the other expenses. [30] In addition, she claims $23,000 for child-related items such as clothing, allowances, and the like. have already determined that Dr. Hunt, at least at this interim stage, ought not be responsible for paying child support and to include these costs in Ms. McPhail’s financial statement 1in order to create deficit appears to be an indirect way to claim child support from Dr. Hunt. Deducting those items off the expenses claimed by Ms. McPhail would leave deficit of only $3,054.75 ($50,836.75 $24,782.00 $23,000.00 $3,054.75). [31] The circumstances of the “rent” that Ms. McPhail claims she pays are somewhat cloudy. After the separation, she moved back to the residence on Sinotte Crescent. She says that she pays rent in the amount of $150.68 weekly (which amounts to $7,835.36 yearly). She is paying rent to company of which she is shareholder. Her sworn property statement places the value of that company as “unknown”. Whether Ms. McPhail is the sole shareholder, (as alleged by Dr. Hunt), the value of the home, whether there is mortgage on the home, whether the $150.68 is actually being paid and whether that amount approximates fair market value cannot be determined at this stage. [32] Also, although the parties had combined incomes approaching $350,000 per annum, it appears that their assets, after deducting their liabilities, result in a minimal net worth. The matrimonial home, which Ms. McPhail initially valued at $720,000 and has mortgage of approximately $660,000, is apparently worth only $600,000. The property is listed for sale and likely will sell for loss. Accordingly, there likely will not be significant transfer of assets from Dr. Hunt to Ms. McPhail. In fact, counsel for Dr. Hunt argues that when all is said and done, there will likely be an equalization payment flowing from Ms. McPhail to Dr. Hunt. [33] Given all of these somewhat unusual factors, I conclude that Ms. McPhail is in need of some financial assistance, albeit not to the degree that she has suggested. am also of the view that the evidence establishes that Dr. Hunt is in position to pay some monies at this time. A modest transfer of funds from Dr. Hunt to Ms. McPhail, in the interim, should alleviate the majority of her negative cash flow problem. Also, modest payment amount, at this time, would go some way to relieve the economic hardship that she is experiencing arising from the breakdown of the spousal relationship. Ms. McPhail has significant income and her cohabitation with Dr. Hunt, regardless of whose position is accepted respecting its duration, can only be described as short term. Taking into account all of these factors, the relevant legislative enactments and the legal principles that have been consistently applied in this province, I conclude that a spousal support payment of $1,500 per month is the appropriate interim amount that ought to be paid and should be sufficient to relieve her from some of the economic hardship that she has encountered as a result of the matrimonial breakdown. [34] Accordingly, I order that Dr. Hunt pay to Ms. McPhail the sum of $1,500 per month commencing September 1, 2009. However, given the short-term relationship and to add impetus to having the issues resolved sooner rather than later, I order that these payments be paid for a total period of eight months. If, by that time, the matter is still not resolved and should Ms. McPhail still be in need of interim financial assistance, she may reapply to the court, without establishing material change in circumstances, for spousal support to continue. The chambers judge at that time can assess the situation and determine whether additional interim spousal support should be payable and, if so, how much and for how long. 3) Should this court order an interim distribution of matrimonial property in favor of Ms. McPhail in the amount of $20,000, or if not, in some other amount? [35] The notice of motion seeking interim relief requests an interim distribution of $20,000 in family property. The affidavit filed in support of the application modifies that request to $10,000. During the course of the chambers hearing, counsel for Ms. McPhail further refined her request to an interim distribution of just $2,349. This is the amount that counsel for Ms. McPhail holds in trust after certain property was sold. Dr. Hunt deposes in his affidavit that the items sold were his belongings and that Ms. McPhail had stated that she did not want them. Dr. Hunt was planning on moving to Saskatoon and wanted to get rid of certain items and offered them for sale through local business. When Ms. McPhail caught wind of the fact that items were being sold, she was able to convince the local business person to forward the sale proceeds from these items to her lawyer, where they currently are held in trust. [36] The factors that court ought to consider when assessing whether or not an interim distribution of family property should be made have been set forth in number of decisions. See Schaffel v. Schaffel, 2008 SKQB 91 (CanLII), 313 Sask. R. 203; Conley v. Conley (1985), 1985 CanLII 2599 (SK QB), 44 Sask. R. 76 (Q.B.); and Waldherr v. Waldherr (1992), 1992 CanLII 8120 (SK QB), 106 Sask. R. 140 (Q.B.). Paying any money to any party at this interim stage does not meet the criteria set forth in the above-noted decisions. In particular, it is far from certain whether any money will be flowing from Dr. Hunt to Ms. McPhail. Rather, it is best for this money to remain in trust until final resolution of outstanding issues is achieved. Accordingly, Ms. McPhail’s application for an interim distribution of family property is dismissed. The sum of $2,349 currently held in trust by counsel for Ms. McPhail shall continue to be held in trust pending final resolution or mutually agreed otherwise in writing between the parties. [37] There has been mixed success. There will be no order as to costs. J. M.D. POPESCUL

The petitioner is a 39 year old nurse. She is legally married to Mr. McPhail and together they are the biological parents of three children. The petitioner separated from Mr. McPhail in October 2001 after the petitioner became romantically involved with the respondent, Dr. Hunt. The petitioner and the respondent began cohabitating sometime between November 2002 (according to her) and September 2003 (according to him). They separated in July 2008. The petitioner now commences a petition in which she claims relief from the respondent, Dr. Hunt, under The Family Property Act, The Children's Law Act, 1997 and The Family Maintenance Act, 1997. The three issues to be determined on this application are whether the petitioner has established a prima facie case that the respondent stood in loco parentis to the children such as to justify an interim child support order, whether the petitioner has established that she is entitled to interim spousal support and whether the Court should order an interim distribution of matrimonial property in favour of the petitioner in the amount of $20,000. HELD: 1) The petitioner has fallen short of establishing a prima facie case that the respondent stood in loco parentis to the children. The Court cannot make a determination based on conflicting affidavits. The determination will have to be made after trial. 2) There is no dispute the parties cohabitated as spouses for in excess of 2 years and that she is a spouse by virtue of the legislation. The principles in Marcotte v. Marcotte, 2008 SKQB 223 apply to the present case. In 2008 the respondent reported income of over $267,000, he has the ability to pay. The petitioner has annual income of over $71,000. Although the parties had a combined income of over $350,000 while they were together, it appears that their assets after their liabilities are deducted will result in a minimal net worth. The Court concludes that the petitioner is in need of some financial assistance, albeit not to the degree that she has suggested. A modest transfer of funds from the respondent to the petitioner should alleviate the majority of her negative cash flow problems. The petitioner's cohabitation with the respondent can only be described as short term. A spousal support payment of $1,500 per month is an appropriate interim amount. The payments will be paid for a total of 8 months. 3) Paying any money to any party at this stage does not meet the criteria set forth in the decisions of this Court. It is far from certain whether any money will be flowing from the respondent to the petitioner. The application for an interim distribution of family property is dismissed.

4_2009skqb403.txt

Date:20000126 CAC 157878 NOVA SCOTIA COURT OF APPEAL [Cite as: R. v. Shrubsall, 2000 NSCA 18] Chipman, Roscoe and Bateman, JJ.A. BETWEEN: WILLIAM C. SHRUBSALL Appellant in Person and HER MAJESTY THE QUEEN Kenneth W.F. Fiske, Q.C. for the respondent Respondent Appeal heard: January 18, 2000 Judgment delivered: January 26, 2000 THE COURT: Leave to appeal granted but appeal dismissed per reasons for judgment of Bateman, J.A.: Chipman and Roscoe, JJ.A. concurring. BATEMAN, J.A.: [1] Mr. Shrubsall appeals from the decision of Justice Tidman of the Supreme Court who dismissed his appeal from a conviction in Provincial Court on a charge of criminal harassment (“stalking” - Criminal Code, R.S.C. 1985, c. C-46, s.264). The appellant is self represented here, as he was before Tidman, J. He was represented by counsel at trial. [2] On his appeal to the Supreme Court, pursuant to the provisions of s.686 of the Code, Mr. Shrubsall alleged that the verdict was unreasonable and not supported by the evidence. In addition, it was his position that Judge Curran of the Provincial Court had erred in admitting as evidence an audiotape of confrontation between the complainant and Mr. Shrubsall. [3] In his Application for Leave and Notice of Appeal to this Court Mr. Shrubsall stated the following grounds: 1. The trial judge made several errors in law and failures in judgement in rendering his decision in finding of guilty; in upholding this decision of the trial judge, the learned Supreme Court Justice also has erred in law in the same manner: a.) The trial judge erred in law by finding the Appellant "knowingly or recklessly" harassed the Complainant, according to s. 264(1) of the Criminal Code. b.) The trial judge erred in law by finding that the Complainant "reasonably, and in all the circumstances," feared for her safety, according to s. 264(1).5 c.) The trial judge erred in law by founding his decision on an alleged event that even in his own admission did not constitute "communication," though the Appellant was specifically charged with violating s. 264(2)(b). d.) The trial judge erred in law by not considering the concept of "reasonable doubt" on the basis of the evidence adduced and its application thereof. e.) The Crown Attorney wilfully withheld exculpatory evidence from the learned trial judge, contrary to his sworn duty to present all the relevant evidence in the interests of justice. Also, the Crown knowingly misstated the testimony of witnesses and knowingly asserted things for which there was no reasonable basis in the evidence or good faith basis to believe. f.) The trial judge erred in law by admitting into evidence, an item which he declared in voir dire to be the product of warrantless search, thus violating the Appellant's freedom from illegal search and seizures as provided for in Section of the Charter of Rights and Freedoms. 2. The learned Supreme Court Justice erred in law by failing to properly appreciate the appellate powers as set out in s. 686 (1)(a) C.C.C., and by further failing to apply these powers in this case as was warranted. 3. The learned Supreme Court Justice erred in law by failing to properly reweigh the evidence, in its entirely, as was appropriate and necessary. 4. The learned Supreme Court Justice erred in law by upholding an unreasonably low evidentiary standard for conviction, re: s. 264, as was set in this case at trial. 5. The learned Supreme Court Justice erred in law by failing to properly apply all the elemental standards, re: s. 264, as established in the relevant case law. [4] These grounds were restated as three issues in Mr. Shrubsall’s factum: 1. The learned Supreme Court Justice, and the trial judge before him, erred in law and fact by failing to properly apply all the elemental standards, re: s. 264 Criminal Code of Canada, and by employing an unreasonably low evidentiary standard for conviction with respect to the findings at trial. II. The learned Supreme Court Justice, and the trial judge before him, erred in law by admitting into evidence an item which was declared in voir dire to be the product of warrantless search, thus violating the Appellant's freedom from illegal search and seizures as provided for in Section of the Charter of Rights and Freedoms. III. The learned Supreme Court Justice erred in fact and in law by failing to properly appreciate the appellate powers as set out in s. 686(1)(a) of the Criminal Code of Canada that is, he failed to properly review and reweigh the evidence, in its entirely, with respect to the trial judge's findings on credibility, reasonable doubt, and other key issues and consequently failed to apply these powers in this case where the verdict was both unreasonable and miscarriage of justice. The Offence: [5] “Criminal harassment” is defined in s.264 of the Code: 264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them. (2) The conduct mentioned in subsection (1) consists of (a) repeatedly following from place to place the other person or anyone known to them; (b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (c) besetting or watching the dwelling‑house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or (d) engaging in threatening conduct directed at the other person or any member of their family. (Emphasis added) [6] In Sillipp (1997), 1997 ABCA 346 (CanLII), 120 C.C.C. (3d) 384 (Alta.C.A.) the Court summarized the elements which the Crown must prove on such charge (at p.393): [18] In the result, proper charge to jury in criminal harassment case must include reference to the following ingredients of the crime, all of which must be proved beyond reasonable doubt: 1) It must be established that the accused has engaged in the conduct set out in s. 264 (2) (a), (b), (c), or (d) of the Criminal Code. 2) It must be established that the complainant was harassed. 3) It must be established that the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed; 4) It must be established that the conduct caused the complainant to fear for her safety or the safety of anyone known to her; and 5) It must be established that the complainant's fear was, in all of the circumstances, reasonable. [27] would add only that the application of the reasonable person test to the objective evaluation of "all the circumstances" does not mean that the particular vulnerabilities of the complainant are excluded from consideration. [7] As was noted by this Court in R. v. Cunningham (1995), 1995 CanLII 4249 (NS CA), 143 N.S.R. (2d) 149 (C.A.) an appeal of the decision of summary conviction appeal judge, pursuant to s.839 of the Criminal Code, as is this, requires leave and is limited to questions of law. The error of law required to ground jurisdiction in the Court of Appeal is that of the summary conviction appeal court judge, not the trial judge: 839. (1) Subject to subsection (1.1), an appeal to the court of appeal as defined in section 673 may, with leave of that court or judge thereof, be taken on any ground that involves question of law alone, against (a) decision of court in respect of an appeal under section 822; or (b) decision of an appeal court under section 834, except where that court is the court of appeal. (2) Sections 673 to 689 apply with such modifications as the circumstances require to an appeal under this section. [8] Mr. Shrubsall submits that the summary conviction appeal court judge erred by adopting errors of law made at trial and by failing to properly apply his appellate powers pursuant to s.686(1)(a) of the Code: 686. (1) On the hearing of an appeal against conviction the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of wrong decision on question of law, or (iii) on any ground there was miscarriage of justice; (b) may dismiss the appeal where (i) the court is of the opinion that the appellant, although he was not properly convicted on count or part of the indictment, was properly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred, or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; [9] This Court in R. v. Hurford (1998), 1998 CanLII 1881 (NS CA), 170 N.S.R. (2d) 379, recently confirmed the test to be applied by summary conviction appeal court when an unreasonable verdict is alleged. In reviewing the finding as to sufficiency of the evidence, the summary conviction appeal court judge is not entitled to retry the case but to determine whether the verdict is unreasonable. This requires the appeal court judge to determine whether the trial judge could reasonably have reached the conclusion that the accused was guilty beyond reasonable doubt. (citing R. v. Grosse (1996), 1996 CanLII 6643 (ON CA), 107 C.C.C. (3d) 97 (Ont.C.A.)) (see also R. v. Nickerson, 1999 CanLII 2014 (NS CA), [1999] N.S.J. No. 210 (N.S.C.A.)) Justice Tidman was clearly aware of the test by which he was to review Judge Curran’s decision. He addressed himself to that decision in detail and concluded: review of the trial transcript and exhibits satisfy me there was sufficient evidence upon which the trial judge could reasonably have concluded that the appellant’s conduct constituted criminal harassment and that the appellant either knowingly or recklessly harassed the complainant. [10] The appellant has not persuaded me that Justice Tidman erred in the application of his review powers under s.686(1)(a). He addressed each of the appellant’s grounds in detail and was satisfied (i) that there was evidence from which the trial judge could reasonably have concluded that the complainant feared for her physical safety; (ii) that there was ample evidence upon which the trial judge could reasonably find that the appellant repeatedly communicated directly or indirectly with the complainant; and, (iii) that the trial judge, having accepted much of the complainant’s evidence in preference to that of the appellant, did not err in his consideration of the concept of reasonable doubt. I, too, have reviewed the transcript and would agree with Justice Tidman. There is nothing in his decision to indicate that he applied the wrong test. Nor is there anything in the record which would raise issues going to the fairness of the trial in the context of miscarriage of justice. I cannot conclude that Justice Tidman erred in accepting the reasonableness of the trial judge’s findings of credibility. [11] This leaves, then, only the question of the admission of an audiotape of confrontation between Mr. Shrubsall and the complainant. This tape was seized by the police during the execution of two search warrants at Mr. Shrubsall’s room in the fraternity house where he was living at the time of his arrest. The search warrants were issued in relation to two alleged offences separate from the stalking charge and involving different victims. After voir dire Judge Curran found that the audiotape did not fall within any category of the items authorized by the warrants and thus was unlawfully seized. He nevertheless admitted the tape into evidence. He said: Warrantless searches are and based on Hunter and Southam, prima facie unreasonable. think that can be said with respect to the searches here, as far as s.8 of the Charter of Rights is concerned. However, the police acted in good faith, believing that they had valid search warrants and I’d say most significantly, this was an apparent crime scene which has in my view or which provides the occupants in my view, reduced expectation of privacy. In any event, based on the Collins decision of the Supreme Court of Canada, am satisfied that the admission into evidence of this real and unconscripted evidence, the cassette, would not bring the administration of justice into disrepute and consequently although as I’ve said, I’m not satisfied about the validity of the search warrants or the application of s.489, I’m satisfied that the crown may nevertheless introduce the cassette in evidence [12] On review of this issue Justice Tidman said: .....In view of the situation that much evidence of the confrontation was given by various witnesses at trial one may say that the tape was the best evidence of what actually occurred during the confrontation. Since its contents could have been and were, in fact, dealt with by the defence on examination and cross-examination, the admission of the tape contents under all circumstances was not unfair. [13] Evidence obtained in violation of the Charter is excluded pursuant to s.24(2) only if its admission would bring the administration of justice into disrepute. In Stillman v. R. (1997), 1997 CanLII 384 (SCC), 113 C.C.C. (3d) 321 (S.C.C.) the standard of review on such an issue was stated (per Cory J.): [68] It has been held that appellate courts should only intervene with respect to lower court's s. 24(2) analysis when that court has made "some apparent error as to the applicable principles or rules of law" or has made an unreasonable finding: R. v. Duguay, 1989 CanLII 110 (SCC), [1989] S.C.R. 93, 46 C.C.C. (3d) 1, 56 D.L.R. (4th) 46; Mellenthin, supra. [14] The audiotape is of an encounter between Mr. Shrubsall and the complainant when she came home to discover that he had let himself into her apartment. Mr. Shrubsall recorded the event and advised the complainant that he was doing so. Both the complainant’s sister and Serge Aucoin, friend of Mr. Shrubsall, were present. All four witnesses testified about the confrontation. Mr. Shrubsall does not identify any prejudice arising due to the admission of the audiotape nor any error in the trial judge’s decision to admit it. [15] I am not satisfied that the trial judge erred in admitting the audiotape nor that it’s admission had any impact upon the fairness of the proceeding. Even had found error, in these circumstances, the tape being non-conscripted evidence of an event about which all lay witnesses could and did independently testify, would have applied the curative provision in s. 686(1)(b)(iii) of the Code. Disposition: I would grant leave but dismiss the appeal. Bateman, J.A. Concurred in: Chipman, J.A. Roscoe, J.A.

The appellant appealed from his conviction on a charge of criminal harassment. He alleged that the verdict was unreasonable and not supported by the evidence. In addition, he claimed that the trial judge had erred in admitting as evidence an audiotape of a confrontation between the complainant and the appellant. The Summary Conviction Appeal Court judge dismissed the appeal. The appellant appealed. Dismissing the appeal, that the Summary Conviction Appeal Court judge did not err in the test which he applied in reviewing the trial decision, nor did he err in accepting the trial judge's decision to admit into evidence the audiotape.

c_2000nsca18.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Pinch, 2005 NSSC 122 Date: 20050512 Docket: CRSK 237154 Registry: Kentville Between: Her Majesty the Queen v. Steven Lee Pinch Defendant Judge: The Honourable Justice Donald M. Hall Heard: May 12, 2005, in Kentville, Nova Scotia Release of Written Decision: May 25, 2005 Counsel: Shane Parker, Crown Attorney Robert Stewart, for the Defendant By the Court: [1] The accused, Steven Lee Pinch, had previously entered guilty pleas to five counts contained in an indictment. There are eight counts in the indictment but the crown has withdrawn action on the remaining counts other than those that we are dealing with today. [2] The first count the accused has pled guilty to is the number two count in the indictment. The charge, as framed, was originally charge of aggravated assault under section 268(2) of the Code but the accused pleaded not guilty to that charge but guilty of the included offence of being party to unlawfully causing bodily harm to James Stuart Eustace contrary to section 269(a) of the Criminal Code. That was accepted by the Crown and the Court. [3] The second count is number three in the indictment, that the accused:on or about the 12th day October, A.D. 2004 at or near Aldersville in the County of Lunenburg, Province of Nova Scotia, did break and enter the dwelling house of James Eustace and did commit therein an indictable offence contrary to Section 348(1)(d) of the Criminal Code. The previous offence also occurred at Aldersville in the County of Lunenburg. [4] The fourth count, which is the third count to which the accused pleaded guilty, is that he:on or about the 12th day October, 2004, at or near Aldersville in the County of Lunenburg, Province of Nova Scotia, did break and enter the shed of Brian MacNutt and did commit therein an indictable offence contrary to section 348(1)(e) of the Criminal Code. [5] The fifth count, which is the fourth count to which a guilty plea has been entered, is as follows that he:on or about the 12th day of October A.D. 2004 at or near Berwick, in the County of King, Province of Nova Scotia, did break and enter the dwelling house of Dorothy Benedict and did commit therein an indictable offence, contrary to section 348(1)(d) of the Criminal Code. [6] And finally count six, that he:on or about the 12th day of October A.D. 2004, at or near Waterville in the County of Kings, Province of Nova Scotia, did break and enter the dwelling house of Roger Quirk and did commit therein an indictable offence, contrary to section 348(1)(d) of the Criminal Code. [7] The facts have been outlined in considerable detail by counsel for the Crown, Mr. Parker and Mr. Stewart, counsel for the accused, acknowledges that he is substantially in agreement with the facts as stated by crown counsel. Accordingly will not go into recitation of the facts in any detail but just simply state that, as understand it, what took place here was that the accused met up with the co-accused, Adam Best, and woman named Grace Parker, at the residence of man named Joey States, on October 11, 2004. That was the first time the accused had met these people. On the next day, it appears it was at the suggestion of Mr. Best, they journeyed to Aldersville where Mr. Best said there was stash of goods that they could get and sell and use the proceeds to buy drugs or for other purposes. Apparently they drove off in Ms. Parker’s motor vehicle with Mr. Pinch driving. They first arrived at the MacNutt residence early in the morning of October 12. They went up to the residence where there was shed located. The accused and Mr. Best broke into the shed and removed number of items and property. As understand it, they then returned to Kentville with the property where it was stored for future disposition. [8] Following that, they returned to the Aldersville area with Mr. Pinch driving and went to the residence of James Eustace. They parked the car on the highway and both the accused and Mr. Best walked up long driveway to the residence of Mr. Eustace. The accused had never been there before and was not aware of who lived there or if anyone lived there. The co-accused, Mr. Best, apparently was carrying metal pipe of considerable length with him as they proceeded to the Eustace residence. At the Eustace residence Mr. Best put his shoulder to the door of the residence and caused it to open and simultaneously triggered an outside light. At that point Mr. Eustace came to the door and within very short period of time he was struck number of blows on his head and body by Mr. Best with the metal pipe. These blows caused very serious physical injuries to Mr. Eustace, as indicated in the photos that were presented in court by Crown counsel. [9] As understand it and think this is not disputed, when the light came on Mr. Pinch started to run to leave the premises, however, he did not go far and he was at the corner of the building and did observe Mr. Best striking Mr. Eustace. Shortly thereafter, the two entered the premises and removed number of items of property including some money and believe prescription drugs. Mr. Pinch saw that the accused was in either conscious or semi-conscious state and observed him long enough to see that he was still breathing and apparently did reach for the telephone to call for help but did not complete the action and did not call and did not lend any assistance to Mr. Eustace. The parties then left the Eustace residence and, take it, returned to the residence of either Mr. Best or Ms. Parker, it is immaterial. [10] Later that day, in the afternoon of October 12, they then proceeded to the Berwick area where they broke into two more residences and stole number of items of property from both the residence of Ms. Dorothy Benedict as set out in the fifth count, and the property of Mr. Quirk as set out in the sixth count. [11] It seems that later that day the accused was driving Ms. Parker’s vehicle and for whatever reason went off the road and the vehicle upset. The police arrived eventually to lend assistance to him and he was taken to hospital. In the course of the investigation of the accident the police discovered number of items that appeared to have been stolen from the properties mentioned above. As result the accused was confronted by the police, as to being participant in the breaks and the thefts. He apparently quite readily acknowledged his involvement and, as stated by crown counsel and concurred with by defence counsel, Mr. Pinch, the accused, co-operated fully with the police including testifying against Mr. Best at his trial. As have already indicated he did plead guilty number of weeks ago and as result an extensive trial has been avoided. [12] have had the benefit of reading pre-sentence report and of hearing submissions by counsel. The pre-sentence report was prepared back in November of last year in connection with two other offences that the accused was awaiting sentence on at that time. However, am satisfied and take it counsel are satisfied, that it is sufficiently current so as to provide the required information for the court on this occasion and that nothing significant has occurred since the preparation of that report. must say that found this pre-sentence report to be one of the best prepared reports of that nature that have had the opportunity of reading during my years on the bench and involvement in the criminal justice system as lawyer. It seems to me that the writer of the report, Mr. MacInnes, has assessed the situation of the accused very fairly and objectively. [13] The report indicates that the accused is now 23 years of age, that he has a Grade X education and that he has had sporadic employment over his adult years at his employment as a labourer. The report also indicates, to my mind, that the accused had less than perfect upbringing as child and undoubtedly fair amount of instability in his years beginning particularly when he was in adolescence, which is probably one of the most difficult stages and important years in the development of young person. [14] Crown counsel has pointed out that the accused has previous criminal record. noted, reference to charge of mischief in June of 2002, and fine of $400.00 was imposed. In March of 2003 conviction for theft, take it for goods under the value of $5,000.00, where fine of $100.00 was imposed. In August of 2004 he was convicted of break and enter under s. 348 of the Code and of breach of an undertaking, for which he was sentenced to four weeks imprisonment. In September of 2004 he was convicted of theft and possession of stolen goods and breaking and entering, for which he received total fine of fifteen days. In February of 2005 he was convicted of being unlawfully in possession of prohibited weapon and also of possession of stolen goods, for which he was sentenced to total term of 90 days in jail for these offences. Those are the offences for which the pre-sentence report was prepared. [15] The general principles of sentencing are set out in some detail in ss. 718, 718.1 and 718.2 of the Criminal Code. Section 718 says: 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 acknowledgement of the harm done to victims and to the community. [16] want to refer just very briefly to decision of former Chief Justice of this province, Chief Justice McKinnon, in decision that he rendered in 1971, the case of R. v. Grady (1973) N.S.R.(2d) 264. Much of what Chief Justice McKinnon said at that time is reflected in the principles of sentencing set out in the Code that am referring to. Chief Justice McKinnon said at paragraphs and 6: .It has been the practice of this court to give primary consideration to protection of the public, and then to consider whether this primary objective could best be attained by (a) deterrence, or (b) reformation and rehabilitation of the offender, or (c) both deterrence and rehabilitation. He goes on at to quote from decision of Chief Justice Culliton. He said at paragraph 6: Chief Justice Culliton notes at page 309 (of another case he was referring to): The real problem arises in deciding the factor to be emphasized in particular case. Of necessity, the circumstances surrounding the commission of an offence differ in each case so that even for the same offence sentences may justifiably show wide variation. He goes on to say in paragraph 7: It would be grave mistake, it appears to me, to follow rigid rules for determining the type and length of sentence in order to secure measure of uniformity, for almost invariably different circumstances are present in the case of each offender. There is not only the offence committed but the method and manner of committing; the presence or absence of remorse, the age and circumstances of the offender, and many other related factors. For these reasons it may appear at times that lesser sentences are given for more serious offences and vice versa, but the court must consider each individual case on its own merits, even if the different factors involved are not apparent to those who know only of the offence charged and the penalty imposed. [17] To go on with the sections of the Criminal Code that are applicable here. Section 718.1 says in part: 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender Section 718.2 states in part: 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (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. [18] Another provision of the Code which is referred to by counsel and must be given consideration here is s. 348.1 which states: If person is convicted of an offence under any of subsection 279(2) or section 343, 346 and 348 in relation to dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling-house was occupied and (b) used violence or threats of violence to person or property. It appears that the provisions in the latter two paragraphs are cumulative. [19] Turning briefly to the range of sentence, would point out that the maximum sentence for an offence of being party to causing bodily harm under s. 269(a) is ten years. The maximum sentence for breaking and entering dwelling house under s. 348.1(b) is life imprisonment and for breaking and entering property other than dwelling-house under s. 348.1(e) is ten years. So, in three of these charges that the accused has pleaded guilty to the maximum penalty potentially is life imprisonment, whereas in the other two the maximum penalty is ten years. [20] Further, as to the range of sentence, Mr. Parker, on behalf of the Crown, has quite properly pointed out that in decision of the Nova Scotia Court of Appeal, in R. v. Harris, the court stated that an appropriate range for offences involving home invasions, which would be the case here, particularly with respect to the Eustace property, the appropriate range is eight to ten years imprisonment. The court certainly must take that into account in determining the proper sentence in this case. [21] Mr. Stewart referred to two cases respecting credit that is to be given for an accused person co-operating with the police. The first one that he referred to is R. v. Kirby, 1981 CanLII 3363 (ON SC), 1981 CarswellOnt 1266, 61 C.C.C.(2d) 544, decision of Judge Grayburne of the then Ontario County Court. In paragraph 24 of that decision Judge Grayburne said the following: More recently in the case of R. v. Lowe, which was decided in 1997, and is reported in 66 Cr. App. R. 122, Lord Justice Roskill speaking on behalf of the Court of Appeal, Criminal Division, at p. 125, said as follows: It must therefore be in the public interest that persons who have become involved in gang activities of this kind should be encouraged to give information to the police in order that others may be brought to justice and that, when such information is given and can be acted upon and, as here, has already been in part successfully acted upon, substantial credit should be given upon pleas of guilty especially in cases where there is no other evidence against the accused than the accused's own confession. Unless credit is given in such cases there is no encouragement for others to come forward and give information of invaluable assistance to society and the police which enable these criminals and these crimes are all too prevalent, not only in East London, but throughout the Country to be brought to book. Those are the considerations this Court has to have in mind. [22] Then in the decision of R. v. John Doe, 1999 CanLII 15051 (ON SC), 1999 CarswellOnt 4491, 142 C.C.C.(3d) 330, decision of Justice Hill of the Ontario Superior Court of Justice, and might point out as counsel are probably aware, Justice Hill in his previous career was one of the leading prosecuting counsel in the Province of Ontario and was certainly outstanding in his field. He said at paragraph 19 of that decision: An alleged offender's willingness to cooperate in the investigation or prosecution of others, or the extent to which he or she has already done so, is relevant to both the public interest in continuing prosecution of the accused or, if immunity is not granted, to plea agreements respecting the appropriate sentence: Report of the Attorney-General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (the Martin Committee Report) (1993), (chaired by the Honourable G.A. Martin, Q.C.) at pages 100, 303. [23] In this case the Crown has recommended to the court that the appropriate sentence, having regard to all of the circumstances and with particular regard to the low end of the range suggested by the Court of Appeal in Harris, that the proper sentence is period of six years incarceration. In addition, Mr. Parker proposes that there should be DNA order and that there should be life long prohibition from the possession of weapons and so forth under s. 109(1)(a) of the Criminal Code. [24] Mr. Stewart on behalf of the accused has urged the court to impose sentence of two years to maximum of four years and he, on behalf of the accused, does not oppose the other two dispositions proposed by Mr. Parker. [25] There are number of special considerations that go for and against the accused that must be taken into account in this instance. First, on the plus side, it is acknowledged that he readily admitted his culpability and co-operated fully with the police, including testifying at the trial of his co-accused and, as counsel have indicated, the co-accused was found guilty yesterday of similar counts in this matter. So, it can be said that the co-accused was successfully prosecuted and undoubtedly the co-operation and testimony of Mr. Pinch contributed to the success of the prosecution. [26] As well, the court must take into account that the accused has pleaded guilty to the counts that are before the court. He did not plead guilty initially, but think that is understandable in view of the fact that he was initially charged with count of attempted murder and also aggravated assault, both of which the Crown consented to abandoning. He did plead guilty before the matter was actually going to trial. [27] The normal credit as the experts tell us, and the jurisprudence for an accused pleading guilty at reasonable stage of the proceeding, is credit of 25 percent off the penalty that would otherwise be imposed. [28] Another factor that considered, as have indicated, it seems to me that the accused did not have the best guidance in his early years and that he had an unfortunate and unstable home environment throughout his most formative years. As well, he has spent seven months already in custody respecting these matters. The credit that is given for pre-trial confinement or custody is often taken at two for one or in some cases it has been suggested that three for one is the appropriate factor. In any event, seven months is fairly lengthy period of time for person to be in custody and, as understand it, in this case the accused, because of his co-operation with the police has had to be in protective custody virtually throughout his initial confinement. Indeed, Mr. Stewart pointed out that he has already been the recipient of some threats as result of his co-operation with police authorities. think it is fair to say, and don't believe counsel dispute this and it is confirmed to some extent by the pre-sentence report, that the accused is more of follower than leader and, particularly in these cases, he was not the main driving force or the main perpetrator of the offences. [29] On the down side however, the court must take into account the very serious nature of the attack on Mr. Eustace and the very serious consequences that flowed from that, the assaults on his person, and the fact that even though Mr. Pinch apparently felt that he should call for aid, he, in the end, declined to do so, probably out of sense of self preservation, but at no time did he make any other attempt to alert the appropriate parties to obtain assistance for Mr. Eustace. Indeed both Mr. Pinch and Mr. Best, as well as the victim himself of course, are fortunate that Mr. Eustace did survive the onslaught. Otherwise they would be facing very, very serious charge; much more serious charge than they are and, mind you, these are serious enough. [30] also have to take into account, as directed by s. 348.1 of the Code, the fact that at least one of these dwellings was occupied at the time the break and enter occurred. As well, Mr. Pinch has criminal record. must say that it seems fairly extensive and it obviously was escalating, but to the point when, after the time when these offences were committed and for which he now has criminal record, they basically could be referred to for the most part as relatively minor property offences, and, as Mr. Stewart characterized them as “petty theft”. Also, the weapons charge involved knife not firearm which, to my mind, is less serious than if it had been firearm or spring loaded knife or something of that nature. [31] In attempting to rationalize the range sanctioned by our Court of Appeal for sentences of home invasion, would accept, as Mr. Parker suggests, starting point at the low end of eight years. From that one should deduct a credit of two years at 25 percent for the fact of Mr. Pinch pleading guilty. A further credit, however, should be given for the time already served which, depending on which factor one chooses to use, either the two for one or three for one, would amount to another 14 to 21 months. Now, am not going to be able to rationalize this completely and don't think should, but also have to have in mind the very extensive benefit to the Crown as the result of the accused's co-operation with the authorities in admitting his own guilt and in assisting in pursuing the prosecuting of the co-accused, Mr. Best. To my mind a further reduction of one and one-half years would be justified. Counsel have suggested that the court should simply impose the penalty globally rather than trying to separate and determine an appropriate sentence with respect to each count. am satisfied that, in the circumstances, that is appropriate here because certainly the principle of totality would apply. [32] As I have indicated, I have concluded ,therefore, that the appropriate sentence in this case, having regard to all of the factors that I have mentioned, is that the accused serve a term of four years and six months in a federal institution. That sentence, without giving the credits as have for the time already served, would be very close to the sentence proposed by Mr. Parker for the Crown. At the same time have taken into account the factors emphasized by Mr. Stewart. [33] In addition will grant the so called DNA order as proposed by the Crown and will order that under s. 109.1(a) of the Criminal Code that the accused be prohibited from the possession of weapons, explosives and so forth set out in that section for the rest of his life. Donald M. Hall, J.

The 23 year old defendant pled guilty to two counts of breaking and entering a dwelling house and one count of breaking and entering a shed. He cooperated with the police and provided evidence against his co-accused. He had a previous criminal record, which included convictions for mischief, theft, break and enter, breach of an undertaking and possession of stolen goods. Defendant sentenced to four years imprisonment; in assessing the appropriate sentence, the court allowed a credit for time already served (which was served virtually throughout in protective custody), a credit of 25% for the fact that the defendant had pled guilty and a further reduction of one and a half years for the defendant's assistance in pursuing the successful prosecution of his co-accused.

3_2005nssc122.txt

Dated: 20020424 2002 SKCA 56 Docket: 3338 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Gerwing Lane JJ.A. HENRY KENNETH RIPPLINGER and HKR COLLECTIONS FINE ART LIMITED and THE SASKATCHEWAN HUMAN RIGHTS COMMISSION COUNSEL: Mr. Hal B. Wellsch for the Appellants Mr. Milton C. Woodard, Q.C. for the Respondent DISPOSITION: On Appeal From: Q.B.M. 492/93 Appeal Heard: April 22, 2002 Appeal Dismissed: April 22, 2002 (orally) Written Reasons: April 24, 2002 Reasons By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Lane VANCISE J.A. (orally) [1] Henry Ripplinger and HKR Collections Fine Art Limited (the appellant) appeal decision of Matheson J. confirming the second decision of Board of Inquiry appointed by the Minister of Justice under The Saskatchewan Human Rights Code[1] (the Code) which found that the appellant continued to discriminate against disabled members of the public by failing to provide access and accessible services to wheelchair users and ordered the appellant to construct or renovate washrooms to meet the accessibility requirements of the National Building Code of Canada 1995.[2] The appellant appeals contending that the Board exceeded its jurisdiction in making the order that it did. [2] Henry Ripplinger was the registered owner of the property which formed the subject matter of the complaint at the time the original complaint was filed. The property was subsequently transferred by Mr. Ripplinger to HKR Collections Fine Art Limited, company of which he is the sole director and in de facto control. The Board added the company as party to the proceedings. They will be referred to collectively as the appellant in this appeal. [3] This matter began in 1991. Ms. Judith Ryan complained to the Human Rights Commission that Collections Fine Art Gallery operated at that time by Henry Ripplinger could only be entered by stairs and was inaccessible to her as wheelchair user. [4] formal inquiry into the complaint was ordered by the Minister of Justice and hearing was held in 1993. The Board rendered decision in which it concluded that the appellant’s “complex impedes physical access to the premises, facilities and services and lacks proper amenities for persons who are wheelchair-reliant”[3] [emphasis added]. The appellant was ordered to cease contravening the Code and in consultation with the Commission to take measures to ensure that the contraventions would not occur in the future. The Board of Inquiry specifically ordered that it remained seized of the matter “and the hearing will be reconvened to hear further evidence on the question of remedies and more specific orders at that time”.[4] [5] The appellant appealed that decision and it was quashed by the Court of Queen’s Bench. The Commission appealed to the Court of Appeal. The decision of the Court of Queen’s Bench was set aside and the decision of the Board was restored by this Court. [6] During those proceedings the gallery property was transferred to HRK Collections Fine Art Limited and further renovations were undertaken to the property. In April 1997, the Commission requested the Board to reconvene to consider whether the appellant had complied with the order of the Board which had been restored by this Court and to add HRK Collections Fine Art Limited as party to the proceedings. The appellant appealed that decision to the Court of Queen’s Bench. The decision of the Board was confirmed and that decision has not been appealed to this Court. [7] The Board reconvened and evidence was adduced by the Commission with respect to the renovations to the gallery complex. The appellant objected to that evidence and the objection was dismissed by the Board. [8] On May 29, 1998, the Board ordered that the appellant “construct or renovate bathrooms for both sexes, or a single washroom provided that it can be used by both sexes in accordance with public health and building regulations, which meet all the accessibility requirements of the National Building Code”. [5] [9] The appellants appealed that decision to the Court of Queen’s Bench and Matheson J. dismissed the appeal. He found that the Board did not err in adding the company HRK Collections Fine Art Limited as a party and did not exceed its jurisdiction in finding that the appellant had not complied with its original order. [10] The appellant appeals that judgment principally on the ground that Matheson J. erred in failing to find that the Board had exceeded its jurisdiction in making the order that it did. Analysis [11] The primary issue before the Court of Queen’s Bench was whether the Board exceeded its jurisdiction in finding that the appellant had not complied with the original order of the Board. The appellant contended that the original order did not include a requirement that it construct washrooms which were accessible to wheelchair reliant members of the public. Matheson J. found the appellant could not at that stage of the proceedings question the original order made by the Board in 1993 which ordered the appellant to cease impeding physical access “to the premises, facilities and services” because the issue had been previously determined and the order reinstated by the Court of Appeal. He concluded that the extent of the order and its application was the very question the Board had to decide and it did not exceed its jurisdiction in so deciding [emphasis added].[6] [12] The appellants appeal the decision of Matheson J. to this court on essentially the ground that he erred in failing to find that the Board had exceeded its jurisdiction in finding that the appellant had not complied with the original order. [13] We are all of the opinion that Matheson J. did not err in so finding. The Board acted entirely within the terms of its original order, an order in which it had retained jurisdiction, to confirm compliance with the order and which had been confirmed by this Court. The original order cannot be challenged at this late date. The Board acted within jurisdiction in hearing evidence which went to the issue of whether the appellant consulted or did not consult with the Commission and to determine whether the renovations completed by the appellant complied with the order with the result that the appellant ceased to contravene the Code. The extent of the order, that is whether it was confined to the external access of the property or to other “facilities and services” and whether it had been complied with is the very question the Board reserved jurisdiction to determine. [14] In the result the appeal is dismissed with cost on double Column V. [1]S.S. 1979, c.S-24.1. [2](Ottawa: National Research Council of Canada, 1995). [3]Ryan v. Ripplinger (1993), 20 C.H.R.R. D/427 (Sask. Bd. Inq.) at para. 81. [4]Ibid. [5]Ryan v. Ripplinger (May 29, 1998), (Sask. Bd. Inq.) at p. 11. [6](1999), 1999 CanLII 12740 (SK QB), 183 Sask. R. 139 at para.

A complaint was made in 1991 to the Human Rights Commission that the Gallery could only be entered by stairs and was inaccessible to wheelchair users. A Board of Inquiry appointed under the Saskatchewan Human Rights Code concluded in 1993 that the appellant's complex impeded physical access to the premises, facilities and services and lacked proper amenities for persons who are wheelchair-reliant. The Board specifically ordered it remained seized of the matter and the hearing would be reconvened to hear further evidence. The Court of Queen's Bench confirmed the Gallery continued to discriminate against disabled members of the public by failing to provide access and accessible services and ordered the appellant to construct or renovate washrooms to meet requirements of the National Building Code of Canada. The Court of Appeal set aside the Queen's Bench decision and restored the Board's decision. During those proceedings, the property was transferred to HKR, which undertook further renovations. In 1997 upon request by the Commission, the Board reconvened and concluded there had not been compliance, which was confirmed by the Court of Queen's Bench. This was not appealed. An appeal of the Board's 1998 order to construct or renovate the bathrooms was dismissed and it was found the Board did not err in adding HKR as a party nor exceeded its jurisdiction in finding the appellant had not complied with the original order. The appellant appealed that judgment principally on the ground of error in not finding the Board exceeded its jurisdiction in making the order as the original order did not include a requirement that it construct wheelchair accessible washrooms. HELD: The appeal was dismissed with costs on double Column V. The Queen's Bench judge did not err in finding the appellant could not, at that stage of proceedings, question the original order made by the Board in 1993 (ordering the appellant to cease impeding physical access to the premises, facilities and services). The issue had been previously determined and the order was reinstated by the Court of Appeal. The Board acted entirely within the terms of its original order. It retained jurisdiction to confirm compliance. The original order cannot be challenged at this late date.

3_2002skca56.txt

J. S.C. 86/2004 2005 SKPC 55 IN THE PROVINCIAL COURT OF SASKATCHEWAN (SMALL CLAIMS COURT) AT SWIFT CURRENT, SASKATCHEWAN Between: BRYN STUMBORG Plaintiff -and- AQUATAIN CONSULTING INC. Ms. Bryn Stumborg For the Plaintiff Mr. Warren Hope For the Defendant April 28, 2005 L.A. Matsalla, P.C.J. JUDGMENT [1] The plaintiff student argues that she was unjustly dismissed and so she sues the defendant business for wages that she would have earned had she worked to the end of the term of her employment. The employer argues that the plaintiff was dismissed for cause. [2] The defendant (“Aquatain”) operates business in Swift Current that does accounting work and that prepares income tax returns for its clients. The business also sells investments. Mr. Hope, the president and director of the defendant company and the manager of the business, advertised for two positions in the April 17, 2004 edition of the local newspaper. The advertisement offered two positions, namely: 1. job for “summer student” for the period extending from May to August 31, 2004. The ad stated that “(e)ducation in business or finance would be preferred.” and 2. position as receptionist for an undetermined period. “certificate in office automation or administration” was required. On April 22nd, the plaintiff arranged to have an application for the position of summer student delivered to the defendant business. In the application she identified herself as second year Bachelor Arts student with major in history and she set out her experience. For the most part her experience consisted of volunteer work with very limited work experience. [3] On April 29th, Mr. Hope interviewed the plaintiff. He gave her 15 minute test that involved adding numbers on an Income tax return. At the end of the test, according to the plaintiff, she was told that she would be good for the job and he hired her telling her that she would start on May 10th. Apparently there was no discussion as to her lack of business experience. It is common ground that her salary was to be $9.00 per hour for hour day over day week. [4] According to the plaintiff, she received days of training as receptionist. It appears that the receptionist position, as advertised, had not been filled. She was required to assume both positions even though she did not possess the required certificates for the position. No job description was provided to her. [5] She testified that on June 15th, Mr. Hope had told her that she had been negligent because she had not processed certain documents. Ms. Stumborg says that the previous receptionist that had trained her advised her to ignore the documents in question. In any event, she says that she tried to and did improve despite minimal supervision. On July 7th she was advised to train another person who, she was told, was to commence work at the end of the summer. Of some note is the fact that the defendant dismissed the plaintiff days later. The date coincides with the end of the plaintiff’s term of employment. On July 12th, at 2:00 p.m., she testified that Mr. Hope informed her that her employment would be terminated. When she asked the reason for the termination she was told that her work had not improved sufficiently. Although Mr. Hope told her that her social skills were lacking, Ms. Stumborg claims that none of the shortcomings had been brought to her attention. Nonetheless, she left the work place at 4:30 p.m. She told the Court that she then proceeded to financial institution to change signing authority and that she updated list of things that had to be done at work. It is clear that no notice of termination was provided to her nor was she offered any payment in lieu of notice. The plaintiff suggests that she would have received holiday pay valued at $149.56 had she worked to the end of the term. [6] The plaintiff sought other employment. While no evidence was specifically provided as to the details of that employment the defendant does not take issue with the plaintiff’s suggestion in her Statement of Claim that she earned the sum of $657.83 from that employment. [7] Evidence produced by the defendant consisted of persons who had worked with the plaintiff. One of these individuals was hired after the plaintiff was let go and she testified that certain documents had been misfiled, that certain other information had not been provided to parties as required and that some confidential information had been released. cannot tell if these difficulties can be directly attributable to the plaintiff or whether someone else may have been responsible. Another witness testified that the plaintiff had not been friendly to her and yet another employee senior accounting technician responsible for filing personal and corporate returns and for completing government applications, testified that she had been responsible for training the plaintiff. Ms. Stumborg’s work had improved although the witness told the Court that she had some difficulty cross-referencing spread sheets that covered year period. [8] Mr. Hope testified. He said that he had concerns about her telephone etiquette with clients but that he was reluctant to approach her. He claimed that he spoke to her about her work on occasions. On one occasion, on date that he could not recall, he talked to her about incomplete work that had been on her desk. The plaintiff’s work improved as result. He said that he believed that her lack of detail would cost the business money and so, on July 12th, he advised her that her employment had ended. She asked to stay but he refused. [9] The plaintiff argues that she had been hired to term contract extending from May 10th to August 31, 2004. She goes on to say that her contract of employment was unjustly terminated and so she is entitled to the wages that she would have earned over the term less any income received as result of the mitigation of her damages. [10] The defendant argues that the plaintiff was dismissed for just cause. The company also argues that the plaintiff was only entitled to the nominal notice set out in section 43 The Labour Standards Act, R.S.S. 1978, c. L-1 (the “Act”). However, there is no doubt that the defendant did not provide the plaintiff with any notice that her employment would be terminated and so this is case of summary dismissal. [11] The issue in this case is whether the defendant employer had just cause to dismiss the plaintiff employee and, if not, the measure of damages to which the plaintiff would be entitled. [12] There is no doubt that the relationship of employer employee (or, as the authorities have earlier described it, of master and servant) arose in this case and so the Ontario Court of Appeal in Carter v. Bell Sons, 1936 CanLII 75 (ON CA), [1936] D.L.R. 438 at 439 has said, In the case of master and servant there is implied in the contract of hiring an obligation to give reasonable notice of an intention to terminate the arrangement.. This is peculiar incident of the relationship of master and servant based largely upon custom. However there is also no doubt that the plaintiff was dismissed for what the defendant considered “just cause” and not for reasons relating to discipline. “Just cause” in such circumstances can be established if the requirements identified by Klebuc J. in Riehl v. Westfair Foods Ltd. (1995), 1995 CanLII 6086 (SK QB), 132 Sask. R. 161, referring to Brown and Beatty Canadian Labour Arbitration, 2nd ed. (Toronto: Canada Law Book 1988) at 412 have been met, the learned authors said, Generally, it has been said that to substantiate non-disciplinary termination in such circumstances, the employer must establish the level of job performance it required, that such standard was communicated to the employee, that it gave suitable instruction and supervision to enable the employee to meet the standard, that the employee was incapable of meeting the standard of that job or other positions presumably within her competence, and that it warned the employee that failure to meet the standard would result in her dismissal... [13] In this case the plaintiff was dismissed summarily, that is, without notice. Williamson, J. in Hildebrandt v. Wakaw Lake Regional Park Authority (1999), 1999 CanLII 12447 (SK QB), 175 Sask. R. 207 said this about such circumstance, Summary dismissal is warranted for serious misconduct or breaches of fundamental nature that contravene clear and unequivocal policies, procedures or instructions well known to the employee. Where dismissal is for repeated instances of incompetence or unsatisfactory job performance the employers must show that: (1) it has established reasonable objective standards of performance; (2) the employee has failed to meet those standards; (3) the employee has had warning that he has failed to meet those standards and that the employee’s position with the employer will be in jeopardy if he continues to fail to meet those standards; and (4) that reasonable time was afforded to correct the situation. [14] Klebuc, J. in Riehl at paragraph 16 pointed out that the employer must prove that just cause existed on the balance of probabilities. Lord Denning in Miller v. Minister of Pensions, [1947] All E.R. 372 at 374 described the onus as it must be “more probable than not” that the burden has been discharged. It is clear that the conduct complained of must be more than mere dissatisfaction with the employee’s performance [see Belliveau v. Westfair Foods Ltd. (1996), 1996 CanLII 6684 (SK QB), 151 Sask. R. 49 at para 21]. [15] Before embarking any further on the analysis of the facts in this case must determine whether the contract of employment was for an indefinite term or for fixed contractual period. The Court in Jordison v. Caledonian Curling Co-operative Ltd. (2000), 190 Sask. R. 132 was required to decide the question in case in which an icemaker who had worked for company that operated curling rink commenced proceedings against his employer. There are many indicia that are helpful to resolve the matter however, in this case, given the specific reference to term of employment in newspaper advertisement and that there was no indication that the position would be available to the plaintiff during any future summer periods, have no difficulty in concluding that the contract was for the term May 10 to August 31, 2004. must now determine whether the employer had just cause to dismiss the employee. [16] It is clear that the defendant advertised for two employees however, it decided not to fill the second position and reception duties were assigned to the plaintiff. Furthermore the defendant, despite advertising for the position as one for which “(e)ducation in business or finance would be preferred”, hired student who was history major and who had only marginal business experience. She was also assigned work as receptionist despite her lack of credentials. accept her evidence that she received only nominal training as receptionist and, it would appear, very little training if any, in financial matters. Furthermore, her evidence that as late as July 7th, she was even asked to train another employee, was not contradicted and so it could hardly be said that she was not competent employee. [17] As far as can tell from the evidence, Mr. Hope spoke to her on three occasions about her work and, by his own admission, Ms. Stumborg made an effort to improve. At no time was she advised in any detail what was expected of her and that a failure to meet a particular standard could result in the determination of her employment. It appears that Mr. Hope attributed the misfiling of paper in an income tax return to the plaintiff and he decided to summarily dismiss her. I am satisfied that, in the circumstances, it can not be said that it is “more probable than not” that the plaintiff was guilty of serious misconduct or a breach of such a fundamental nature respecting office policies - policies that may not have been made known to her, that there was just cause for her dismissal. Therefore, the defendant was dismissed without just cause. [18] It is well established law that section 43 of the Act provides minimum notice period and does not prevent an employee from seeking remedy at common law for breach of contract (see section 73 of the Act). [19] have found that the contract of employment was term contract extending from May 10th to August 31, 2004. The plaintiff was dismissed on July 12th. But for her dismissal, she would likely have worked for the rest of July (14 days) and for the month of August (22 days). Subsequent to the end of her employment she sought and she obtained work for which she was paid $657.83. The onus is on the employer to establish that the employee failed to mitigate her loss (see Red Deer College v. Michaels and Finn, 1975 CanLII 15 (SCC), [1975] W.W.R. 575 (S.C.C.) at pp 580-81). In this case the plaintiff made reasonable effort to seek and maintain employment. The plaintiff would have received employment income to the end of August, 2004 in the amount of $2,592.00 and she would have received holiday pay in the amount of $149.56. She earned the sum of $657.83 from other employment during that time period. Therefore she is entitled to damages in the amount of $2,083.73. Certificate of Judgment will issue in her favour in that amount and for costs in the amount of $20.00. L. A. Matsalla, P.C.J.

The plaintiff student argues that she was unjustly dismissed and so sues the defendant business for wages that she would have earned had she worked to the end of the term of her employment. The employer argues that the plaintiff was dismissed for cause. HELD: 1) The employer spoke to the employee on three occasions about her work and by his own admission, the employee made an effort to improve. At no time was she advised in any detail what was expected of her and that a failure to meet a particular standard could result in the termination of her employment. It would appear that the employer attributed the misfiling of a paper in an income tax return to the plaintiff and he decided to summarily dismiss her. In the circumstance, it can not be said that it is more probable than not that the plaintiff was guilty of serious misconduct or a breach of a fundamental nature respecting office policies, policies that may not have been made known to her, that there was just cause for her dismissal. Therefore the defendant was dismissed without just cause. 2) The contract of employment was a term contract extending from May to August 31, 2004. The plaintiff was dismissed on July 12. But for her dismissal, she would have worked for the rest of July and for the month of August or 36 days. 3) In this case the plaintiff made reasonable effort to seek and maintain employment. She earned $657.83. 4) The plaintiff is awarded judgment in the amount of $2,083.73.

c_2005skpc55.txt

Chambers. Q.B. A.D.1993 No. 3889 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: MARGARET GORDON and GABRIEL DUMONT INSTITUTE OF NATIVE STUDIES AND APPLIED RESEARCH, INC. DEFENDANT William J. Herle for the plaintiff Noel S. Sandomirsky, Q.C. for the defendant JUDGMENT BARCLAY J. May 9, 1996 This is a claim for wrongful dismissal. The plaintiff, Margaret Gordon ("Gordon"), age 48, was employed with the defendant, Gabriel Dumont Institute of Native Studies and Applied Research, Inc. (the "Gabriel Dumont Institute"), from January 3, 1983 to May 26, 1993, at which time she was dismissed. Gordon is married with three children and is the sole supporter of her family, as her husband is unemployed. Gordon was born on reserve near Balcarres where she received her elementary education. She then studied at the Lebret Indian Residential School. When she was in Grade 8, she left the school for the city. While she was in Regina she enrolled in an upgrading adult basic education program for non-status Indians where she received the equivalent of her grade XI. She also completed an eight month secretarial course. Gordon was initially hired by the Gabriel Dumont Institute as Clerk Steno II. After two years she was promoted to Executive Secretary. She held this position until July 1, 1989, when she was appointed the Administrative Co- ordinator for the Native Services Division. The Gabriel Dumont Institute is the educational institute for the Metis and Non-Status Indians. The Native Services Division was established within the institute to promote and encourage aboriginal students who are enrolled in the SIAST campuses in the major cities in Saskatchewan. As Administrative Co-ordinator, Gordon's responsibilities, in addition to her secretarial duties as assistant to the Director of the Division, are set out in the job description for the position which reads, in part, as follows: The Administrative Co-ordinator is accountable to the Director of Native Services Division for the provision of secretarial and administrative assistance. This position is one of many reporting to the Director of Native Services Division. The Administrative Co-ordinator is accountable for timely administrative activities which include meeting arrangements, information distribution, recording and transcribing of minutes of meetings, compiling information and preparing short program reports in consultation with the Director, assists in gathering, developing and maintaining statistical data base for the Native Services Division, responsible for compiling information for presentations, etc. as per instructions by the Director of Native Services Division, responsible for scheduling and/or adjusting the appointments and travel itinerary of the Director as required, as well as maintaining the appointment calendar of the Director. This position requires interaction with all levels of management, including board members, executive members, other staff and outside agencies which are party to the Division. The Administrative co-ordinator must have good knowledge and understanding of the relationship between all agencies which are party to the Division, e.g. Saskatchewan Education, SIAST, Gabriel Dumont Institute. Gordon's performance as Administrative Co-ordinator was appraised by her supervisor in both 1989 and 1990. It is clear from these appraisals, and other testimony, that Gordon was very competent, loyal and dedicated employee. In completing the Performance Appraisal of June, 1990, her Director articulated certain assignments and tasks she carried out that year. These duties were as follows: co-edited NSD "Communicator" newsletter (two editions) attended and participated in all NSD staff meetings, NMC meetings, provincial NSIM meeting, GDI annual Cultural Conference, and program graduations and openings participated in staff training and "piloting" of SIAST electronic mail system organized and co-ordinated first NSD inter-agency high school recruitment tour organized, designed, input and reproduced significant GDI and NSD documents: GDI Annual Report, Sask. Human Rights Commission Monitoring Report, NSD Evaluation Terms of Reference, SIAST Committee Report on Native Services participated in university class as beginning professional development activity. Gordon, in her own testimony, confirms that her duties and responsibilities were such that she was much more than an executive secretary. She said that compared to her other positions, she worked more on her own and that detailed instructions were not necessary. Gordon stated that she liaised with the Board of Governors and the department heads and assisted with promoting native services and education on the SIAST campus. As result of lack of funding for the Native Services Division, Gordon was dismissed from her position. The letter of termination from Gabriel Dumont Institute reads, in part, as follows: This is to formally notify you that you are being laid off from your current position of Administrative Coordinator of the Native Services Division in Regina, Saskatchewan. Your last day to report for work will be Wednesday, July 21, 1993. On behalf of the Gabriel Dumont Institute, thank you for your interest in the Institute and wish you well in future endeavors. Subsequent to receipt of that letter, Gordon was advised that as she had accrued 19.871 days of combined time- in-lieu and annual leave to July 21, 1993, she was asked to take this time off prior to her layoff date. Although Gordon did take this time off, the Gabriel Dumont Institute has now conceded that they were in error in making this request. After Gordon was dismissed she took number of steps to mitigate her loss. She either approached or filed applications with the First Nations Employment Service, the Minister of Saskatchewan Government Insurance, Keith Goulet, Saskatchewan Indian Federated College, the Aboriginal Recruitment Office with the Public Service Commission, Department of Health, Crown Investment Corporation, the Indian and Native Affairs Secretariat and other departments and Crown corporations of the Provincial Government. At the time of her dismissal, Gordon's annual gross salary was $35,352.00 per annum, plus benefits which included an employer's contribution to her pension plan of 5%, together with the contribution of Canada Pension Plan benefits as provided by law and some nominal health insurance. On July 30, 1993, Gordon received an offer of employment from the Federated Indian College for the position of Administrative Assistant and Secretary at salary of approximately $20,000.00 per annum. This was temporary position and the duties were primarily secretarial. Gordon had already applied to the College for the position of Executive Assistant to the Dean of Students. This position was equivalent to her previous employment with the Gabriel Dumont Institute. She eventually was hired for that position. Gordon turned down the offer of Administrative Assistant and Secretary because not only was the salary much lower, the position was temporary and the duties were materially different from those at her job with Gabriel Dumont Institute. I am satisfied that Gordon has taken all reasonablesteps to mitigate her loss. Furthermore, am cognizant of the fact that the onus is on the employer to establish that its former employee failed to mitigate her loss. The controlling authority on this issue is Red Deer College v. Michaels and Finn, 1975 CanLII 15 (SCC), [1976] S.C.R. 324, [1975] W.W.R. 575, N.R. 99. At pp. 580 and 581 [W.W.R.] Laskin C.J.A. stated: The matter is put as follows in two passages from Williston on Contracts (1968), 3rd ed., vol. 11, at pp. 30 and 312 "It seems to be the generally accepted rule that the burden of proof is upon the defendant to show that the plaintiff either found, or, by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities, and that in absence of such proof the plaintiff is entitled to recover the salary fixed by the contract." Cheshire and Fifoot [Law of Contract (1972), 8th ed.] expressed the position more tersely as follows: "But the burden which lies on the defendant of proving that the plaintiff has failed in his duty of mitigation is by no means light one, for this is case where party already in breach of contract demands positive action from one who is often innocent of blame." In my opinion, the obiter statement of MacDonald J.A. in John East Iron Works Ltd. v. Labour Relations Bd. of Sask., 1949 CanLII 193 (SK CA), [1949] W.W.R. 842, [1949] D.L.R. 51 at 57 (Sask. C.A.), that "the onus of proving that the employee took reasonable efforts to obtain other employment and failed to do so is upon the employee" does not state the law correctly. contrast this observation with that in Yetton v. Eastwoods Froy, [1967] W.L.R. 104, [1966] All E.R. 353, wrongful dismissal case, where Blain J. said (at p. 115): ". if he can minimise his loss by reasonable course of conduct he should do so, though the onus is on the defaulting defendant to show that it could be or could have been done and is not being and has not been done". This case was cited with approval by Tallis J.A. of the Saskatchewan Court of Appeal in the case of McIntosh v. Saskatchewan Water Corp. (1989), 1989 CanLII 4781 (SK CA), 26 C.C.E.L. 196, 77 Sask. R. 81 (C.A.). Gabriel Dumont Institute submits that Gordon should have accepted the offer from the Federated Indian College for the position of Administrative Assistant and Secretary, and that any damages should be restricted to the difference between what she makes in that work and what she would have made had she received the notice to which she was entitled. disagree. The duty to take reasonable steps to obtain equivalent employment elsewhere, and to accept such employment if available, is not an obligation owed by the dismissed employee to the former employer to act in the employer's interests. Rather, the duty is to take such steps as reasonable person in the dismissed employee's position would take in his own interests to maintain his income and his position in his industry, trade or profession. The formeremployer has no right to expect that the former employee willaccept lower paying alternate employment with doubtfulprospects. The trial judge is entitled to find the plaintiff justified in rejecting the offer of employment in question. (See Forshaw v. Aluminex Extrusions Ltd. (1989), 27 C.C.E.L. 208 (B.C.C.A.)). In Ceci v. Comdisco Canada Ltd. (1994), C.C.E.L. (2d) 86 (B.C.S.C.), the plaintiff was 42 years old. He was still unemployed at the time of the trial. The court held he did not fail to mitigate his damages in turning down job offer from another company for new and experimental position. The position was risky and was equivalent to being an account manager. In his previous employment, he was the Regional Marketing Manager. At pp. 87 and 88, Gill J. states: One offer of employment was received, that being from Sybase Canada Ltd., computer software firm. The position was Major Account Manager (Western Canada), and involved marketing Sybase's products and services to 10 major accounts in Western Canada. This was new position at Sybase and it represented new marketing concept. It was Mr. Ceci's view that as the position was intended to test the viability of new approach, the job was too risky considering his family responsibilities. He was concerned that the position was equivalent in status to that of an account manager and Sybase was prepared to guarantee only four month non-recoverable draw. The defendant has argued that Mr. Ceci failed to mitigate, and that this failure includes turning down the position with Sybase. The position at Sybase was clearly risky, as Mr. Ceci believed, and would appear to have been equivalent to being an account manager. In my view, Mr. Ceci did not fail to mitigate by declining to pursue this employment. In my view, Gordon was not obligated to accept this offer for the position of Administrative Assistant and Secretary from the Federated Indian College. This position was lower paying alternate employment which was temporary and am satisfied that she acted reasonably in declining this offer. ASSESSMENT OF DAMAGES (a) Determination of Reasonable Notice In determining what constitutes reasonable notice in any case, courts have traditionally relied upon the statement of McRuer C.J. of the Ontario High Court in Bardal v. Globe Mail Ltd. 1960 CanLII 294 (ON SC), [1960] O.W.N. 253, 24 D.L.R. (2d) 140 (H.C.), at p. 145 [D.L.R.]: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. In Wankling v. Saskatchewan Urban Municipalities Assn. (1989), 1989 CanLII 4625 (SK QB), 27 C.C.E.L. 31, 75 Sask. R. 252 (Q.B.), the plaintiff had been employed for 11� years as executive director, and he was 61 years old. Wedge J. awarded 18 months' salary in lieu of notice. In Shiels v. Saskatchewan Government Insurance (1988), 1988 CanLII 5293 (SK QB), 20 C.C.E.L. 55, 67 Sask. R. 220, 51 D.L.R. (4th) 28 (Q.B.), the plaintiff, an expert in motor vehicle accident reconstruction, was dismissed after 10 years of service. MacLean J. held that he was entitled to 12 months' salary in lieu of notice. In Nupdal v. Saskatchewan Government Insurance, Sask. Q.B. No. 2525/82, J.C. Regina, Malone J., March 15, 1984 (unreported), the plaintiff, 38 years of age at the time of dismissal, had been employed for five years in an executive capacity. Malone J. held that he was entitled to 12 months' notice. In Roberts v. Versatile Farm Equipment (1987), C.C.E.L. 9, 1987 CanLII 4764 (SK QB), 53 Sask. R. 219 (Q.B.), the plaintiff, 55 years of age, had been employed in management capacity for 18 years before his constructive dismissal. Batten C.J.Q.B. considered his length of service, his responsibilities, the fact that his skills were acquired by on-the-job training rather than by formal education and that those skills were not easily transferable, and the unavailability of comparable positions, and she held the appropriate notice period was 16 months. In McIntosh, the Court of Appeal increased the notice period to six months for resource economist who has been employed for just over two years. The court held that the lower trial award placed insufficient emphasis upon the effect of the recession in Saskatchewan and the consequent unavailability of similar employment in the province. In Schwann v. Husky Oil Operations Ltd. (1989), 27 C.C.E.L. 103, 1989 CanLII 4743 (SK CA), 76 Sask. R. 97 (C.A.), the respondent had occupied managerial position for five years and four months. The number of managerial positions available at his level of employment was limited and the economic conditions which existed at that time made it difficult to obtain employment of suitable or comparable level. The court held that the appropriate measure of damages was 10 months' salary in lieu of notice. In the case at bar, Gordon had been employed with the Gabriel Dumont Institute for over ten years. In her most recent position as Administrative Co-ordinator with the Native Services Division, she was considered part of the management team by her supervisor. In her Performance Appraisal of June of 1991, her supervisor made the following comments as to her ability: Performance: As member of GDI's senior management team, Maggie has begun to display increasing confidence in her ability to contribute to the discussions and decision making which are now part of her role. In certain areas she has provided leadership to the Native Services Division campus staff and she is respected by her peers and colleagues both within GDI and SIAST. Her communication skills continue to be excellent. After considering all the above factors, I considerten months to be reasonable notice. Although Gordon initially was given two months' notice, Gabriel Dumont Institute erroneously requested her to take 19.871 days which she had earned as annual leave. Therefore, Gordon actually only received one months' notice. I therefore award her damages of nine months' salaryin lieu of notice. As Gordon's salary was $2,946.00 permonth, I therefore assess her damages under this head at$26,514.00. (b) Loss of Pension Benefits Gordon, as part of the employment contract, was paid an amount equal to 5% of her gross salary into pension fund. For the period of nine months, I assess damages under thishead at $1,325.00. (c) Canada Pension Plan Gabriel Dumont Institute was required by law to contribute to the Canada Pension on behalf of the employee. Gabriel Dumont Institute's contribution for nine months wouldhave been $564.00, and I assess damages under this head inthat amount. (d) Annual Leave Gordon had accumulated 19.871 days of combined time-in-lieu and annual leave. Gordon is to be compensated forthis time. This payment is not disputed by Gabriel Dumont Institute. (e) Pre-Judgment Interest Therefore damages are to be assessed as follows:Damages in lieu of notice $ 26,514.00Pension Benefits 1,325.00Canada Pension Plan 564.00Holiday pay 2,334.93TOTAL $30,737.93 Gordon shall have judgment against Gabriel DumontInstitute for $30,737.93, plus costs. In addition, I awardpre-judgment interest pursuant to The Pre-Judgment InterestAct, S.S. 1984-85-86, c. P-22.2, on the sum of $30,737.93,from the date of Gordon's dismissal.

A claim for wrongful dismissal. The position of executive secretary was discontinued for economic reasons. HELD: The plaintiff was awarded $30,737.93 plus costs plus pre-judgment interest. 1)The plaintiff had taken all reasonable steps to mitigate her losses. The duty is to take such steps as a reasonable person would take in his own interests to maintain his income and position in his industry, trade or profession. The former employer has no right to expect that the former employee will accept a lower paying alternative employment with doubtful prospects. 2)Reasonable notice would have been ten months. She had been erroneously requested to take 19.871 days as annual leave and therefore actually received one months' notice. Nine months salary at $26,514.00 plus $1,325 for lost pension benefits and $564 for the Canada Pension Plan were awarded. She was to be compensated for 19.871 days of combined time in lieu and annual leave.

b_1996canlii6803.txt

nan IN THE SUPREME COURT OF NOVA SCOTIA Citation: Barnard v. Her Majesty the Queen, 2002 NSSC 250 Date: 2002/11/13 Docket: S.H. 183770A Registry: Halifax Between: Todd Forrest M. Barnard v. Her Majesty the Queen Respondent Judge: The Honourable Justice David W. Gruchy Heard: November 13th, 2002 in Halifax, Nova Scotia Written Decision: November 20th, 2002 Counsel: Brian Casey, for the Appellant Denise Smith, for the Respondent By the Court: [1] The trial giving rise to this appeal dealt with fairly straight forward factual circumstance. [2] On November 17th, 2001 the appellant spent the morning and most of the afternoon with friends in local pub in Halifax and then proceeded to football game, the Atlantic Bowl, and eventually to lounge at the campus where the football game was played. When he left the lounge with his friends, the appellant gave lift to his friends. Having dropped off all but one of his friends at downtown point, the appellant then drove his vehicle towards the spot where he eventually parked. In entering Spring Garden Road, busy thoroughfare within the downtown core of the City, the right side of the appellant’s vehicle rubbed against parked vehicle. [3] This incident was seen by police officers who followed him to where he parked his vehicle. The officers told the appellant he had struck parked vehicle and then one of them accompanied the appellant back to the parked car. While doing so the officer detected the smell of alcohol and noted certain other features about the appellant, prompting him to request the appellant take an “alert”, an approved screening device having read to the appellant the requisite demand. When the appellant “failed” this test the officer requested the appellant take the Breathalyzer test, which the appellant refused. The appellant was then charged with the offence of driving while his ability was impaired by alcohol or drug and for refusing the Breathalyzer. [4] At the trial the learned Provincial Court Judge dismissed the refusal count, as the officer had failed in his testimony to give evidence of the words used in the “Breathalyzer” demand. That decision is not under appeal. [5] The learned trial judge then heard the evidence of the Crown and of the defence with respect to the impaired driving charge. [6] The operative part of the learned trial judge’s decision is as follows: The evidence indicates on that particular day, Mr. Barnard, together with group of other individuals, attended at the Thirsty Duck pub in the morning and it was part of gathering to go to the football game at Saint Mary’s in which he had couple of Caesars by his evidence at brunch. Leaving the bar, proceeding to the football game, and at halftime because of being cold, he and his friend, Mr. Foerster, went into the Gorsebrook Lounge on the campus of Saint Mary’s University and proceeded to consume some beer within the lounge. To his recollection is (sic) was only two beers. At 4:30 after going to see friend, Mr. Isner, making arrangements with him to meet with him later, he drove Mr. Foerster and others back to the Thirsty Duck. In the area of Thirsty Duck on the corner of Queen and Spring Garden, everybody got out of the vehicle except Mr. Foerster, and he went around the corner and from the observations of Constable Galloway, who was in the line of traffic behind him and, noticed that the truck that was being operated by Mr. Barnard struck the Honda vehicle. At this time, Constable Galloway’s attention was drawn to the vehicle operated by Mr. Barnard and he stopped him or he didn’t stop him but he pulled up alongside of him on Queen Street at parking spot and resulting investigation of his observations of Mr. Barnard at that time, together the accident, the failure of the SL-2. In my opinion it satisfies me beyond reasonable doubt that Mr. Barnard was impaired by alcohol on the particular day which is an initial fact to be determined by myself. find him guilty beyond reasonable doubt. [7] emphasize the words used by the trial judge when he referred to the failure of the SL-2. The SL-2 device is the “alert” to which have already referred. [8] Counsel have agreed the learned trial judge erred in taking into consideration the result of the SL-2 test. agree with counsel and for the purposes of this decision it is unnecessary to detail the reasons for my conclusions and those of counsel. [9] The functions of an appeal court in case such as this are set forth in the decision in R. v. P.L.S. (1991), 1991 CanLII 103 (SCC), 64 C.C.C. (3d) 193 at pp. 197 and 198: Power of Court of Appeal In an appeal founded on s. 686(1)(a)(i) the court is engaged in review of the facts. The role of the Court of Appeal is to determine whether on the facts that were before the trier of fact jury properly instructed and acting reasonably could convict. The court reviews the evidence that was before the trier of fact and after re-examining and, to some extent, reweighing the evidence, determines whether it meets the test: see R. v. Yebes (1987), 1987 CanLII 17 (SCC), 36 C.C.C. (3d) 417, 43 D.L.R. (4th) 424, [1987] S.C.R. 168. The appeal is prognosis as to what jury would do not on the basis of version of the facts that the court determines was properly admissible, but on the basis of the evidence that was in fact before them. The exercise of this power is predicated on the accused having had proper trial on legally admissible evidence accompanied by instructions that are correct in law. The Court of Appeal may disagree with the verdict but provided that the accused has had trial in which the legal rules have been observed, no complaint can be upheld if there is, on the evidence, reasonable basis for the verdict. On the other hand, if the Court of Appeal finds an error of law with the result that the accused has not had trial in which the legal rules have been observed, then the accused is entitled to an acquittal or new trial in accordance with the law. The latter result will obtain if there is legally admissible evidence on which conviction could reasonably be based. The court cannot substitute its opinion for that of the trial court that the evidence proves guilt beyond reasonable doubt because the accused is entitled to that decision from trial judge or jury who have all the advantages that have been so often conceded to belong to the trial of fact. If the Court of Appeal were to make that decision the accused would be deprived of trial to which he or she is entitled, first, by reason of the abortive initial trial and second by the Court of Appeal. There is, however, an exception to this rule in case in which the evidence is so overwhelming that trier of fact would inevitably convict. In such circumstances, depriving the accused of proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction. These limitations on the powers of the Court of Appeal are the result of the combined effect of s.686(1)(a)(ii), (b)(ii) and (iii) and s.686(2). By virtue of s.686(1)(b)(ii) the Court of Appeal cannot dismiss the appeal if it has found an error of law unless the curative provision embodied in s.686(1)(b)(iii) applies. If the appeal is not dismissed it must be allowed, and pursuant to the provisions of s.686(2) either an acquittal or new trial must be ordered. [10] The findings of the learned trial judge do not address fully the various indicia of impaired driving beyond the findings that the accused had been drinking, had very slight accident, and failed the SL-2. It was, however, open to him as well on the evidence before him to have considered that the appellant (a) had bloodshot eyes and (b) had moderate smell of alcohol on him. [11] The learned trial judge did not address these factors, nor did he address the defence evidence adduced before him with respect to those factors and with respect to the driving of the appellant. [12] have considered the entire transcript of the evidence in relation to the burden of proof required in an impaired driving charge as enunciated in R. v. Landes, 1997 CanLII 11314 (SK QB), [1997] S.J. No. 785 and R. v. Smith, [2000] N.S.J. No. 406. pose the following question to myself. “Was the evidence relied upon by the trial judge sufficient to have established the offence of impaired driving beyond reasonable doubt when viewed in the context of the accused’s behaviour?” The various indicia to be considered are found in R. v. Landes (supra) at paragraphs 16 and 17: .. Those observations and tests include: (1) evidence of improper or abnormal driving by the accused; (2) presence of bloodshot or watery eyes; (3) presence of flushed face; (4) odour of an alcohol beverage; (5) slurred speech; (6) lack of coordination and inability to perform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. In my view, trial judge must carefully review all of the reported tests and observations which inferentially support or negate any impairment of the accused’s mental and physical capabilities, and then be satisfied beyond reasonable doubt that the reasonable inferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of the Criminal Code. piecemeal approach supporting or negating impairment is not permissible.... [13] have to relate these indicia to the evidence of Constable Galloway as follows: Q. ...Prior to trying to obtain the first sample, what, if anything, did you explain to him regarding the operation of the SL-2? A. I explained to him that this was just a roadside screening device and it was just an indicator for me, and that if he passed it he would be sent on his way and we’d look after the accident, and that if he failed I would be reading him a Breathalyzer demand and requesting him to come back to the Halifax police headquarters... [14] The answer which the Constable gave was really not responsive to the question posed to him, but is certainly an indication of what he had thought about the ability of the accused to drive the motor vehicle. He had apparently concluded that in the event he passed the screening device he was quite capable of continuing to drive. [15] In order to address the question which have posed above had to ask myself what direction would give to jury (or to myself) if were the trier of facts in case on the totality of this evidence. My conclusion is that would have little doubt that with the necessary proper instruction jury (or I) would have little or no choice but to acquit the appellant. [16] In reaching this conclusion have reviewed and to certain extent reweighed the evidence before the trial judge, as is my authority and duty. [17] I have concluded that the evidence was weak to the point where there was virtually no choice but to acquit, and accordingly the appeal is allowed and the conviction quashed.

The police observed the appellant's vehicle rub another vehicle and followed him to where he parked without difficulty. While taking the appellant to where the incident occurred, the officer noted slight smell of alcohol and bloodshot eyes. The appellant failed the ALERT test and refused the breathalyzer. The refusal charge was dismissed and the appellant was convicted of impaired driving. The appellant appealed. Appeal allowed; conviction quashed. The evidence of impairment was too weak to convict the appellant. The officer told the accused that if he passed the ALERT test, he would be sent on his way. Thus, she must not have thought that the appellant's ability to operate a motor vehicle was impaired. Failure to act cannot be considered by the trial judge as part of the reasonable and probable grounds.

e_2002nssc250.txt

SUPREME COURT OF NOVA SCOTIA Citation: Smith v. Department of Community Services, 2009 NSSC 86 Date: 20090305 Docket: Hfx 301934 Registry: Halifax v. The Department of Community Services (Income Assistance) Respondent Judge: The Honourable Justice N. M. Scaravelli Heard: March 5, 2009, in Halifax, Nova Scotia Counsel: Andrew Pavey, for the Applicant Terry D. Potter, for the Respondent By the Court: (Orally) [1] This matter involves an application under Civil Procedure Rules (1972) for an Order in the nature of Mandamus compelling the Respondent, Department of Community Services to comply with an Order of the Income Assistance Appeal Board, dated September 17th, 2007. Carl Smith, the Applicant, is disabled and has been long term recipient of income assistance benefits from the Department of Community Services. [2] Mr. Smith’s income assistance was terminated in May 2006 due to failure to disclose requested information. He re-applied for income assistance in may 2007. His application was again denied based on failure to provide requested information. He appealed the decision and the appeal was heard by the Assistance Appeal Board on September 6, 2007. The Board allowed the appeal and found that Mr. Smith was “a person in need” as defined in the Employment Support and Income Assistance Act (ESIA). The Board ordered that his assistance was to be effective the date that he was assessed which was June 27, 2007. [3] Rather than comply with the Board’s decision, the Department of Community Services in October 2007, requested further financial information from Mr. Smith. The reason, as stated in the Affidavit of Mr. Thompson, income assistance case worker, was that “after having the opportunity to review in detail the documents presented at the hearing, number of questions arose about Mr. Smith’s income, which is another important aspect of eligibility.” [4] Mr. Smith refused to comply with the request. As result on December 6th, 2007 the Department sent notice of ineligibility to Mr. Smith based on non-disclosure. Mr. Smith originally intended to appeal the Department’s decision. series of correspondence followed between Mr. Smith’s counsel and Department of Community Services. Ultimately the Department was provided further information and Mr. Smith’s eligibility was reinstated from October 27th forward. However, the Department continues to refuse to reinstate eligibility from June 27th to September 7th as period covered by the Order of the Assistance Appeal Board. [5] The issue is whether the Court should grant an Order in the nature of Mandamus compelling the Respondent to implement the Appeal Board’s decision awarding the Applicant benefits from June 27th to September 30th , 2007. [6] Our courts have repeatedly adopted the criteria from Rawdon Realties Limited v. Rent Review Commission (1982), 56 N.S.R. (2d) 403 (N.S.T.D.), where the court stated: In order for mandamus to lie, or an order in the nature Mandamus to lie, there must be: 1. Standing, sufficient legal interest in the parties making the application. 2. No other legal remedy, equally convenient, beneficial and appropriate. 3. duty to the applicant by the parties sought to be coerced to do the act requested. 4. The duty owed must not be of one of discretionary nature but may be established either at common law or statute. 5. The act requested to be done must be required at the time of the application, not at some future date. 6. There must be request to do the act and that request must have been refused. [7] The Respondent’s position with respect to not complying with the decision of the Appeal Board is that the basis for granting the appeal was that the Applicant did not have the assets as alleged by the Department. That following the decision of the Appeal Board, the Department reviewed the documentation provided at the appeal hearing which the Department says, raised concerns about the applicant’s income. Therefore, it is argued, the Department was entitled to request further information regarding Mr. Smith’s income regardless of the decision of the Appeal Board. [8] As stated in the respondent’s brief: While the appeal board may have determined the applicant’s eligibility within the context of the information before it, the appeal board decision does not conclude the issue of eligibility. In this case, the department clearly had the right to request additional information from the applicant; especially when presented with new information at the appeal hearing that raised questions about the applicant’s finances. [9] As for the criteria for granting an order for mandamus, the Respondent’s position is that the Applicant has another legal remedy than mandamus which is an appeal of the Respondent’s most recent decision on eligibility. [10] The ESIA defines person in need as follows: 3(g) ‘person in need’ means person whose requirements for basic needs, special needs, and employment services as prescribed in the regulations exceed the income, assets and other resources available to that person as determined pursuant to the regulations. [11] The effect of an Appeal Board decision is set out at Section 14 of the Assistance Appeal Regulations. Effect of appeal decisions 14(1) decision of an appeal board binds both the appellant and the minister; (2) an appeal board decision is retroactive to the date of the decision that is being appealed. [12] The Respondent’s position appears to be that it can ignore an Appeal Board decision simply by demanding further information even when the Appeal Board has made finding on eligibility. The determination that Mr. Smith was person in need meant that he met the criteria set out in the definition that included his income assets and other resources available at the time. This information was produced at the appeal hearing. The Respondent did not request an adjournment to examine financial information. Moreover, the Respondent did not seek judicial review of the Appeal Board decision. Nowhere in the Act or Regulations is there provision providing the Respondent is permitted to make further requests for information relating to the very subject matter the Appeal Board was dealing with. Accepting the Respondent’s position would create situation where the Appeal Board’s decision would not bind the Department if the Department chooses to request further information. The actions of the Respondent following the Appeal Board decision amounted to determination that the Appeal Board was wrong to make its decision as result of lack of more information regarding Mr. Smith’s income. [13] If the Respondent had the right to ignore decisions of the Appeal Board, the Appeal Board’s function would be meaningless. [14] In Dewolf v. Halifax City) (1979), 1979 CanLII 2633 (NS SC), 37, N.S.R. (2d) 259: 19 It seems to me that there was clear legal right established to have the decision of the Appeal Board enforced. The respondents have argued that the decision of the Appeal Board derogates from the requirements of the Act and the Regulations in that the Appeal Board failed to properly exercise its judicial functions under the Act in making determination of whether the DeWolf's were ‘persons in need’ under the Social Assistance Act. Since the board so erred, the respondents argue that the provisions of regulation 36 would apply and that the Director and the Social Services Committee were entitled to implement the decision in accordance with the provisions of the Act and the Regulations. Even if it meant in this case complete refusal and rejection of the Appeal Board's decision. 20 cannot accept this argument because it would mean that the establishment of the Appeal Board would be meaningless. If the findings of the Appeal Board as established were subject to acceptance or rejection by that group which it was intended should implement those findings, then the whole system would break down and the appeal board would serve no useful prupose [sic] at all. cannot believe that the intent of the legislation was to set up an Appeal Board whose decisions could be totally ignored. 21 It is my feeling that Regulation 36 was designed to apply to procedural matters where the Appeal Board perhaps made an Order providing for benefits in excess of that allowed by the Act and the Committee would adjust the benefits to fit the legislation. Insofar as the basic finding of the Appeal Board is concerned however, it seems to me that the Director and the Social Services Committee were bound by that decision and are bound by the regulations to implement that decision subject to any action the Committee might take to question the decision of the Board by way of perogative writ. 22 have no difficulty in interpreting Regulation 36 as providing the authority to the director and the social services committee to vary an Order of the Board in certain procedural details in its implementation of that Order, but not as authority to reject the entire finding of the Appeal Board because the Committee does not agree with it. [emphasis added.] [15] The same reasoning applied by Glube, C.J.S.C. (as she then was) in Parker v. Campbell; Parker v. Director of Family Benefits (N.S.) (1987), 80 N.S.R. (2d) 361; 1987 Carswell NS 262 (S.C.T.D.): 15 The Director in the present case has taken it upon himself to decide that the finding of the Appeal Board is wrong. The DeWolf case held the Director may review for procedural errors only and may not review the Board's findings of fact or law. If the Director disputes the Appeal Board's decision, the remedy is to make an application for an order in the nature of certiorari. It is not for the Director to unilaterally decide that review board's decision fails to comply with the Act or Regulations. That is for the court to determine. 16 Until higher court declares otherwise, am bound by the decision in DeWolf as is the Director whose only discretion is if the Appeal Board makes procedural error. Such was not the case in the case at bar. When the Director takes it upon himself to overrule decision of an Appeal Board, he is denying the applicant the right to natural justice by taking away the applicant's right to make submissions and to be heard. [16] While the above cases were decided under different statutory scheme, these cases provide strong basis upon which to conclude that mandamus is available in circumstances similar to that present in this application. [17] reject the Respondent’s submission that the appropriate remedy for the Applicant is to appeal the Department’s most recent decision on eligibility. In fact the Respondent refused to comply with the decision of the Appeal Board and the Applicant should not be required to appeal the Respondent’s refusal to abide by an existing appeal decision. As to the other requirements of mandamus; the Applicant has a legal interest in the outcome of the proceeding; the duty to the Applicant arises from the Appeal Board’s decision which binds the Respondent as per the regulations; the regulations also confirm the Respondent has no discretion, either as to whether the decision is binding generally or as to the time period effected. As to timing, the Act was required to be done when the Appeal Board released its decision, retroactive to June 2007. [18] As to the requirement that request be made, although the Applicant provided further information to the Respondent, he was consistent in his demand that the Respondent comply with the Order of the Appeal Board with respect to assistance effective June 2007. [19] Accordingly, the Court will grant the application for an Order in the nature of Mandamus compelling the Respondent to implement the Appeal Board’s decision of September 2007. The Applicant shall have costs in the amount of $750.00 exclusive of disbursements.

The applicant applied under the Civil Procedure Rules (1972) for an order of mandamus compelling the respondent department to comply with a prior order of the Income Assistance Appeal Board. The applicant was denied income assistance for failure to supply requested information. He appealed the decision and the appeal board ordered his income assistance be reinstated. The respondent refused to reinstate assistance and made a request for additional information. Eventually, the applicant supplied the requested information and his assistance was reinstated. He sought retroactive amounts for the period falling between the appeal board's order and the time of reinstatement. Order granted, costs to the applicant in the amount of $750: assistance to be reinstated retroactively according to the time frame ordered by the appeal board. The respondent's argument that the applicant should be required to appeal their most recent decision on eligibility must be rejected. It would not be appropriate to require the applicant to appeal the respondent's refusal to abide by an existing appeal decision. To allow the respondent to ignore the appeal board's ruling and request additional information effectively undermines the appeal board's authority and makes a ruling by them meaningless. As for the other requirements for mandamus, the applicant had a legal interest in the outcome of the proceeding, the duty to him arose from the appeal board's decision, and the relevant Regulations (see Assistance Appeal Regulations, s. 14) confirm the respondent had no discretion to refuse to implement the appeal board's decision or to change the time period referenced in that decision.

2009nssc86.txt

NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacDonald, 2011 NSCA 46 Date: 20110516 Docket: CAC 347642 Registry: Halifax Between: Erin MacDonald v. Her Majesty the Queen Respondent Judge: The Honourable Justice Peter M. S. Bryson Motion Heard: May 5, 2011, in Chambers Held: Motion granted. Counsel: Brian Casey, for the appellant Jennifer A. MacLellan, for the respondent Decision: [1] On May 5, 2011, Mr. MacDonald applied in Chambers for interim release (bail) pending appeal of his conviction for offences relating to careless use and unlawful possession of a weapon. The Crown opposed release. After hearing Mr. MacDonald cross-examined on his affidavit and submissions from counsel, advised the parties that release would be granted on the terms set out in paragraph [43] and that written reasons for my decision would follow. These are the reasons. [2] Mr. MacDonald is 40 year old professional who works in the oil industry. He resides in Calgary and Halifax where he owns condominium at 1479 Lower Water Street. [3] On December 28, 2009 HRM Police responded to noise complaint regarding loud music at Mr. MacDonald’s condominium. [4] When Mr. MacDonald came to his door, he was holding (but did not display) loaded mm Beretta handgun. The police could not see the gun but one of the police officers suspected that Mr. MacDonald was concealing something and pushed inside. He then saw the handgun. Mr. MacDonald was handcuffed and arrested. He was charged with seven offences: careless use of a firearm (86(1)); pointing a firearm (87(1)); possession of a weapon for a purpose dangerous to the public (88(1)); possession of a firearm at an unauthorized place (93(1)(a)); possession of a prohibited or restricted firearm with ammunition (95(1)); resisting a police officer (129(a)); assault with a weapon (267(a)). [5] Mr. MacDonald was acquitted on four of these charges. He was found guilty and sentenced for the ss. 86(1), 88(1), and 95(1) offences. The latter carries minimum mandatory sentence of three years (s. 95(2)(a)(1) of the Code). [6] On December 30, 2009, Mr. MacDonald was released upon his own recognizance in the amount of $25,000 without deposit. On December 31, 2009, he surrendered his passport. On June 18, 2010, one of the terms of his recognizance was amended to permit Mr. MacDonald to travel within Canada. [7] Mr. MacDonald appeals both the findings of guilt and sentence. He alleges the trial judge erred: (a) In failing to find breach of the Charter when the police entered Mr. MacDonald’s condominium and failing to grant remedy as result; (b) In finding that it was unreasonable for Mr. MacDonald to take loaded handgun to the door in all the circumstances; (c) In failing to find that the minimum sentence provisions of s. 95(1) are unconstitutional. [8] The Crown opposes Mr. MacDonald’s release primarily on the basis that he is flight risk; that he has not established that he will surrender himself into custody as required by s. 679(3)(b) of the Code and that his proposed release plan is wholly inadequate. The Crown says that the release plan is less onerous than the initial recognizance and argues that following conviction, one does not move “down the bail ladder”. [9] For his part, Mr. MacDonald proposed that he be released essentially on an undertaking to appear. As part of his release proposal, Mr. MacDonald was not offering to surrender his passport, explaining that he had potential to work in Trinidad and Brazil. [10] Mr. MacDonald has license to possess the Beretta at his dwelling. He also has authority to transport the Beretta from his residence to shooting ranges within the province of Alberta. However, the trial judge found that Mr. MacDonald was not authorized to bring the Beretta to Nova Scotia and, in particular, that any lawful authority he had to possess the Beretta at his dwelling house did not extend to his Halifax condo. Accordingly, Mr. MacDonald was found guilty of the s. 95(1) charge which carries minimum three-year imprisonment. [11] In support of his application, Mr. MacDonald filed an affidavit on which he was cross-examined. His affidavit and the cross-examination establish that he owns undeveloped real estate in Alberta and the condominium in Halifax, although that is listed for sale. The Halifax condominium is assessed at $421,000 and has mortgage of $283,495.72. He purchased it in 2005. The Alberta property has an estimated value of between $160,000 and $250,000 and $23,000 mortgage. Mr. MacDonald is also heir to some real property in Alberta, but it is not clear what the value of his interest in that property may be. Although he also resides in Alberta, Mr. MacDonald does not own that property. He lives in dwelling house there with his cousin and her son. He possessed number of weapons in Calgary which were turned over to the Calgary police as part of his initial recognizance. [12] Mr. MacDonald owns two vehicles registered to his company and some ATVs and tools, located in Calgary. He estimates his total worth at $700,000 and he owes $340,000 (it is not clear whether the $700,000 was gross or net figure). [13] Mr. MacDonald has travelled widely for his work in the oil industry. In the last number of years he has worked in Halifax, Saint John’s, Calgary, Trinidad, Saudi Arabia, United Arab Emirates, Bahrain, Iraq, and Quatar. Mr. MacDonald does business through company solely owned by him. His company has no permanent office or other employees. [14] Although it appears that Mr. MacDonald has experience as pilot, he has not flown for almost 10 years. It is not clear whether he has current license and what licenses he may previously have held. [15] Apparently, when he was recently taken into custody, Mr. MacDonald was carrying $2,800 in cash. He explained that he often carries large sums of cash when he travels. Although he uses credit cards, he has had problems with them “working” in some jurisdictions. Moreover, he has suffered credit card fraud as result of using them elsewhere. [16] Mr. MacDonald files income tax returns in Alberta, not in Nova Scotia. He was not proposing any sureties in connection with his release terms as he does not know anyone in this jurisdiction who can act as his surety. He acknowledged during cross-examination that it was not his intention to remain in Nova Scotia but only return here for work purposes. [17] Section 679 of the Criminal Code authorizes release of an appellant from custody pending determination of his appeal if (subject to notice of appeal requirements): (a) the appeal or application for leave to appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. [18] The law requires Mr. MacDonald to satisfy each of these criteria, on balance of probabilities. (a) Appeal not Frivolous [19] The grounds of appeal are set out in paragraph 7, above. Counsel filed an “Affidavit of Merits” in which he sets out the circumstances of the police entry into Mr. MacDonald’s condominium, his use (or non-use) of the Beretta, the particulars of his ownership and licensing of firearms and Mr. MacDonald’s belief, to which he testified at trial, that he had complied with the law relating to firearms licensing. Counsel also summarized the sentencing court’s concerns regarding general deterrence, contrasting them with the circumstances of these offences and this offender. [20] While arguing that the grounds of appeal are weak, the Crown does not allege that they are frivolous. agree they are not frivolous. It is otherwise preferable that no more be said at this stage concerning the merits of the appeal. (b) Will Mr. MacDonald surrender himself into custody [21] This is the issue on which the parties primarily join battle. Mr. MacDonald submits that he has no criminal record, substantial assets, favourable pre-sentence report and has been on bail for 16 months without incident. Mr. MacDonald points out that although he was found guilty in August 2010, the Crown consented to his release pending sentencing and then consented to an amended recognizance which allowed him to travel throughout Canada. Mr. MacDonald submits that he has complied with the terms of his release in the eight months since he was found guilty. Moreover, he argues that he has known since the finding of guilt that the Crown would be looking for the three-year minimum sentencing with respect to the s. 95(1) charge, so his compliance with bail terms has been with full knowledge of his potential jeopardy. [22] Mr. MacDonald proposed that the Court could release him on more generous terms than before conviction because the Court now knows why he possessed gun on December 28, 2009. Mr. MacDonald testified in his own defence at his trial, and counsel submits that the Court accepted lot of his evidence. Counsel argues that the concerns surrounding Mr. MacDonald’s initial recognizance have largely been addressed Mr. MacDonald has been acquitted of the majority of charges and the circumstances leading to his convictions are known. [23] In response, the Crown says that as result of the cross-examination, it has even greater concerns that Mr. MacDonald is flight risk. Things have changed dramatically since the original recognizance. Mr. MacDonald has now been convicted of three charges and, significantly, faces mandatory three-year prison term. In response to the argument that Mr. MacDonald’s compliance with the terms of release was with the knowledge that he faced three-year prison term, counsel points to the presentence report which indicates that Mr. MacDonald has “limited insight” into the seriousness of the offences he faces. She argues that the seriousness of what confronts Mr. MacDonald has not sunk in. She notes that at sentencing his own counsel was looking for discharge and that Mr. MacDonald may have had an inappropriately optimistic view of the prospects of penalty. [24] Crown counsel urges that the past is not reliable indicator of the future because the status quo has changed as result of Mr. MacDonald’s convictions. He faces bleak reality as result of the minimum sentencing provision attaching to the s. 95(1) conviction. [25] The Crown also argues that Mr. MacDonald has tenuous connection to the jurisdiction. Mr. MacDonald is unmarried and does not have family and so his ability to move freely is unimpeded by these types of relationships. He travels widely in connection with his work and his condo is presently for sale. The terms of his proposed release are totally inadequate and do nothing to “bind his conscience”. [26] Despite the able submissions of Crown counsel, am persuaded that Mr. MacDonald has met the onus on him. The circumstances that the Crown suggest make Mr. MacDonald a “flight risk” have nothing to do with the charges he has faced or the convictions that have resulted. Rather, they result from Mr. MacDonald’s professional obligations. There is no indication that Mr. MacDonald has done anything differently as result of facing these charges or as result of the convictions. [27] During cross-examination Mr. MacDonald candidly acknowledged that his condominium was for sale. He answered Crown counsel’s questions spontaneously and directly. He acknowledged estrangement from most of his family. He admitted that his immediate plans were to work outside Nova Scotia or Canada. His only hesitation understandably arose when personal medical question was asked of him. [28] The Crown agrees that Mr. MacDonald has no prior criminal record and that he has complied with the terms of his recognizance and amended recognizance since December 2009. His presentence report is favourable. If Mr. MacDonald had wished to flee, he certainly could have done so in the last eight months although how effective his flight would be without passport is questionable. [29] The cases on which the Crown relies where bail has been refused are all distinguishable on the facts. In R. v. Creelman, 2006 NSCA 99 (CanLII), release was contrary to the public interest because there was risk of continuing criminal conduct. Five hundred thousand dollars worth of drugs had been seized from the accused whose conduct involved substantial planning and pre-meditation. He also had prior conviction for possession of proceeds of crime. Creelman had pled guilty after Charter arguments at trial had failed. The crime of which Mr. Creelman had been convicted was so serious that the usual pre-trial onus is statutorily reversed and the accused was required to show cause why he should be granted bail prior to trial (Criminal Code, s. 515(6)(d)). [30] As the court pointed out in Creelman, public interest concerns not only protection of the public, but also the public’s confidence in the administration of justice. The seriousness of the charges, drug abuse, and the drug trade generally all heighten public interest and perception where drug trafficking is concerned. As the court said: ... reasonably informed member of the public would be rightly perplexed by the release of convicted, high level drug trafficker on mere allegation that the trial judge has erred in some unspecified way. [31] Without in any way diminishing the seriousness of the convictions in this case, they bear no resemblance to Creelman. Nor are Mr. MacDonald’s personal circumstances in any way comparable to those of Mr Creelman. [32] The Crown also relies on R. v. Patterson, 2000 CanLII 16873 (ON CA), 135 O.A.C. 324, where release pending appeal was denied. The appellant had been convicted of kidnapping, uttering threats, obstruction of justice and extortion. He was sentenced to seven years imprisonment. Mr. Patterson was connected with the Toronto area, had previously complied with bail and was prepared to post $50,000 deposit in support of his release. However, he was facing second trial in Ontario on second set of pimping charges and there was an outstanding bench warrant for his arrest in Nevada on similar charges because he had failed to attend his trial in that jurisdiction. When arrested in Nevada, he was found in possession of false identification. The court dismissed Mr. Patterson’s application citing history of deceit concerning his identity, failure to appear, and obstruction of justice. The seven-year sentence and the prospect of additional incarceration for other serious charges persuaded the court that flight was real possibility. From the point of view of the public interest, the offences were very serious. Again, with respect, simply to recite the foregoing facts is to significantly distinguish Patterson from Mr. MacDonald’s circumstances. [33] Finally, the Crown relies upon R. v. Tattrie, 2007 NSCA 41 (CanLII). Mr. Tattrie was convicted of assault with weapon, possession of weapon for dangerous purpose and breach of probation. When arrested, Mr. Tattrie was serving conditional sentence and he was in breach of that order. Moreover, the circumstances of the crime were telling: Mr. Tattrie had beaten his victim in fist fight and then pursued him and assaulted him with weapon. Although he had complied with the terms of release pending trial, he had criminal record, including several convictions for breaches of court orders, undertakings and probation. He had other convictions involving property offences and violence and threats. There is no comparison between the circumstances of Mr. Tattrie and those of Mr. MacDonald. [34] am satisfied on balance of probabilities that Mr. MacDonald is not flight risk. (c) The Public Interest [35] The jurisprudence addresses public interest in at least two general ways: First, there is practical and concrete concern about public safety if an appellant is released; and second, the public’s confidence in the administration of justice must be considered in the context of whether an appellant is released or retained in custody. [36] In R. v. Ryan, 2004 NSCA 105 (CanLII), Cromwell J.A. (as the then was) set out the considerations: [23] Underlying the law relating to release pending appeal are the twin principles of reviewability of convictions and the enforceability of judgment until it has been reversed or set aside. These principles tend to conflict and must be balanced in the public interest. As Arbour, J.A. (as she then was) pointed out in R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 86 C.C.C. (3d) 32 at 48: Public confidence in the administration of justice requires that judgments be enforced. ... On the other hand, public confidence in the administration of justice requires that judgments be reviewed and errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. [24] Justice Arbour then went on to discuss how these two competing principles may be balanced in the public interest: Ideally judgments should be reviewed before they have been enforced. When this is not possible, an interim regime may need to be put in place which must be sensitive to multitude of factors including the anticipated time required for the appeal to be decided and the possibility of irreparable and unjustifiable harm being done in the interval. This is largely what the public interest requires to be considered in the determination of entitlement to bail pending appeal. [25] This statement was cited with approval by my colleague Chipman, J.A. in R. v. Innocente, supra. [37] More recently, in R. v. Janes, 2011 NSCA 10 (CanLII), Justice Beveridge noted: [31] Factors that should be considered are the circumstances of the offence, as far as they are known, the circumstances of the offender, the seriousness of the offence, and the degree to which the public can feel protected by appropriate terms of release. [38] In its written submissions, the Crown cites the seriousness of gun crime as exemplified by s. 95(1) and presumably the mandatory sentence attaching; the findings of the sentencing judge regarding the problem of firearm use in the community; and, Mr. MacDonald’s conduct on the night in question endangering the lives of the police officers and others in the building. [39] With respect, Mr. MacDonald’s actions on the night in question bear no resemblance to the known problem of indiscriminate firearm use in HRM. If everyone using firearms in furtherance of other illegal activities in HRM obligingly licensed their weapons like Mr. MacDonald, life would be much easier for the police and the community at large. Without in any way diminishing the seriousness of the convictions here, Mr. MacDonald did not display, brandish, threaten or assault anyone (with or without weapon), in any manner whatsoever. [40] Unlike many of the perpetrators who liberally spray Halifax neighbourhoods with bullets on a regular basis, Mr. MacDonald is a 40-year old professional and gun hobbyist with no criminal record. If the events complained of by the Crown had occurred at Mr. MacDonald’s Calgary residence instead of his Halifax residence, he could not have been convicted of the s. 95(1) offence and would not be facing three-year minimum period of incarceration. [41] There is nothing in the circumstances of the offender or the offences which suggest that the public would be unsafe if Mr. MacDonald is released. In my view, the “ordinary, reasonable, fair-minded member of society” would not believe that detention is necessary here to maintain public confidence in the administration of justice, (R. v. Nguyen (1997), 1997 CanLII 10835 (BC CA), 119 C.C.C. (3d) 269 (B.C.C.A.) at para. 18, per McEachern, C.J.). [42] am satisfied on balance of probabilities that detention of Mr. MacDonald pending appeal is not necessary in the public interest. DISPOSITION [43] Notwithstanding the foregoing findings, agree with the Crown that Mr. MacDonald’s proposed terms of release are inadequate. Accordingly, I am prepared to order Mr. MacDonald’s release upon him entering into a recognizance in the amount of $25,000 with the following conditions: (a) that he keep the peace and be of good behaviour. (b) that he shall attend court as and when directed (c) that he confirm his address and telephone number, in Halifax and in Calgary, with the Court Administration office and notify the Court Administration Office of any change in that address or telephone number within two business days after the change. (Phone: 424‑6187) (d) that he reside within Canada (e) that he have no direct or indirect contact or communication with Shelly Pierce and Steve Sears or other crown witnesses except through lawyer (f) that he not have in his possession any firearm, cross‑bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance (g) that he not possess, use or consume any alcoholic beverages, and not possess, use or consume controlled substance as defined by the Controlled Drugs and Substances Act except in accordance with physician's prescription or legal authorization (h) that he report in person when in Halifax to Halifax Regional Police Headquarters at 1975 Gottingen Street, once week starting Friday, May 6, 2011 and each Friday thereafter, and when residing outside of Halifax, report by telephone to the Halifax Regional Police Headquarters at 1975 Gottingen Street at telephone number provided by that office (i) that he maintain his passport with Court Administration Office (j) that he not play music at his premises at 207 1479 Lower Water Street, Halifax, NS, daily after 9:00 pm and at no time at volume audible outside of his condominium (k) That he surrender into the custody of the keeper of the Central Nova Scotia Correctional Facility at Dartmouth, in the Halifax Regional Municipality, by one o'clock p.m. of the day preceding the day on which the appeal will be heard. He will be advised at least 24 hours before the time by which he must surrender into custody, in the event the appeal is sooner dismissed, quashed, or abandoned. (l) That he shall surrender into custody of the keeper of the Central Nova Scotia Correctional Facility at Dartmouth in the Halifax Regional Municipality within 24 hours of the filing with the Registrar of the Court the order dismissing or quashing the appeal or the notice of abandonment of the appeal, as the case may be. (m) That he surrender into the custody of the keeper of the Central Nova Scotia Correctional Facility at Dartmouth, in the Halifax Regional Municipality, by one o'clock p.m. of the day preceding the day on which the appeal decision will be released (n) That his release be conditional upon the appeal proceeding on the date scheduled for the hearing, and if the date is to be changed for any reason, this order for release shall be reviewed in chambers on date fixed by the court. [44] am satisfied on balance of probabilities that Mr. MacDonald has established that he will comply with the foregoing terms of release. Bryson, J.A.

The defendant, who was found guilty of the careless use of a firearm, possession of a weapon for a purpose dangerous to the public peace and possession of a restricted or prohibited firearm applied for bail pending appeal. He had been found, in his residence, with a firearm licensed in Alberta but not licensed to be brought into this province or possessed here. The defendant had residences in both Alberta and Nova Scotia but his Halifax residence was now up for sale and he travelled extensively around the world for his work. Although he had no criminal record and had been on a recognizance for 16 months prior to sentencing, the Crown argued that he was a flight risk given that his convictions would result in a mandatory three-year prison term and he had only a tenuous connection to the jurisdiction. Application for bail pending appeal granted provided the defendant enter into a recognizance of $25,000 with conditions. The defendant's actions bore no resemblance to the known problem of indiscriminate firearm use locally as he was a middle-aged professional and gun hobbyist and the circumstances that purportedly made him a flight risk had nothing to do with these charges but rather with his professional obligations.

5_2011nsca46.txt

SCHERMAN QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 67 Date: 2013 02 26 Docket: DIV. 211/2012 Judicial Centre: Regina (Family Law Division) BETWEEN: DARCY CLEASBY and KRISTINA CLEASBY Counsel: Daniel S. Tapp for the petitioner Lindsay A. Wacholtz for the respondent JUDGMENT MCINTYRE J. February 26, 2013 [1] The issues include parenting, child support and spousal support. [2] The respondent filed a Notice of Objection to the petitioner’s affidavit of October 16, 2012, including Exhibit “A” which is captioned as Minutes of a Four-Way Meeting. The document says the parties agree that the meeting is without prejudice. have not reviewed the contents of the document and indicated would not do so until ruled on its admissibility. [3] The petitioner attended settlement meeting and they reached an agreement on seven issues. He says there was no agreement that any agreements reached at the meeting could not be used in evidence. The petitioner does not suggest that all outstanding issues were resolved at the settlement meeting. [4] In Tucker-Lester v. Lester, 2012 SKQB 443 (CanLII), [2012] S.J. No. 702 (QL), the court canvassed the principles which underly settlement privilege. The court noted that settlement privilege is jointly held privilege which cannot be waived by any one party acting alone. The court observed as follows: [7] First, the basics. The conditions that must be present for the privilege to be recognized are (John Sopinka, Sidney N. Lederman Alan W. Bryant, The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis Canada Inc., 2009) at para. 14.322): (1) litigious dispute must be in existence or within contemplation. (2) The communication must be made with the express or implied intention that it would not be disclosed to the court in the event negotiations failed. (3) The purpose of the communication must be to attempt to effect settlement. [8] Those are the formal conditions. More illuminating, suggest, is the policy reason for the privilege which, in turn, defines the scope of the privilege. Here is thumbnail sketch: (i) At the heart of settlement privilege is the overriding public interest in favour of settling legal disputes: “...[t]his policy promotes the interests of litigants generally by saving them the expense of trial...” (Kelvin Energy Ltd. v. Lee 1992 CanLII 38 (SCC), [1992] S.C.R. 235 at para. 48.) More than 100 years ago Cameron C.J. of the Ontario Court of Appeal wrote in Pirie v. Wyld (1886), 11 O.R. 422, [1886] O.J. No. 188 (QL) (Ont. HC.), at para. 18: “... letters written or communications made without prejudice, or offers made for the sake of buying peace, or to effect compromise, are inadmissible in evidence. It seemingly being considered against public policy as having tendency to promote litigation, and to prevent amicable settlements.” (ii) It is common sense that settlement is less likely if the parties do not engage in full and frank discussions; (iii) Few parties would initiate or participate in settlement negotiations at all if such could later be used to their detriment: “What sensible man would attempt settlement if it could be used against him at trial?” (William Allan Real Estate Co. v. Robichaud, [(1987), 37 B.LR. 286, [1987] O.J. No. 2167 (QL) (Ont. H.C.]). (iv) To provide the degree of comfort required to encourage parties to engage in frank discussions without fear of prejudice, the whole of the settlement process is protected: all communications in furtherance of settlement regardless of from which party the communication emanates from the first utterance or letter to the last. (v) In order to promote settlement, the privilege must be broadly construed such that the integrity of the settlement process is preserved: (a) settlement privilege can only be waived with the consent of both parties (Squires v. Corner Brook Pulp [(1999), 1999 CanLII 18967 (NL SC), 175 Nfld. P.E.I.R. 2002, [1999] N.J. No. 146 (QL) (Nfld. C.A.)]; Leonardis v. Leonardis, [2003 ABQB 577 (CanLII), 43 R.F.L. (5th) 144]). (b) the communication need not contain settlement offer any communication designed or intended to explore settlement, or from which the Court might infer there are settlement communications contemplated or in the works, is protected (White v. Woolworth Co., [(1996), 1996 CanLII 11076 (NL CA), 139 Nfld. P.E.I.R. 324, [1996] N.J. No. 113 (QL) (Nfld. C.A.)]. (c) the privilege is clearly an important one, and in cases of doubt as to whether the correspondence does relate to the negotiations, the Court should undoubtedly err on the side of protecting the privilege (Hansraj v. Ao [2002 ABQB 385 (CanLII), 314 A.R. 262]. [5] The petition in this matter was issued April 11, 2012. The four-way meeting occurred August 30, 2012. The petitioner describes the meeting as settlement meeting at which they reached agreement on number of the issues. The meeting is said to be without prejudice. am satisfied the conditions as identified in para. of the Tucker-Lester judgment exist in the present circumstance. note the observation of the court in Tucker-Lester at para. 8(iv) that the whole of the settlement process is protected, that is, all communications in furtherance of settlement from the first utterance or letter to the last. [6] I conclude from the material before me that while they may have reached an agreement on seven issues, they did not reach agreement on all issues. The circumstance at hand is to be distinguished from an application to enforce settlement agreement where it is alleged that all issues have been settled. While it may be that parties in a settlement meeting reach a consensus on a number of issues, I am satisfied that the policy considerations which underly settlement privilege and as identified in Tucker-Lester require that unless all of the issues have been resolved, privilege continues to extend to those issues where there may have been a consensus unless there is a clear understanding and agreement that once one of the issues is resolved it is off the table and considered to be settled irrespective of what may happen with respect to other issues that may exist as between the parties. As a result, the last three sentences of para. 4 and Exhibit “A” to the petitioner’s affidavit of October 16, 2012 is struck and the Local Registrar is directed to remove Exhibit “A” from the court file. [7] The petitioner brought motion returnable June 1, 2012 in which he sought an order for shared parenting and to fix his child support obligation. After separation in January, 2012, the petitioner was paying mortgage payments of $1,200.00 per month, child support of $1,300.00 per month, utilities of $419.00 per month, the respondent’s van payment of $87.00 per month, and life insurance premiums of $102.00 per month. [8] The respondent brought a motion returnable October 19, 2012 claiming child and spousal support together with exclusive possession of the family home. Prior to separation the respondent was primarily stay at home parent who worked casual shifts as an educational assistant and sold Pampered Chef products. As noted, following separation, the petitioner was making the mortgage and other payments associated with the family home. In May, 2012, he stopped paying the utilities and in September, 2012, he advised he would no longer contribute to the mortgage payment and would be reducing the child support payments to $926.00 monthly. [9] The petitioner says that when he was making the mortgage payment and paying utilities, the van payment, life insurance premiums and child support of $1,300.00 per month, he was left with about $250.00 per month for rent, groceries and household expenses. He has noted there is basement suite in the family home which the petitioner could rent out for $700.00 per month. He has estimated his one-half share of basic monthly expenses at $2,000.00 per month. He notes the respondent is receiving the full child tax benefit of $650.00 per month. [10] The respondent has identified her most basic of monthly expenses as $2,800.00. This does not include anything for property taxes, house insurance, general household expenses other than the groceries, health, personal or childrens’ expenses. The mortgage is line of credit. Just after separation, the petitioner withdrew $54,000.00 on the line of credit. The respondent appears to have withdrawn $12,500.00 from the line of credit. The respondent says there are s. expenses including child care of $3,200.00 per annum; pre-school expenses of $700.00 per annum; piano expenses of $800.00 per annum and various sports activities of $1,100.00 per annum. [11] The respondent has now obtained permanent full-time position as an educational assistant. She anticipates an income of $19,211.00 with union dues of $327.00. On the issue of parenting, the respondent acknowledges that since September 1, 2012, the parties have attempted to implement shared parenting arrangement and that child support as of that point is to be determined pursuant to s.9 of the Federal Child Support Guidelines (SOR/97-175)(the “Guidelines”). There will be an interim order that the parties shall have joint custody of their children. The parties will parent the children pursuant to shared parenting arrangement. The children are not to be left in the care of Debbie Ruckaber. If the parties are unable to agree upon the details of shared parenting arrangement, the matter may be referred back to chambers on 14 days notice. [12] The respondent seeks an order for interim exclusive possession of the family home. The petitioner does not oppose the respondent remaining in the home on a time limited basis and suggests it should terminate June 27, 2013. There will be an order granting the respondent interim exclusive possession of the family home. If the division of family property has not been settled by June 27, 2013, either party may seek to have the issue of continued possession of the family home reviewed upon 14 days notice. [13] With respect to spousal support, the petitioner takes the position the respondent is under employed and no support should be payable. During the relationship the respondent was largely stay at home parent who worked some casual shifts as an educational assistant and sold some Pampered Chef. In 2011, she had an income of $4,128.00. As of September, 2012, the respondent secured employment as full time educational assistant. She anticipates an income of $19,211.00 with union dues of $327.00. This employment involves six hours per day for 187 school days per year. [14] It is premature at this point to make any determination as to whether the respondent remains under employed. Whether the respondent should be employed at something which is 40 hours per week year round is an issue which will be left to the pre-trial conference. On an interim basis, am satisfied that there is need and ability to pay. [15] The parties have three children. They now have shared parenting arrangement. The petitioner cohabitates with woman who is employed full-time but assume for present purposes that she is not at this time common law partner for the purposes of the Income Tax Act, R.S.C. 1985, c. (5th Supp.), as they have not cohabitated in the conjugal relationship for twelve consecutive months. [16] Once entitlement is determined, Carol Rogerson’s and Rollie Thompson’s, Spousal Support Advisory Guidelines, ([Ottawa]: Department of Justice, 2008) (“SSAG”) are tool which the court may have regard to. Ultimately the court must be guided by the factors set out in the Divorce Act, R.S.C. 1985, c. (2nd Supp.) and the specific facts of the situation at hand. In such an analysis, having regard to the cashflow of the parties can be useful tool. The Canada Child Benefits Booklet T4114 published by the Canada Revenue Agency provides that in case of shared custody, each parent will receive 50% of the child tax benefit that he or she would have received if the child had lived with that parent all of the time. The Canada Revenue Agency General Income Tax and Benefit Package indicates that if parent does not have spouse or commonlaw partner and is supporting dependant, parent may claim an amount for an eligible dependant (AED) as tax credit. This used to be referred to the equivalent to spouse tax credit. However parent may not claim the AED for child for whom the parent is required to make child support payments. While the wording of an agreement or order can be an important factor in the case of shared parenting arrangement, if both parents are required to pay child support resulting in set-off, Canada Revenue Agency appears to take the position that no one is entitled to claim the AED or the federal child amount tax credit for such child unless the parents agree on who will be making the claim. Canada Revenue Agency takes the position that if the parents cannot agree, then neither of them may claim the AED or the federal child amount tax credit (FCTC). [17] In the circumstance at hand, counsel advises that the parties do not, at this point, agree on who may claim the AED. This appears to be an issue of some contention. It needs to be understood that in the context of spousal support proceeding the court cannot dictate to the Canada Revenue Agency how it is to apply the provisions of the Income Tax Act. While the respondent may at present receive the child tax benefit for all three children, it is assumed that will change once the Canada Revenue Agency becomes aware of the shared parenting arrangement and it may be that it is not possible for parents to “agree” on who will receive the child tax benefit. [18] In dealing with spousal support, when there are children in shared parenting arrangement, counsel ought to be aware of the economic consequences of the child tax credits and the child tax benefit. To touch upon the economic consequences, the chart below contemplates various scenarios. For the purposes of the chart have used an income for the petitioner of $87,178.00 and an income for the respondent of $19,211.00 with $327.00 in union dues. In each instance, each parent receives their entitlement to the child tax benefit. In all scenarios the children are in shared parenting arrangement and it assumes the petitioner’s child support obligation for three children as $1,547.00 per month and the respondent’s obligation is $358.00 per month. The calculations are done using ChildView for Judges, Version 2012.2.0. The monthly cashflow calculated by ChildView is after income tax, CPP and EI premiums. The figures for the SSAG are the bottom and top of the range (in monthly amounts) for the scenario in question along with the corresponding monthly cashflow. Scenario Parent claiming SSAG Monthly cashflow Petitioner Monthly cashflow Respondent 1,229 3,651 3,276 3,650 4,033 [19] In the chart above, each parent is assumed to receive their entitlement to the child tax benefit. By way of contrast, it is noted that in the circumstances at hand, so long as the respondent continued to receive the full child tax benefit, the SSAG calculation would range from low of $36.00 per month to high of $527.00 per month. While that may be the present scenario, it may change. Other factors in the future can change the economic consequences of the tax system. In the future should the party have common law partner for the purposes of The Income Tax Act, it could have bearing on the ability to claim the AED tax credit. [20] This is an application for interim relief. The parties need to proceed in timely manner to pre-trial conference where issues can be canvassed in more detail. Where appropriate, adjustments can be made to support orders made on an interim basis. Interim orders are often just to get the parties by until such time as they can address issues such as resolution of family property. [21] find the petitioner to have Guideline income of $87,178.00 and the respondent Guideline income of $18,884.00. The petitioner’s share of s. expenses would be 81.5%. Pursuant to s. 9(a) of the Guidelines, the petitioner shall pay child support to the respondent of $1,213.00 per month commencing September 1, 2012 and payable on the first of each month thereafter. On account of child care expenses of $3,200.00 per annum, the petitioner shall pay to the respondent his contribution of child care expenses of $186.00 per month commencing September 1, 2012 and payable on the first of each month thereafter. The petitioner shall pay his proportionate share of such other s. 7 expenses as the parties may agree upon. In the event they cannot agree, an application may be made in chambers. [22] The petitioner shall pay to the respondent by way of interim spousal support the sum of $500.00 per month commencing September 1, 2012 and payable on the first of each month thereafter. [23] The petitioner shall receive credit for monies which he has paid from September 1, 2012 onward. Should there be any dispute with respect to this or if it is appropriate to set monthly payment on account of any arrears which might exist as of the date of this order, the appropriate application may be made in chambers. [24] The respondent shall have costs fixed in the amount of $500.00, payable within 60 days. J. D.E.W. MCINTYRE

The petitioner and the respondent had separated and had held a settlement meeting regarding the resolution of various issues. The respondent filed a Notice of Objection to the petitioner's affidavit regarding the meeting and the appended exhibit that was entitled: 'Minutes of the Meeting'. The petitioner stated that there was no agreement that what had been agreed upon in the meeting could not be used in evidence, although he acknowledged that not all outstanding issues were resolved in the meeting. The other issues before the Court were the custody of the children, the parenting arrangements and whether the petitioner should pay interim spousal and child support and in what amount. The respondent remained in the family home and sought an order for exclusive possession. The 3 children of the marriage resided with her in it. She had recently obtained a position as an educational assistant and would be earning $19,000 per year and the petitioner's annual income was $87,000. The parties could not agree on who may claim the eligible dependant credit or AED for the children. HELD: The Court held that because the parties had not reached agreement on all of the issues, the settlement privilege extended to the agreement. Therefore, the exhibit and a number of sentences in the petitioner's affidavit were struck. The Court ordered a shared parenting arrangement and gave the respondent an order for exclusive possession of the family home until June 2013. The petitioner was ordered to pay $1,213 per month in child support and additional $186 per month to contribute to child care expenses and his proportional share of s. 7 expenses. The petitioner was ordered to pay interim spousal support in the amount of $500 per month. The Court reviewed the tax consequences to the parties, particularly in light of the shared parenting arrangement and noted that as the parties could not agree on who may claim the eligible dependant credit or AED for the children that that matter should be dealt with at the pre-trial conference.

7_2013skqb67.txt

nan 2004 SKQB 388 Q.B.C. A.D. 2003 No. 30 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: HER MAJESTY THE QUEEN and WALLACE ELROY WATETCH Jefferey D. Kalmakoff for the Crown Darren W. Winegarden for the accused JUDGMENT SCHEIBEL J. September 24, 2004 [1] The accused is charged that he did: 1. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan ... endanger the life of Marie Louise Bear by attempting to strike her with a motor vehicle, thereby committing aggravated assault, contrary to Section 268 of the Criminal Code. 2. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan in committing an assault on Marie Louise Bear cause bodily harm to her, contrary to Section 267(b) of the Criminal Code. 3. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan operate a motor vehicle in a manner dangerous to the public, contrary to Section 249(1)(a) of the Criminal Code. 4. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan commit an assault on Darnell Noltcho, contrary to Section 266(a) of the Criminal Code. 5. [O]n or about the 21st day of August, A.D. 2003 at or near Fort Qu’Appelle, Saskatchewan commit an assault on Conlee Kahpeaysewat, contrary to Section 266(a) of the Criminal Code. [2] The accused and the complainant Marie Louise Bear have lived together for approximately 18 months in common law relationship in Fort Qu’Appelle, Saskatchewan. On the day in question they went out together to play bingo, then played pool, had few bottles of beer and then went to house party after purchasing six pack of beer and some marijuana. [3] The complainant, Bear, drove her truck, to the party and on arrival at the house party the accused asked Bear for her keys to the vehicle because he did not want her to drive because she had been drinking. [4] Prior to leaving the party Bear reached into the accused’s pocket to retrieve her keys—this was the beginning of the confrontation between the accused and Bear. Eventually the accused, who did not have driver’s license and had consumed about the same amount of alcohol, drove the complainant’s truck to her home. [5] The complainant Bear testified that, while she does not remember everything, the accused got upset with Bear. She claims when they arrived at her house she was scared of the accused and tried to leave in her truck. She stated that while she was attempting to start the truck the accused caught her, pulled her out of the truck, pushed her down twice and kicked her in the head. Both parties were pushing each other and the complainant states she was trying to defend herself from the blows of the accused. She claims she fell down and the accused fell on top of her. [6] During the course of events the complainant received numerous bruises, cut tongue, swollen face, and broken nose. She claims, after she had been struck, that she had no memory of the events and ended up at the hospital. [7] Darnell Noltcho is the 16 year old daughter of the complainant. She was living at Bear’s house with her 22 month old child. She went to bed about 2:00 a.m. and the accused and Bear were not home. At approximately 4:00 a.m. Darnell heard voices and got up. She saw the accused and Bear talking outside of the Bear residence and said it appeared that they were not getting along. She claims the accused was angry and that her mom was trying to talk with him. [8] According to Darnell, the accused and Bear came into the house and shortly after Bear was attempting to leave, the accused grabbed her by the wrist. She was able to get outside and was pursued by the accused. Darnell claims they were fighting and that the accused was choking Bear with both his hands on her neck. The struggle continued as Darnell went to the bedroom to wake her boyfriend Conlee Kahpeaysewat to get him to stop the fight. [9] When Darnell and Conlee came back to the kitchen Darnell saw her mom on the ground and not moving. She claims her mother was knocked out and had blood on her face and nose. She claims when she tried to assist her mom the accused told Darnell to leave her alone. [10] She claims the accused then got into the truck, backed it up and then started coming forward toward Darnell and Bear with the tires screeching. While Darnell was attempting to get her mother into the house her mom fell off the second step of the stairs leading to the back door and hit her head on the cement. She claims that her mother would have probably been run over if they had not moved. The truck smashed into the garage at the rear of the house. Darnell said the accused got out of the truck and that her mother was on her back and the accused walked toward her mother and kicked her hard in the head, like kick to soccer ball. [11] She testified that she told the accused to leave her mother alone and the accused asked her if she wanted to fight with him. The accused then pushed her in her jaw with his hands and she went inside the house to use the phone to call the police and she alleges the accused ripped the phone cord off and then left in Bear’s truck and she called the police on the cell phone. [12] In cross-examination Darnell admitted she did not remember some of the events of the evening and was uncertain about whether or not the accused was choking her mother. [13] After Darnell woke Conlee up they went to the kitchen window and Conlee testified he could hear the accused hitting something or someone and saw the accused’s hand go back and forth in swinging motion and concluded the accused was hitting the complainant Bear. He then saw the accused kick Bear when she was down. [14] When Conlee was standing on the back step he saw the accused get into the truck and back it up as far out as the street and then come forward toward the house where Bear was lying on her back. He said the accused backed up the truck and came forward more than once. He claims the truck’s engine was loud and the vehicle was going little faster than it should have been. After the vehicle missed Bear and Darnell it struck the garage causing considerable damage to it. The accused got out of the truck and once again kicked Bear while she was laying down. [15] He said that Darnell yelled at the accused and then he saw the accused push Darnell and when Conlee yelled at the accused the accused came at him and hit him on the cheek with closed fist. Conlee claims he backed into the house and fell into the closet and the accused came at him and started hitting him with his fist. He said Darnell was trying to call the police and when he got out of the closet the accused was holding the phone cord in his hands. [16] Conlee said that when Darnell was attempting to get her mother into the house that Bear fell face first onto the concrete driveway. [17] Conlee stated that he did see Bear fight back when the accused struck her and that neither he nor Darnell fought back when struck. [18] The accused admits both he and Bear were drinking and claims Bear had four to seven beer and that he consumed four or five. He also admits purchasing one gram of marijuana and that one joint was smoked. [19] The accused claims he grabbed Bear’s wrist when they arrived at her home to prevent her from driving because she wanted to leave and he thought she was too drunk to drive. He claims consensual fight broke out and that both fell to the ground. [20] He admits he was drunk and that he threw couple of kicks blindly at Bear. He claims that after Darnell told him to leave Bear alone, he walked to the truck to leave—he indicated the truck backed up and then came forward—he claims he thought the truck was in reverse when it went forward. He says he struck the garage and then panicked and thought of just getting out of there and got in the truck and left. [21] It is the position of the accused that there was consensual fight and that the injuries sustained by Bear were occasioned by her fall on the concrete and by Darnell stepping on Bear’s face when she was helping her mother get up and both fell back. [22] The accused claims he never touched Darnell or Conlee. [23] The onus on the Crown, in criminal trial, is to prove the guilt of the accused on each count beyond reasonable doubt, failing which the accused must be found not guilty. [24] In this case the accused has testified. Therefore, if believe the evidence of the accused, must acquit him. If, after careful consideration of all of the evidence am unable to decide who to believe, must acquit the accused. Even if do not believe the accused but am left in reasonable doubt by his evidence must acquit the accused. [25] If am not in doubt about the evidence must still ask myself whether am convinced beyond reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which accept. [26] In assessing the evidence it must be noted that while Bear and the accused had been drinking and smoking pot, neither Darnell nor Conlee had consumed alcohol and were asleep at the outset of the confrontation. Their evidence confirms, in large measure, that of Bear. Even though Darnell retracted some of her evidence during cross-examination, her evidence is consistent with the events as outlined by other evidence. [27] Conlee’s evidence was not seriously affected by cross-examination and is, for the most part, accepted as an accurate account of the events as they unfolded. [28] The accused’s evidence was seriously attacked on cross-examination and on several occasions gave evidence which differed substantially from his previous statement to the RCMP. He claims his memory is better now than it was on August 21, 2003 and that he was not given time to think when he gave the statement to the police. [29] did not find the evidence of the accused to be credible where it is in conflict with the evidence given by Bear, Darnell and Conlee. [30] His claim is that the injuries to Bear were accidental and the result of intervening events. There is no doubt that some of the bruises sustained by Bear may have resulted from her fall on the concrete driveway and some may have been occasioned by Darnell when she accidentally stepped on her mother’s face while attempting to get her up and into the house. However, close examination of the photographs in exhibit P-2 demonstrates whole series of bruises and cuts, the combination of which together with the evidence, points to kicks and blows inflicted by the accused. While some of the bruises may be attributed to Bear’s fall and by Darnell stepping on her face, not all of the bruises can be explained in this fashion. [31] With respect to Count No. that the accused did endanger the life of Bear by attempting to strike her with motor vehicle, there is evidence that the accused did drive the truck dangerously close to Bear and Darnell while Bear was laying on the driveway. There is evidence that the accused backed up the truck and came forward on more than one occasion and that the accused barely missed hitting Bear and Darnell. There is also the evidence of Laurel Brown who heard squealing tires and spoke of the driver of the truck hitting the gas and then the brakes several times. [32] Exhibit P-4, photograph No. shows what appears to be tire marks on the driveway which may be consistent with the evidence give by Brown, however there is no evidence which indicates when the marks got on the driveway and no proof that they were occasioned by the accused’s driving. Therefore, the evidence of tire marks on the driveway cannot be accepted as having any impact on this case nor is it suggested by the Crown that they should. [33] In order to convict the accused of this charge the Crown must prove both the mens rea and actus reus. The criminality of the misconduct lies mainly in the intention of the accused. I have strong suspicions that the accused did intend to strike Bear with the vehicle. However, I cannot convict on suspicion and I am left with a reasonable doubt about the intention of the accused. In my view, the Crown has failed to prove the guilt of the accused on this count to my satisfaction beyond reasonable doubt and must find the accused not guilty of Count No. 1. [34] With respect to Count No. 2, do not accept that there was consensual fight between the accused and Bear. There is no doubt that bodily harm was caused to Bear. The accused admits he slung Bear on the ground and that he got more aggressive and kicked Bear on two occasions. The evidence that the accused assaulted Bear and in doing so caused her bodily harm is overwhelming. Therefore, I find the accused guilty as charged on this count. [35] Count No. raises the issue of whether the accused operated motor vehicle in manner dangerous to the public. [36] Section 249(1) of the Criminal Code provides: 249(1) Every one commits an offence who operates (a) motor vehicle in manner which is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at that time is or might reasonably be expected to be at that place. [37] There is no doubt the truck is a motor vehicle and there is no doubt the accused was operating it. Similarly, there is no doubt that the accused drove the truck toward Bear who was lying on the concrete and Darnell who was assisting Bear. [38] It is unnecessary for the Crown to prove that the lives or safety of others were actually endangered. The offence is proved where the Crown establishes that the driving complained of was dangerous to the public. The offence requires a marked departure from prudent conduct. [39] Given the evidence which I accept, the accused operated the motor vehicle in a manner dangerous to the public and the Crown has proven each and every ingredient of this offence to my satisfaction beyond a reasonable doubt and I find the accused guilty of this charge. [40] accept the evidence of Darnell and that of Conlee with respect to Counts No. and of the indictment. Conversely do not accept the evidence of the accused that he did not strike both Darnell and Conlee. On the evidence, the Crown has proven the guilt of the accused to my satisfaction beyond a reasonable doubt on both Counts No. 4 and 5 and therefore I find the accused guilty as charged on those counts.

The accused was charged with aggravated assault contrary to s. 268 of the Criminal Code; assault causing bodily harm contrary to s. 267(b) of the Code; dangerous driving contrary to s. 249(1)(a) of the Code; and two counts of assault contrary to s. 266(a) of the Code. HELD: 1) On the charge that the accused endangered the life of the complainant by attempting to strike her with a motor vehicle, the Court had strong suspicions that the accused did intend to strike the complainant with the vehicle but could not convict. 2) There was no doubt that bodily harm was caused to the complainant. The accused admits he slung her on the ground and kicked her and, as a result, the court find the accused guilty of assault causing bodily harm. 3) There is no doubt that the accused was operating a truck and that he drove it toward the complainant, who was lying on the concrete, and her daughter. It is unnecessary for the Crown to prove that the lives or safety of others were actually endangered. The offence is proved where the Crown establishes that the driving complained of was dangerous to the public. The offence requires a marked departure from prudent conduct. The offence of dangerous driving was established and the accused was found guilty. 4) The accused was found guilty of two counts of assault.

e_2004skqb388.txt

J. 2001 SKQB 163 D.I.V. A.D. 1996 No. 02446 J.C.S.C. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: GORDON CLARK McMILLAN PETITIONER (RESPONDENT) and WENDY LEE McMILLAN RESPONDENT (APPLICANT) P.G. Alberts for the applicant, Wendy Lee McMillan Gordon Clark McMillan on his own behalf FIAT BAYNTON J. March 20, 2001 [1] The applicant mother applies to vary the terms of the child support order made against her on March 1, 1999. It provided that she pay $400 per month support for the three children of the marriage, namely Brady McMillan born November 19, 1996, Jessica McMillan born May 2, 1989, and Kory McMillan born February 2, 1991. The order was made in connection with previous variation application brought by the applicant to vary former $450.00 per month child support order. [2] The March 1st, 1999 order imputed annual income of $18,000 to the applicant and set ongoing support at $400.00 per month (consisting of regular support of $334.00 plus $66.00 towards s. 7 medical and extraordinary expenses consisting primarily of hockey expenses). The applicant in her second variation application seeks cancellation of the arrears of $3,800 on the basis that she will otherwise in effect be required to overpay child support had it been calculated in accordance with the Guidelines on the basis of her actual (not imputed) income for the years 1999 and 2000. She also seeks a variation of the ongoing child support to $17.00 per month, being the Guideline amount based on her projected annual income for 2001 of just over $7,000. [3] acknowledge that if the basic level of child support for the two years in question was based on the applicant's actual adjusted average income for those two years rather than on her imputed income of $18,000, there would be no arrears of child support outstanding at this time. But the applicant must accept responsibility at least in part for permitting the arrears to accumulate over the two years. The court is reluctant to encourage irresponsibility on the part of applicants by rewarding them when they bring applications to retroactively vary court orders. However, the applicant is entitled to some relief in the circumstances. I order the cancellation of arrears of $1,900, being one-half of the total of $3,800 in arrears. [4] also acknowledge that it is unlikely the applicant will earn $18,000 during the year 2001. But on the basis of the material filed, am satisfied that she is capable of earning $15,000 during the year. Applicants are not entitled to variation order setting child support at the level that automatically flows from the choices they make respecting their employment and income. The court must factor in as well, the ability of the applicant to pay reasonable level of child support. The applicant is clearly capable of paying more than $17 per month for her three children. I fix basic child support for the three children under the Guidelines at $250.00 per month based on an imputed annual income of $15,000. [5] Neither party filed current information respecting the s. expenses which, as claimed by the respondent in 1999, appear to be exorbitant. I reduce the applicant\'s share of the s. 7 expenses to $50.00 per month for total ongoing child support of $300.00 per month commencing April 1, 2001. [6] Had the applicant been more reasonable in her submission for variation, would have awarded her costs. In the circumstances, there will be no order as to costs.

FIAT. The mother applied to vary the terms of the 1999 child support order under which she was to pay $400 per month composed of $334 for regular support plus $66 for s.7 medical and extraordinary expenses for their three children based on an imputed annual income of $18,000. She sought to cancel arrears of $3,800 on the basis she will overpay if child support had been calculated in accordance with the Federal Child Support Guidelines on the basis of her actual income for 1999 and 2000. She also sought to reduce child support to $17 per month based on a projected income of $7,000. HELD: 1)One-half of the arrears were cancelled. The mother must accept responsibility in part for allowing arrears to accumulate over the 2 years. 2)The mother was to pay $250 per month based on an imputed income of $15,000. She was capable of contributing more than $17 per month. Her share of s.7 expenses was reduced to $50 per month. Neither filed current information. 3)Costs would have been ordered if the mother had been more reasonable in her submission for variation.

7_2001skqb163.txt

Q.B. A.D. 1993 No. 1522 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: WEST CENTRAL AIR LTD. and THE GOVERNMENT OF SASKATCHEWAN DEFENDANT Henry R. Kloppenberg, Q.C. for the plaintiff Donald A. McKillop, Q.C. for the defendant JUDGMENT MAURICE J. December 18, 2000 [1] The defendant, The Government of Saskatchewan, tendered a spruce bud worm aerial spraying program in northern Saskatchewan. Four companies submitted tenders in response to the defendant’s invitation to tender. The plaintiff, West Central Air Ltd., submitted the lowest tender. The contract was awarded to another tenderer, Nielsen Ashdown Flying Services. The plaintiff complained the defendant had not treated it fairly in awarding the contract to Nielsen Ashdown and sued for damages. [2] It is settled law that the submission of tender in response to an invitation to tender may give rise to contractual obligations—depending upon whether the parties intend to initiate contractual relations by the submission of tender: M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd. et al. (1999), 1999 CanLII 677 (SCC), 170 D.L.R. (4th) 577 (S.C.C.); The Queen in Right of Ontario et al. v. Ron Engineering Construction Eastern Limited (1981), 1981 CanLII 17 (SCC), 119 D.L.R. (3d) 267 (S.C.C.). In fact, it may be said, that unless there is something in the circumstances to indicate otherwise, the submission of tender in response to an invitation to tender invariably results in contract. [3] An implied term of the contract is that the person inviting the tenders agrees to treat all tenderers fairly and not give any of them an unfair advantage over the others: Chinook Aggregates Ltd. v. Abbotsford (Mun. Dist.), 1989 CanLII 241 (BC CA), [1990] W.W.R. 624 (B.C.C.A.); Martselos Services Ltd. v. Arctic College (1994), 1994 CanLII 5245 (NWT CA), 111 D.L.R. (4th) 65 (N.W.T. C.A.); Yorkton Flying Services Ltd. v. Saskatchewan (Minister of Natural Resources) (1995), 1995 CanLII 6194 (SK QB), 135 Sask. R. 63 (Q.B.). This term must be implied in the contract because without it the tendering system would be unworkable: If tenderers are not satisfied they will be treated equally and fairly, they will not tender on project. There would be no competition and no purpose in putting project up for tender. [4] The tender package contained the usual privilege clause: The lowest, or any tender need not be accepted by the defendant—which clause has the effect of relieving the defendant from accepting the lowest tender for the project: M.J.B. Enterprises Ltd., supra. But such a clause does not entitle the defendant to disregard its obligation to treat all tenderers fairly—because, as noted, without the implied term of fairness there would be no tender system and no tenders to accept. The implied term of fairness and the privilege clause are compatible and can co-exist together in the contract. [5] The person who invites the tenders must treat all tenderers fairly and equally, but the privilege clause entitles him to consider all relevant factors, such as the amount of each tender, the experience and capabilities of the tenderers and the equipment to be used on the project, in determining who should get the contract. [6] Larry Stanley was in charge of the project for the defendant. He made the recommendation that resulted in the contract being awarded to Nielsen Ashdown. The project was first for the defendant. It was politically sensitive program fraught with danger for the defendant. Segments of Saskatchewan society were opposed to spraying. They considered spraying to be environmentally harmful to humans, flora and fauna. The defendant was going to have to tread carefully. To paraphrase Stanley: With the scrutiny the project was under, it would be an unmitigated public relations disaster if plane went down over populated area or had to ditch its load of pesticides over populated area. Stanley was looking for tenderer with experience in this type of spraying. [7] The plaintiff had no experience in this area—which put it at disadvantage to the other tenderers who did have experience. Each tenderer was required to list the planes it intended to use on the project. The defendant investigated the planes and got favourable reports on the planes the other tenderers intended to use, but an unfavourable report on the plaintiff’s planes. [8] The unfavourable report on the plaintiff’s planes doomed the plaintiff’s tender. Stanley was not about to take chance on an inexperienced operator with unfavourably rated planes, regardless of the fact it was the lowest tenderer on the project. The plaintiff’s tender was rejected. The contract was ultimately awarded to Nielsen Ashdown who had previous experience in the area and whose planes received favourable reports. [9] With the benefit of hindsight, it now appears that the plaintiff had compensated for its lack of experience by making arrangements to bring on board an experienced sub-contractor—a fact Stanley did not know at the time he made his recommendation. And planes of the type the plaintiff proposed to use, on this project, were used in Saskatchewan on similar spraying programs in subsequent years. [10] At this time, there is no reason to doubt that the plaintiff would have successfully completed the project if it had been awarded the contract. However, Stanley had to make recommendation on the information he had at the time. There is no doubt that his staff, who provided him with the information on which he based his recommendation, could have been more thorough in evaluating and investigating the tenders, but for the most part they were inexperienced in projects of this nature, and they relied heavily on the advice of Gregory Curniski, consultant who was advising the defendant on the project. Curniski, who had considerable previous experience in projects of this kind, had been seconded to the defendant from Weyerhaeuser Canada Ltd., a forestry company, to advise the defendant on the technical aspects of the project. [11] Stanley made his recommendation in fair and impartial manner based on the information he had. It was based on factors relevant to the project: The experience and capabilities of the tenderers and the equipment they proposed to use on the project. [12] The plaintiff suggests that Curniski, who had the task of investigating the planes the tenderers proposed to use on the project, conducted the investigation in an unfair manner to the plaintiff. [13] In the case of Nielsen Ashdown, Curniski contacted the chief pilot of the manufacturer of the planes Nielsen Ashdown proposed to use on the project. He was assured by the chief pilot that the planes were operationally viable. In the case of the plaintiff, Curniski contacted source in New Brunswick where the planes were based and two sources in Ontario where the planes had been used. All three sources told him to avoid the planes if possible. The sources contacted by Curniski were part of network of professionals involved in the aerial spraying industry. [14] Curniski did not check the log books of any of the planes he investigated because he testified it was not common practice to do so, and, in his view, it would have given him little relevant information on the operational viability of the planes. Curniski testified he followed common industry practice in the manner in which he investigated the planes—there was no evidence to the contrary. In every case, Curniski used reliable independent sources for his information. I am satisfied Curniski conducted his investigation of the planes in a fair and impartial manner and in accordance with common industry practice. [15] In the end result, the plaintiff was treated fairly by the defendant and no unfair advantage was given to Nielsen Ashdown in selecting the successful tenderer on the project. [16] The plaintiff’s action is dismissed. While costs usually follow the result, this is an appropriate case in which to exercise my discretion to disallow costs to the successful party. While am satisfied that the plaintiff was treated fairly, and the reason for its lack of success was due to negative reports on the planes it intended to use on the project, the recommendation itself contained other reasons for rejecting its tender which were specious and which would, invariably, lead the plaintiff to believe it did not get fair treatment. Why these reasons appear in the recommendation is difficult to say. Perhaps it is simply the unfathomable product of bureaucracy. But, in any event, cannot fault the plaintiff for believing it had been treated unfairly and for commencing the action. It was only after trial and full vetting of the evidence that one could say with satisfaction that the plaintiff was treated fairly. award no costs of this action. The exhibits filed by the parties may be returned to them at the expiration of the appeal period.

The plaintiff submitted the lowest tender of four made in response to the defendant's invitation to tender on a spruce bud worm aerial spraying program in northern Saskatchewan. HELD: The action was dismissed. 1)The tender package contained the usual privilege clause which stated the lowest tender need not be accepted. It is an implied term of the contract that the person inviting the tenders agrees to treat all tenders fairly and will not give any an unfair advantage. 2)The plaintiff had no experience in the type of pesticide spraying. It was not known at the time that the plaintiff made arrangements to hire an experienced subcontractor. The consultant hired to advise the defendant on the technical aspects of the project used reliable independent sources for his information about the operational viability of the planes. He followed common industry practice and conducted his investigation of the planes to be used by the plaintiff in a fair and impartial manner. 3)Discretion was exercised to deny costs because, while the plaintiff was treated fairly and the reason its tender was rejected was due to negative reports, the recommendation contained other reasons which led the plaintiff to believe it did not get fair treatment.

8_2000skqb570.txt

nan Date: 20011114 Docket: S. H. 167817 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Halifax Regional Municipality v. Vance Joudrey 2001 NSSC 162] BETWEEN: HALIFAX REGIONAL MUNICIPALITY, municipal body corporate and VANCE JOUDREY nan HEARD BEFORE: The Honourable Justice Walter R. E. Goodfellow in the Supreme Court of Halifax (Chambers) on November 13th, 2001 DECISION: November 14TH, 2001 COUNSEL: Ian C. Pickard and Benjamin R. Durnford, Solicitors for the Plaintiff Robert G. Cragg, Solicitor for the Defendant GOODFELLOW, J.: [1] Vance Joudrey is the owner of the property 921 Brussel Street, Halifax and in 1999 planned renovations. On March 29th, 1999 his architect applied for minor variance converting the existing R1 use to R2 use so as to have two units without changing the side yard requirements. The side yard requirements for two unit dwelling is five foot clearance. After discussion with HRM, this application was withdrawn. [2] On April the 14th, 1999 development permit was sought to convert the single family dwelling to two residential units and this was granted May the 12th on conditions that all R2 requirements would be met, including lot coverage, minimum five foot side yard, etcetera. This was followed by further application for development permit November the 30th, 1999 which was simply to add living space to the existing single unit dwelling. This was granted December the 24th, 1999 on the condition that all R2 general residential zone requirements were met and the plan was revised to show an addition to single family dwelling and such plans indicated for example, one kitchen. The plans were reviewed by HRM and on June the 1st, 2000 notation on the plans confirmed it was single family dwelling with one kitchen and on the 15th of June, 2000, the kitchen was to be relocated to new kitchen in the extension. On July the 28th, 2000 an inspection revealed the existence of two kitchens one in the original structure and one in the addition. On August the 9th, 2000, HRM was advised that the original kitchen was removed and plumbing sealed up, etcetera. [3] Negotiations took place between HRM and Mr. Joudrey in part because the accommodation was rented out to separate groups of students and the parties reached a Consent Order which was issued January the 9th, 2001. [4] HRM seeks a finding that Vance Joudrey is in contempt of the Consent Order. CONSENT ORDER JANUARY 9th, 2001 UPON IT APPEARING the Plaintiff and Defendant have agreed to settle the within action based on the terms of this Order; AND UPON HEARING Justin G. Kimball, on behalf of the Plaintiff, with Robert Cragg on behalf of the Defendant, consenting hereto: NOW UPON MOTION: IT IS DECLARED that the dwelling located at 921 Brussels Street, Halifax, Nova Scotia (the “property”) is in contravention of the Plaintiff’s Land Use By-Laws; AND IT IS ORDERED: (a) The Defendant is permanently enjoined from maintaining and using the Property in contravention of the Plaintiff’s Land Use By-Laws; (b) The Defendant shall remove and/or destroy the part(s) of the Property contravening the Plaintiff’s Land Use By-Laws and, not to limit the generality of the foregoing, shall reconfigure the Property so: (i) that it contains only one kitchen; (ii) that it contains free internal access for its occupants between the original part of the dwelling structure and the recent addition; (iii) that it contain no more than three (3) locking doors in the interior. (c) The Defendant shall complete the work specified in paragraph (b) hereof by no later than June 6, 2001. [5] The Order went on to provide for access by HRM to ensure compliance and authority to HRM for the purpose of removal or destruction of any portion of the property that remains in contravention of the Land Use By-Laws with the expense to be recovered by HRM against Vance Joudrey. RELIEF SOUGHT [6] The Contempt Order sought by HRM is in the following form: CONTEMPT ORDER BEFORE THE HONOURABLE MR. JUSTICE DAVID W. GRUCHY IN CHAMBERS, UPON THE APPLICATION of the Plaintiff, through its solicitor Ian Pickard, of Halifax, counsel for the Plaintiff, and upon reading the Affidavits of Steven Higgins, W.K. (Bill) MacGillivray and Sharon Bond, one sworn October 25, 2001 and the other two sworn October 26, 2001. AND UPON this Honourable Court's Order, dated October 30, 2001, directing Vance Joudrey to appear before the Court on Tuesday, the 13th day of November, 2001, at the hour of 9:30 o'clock in the forenoon, to show cause why Vance Joudrey should not be held in contempt of Court and, if required, to perform or abide by such other Order as the Court may make; AND UPON HEARING Ian Pickard on behalf of the Plaintiff and Robert Cragg on behalf of Vance Joudrey; AND UPON IT APPEARING to the satisfaction of the Court that the said Vance Joudrey has been guilty of contempt of Court in that he failed to abide by the Order of this Honourable Court in the within proceeding dated January 9, 2001; IT IS ORDERED that for his contempt, Vance Joudrey be ordered to pay fine in the amount of Twenty-five Thousand Dollars ($25,000); AND IT IS FURTHER ORDERED that the Sheriff enter upon the property of the Defendant and collect and receive the rents, profits and income thereof until the Defendant clears his contempt by complying with Order of the Honourable Mr. Justice Robert Wright, dated the 9th day of January, 2001, namely, full compliance with the Land Use By-Laws of the Halifax Regional Municipality; AND IT IS FURTHER ORDERED that in order to ensure compliance with the Order of the Honourable Mr. Justice Robert Wright, dated the 9th day of January, 2001, the Defendant must forthwith, in any event prior to December 1, 2001, undertake the following work: 1. The door at the rear of the kitchen in the "old house" that now connects the two dwelling units must be removed. The doorframe and all associated hardware must be removed as well creating an archway between the "old house" and the "new house" 2. All food preparation and storage facilities and appliances must be removed from the building with the exception of those contained within the one designated kitchen area. 3. All kitchen cabinets, counters and sinks must be removed from the building with the exception of those contained within the one designated kitchen area. 4. Any reference to Apartment A and Apartment B must be removed from the property. As an example, the property must only have one mailbox. 5. The second power meter must be removed from the property. All power within the entire structure has to be run through one power meter. 6. The second cable television connection and associated billing provisions must be eliminated. In the alternative, the property can have second connection if we receive the necessary proof demonstrating the property only receives one cable bill. 7. The Plaintiff must be provided with certified copy of the lease for the rental of the property containing the following provisions: (a) names of the tenants; (b) clear and indisputable reference the lease is for the occupation of the entire structure and the building is only to be occupied as single dwelling unit; (c) clear explanation within the terms of the lease that the rent for the entire premises is to be paid as one single payment to the landlord collectively by all of the tenants; and (d) an undertaking Mr. Joudrey will provide an updated copy of the lease to the Development Officer each time it is altered in any way. 8. Commencing December 3, 2001, at time suitable to the Plaintiff's officials and between the hours of 9:00 a.m. and 12:00 p.m.; the Defendant (or his successor(s) in title of the property as the case may be) shall grant access to the Plaintiff's officials to all parts of the property to ensure he is in compliance with the Plaintiff's Land Use By-Laws and thereafter the Plaintiff's officials will be permitted to perform random inspections to ensure long term conformance on not more than weekly basis. AND IT IS ORDERED that this Order shall not executed, with the exception of the following clause, if the said Vance Joudrey complies on or before December 1, 2001 with the terms and conditions contained in the Order. AND IT IS FURTHER ORDERED that Vance Joudrey pay to the Plaintiff costs of this Application on solicitor and client basis, payable forthwith. DATED at Halifax, this day of November, 2001. CIVIL PROCEDURE RULE 55.05 The Contempt Order 55.05 (1) The court may make contempt order in Form 55.05A which may order that; (a) person cited for contempt be imprisoned as ordered or until further order; (b) when person cited for contempt fails to comply with any term or condition in an order, he be imprisoned as ordered therein; (c) sheriff enter upon and take possession of any property of person cited for contempt and receive and collect the rents, profits or income thereof until the person shall clear his contempt by complying with the terms of the order; (d) direct person cited for contempt to pay find, give security for good behaviour, pay such costs and expenses or comply with such other order as the court may grant under rule 55.09. (2) The court may order the execution of contempt order to be modified or suspended for such period, or on such terms or conditions, as it thinks just, and unless the court otherwise orders, copy of the order shall forthwith be served by the applicant on any person affected by it. (3) When person, pursuant to contempt order, has been detained in custody or his property taken thereunder and he continues to disobey the terms of the order, the court may make further contempt order upon such terms as it thinks just. (4) Where person cannot be served with contempt order because he is out of the jurisdiction or cannot be found by the sheriff after exercising due diligence, the court may, on an ex parte application, issue contempt order against the property of the person and the sheriff may execute the order in the absence of the person. [7] Intention to disobey the court’s order is not an element of civil contempt TG Industries Ltd. v. Williams, 2001 NSCA 105 (CanLII), [2001] N.S.J. No. 241 NSCA. The contempt here is made all the more obvious in that found as fact the conduct of Joudrey leads to no other reasonable inference that he clearly intended to circumvent the By-Law and intended to disobey the Order of January the 9th, 2001. He proceeded to do so on the mistaken belief he could somehow weasel his way out of that to which he consented. [8] Mr. Joudrey is in contempt if he intentionally did an act which is prohibited by the Order of the Court to which he consented. The Court must first determine if there has been contempt of the Order and then consider the sanctions. [9] found and so advised the parties at the conclusion of the hearing and argument that without reservation, Joudrey was in contempt of the January 9th, 2001 Order of the Court. In reaching that conclusion, made the following findings of fact: 1. That there is an Order of the Court January 9th, 2001 containing the provisions sighted above. 2. That Mr. Joudrey knew of the Order, its contents and import. There is also the background of this matter and the fact that he consented to the Order. 3. Mr. Joudrey conducted himself in manner that not only intended but clearly was in disobedience to the Order. First of all, he was permanently enjoined from using the property in contravention of the Land Use By-Laws and it is conceded on record that this meant he was to use the property in no other manner than as single family dwelling. Secondly, he was to undertake specific steps to ensure conformity with the obligation to maintain only single family dwelling on the property. 4. On June the 14th, 2001 Joudrey pled guilty in Provincial Court to charges that he did unlawfully permit two unit structure to exist in an R2 zone in manner contrary to the requirements outlined in s. 43E (a) of HRM’s Land Use By-Law and fined One Hundred ($100.00) Dollars. This plea of guilty is an admission in this application. 5. On May 24th, 2001 the property had sign giving the phone number and advertising three bedroom, living room and dining room. 6. The property was inspected by HRM on June the 7th, 2001 and the front portion of the property was unoccupied. 7. Joudrey filed Affidavits from three students which indicate that they installed kitchen appliances and in their view, Joudrey was not aware of the operation of the second kitchen until they brought it to his attention in late September, 2001. do not accept this evidence because it is clear that Joudrey placed an advertisement in the Halifax Mail-Star Tuesday, August 21st, 2001 with the same telephone number as in the window sign posted in the property and essentially in the same terminology with the added words, “partial kitchen”. Mr. Joudrey’s counsel explains this as simply being an error or stupid thing for his client to have done. Given the background of this matter and all that has transpired, find as fact that Joudrey in placing such an ad clearly realized that the existence of “partial kitchen” was breach of the Order of the Court to which he had consented. 8. On September the 27th, 2001 the property was inspected and photographs taken which show the “partial kitchen”. There are microwaves, two-burner hotplate, electric grill, full size fridge, bar fridge, deep freeze and sink full of dishes. Clearly, this constitutes “kitchen” and it is acknowledged that there was new kitchen in the addition and therefore the existence of the kitchen in the original building on September the 27th was clear violation of the specific provision in the Court Order of the 9th of January, 2001. 9. On September the 27th, 2001 the inspection revealed mailbox with the letter “B”. An inquiry by HRM resulted in it being advised by EastLink that there are two current customer accounts at the property, one for apartment “A” in the name of J. Ellsworth and one for apartment “B” in the name of S. Carson. Ellsworth filed an Affidavit confirming he was tenant of Joudrey. In addition, the Nova Scotia Power Corporation confirmed to HRM that there were separate hookups for the front and back portions of the property with the bills for both units going to Vance Joudrey. The separate hookups and metres are confirmed in photographs filed in this application. 10. To operate as single family unit required open access between the two units, the older part of the building and the addition. When HRM inspected the property September 27th, 2001 there existed doorway connecting the front portion of the structure to the new addition at the back and although the door had no locking mechanism it was barely accessible due to deep freeze in the front “partial kitchen” blocking the way. 11. The Court was advised in the hearing that the occupants in the front unit were in possession by virtue of verbal lease and the occupants of the new addition were in occupation by virtue of written lease and neither occupants were joined in their respective leases. 12. Mr. Joudrey’s counsel takes the position that his client has not benefited by being in contempt of the January 9th, 2001 Order and with respect, disagree. The extent of the benefit and its calculation may be impossible to determine with mathematical precision. Nevertheless, advertising and renting the unit with “partial kitchen” means it is highly probable that the breach rendered the unit more rentable and highly probable that the rental obtained was of higher level than might well have been otherwise without the breach. 13. There is nothing in Mr. Joudrey’s Affidavit or the Affidavits of some of his tenants to indicate any concrete steps whatsoever have been taken to rectify the situation and place Mr. Joudrey in compliance with the Order of January the 9th, 2001. Mr. Joudrey may well have told the students to remove the items of the “partial kitchen” but nowhere is it suggested that they have been removed or any steps whatsoever taken to purge the existing contempt. [10] Once finding of contempt has been made, the Court turns to the imposition of sanction. In TG Industries Ltd. v. Williams above, Cromwell, J.A. at para. 35: In civil contempt, the primary purpose of the sanction is to coerce compliance with the order ...The Judge in fashioning an order after finding of civil contempt is entitled to do so in way that will obtain compliance with the order so that the party entitled to the benefit of the order in fact receives it. The result is that the party in whose favour the order is made receives remedy. [11] And at para. 37: If there has been compliance with the order by the time of the contempt application, it will often be the case that no further sanction beyond an order for costs will be imposed. SANCTIONS FORM OF ORDER [12] HRM seeks fine in the amount of $25,000.00 payable if Joudrey fails to comply with the Order following the finding of contempt. Mr. Joudrey’s counsel suggests that any fine ought to be in the range of few hundred dollars at most. conclude that the requested amount of $25,000.00 is not required in order to encourage and coerce the highly probable compliance with this Order. On the other hand, there might be tendency to consider an amount of few hundred dollars as something in the nature of the cost of doing business. I consider the appropriate fine level to be $10,000.00. [13] HRM seeks in essence an assignment of the rents to the sheriff until the contempt in purged. Such provision is one that will very much foster compliance with this Order. can see where in some situations it would be the major enforcement. I am not certain that such an expense is warranted immediately, therefore, the Order will include a provision that it will only come in effect if there is not compliance as late as January 31st, 2002 so that the sheriff can exercise rent collection, etcetera, effective February the 1st, 2002. [14] HRM seeks compliance with all the requested terms and conditions of this Order by December the 1st, 2001 and conclude in the circumstances that it is more reasonable to use the deadline of January the 1st, 2002. The Court should guard against directing too restrictive of time limit which might in itself result in non-compliance. It seems to me more practical and reasonable in all the circumstances to set the deadline as the 1st of January, 2002. [15] HRM’s request for removal of the door is appropriate, along with the hardware pertaining to the door, however, consider it unreasonable for any structural change such as creating an archway. Such is not necessary to reach conformity with the free access of single family unit. [16] Storage facilities that pre-exist are consistent with the free use of single family dwelling and reference to such should be taken from paragraph of the draft Order. [17] The cabinets that exist are designated kitchen cabinets because it is operating as kitchen, however, such are capable of use for storage and the reference to kitchen cabinets and counters in paragraph is to be deleted. [18] The sink is an integral part of the kitchen operation and agree with HRM that the one in the “partial kitchen” must be removed. [19] Paragraphs 4, and are acknowledged by Mr. Joudrey’s counsel as being appropriate. [20] Paragraph as presently drafted presents some difficulties. Given the history and difficulties with this property, I see no reason why Mr. Joudrey should not be required to provide within fifteen days the names of all tenants and if and when there are changes in any of the tenants, he should provide HRM within fifteen days of such change the particulars of the new and remaining tenants. Mr. Joudrey should advise any and all tenants in writing prior to entry of occupation that the entire structure and building is only to be occupied as a single dwelling unit. consider the request for single payment to the landlord collectively by all the tenants as to be too much of an interference and the manner of payment of rental should be subject to the contractual determination between the landlord and any tenant. therefore do not consider paragraph 7(c) as appropriate. [21] With respect to paragraph 7(d), if there are any written leases now or in the future, then Mr. Joudrey is to provide a copy of any such lease within fifteen days of the lease’s execution or any alternation in the lease or tenants to it. [22] With respect to entering into the property ensuring compliance by inspection, this is unfortunately necessary given the history of the matter, however, I consider random inspections that could be every week as an excessive imposition on Mr. Joudrey. He does not occupy the building and apparently resides in Blockhouse. He has, however, created the situation and some inspection capacity is necessary but I would limit it to twice a month, such inspections to be at least ten day apart with such bi-monthly inspections to continue until the City is satisfied that this Order has been complied with and thereafter, HRM shall be entitled to inspect at random once a month while Joudrey is the owner of the property. [23] The fine is not to be crystalized into a Judgment and Execution, if Vance Joudrey fully complies with all the requirements of this Order on or before January the 1st, 2002. HRM, however, is entitled to proceed with the taxation of its costs and disbursements and when taxed shall be payable forthwith. [24] HRM seeks costs on solicitor and client basis. The awarding of costs on solicitor and client basis is the exception rather than the rule. It requires conduct on the party against whom costs are awarded of such nature and quality that clearly warrants the party seeking solicitor and client costs being fully indemnified for costs and disbursements that ought not to have been incurred. [25] In Morrow, Power v. Newfoundland Telephone Co., the Newfoundland Court of Appeal, 1994 CanLII 9723 (NL CA), [1994] N.J. No. 197, solicitor and client costs were denied where the Appellant was guilty of civil contempt because the Appellant acted speedily and with diligence to do everything possible to comply with the Order of the Court. In this case, Joudrey conducted himself post granting of the Order January the 9th, 2001 in manner which found as fact he willfully and intentionally sought to avoid the Order to which he consented. The terms of the Consent Order were clear and included that the property was to have one kitchen N. B. single family dwelling. After reviewing all of the findings of fact, simply highlight that Joudrey knowing that to which he consented limited the property to single dwelling with one kitchen, advertised for the rental of one portion of the building with “partial kitchen”. It is not as suggested by his counsel matter of the little guy against the big guy it is matter of absolute necessity of compliance with the Court Order, particularly one to which you have consented. [26] HRM has had to proceed to court to enforce the Court’s Order why should HRM, which is in essence the taxpayers, be required to expend public funds to enforce that which HRM was entitled to in compliance with the Consent Court Order? Mr. Cragg maintains that he wished to negotiate and had requested of HRM their position of which HRM responded with the conditions contained in the draft Order and there is nothing to indicate that Joudrey made any counter-proposal or any suggested courses of action for compliance with its obligations pursuant to the Consent Order. In fact, Joudrey conducted himself to the contrary and as of the date of this application, it is clear that the second functional kitchen continues as do all the other attributes of non-single family dwelling, i.e., multiple unit usage of the building. It is all well and good to suggest that now Joudrey sees the light of day and will accept the wise advice of his counsel but until this hearing, he has done absolutely nothing to purge the deliberate contempt of the January 9th, 2001 Order. In all these circumstances, the proper exercise of discretion is to recognize the extraordinary circumstances that exists, willfulness of the contempt and the failure at any effort to purge requires an award of solicitor and client costs and so order. am prepared to tax the solicitor and client costs and disbursements and ask HRM to present its statement of account on Affidavit within two weeks, along with any supporting material, and Joudrey’s counsel will have ten days from receipt of same to respond after which will conclude the taxation. This, at least, will save the additional costs of notice and formal taxation, including Taxing Master’s fees.

The defendant made an addition to single family residence. Following a dispute between the parties as to whether the defendant's use of the property now complied with the plaintiff's land-use bylaw for a single family residence, a consent order was issued dealing with the structure of the property and how it would be used. The plaintiff sought a finding that the defendant was in contempt of the consent order, seeking enforcement of the provisions of the consent order and an order that the defendant pay a fine. Defendant found in contempt of consent order; fine ordered in the amount of $10,000; if defendant has not complied with the terms of the consent order by January 31, 2002, the Sheriff is ordered to enter the property and receive the rents, profits and income thereof until the defendant clears his contempt; the door and hardware between the original structure and the addition is be removed; any references to separate apartments are to be removed from the property; the second power meter is to be removed from the property and the second cable television connection and associated billing provisions are to be eliminated; the defendant is to provide within 15 days the names of all tenants and if and when there are changes in any of the tenants, he must provide the plaintiff with the particulars of the new and remaining tenants; all tenants must be notified in writing prior to entry of occupation that the entire structure and building is only to be occupied as a single dwelling unit; copies of any written leases are to be provided to the plaintiff within 15 days of their execution; the plaintiff can enter the premises for the purposes of random inspection on a bi-monthly basis until the plaintiff is satisfied that this Order has been complied with and thereafter, the plaintiff is entitled to inspect the premises at random once a month while the defendant remains the owner of the property; the fine will not be crystallized into a judgment and execution if the defendant complies fully with all the requirements of this order on or before January 1, 2002. The plaintiff is entitled to solicitor-client costs.

e_2001nssc162.txt

Claim No: 289962 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA ON APPEAL FROM AN ORDER OF THE DIRECTOR OF RESIDENTIAL TENANCIES Cite as: Lal v. Willis, 2008 NSSM SAROJ LAL Landlord (Appellant) and KAYLEENA R. WILLIS Tenant (Respondent) BEFORE Eric K. Slone, Adjudicator Hearing held at Dartmouth, Nova Scotia on January 29, 2008 Decision rendered on January 30, 2008 APPEARANCES For the Landlord self-represented For the Tenant self-represented [1] This is an appeal from an order of the Director dated December 13, 2007. That order allowed the Tenant the sum of $787.50 against the Landlord as compensation arising from what the Director found to be a breach of the statutory condition to provide a premises suitable for habitation. In particular the Director found that the Landlord allowed mouldy conditions in the premises to develop and failed to rectify same, with the result that some of the Tenant’s belongings were ruined. [2] The Landlord did not attend the hearing before the Director. It appears that she missed it inadvertently, and she appeals to this Court against the findings. [3] The Tenant produced considerable evidence to substantiate that the basement in her unit was damp and riddled with mould, with the result that number of items of furniture, an area rug, various boots and articles of clothing were ruined. She also produced evidence in the form of medical letters to the effect that her children suffer from asthma and ought not to be exposed to mouldy conditions. She further testified that her own breathing was affected by the mould, despite never having had breathing problems. [4] When the mould first began to develop the Tenant called the relevant Halifax Regional Municipality office which sent bylaw enforcement officer to investigate. That inspector wrote letter after his visit, which was placed in evidence, stating that he had observed mouldy conditions which he attributed to lack of proper ventilation in the basement. He recommended dehumidifier be placed in the basement. [5] The Tenant testified that the Landlord was totally unresponsive to her complaints throughout. The Landlord’s eventual response was notice to vacate, with the result that the Tenant moved out and brought this application for compensation. [6] Photographs of the mouldy conditions were placed in evidence. The condition is very clearly depicted in those photos. [7] The Landlord testified that there simply was no mould. Her position was that the Tenant used grey spray paint to resemble mould. The Landlord spoke at length about what she regarded as the poor condition of the premises left by the Tenant, none of which had any bearing on the alleged mould issue. She wondered aloud why if there was mould that it only affected the Tenant’s furniture and area rug and was not obvious on the other carpeting. This is legitimate question which, while relevant, is not really answerable at this time. [8] The two versions of the facts were as far apart as they could be. My task of choosing between these two would have been a little more challenging, had I not been able and inclined to rely on the bylaw inspector’s findings. He detected mould and the conditions that allowed mould to develop. I find it impossible to believe that he could have been fooled by something as amateurish as spray paint. I also find it impossible to believe that the Tenant, had she actually resorted to such a tactic, would have called in a building inspector and hoped to get away it. Having heard and assessed her as credible, also find it hard to believe that she would have engaged in such tactic. [9] In short, reject the Landlord’s evidence entirely. She was not credible and her explanation is not probable. find on strong balance of probabilities that there was mould, that it was the Landlord’s responsibility to rectify same, and that she did not. further find that the mould damaged the Tenant’s belongings and posed health hazard to her and her children, giving rise to legitimate claim. [10] The Tenant put into evidence receipts of the original cost of the furniture, which was $1,138.86, including HST. The furniture was less than four years old. The rug originally cost $150.00. The Tenant could only estimate the value of the ruined clothing, which she placed at $500.00. She had also advanced general damages claim for inconvenience and suffering in the amount of $200.00. [11] The Director rejected the general damages claim on jurisdictional grounds, and agree with that finding. It is simply not claim that can be made under the Residential Tenancies Act. [12] The Director also discounted the property damage claims on the basis that the furniture’s value should be discounted, and because of the lack of evidence of the other items. She allowed $712.50 for the furniture and $75.00 for the rug and clothing. [13] I have concluded that the Director was essentially correct, although her discounting of the value of the rug and clothing went a little too far, in my opinion. Because the matter is before me on a de novo basis I assess the damages a little higher. would allow $712.50 for the furniture, $50.00 for the area rug and $100.00 for the clothing, for total of $862.50. The Tenant will accordingly be entitled to judgment against the Landlord for that revised amount. Eric K. Slone, Adjudicator

The Director of Residential Tenancies ordered compensation after he found that the landlord allowed mouldy conditions to develop in the premises and failed to rectify same, with the result that some of the tenant's belongings were ruined. The landlord appealed, taking the position that there had been no mould and the tenant had simply used grey spray paint to resemble mould. It was also questioned how the mould could only have affected the tenant's furniture and area rug but not be obvious on the other carpeting. Landlord's appeal dismissed; amount of damages ordered increased; the Director went too far in discounting the value of the tenant's belongings. The court relied on the by-law inspector's (who had been called in by the tenant) findings, finding it impossible to believe that he could have been fooled by something as amateurish as spray paint and that the tenant, had she actually resorted to such a tactic, would have called in a building inspector and hoped to get away with it.

2_2008nssm4.txt

nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA Date: 20100121 Between: Docket: 1738 Her Majesty the Queen and Camille Heisler Coram: Cameron, Richards and Ottenbreit JJ.A. Counsel: Katharine Grier for the appellant Jennifer Fraser for the respondent Appeal: From: Provincial Court Heard: January 21, 2010 Disposition: Appeal Allowed Oral Reasons: January 21, 2010 By: The Honourable Mr. Justice Cameron for the Court CAMERON J.A. Following the conviction of the respondent on a charge of trafficking in morphine contrary to section 5(1) of the Controlled Drugs and Substances Act, the prosecutor asked the sentencing judge to make a DNA order under section 487.051(3) of the Criminal Code. The judge declined to do so for the reason this was the respondent’s first drug offence and she had no record of violence. With respect, we are of the opinion the judge erred in declining to make the order. The error lay in the judge’s failure to have regard for the offender’s record as a whole—she has 53 prior convictions—and to have adequate regard for the objectives of section 487.051 as identified in R. v. Briggs (2001), 2001 CanLII 24113 (ON CA), 45 C.R. (5th) 99 (Ont. C.A.). In light of the nature of the respondent’s current offence, her lengthy record, her history of recidivism, and the relatively modest impact an order would have on her privacy and security interests, we are satisfied an order should have been made. Accordingly, and in the best interests of the administration of justice, there will be an order under section 487.051(3) in Form 5.04 for the taking of bodily samples from the respondent. If any directions should be required in relation to the execution of the order, the parties are given leave to informally apply for such directions through the Registrar’s office.

Fulltext of judgment follows: Following the conviction of the respondent on a charge of trafficking in morphine contrary to section 5(1) of the Controlled Drugs and Substances Act, the prosecutor asked the sentencing judge to make a DNA order under section 487.051(3) of the Criminal Code. The judge declined to do so for the reason this was the respondent's first drug offence and she had no record of violence. With respect, we are of the opinion the judge erred in declining to make the order. The error lay in the judge's failure to have regard for the offender's record as a wholeùshe has 53 prior convictionsùand to have adequate regard for the objectives of section 487.051 as identified in R. v. Briggs 2001 CanLII 24113 (ON C.A.), (2001), 45 C.R. (5th) 99 (Ont. C.A.). In light of the nature of the respondent's current offence, her lengthy record, her history of recidivism, and the relatively modest impact an order would have on her privacy and security interests, we are satisfied an order should have been made. Accordingly, and in the best interests of the administration of justice, there will be an order under section 487.051(3) in Form 5.04 for the taking of bodily samples from the respondent. If any directions should be required in relation to the execution of the order, the parties are given leave to informally apply for such directions through the Registrar's office.

e_2010skca8.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 444 Date: 2011 10 07 Docket: C.R. No. 3/2010 Judicial Centre: Prince Albert BETWEEN: HER MAJESTY THE QUEEN and FREDERICK JUNIOR KNIFE Counsel: Maureen M. Longworth for the Crown Valerie N. Harvey for the accused ORAL JUDGMENT POPESCUL J. October 7, 2011 I. Introduction [1] The accused, Frederick Junior Knife (the “accused” or “Knife”), is charged with one count of aggravated assault and one count of common assault relating to a violent incident that took place in the maximum security unit of the Saskatchewan Penitentiary at approximately 8:30 p.m. on September 1, 2008. The accused and the two alleged victims were inmates at the prison and were being held on “B” Block, range designated for gang members. [2] Given that the incident was captured by two security videos, there is no doubt as to what happened. The issues raised by the accused pertain to how his actions ought to be characterized. [3] The two DVD videos were entered as exhibits and played during the trial. Also, have subsequently watched the videos in private on number of occasions. The videos show Common Room “C”, an area where the “B” Block inmates are permitted to occasionally congregate to watch television, play cards and take some meals. The room is equipped with microwave. Immediately prior to the incident that gives rise to the charges, there were nine inmates in Common Room “C”. summary of what is depicted in the videos is as follows: [4] At 8:25:27, inmate Keith Coutu (“Coutu”) places cup into the microwave and turns it on. At 8:29:10, Coutu takes the cup out of the microwave and walks over to one of the four tables where the first victim, inmate Murray Dorion (“Dorion”), is sitting, apparently doing nothing. Coutu is immediately followed by Knife and inmate Tristan Raphael (“Raphael”). Raphael and Knife place themselves in close proximity to Dorion. It is obvious from the actions of Knife, Coutu and Raphael that they are acting in concert and for common purpose. [5] Coutu then sits down next to Dorion at the table momentarily. Then at 8:29:24, Coutu immediately rises and throws the hot liquid from the cup directly into Dorion’s face. Dorion jumps up, at which time Coutu starts making numerous stabbing motions that connect with the body of Dorion. [6] Immediately after Coutu initiates the assault, Knife jumps into the fray. Knife, brandishing some type of weapon, can be seen to be making numerous stabbing motions towards the body of Dorion. It is evident that the stabbing blows are connecting with the intended target. Dorion, disabled by the hot liquid and the surprise attack, is getting the worst of it. [7] Inmate Darren Demeria (“Demeria”) comes to the aid of inmate Dorion and appears to attempt to pull Knife out of the fray. At this point, inmate Cory Dreaver (“Dreaver”), who also appears to be armed with knife‑like object, begins to stab Demeria multiple times. [8] Knife then twists away from Demeria, and Knife, Dreaver and Demeria grapple with one another. Knife then finds himself in the immediate vicinity of Dorion, at which time he takes the opportunity to repeatedly stab him again. [9] In the meantime, Dreaver throws television at Demeria, and Demeria deflects it away. Knife grabs the television and throws it at Demeria, who blocks it with his arms. Knife and Dreaver then turn their attention to Demeria and stab him repeatedly. Eventually, Demeria gets away and heads to the back of the room. [10] Knife then approaches one of the tables in the common room where Dorion is being stabbed by Raphael. Knife then joins Raphael, Coutu and Dreaver, who continue to repeatedly and viciously stab Dorion. [11] Then, gunshot rang out, and the violence came to an abrupt halt. corrections officer, from vantage point above the common room, fired live round into the common room in order to quell the disturbance after verbal commands to stop were not heeded. [12] The inmates were then directed to lie prone on the floor and were eventually removed one by one. Seven homemade knives, known as “shanks”, were found in and around the common room. [13] Dorion received severe first and second degree burns to his face, eye, neck and shoulders. He also sustained numerous puncture wounds and lacerations. Somewhat incredibly, despite the nature of the assault, Dorion was not critically injured. The burns were treated in hospital, and full recovery, with the exception of some possible scarring, occurred or was expected to occur. The puncture wounds, although numerous, did not result in permanent or life‑threatening injuries. Major organs were not affected. In fact, although some of the puncture wounds may have been deep, none of them required suturing because they were not gaping. [14] In addition to the videos, several corrections officers testified as to what they saw and how and why they reacted and did what they did. These corrections officers also provided evidence about the prison environment and the challenges that they and the inmates face in attempting to keep everyone safe. None of the inmates testified at the trial other than the accused. [15] The accused chose to testify. The essence of his testimony was that he was justified in making pre‑emptive strike on Dorion because he feared that if he did not hurt Dorion, then Dorion would hurt him. [16] There is no issue as to identity. In voir dire held before the trial proper, granted the Crown’s request to permit it to call recognition evidence in accordance with the principles set out in R. v. Leaney, 1989 CanLII 28 (SCC), [1989] S.C.R. 393, [1989] W.W.R. 332. Officer Layman, who was very familiar with Common Room “C” and the inmates on that range, gave evidence as to “who was who” on the video recording. Further, the accused was wearing distinctive jacket during the altercation. The evidence was that once the shot was fired, the accused laid on the floor until removed by the guards. His jacket was seized by the guards and placed into evidence at the trial. It is easy to connect the jacket in evidence to the person wearing the jacket in the video. Further, the accused testified and admitted to the actions depicted in the video. There is no doubt as to what Knife did. [17] The issue, as stated at the outset, is how the acts should be construed. III. Defence Argument [18] The defence advances three main arguments: (1) that the Crown has failed to prove beyond reasonable doubt that the injuries caused to Dorion falls within the definition of “... wound, maim, disfigure or endanger life”. (2) that the acts of Knife alleged by the Crown to be an aggravated assault, vis‑à‑vis Dorion, were done in self‑defence as contemplated by s. 34(2) of the Criminal Code. (3) that the acts of Knife alleged by the Crown to be common assault, vis‑à‑vis Demeria, were done in self‑defence as contemplated by s. 34(1) of the Criminal Code. IV. Parties to the Offence and Joint Principal Offender Analysis [19] Before embark on an analysis of the three arguments, it is useful to firstly discuss the concepts of “parties to the offence”, “principal offender” and “secondary offender”. [20] It is clear from the video, the evidence of corrections officers and the testimony of Knife that Raphael, Coutu, Dreaver and Knife were involved in the assaults against Dorion. In the circumstances of this case, it is not legally necessary to distinguish and isolate the specific acts of Knife from the acts of the other joint participants for the purpose of determining which acts caused which injuries. Section 21 of the Criminal Code attaches criminal responsibility to person as party to an offence if that person, with the requisite intent, plays any one of three roles in the offence: (a) Section 21(1)(a) imposes liability for acting as principal. If the person actually commits the offence, liability follows; (b) Section 21(1)(b) imposes liability by virtue of person doing, or omitting to do, acts for the purpose of aiding principal to commit an offence; and (c) Section 21(1)(c) imposes liability if person abets the principal. To “abet” means to actively encourage or to assist or support in the achievement of purpose. [21] The law is well settled that each of principal, an aider and an abettor is party to the particular offence charged, and each bears the same responsibility for that offence. It is immaterial which particular role (principal, aider or abettor) an individual plays. Consequently, the difference between aiding and abetting and personally committing an offence is legally irrelevant. See R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] S.C.R. 652. [22] Where one of the parties to crime actually carries out the physical act (actus reus) and possesses the requisite intention (mens rea), then that party “actually commits” the offence by operation of s. 21(1)(a). This person is considered to be the “principal offender”. There can be more than one “principal offender”. This concept is summarized by E.G. Ewaschuk in Criminal Pleadings and Practice in Canada, 2nd ed., vol. 1, looseleaf (Aurora, Ont: Canada Law Book, 2007) at para. 15:1015: 15:1015 Acting together toward common object (joint principal offender) Where several persons act together toward common criminal object, with the “requisite intent”, and any of them jointly or severally achieves the common object, all who are present at the commission of the crime commit the crime as joint principal offenders. This principle has been pithily stated in concrete terms that “the blow of one is, in law, the blow of all of them”. [Reference to authorities omitted] [23] In the circumstances of this case, it has been established beyond reasonable doubt that Knife acted in concert with Raphael, Coutu and Dreaver in the commission of the assault on Dorion. It is legally irrelevant whose shanks caused which injuries. Therefore, have no difficulty in concluding that Knife is legally considered to have caused the injuries to Dorion by virtue of s. 21(1)(a) of the Criminal Code, and so find. Even though he did not throw the water in Dorion’s face, he participated and assisted in the joint assault on Dorion that led to the injuries. [24] This, however, is not the end of the analysis. The Crown must also establish the mental element. The mens rea requirement for aggravated assault is an objective foresight of bodily harm. See R. v. Godin, 1994 CanLII 97 (SCC), [1994] S.C.R. 484. Further, an accused is not required to have objective foresight of specific wounds. The evidence establishes beyond reasonable doubt that the assault upon Dorion was about to happen, and Knife voluntarily joined in. Although Knife denies that there was specific plan, he admits that his group moved in unison with the purpose of attacking Dorion. The Crown does not need to establish that Knife knew that Raphael was going to throw hot liquid in his face, although that would be reasonable conclusion to draw. Clearly, Knife knew that something was about to happen and that it was going to be “bad” and that Dorion was going to be the recipient of some type of violence. [25] find that, in all of the circumstances of this case, the Crown has established beyond reasonable doubt that bodily harm to Dorion was objectively foreseeable by Knife as probable consequence to the plot to which he was party. After all, he admitted that his purpose was to inflict “hurt” on Dorion. [26] As an aside, should note that the evidence, which have accepted as proving beyond reasonable doubt that Knife was joint principal offender, is also alternatively capable of constituting Knife as an “aider”. It is, in my view, conceptually possible to be liable as both “joint principal offender” and as “secondary offender”. Had not found Knife to be “joint principal offender”, would have found him to be an “aider” pursuant to s. 21(1)(b) of the Criminal Code. The terms “aiding” and “abetting” have similar meanings, although they are separate concepts. To “aid” under s. 21(1)(b) means to assist or help the actor. To “abet” under s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed. See R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] S.C.R. 825. [27] Here, at the very least, Knife clearly assisted and helped Coutu in committing the assaults on Dorion. [28] With these principles in mind, will now deal with the three defences raised by counsel for Knife. V. Defences A. The injuries do not constitute “... would, maim, disfigure or endanger life ...” [29] The defence argues that the Crown failed to prove beyond reasonable doubt that the injuries caused to Dorion fall within the definition of “... wound, maim, disfigure or endanger the life”. [30] find that the actions of Knife are such that, as matter of law, he is legally responsible for the burn wounds and the stab wounds, either of which would be easily capable of establishing the “wounding” component of the offence of aggravated assault. Although it is true, somewhat remarkably, that Dorion did not sustain more serious injuries, multiple stab wounds and first and second degree burns to the face, eyes, neck and shoulders unquestionably satisfy the “wounding” element. It does not matter, from legal perspective, that Knife did not actually throw the liquid, nor is it necessary for the Crown to establish which puncture wounds belonged to Knife and distinguish them from the others. [31] The Crown has established beyond reasonable doubt, subject to whether the defence of self‑defence has application, that the assault on Dorion constitutes an aggravated assault within the meaning of the Criminal Code. [32] Accordingly, the argument that the injuries inflicted by Knife were not serious enough to be considered “aggravated” is rejected. B. Dorion: the s. 34(2) defence [33] I will next deal with the argument that Knife’s actions against Dorion were done in self‑defence as contemplated by s. 34(2) of the Criminal Code. [34] Section 34(2) reads as follows: (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [35] preliminary condition to the operation of s. 34(2) is that the accused caused death or grievous bodily harm to the victim. In this case, have concluded that the accused inflicted injuries to Dorion that fit within the category of an aggravated assault and also constitute grievous bodily harm. Accordingly, find that the preliminary condition having been met, self‑defence under s. 34(2) will succeed if it is proved, or where there is reasonable doubt about whether the three conditions of that subsection are met. [36] All three elements must be established in order for the defence to succeed. See R. v. Hebert, 1996 CanLII 202 (SCC), [1996] S.C.R. 272. If the Crown proves beyond reasonable doubt that any one of the above three elements is lacking, self‑defence is not available to the accused. See R. v. Cinous, 2002 SCC 29 (CanLII), [2002] [37] Each of the three elements under s. 34(2) have both subjective and objective component. The accused’s perception of the situation is subjective, but the accused’s belief must be objectively reasonable on the basis of the situation that he perceives. The requirement of an objective analysis ensures that the criminal law encourages reasonable and responsible behaviour. See R. v. Thibert, 1996 CanLII 249 (SCC), [1996] S.C.R. 37 at 46. [38] In Cinous, at paragraph 94, the Supreme Court directs that: 94 ... With respect to each of the three elements, the approach is first to inquire about the subjective perceptions of the accused, and then to ask whether those perceptions were objectively reasonable in the circumstances. [39] The three ingredients of s. 34(2) are: (1) Did Dorion unlawfully assault Knife (or Knife reasonably believed that Dorion assaulted him); (2) Did Knife cause the death or grievous bodily harm to Dorion under reasonable apprehension of death or grievous bodily harm to him; and (3) Did Knife believe on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm at the hands of Dorion. [40] Before address these three elements, it is worthwhile to review, in some detail, the evidence of Knife. [41] Knife was transferred from Stony Mountain Penitentiary in Manitoba to Saskatchewan Penitentiary on November 30, 2007. He says that he was transferred to Saskatchewan Penitentiary because he wanted to be closer to his family. Knife admits that he was on “gang range” in Manitoba and that he needed to be on “gang range” in Saskatchewan. He admits that he was member of the Indian Posse. Knife testified that as soon as he got to Saskatchewan Penitentiary and learned that he was about to be placed on “B” Block, he told the authorities that he did not want to be placed on that range. He states that his request was ignored. He testified that he was victim of violence on two occasions while at Saskatchewan Penitentiary. Once he was assaulted by two inmates on “A” Range, and on another occasion he got “shot in the head” by three of the inmates on “B” range. He did not elaborate on the specifics of these alleged incidents. [42] He states that in the days leading up to the September 1, 2008, incident, he noticed things that caused him to become suspicious. For example, he noted that two inmates appeared to have been crafting weapons. He also claims that he believed that he and some of his friends, including Coutu, were being shunned by some of the other inmates on his range. [43] Knife testified that at approximately 11:30 a.m. on September 1, 2008, the “B” Block inmates were let out of their cells by corrections officers. He says that shortly thereafter, Dorion and several other inmates approached Knife, who was with Coutu, Raphael and Dreaver. According to Knife, Dorion and two of the other inmates in Dorion’s group were brandishing shanks, and Dorion said, “We are going to take you out.” Knife testified that this came “out of the blue” and that “we had no clue as to what was happening”. [44] Knife testified that before anything really got going, fellow inmate Jeremy Wincup (“Wincup”) intervened to smooth over the waters, and the situation stabilized. Knife said that the two groups agreed to talk out their differences over lunch, but that this did not happen. [45] Knife testified that he became suspicious that something was going to happen on his range when inmate Shawn Ireland (“Ireland”) was abruptly transferred out of “B” Block that day. To Knife, who had some experience within the federal penitentiary system, the fact that an inmate is abruptly moved off range signals that the inmate was uncomfortable for some reason. [46] Later on that day, Knife says that he briefly came in contact with Ireland, who told Knife that “they’re going to kill us kill me and Keith Coutu.” Ireland did not say who “they” were, but it was obvious to Knife that the “they” was the group they had had an encounter with earlier. [47] Knife then indicated that he felt that he was being shunned and that this was significant to him because inmates tend to stay away from those who are about to be assaulted. [48] Knife’s counsel drew to Knife’s attention the fact that the video recordings seem to indicate that he was mixing with the other inmates, to which Knife responded with words to the effect that the “vibe was still there” and that he was “trying to get along”. Around 7:30 in the evening, Knife says that he received another type of tip from another inmate that violence might happen. The warning was somewhat vague. [49] Knife admits that he obtained shank from fellow inmate around 8:00 p.m. that evening because he says that he was concerned his life was in jeopardy. Knife testified that he was concerned about Dorion because Dorion had pulled weapon on him and Coutu, and that Dorion was the main threat because he was lifer and had nothing to lose. Knife admits that his intention was to hurt Dorion so that he would not hurt him. He denies, however, that Coutu and he formulated plan. However, when asked by Knife’s counsel as to why it was that he, Coutu and Raphael all moved at the same time, Knife responded with words to the effect that: “I don’t know. It just happened, It just happened. In jail environment after awhile, if you are with the same people, you know what happens when when you see someone move. It just like us don’t know kinda like sign of ‘go‑tell” or whatever. It just happened. It just happened.” [50] Knife was asked what he was thinking as Coutu was moving towards Dorion, to which Knife responded with words to the effect that: “I was just thinking about Dorion because he’s the one who pulled the weapon on us. And Barry Dean wasn’t there. Neither was Ivany. And felt that Dorion was the main threat to me cos as soon as he pulled out his blade on me, felt that he was going to stab me or maybe even take my life. He’s lifer and doesn’t have anything to lose. felt that he was threat to me and threat to my safety and security in the prison system.” [51] When Knife was asked if he though of any alternatives other than the use of violence, he stated: “I never thought about that. The only thing that was going through my head at the time was that might die in the prison system. didn’t want to be person who gets killed in there. And sure didn’t want my friend to get killed. And didn’t want me shanked vice versa.” [52] Knife was also asked why it was that he did not ask that the guards take him off the range if he thought he was in jeopardy. Knife responded by saying: “Yeah, it doesn’t happen like that. Nobody runs and tells to the guards. “It’s kind of code it’s kind of an inmate code. Nobody says anything. What happens amongst you stays amongst you, but that’s what it is. That’s why nobody said anything of this case. I’m the first to get up on the stand and right now doing this is kinda not kinda fear for my life. The gang that left are I’m nervous sitting up here right now.” ... “It never really came to me at that time never thought of it. If moved from that unit that day, either way of where would have went, it would have looked bad and it probably would have been open season on me wherever went because of the known affiliation. ‘Max’ is not very big. Everybody knows everybody. Word gets around fast.” [53] However, it is interesting to note that Knife indicated that at 4:00 p.m. on December 28, 2008, he decided not to continue on with the gang lifestyle and buzzed the corrections officer on the intercom and asked him to remove him from the range. According to Knife, the corrections officer initially laughed and did not take him seriously. Knife then reiterated his request. The corrections officer asked him why it was that he wanted to be taken off the range, to which Knife responded that he did not have to tell him. Knife acknowledges that he was removed forthwith from the range to different area. He states that he is no longer member of gang. [54] will then now deal with the three elements. 1. Did Dorion unlawfully assault Knife (or did Knife reasonably believe that Dorion assaulted him)? [55] Lamer C.J. in Pétel, 1994 CanLII 133 (SCC), [1994] S.C.R. 3, determine that the existence of an actual assault is not prerequisite for defence under s. 34(2). Rather, Lamer C.J. stated at page 13: ... The question that the jury must ask itself is therefore not “was the accused unlawfully assaulted?” but rather “did the accused reasonably believe, in the circumstances, that she was being unlawfully assaulted?”. [56] Generally speaking, person commits an assault, according to the law, when he attempts or threatens to apply force to another person, if that person who makes the attempt or threat has or causes the other person to believe on reasonable grounds that he has the present ability to carry out that purpose. This seemingly simple statement has been given somewhat expansive meaning by the Supreme Court of Canada. In R. v. McConnell, 1996 CanLII 189 (SCC), [1996] S.C.R. 1075, the Supreme Court of Canada adopted the dissenting opinion of the Alberta Court of Appeal in the decision of R. v. McConnell (1995), 169 A.R. 321 (Alta. C.A.). In that case, our highest Court held that an assault may be made by threat where the recipient reasonably believes that the person making the threat has the present ability to carry out that threat, notwithstanding that the physical aspect of the assault is not imminent or immediate. McConnell makes efforts to reconcile the assault requirement with the absence of an immediacy requirement by focussing on the words, “present ability to effect his purpose” within s. 265(1)(b) that reads in full as follows: 265. (1) person commits an assault when ... (b) he attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or [57] Accordingly, close reading of the jurisprudence would indicate that s. 34(2) defence may succeed where there is past threat, followed by physical proximity (so that there is present ability), but the danger is still in the future. [58] The requirement that the accused “is being ... assaulted” or reasonably believes that he “is being ... assaulted” does not impose an imminence requirement, although imminence of the attack is factor that can be taken into account when determining the reasonableness of the accused’s response. See R. v. Cinous, supra. This concept would mean, therefore, that battered wife, for example, would not have to wait for the “uplifted knife” but could act before becoming physically incapable of repelling an impending albeit not imminent assault. [59] The defence contends that the assault component requirement is met because the earlier threat that took place at 11:30 a.m. that morning was still in play, which justified pre‑emptive strike by the accused. However, with respect, this is not correct interpretation of the law in this area. It is important to appreciate that one of the underlying principles for the existence of the assault component requirement in the s. 34(2) defence is to prevent self‑defence from being used “... as cloak for aggression, retaliation or revenge”. See R. v. F. (D.S.) (1999), 1999 CanLII 3704 (ON CA), 169 D.L.R. (4th) 639 (Ont. C.A.). There must still be some temporal connections between the perceived assault and the alleged act of self‑defence. In other words, the accused must believe that the victim was going to attack him and that the assault was pending and not just an apprehended event that would occur sometime in the future. [60] For example, in R. v. Currie (2002), 2002 CanLII 44973 (ON CA), 166 C.C.C. (3d) 190, C.R. (6th) 377 (Ont. C.A.), leave to appeal to S.C.C. refused, it was found that it is not self‑defence for the accused to take the opportunity, when it presented itself, to kill victim that had earlier attempted to kill him. Although the accused in that case had reason to fear the victim, he had no reason to believe at the time of the shooting that the victim was going to attack him or that pre‑emptive strike was required to repel an attack. [61] Now, will apply the above principles to the circumstances of the case before me. It is first necessary to determine whether or not the Crown has proved, beyond reasonable doubt, that the subjective component of the first prong of the s.34(2) of the defence is missing. There is direct evidence on Knife’s belief in the form of the his testimony. He claims that he had been assaulted earlier in the morning by way of the threats made by Dorion and his group when they were brandishing their knives. That aspect of his testimony, at the very least, might reasonably be true, and therefore, accept it for the purpose of this analysis. However, at the time that the incident erupted at 8:30 p.m., the 11:30 a.m. threat had long dissipated. While it is true that the accused was suspicious about certain goings‑on and while it is also true that, from his perspective, he may have been justified to be “on guard”, given his perception of what was potentially brewing, there is insufficient evidence before me from which could conclude or be left in reasonable doubt that the accused believed that he was being unlawfully assaulted as required by the first prong of the s. 34(2) test. If, in fact, as the accused contends, the Dorion group was going to take out the Coutu/Knife group, why was the focus of the assault only on Dorion? Further, unlike the circumstances in Cinous, supra, there was no evidence, even from Knife’s point of view, that he was about to be attacked. It may be fair comment that, given the unfortunate penitentiary environment especially on the gang range it is survival technique to be “on guard”. However, it is clear that the accused was not about to be assaulted but, rather, that he was planning to assault Dorion. Even accepting Knife’s testimony in its best light leads to the conclusion that although an earlier threat had been made, he was not concerned that he was about to be assaulted in the common room, which was monitored by corrections workers and security cameras. He may have been concerned or even fearful of Dorion, but by his own admission, any possible violence towards him was not imminent, albeit it might happen sometime in the future if at all. [62] Similarly, with respect to the objective component, even if the accused’s perception of the attack was genuine, which reject, but as argued by the defence, it was not reasonable in the circumstances for him to hold that view. Objectively speaking, there was nothing happening prior to Knife’s decision to attack Dorion, which would lead to the conclusion that the accused reasonably believed, in the circumstances, that he was being unlawfully assaulted. While true that he did not have to necessarily wait for the “upheld knife” before taking action, it is equally true that he is not legally permitted to bank the previous threat and make pre‑emptive strike when he sees golden opportunity. [63] Accordingly, I conclude that the accused did not believe that he was being assaulted, within the meaning of the law, and that, even if he did hold this belief, which I find not to be the case, such a belief was not reasonable in the circumstances. [64] Accordingly, find that the first component of the three‑part self‑defence test, under s. 34(2) is not met. In order for the s. 34(2) self‑defence plea to be successful, must be left with reasonable doubt as to the existence of all the elements of the defence. The fact that have found that am not in reasonable doubt respecting the absence of the first element of the s. 34(2) defence, the defence of self-defence, as whole, cannot succeed. However, will, nonetheless, go through and deal with the other two components. 2. Did Knife cause the death or grievous bodily harm to Dorion under reasonable apprehension of death or grievous bodily harm to himself? [65] The analysis, as it relates to this second prong of the s. 34(2) defence, follows substantially the same path as with respect to the first prong. Not only must the accused reasonably believe he was facing an attack but he must also reasonably believe that he faced death or grievous bodily harm from that attack. There is no question that the accused testified that he feared death or grievous bodily harm in the sense that he claimed that Dorion and his gang, who had access to shanks, was going to kill him or, at the very least, seriously harm him. Nonetheless, I reject both the subjective and objective components of the second prong of the test for the same reasons that I rejected the first prong of the test. [66] Admittedly, if the first prong would have been resolved in favour of Knife, the second prong would have also been resolved in Knife’s favour. If he reasonably believed, in the circumstances that he was being unlawfully assaulted, it flows that the assault that he was facing would have been such that he would have reasonable apprehension that he faced death or grievous bodily harm from that assault. However, as I stated previously, I do not accept, on a subjective or objective basis, Knife reasonably believed that Dorion had the present ability to carry out the threat, notwithstanding that the physical aspect of the assault need not be imminent or immediate. [67] Accordingly, find that the second prong of the three‑part test has not been made out. Specifically, am not left in doubt as to the absence of prong two of the three‑part test. 3. Did Knife believe on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm at the hands of Dorion? [68] As with the other components of s. 34(2) defence, this third prong has both subjective and an objective component. The Supreme Court has directed, as mentioned previously, that the inquiry starts with the subjective perceptions of the accused at the relevant time, and then moves to whether those perceptions were reasonable. It must be established both that the accused believed that he could not preserve himself except by stabbing Dorion, and that he held this belief on reasonable grounds. [69] The decision of R. v. Raphael, 2009 SKCA 16 (CanLII), [2009] W.W.R. 611, is particularly helpful in the context of this case. Jackson J.A., speaking for the Court, made the following comments: 36 When we come to the third element of s. 34(2) ... the trial judge was required to consider all of Mr. Raphael’s circumstances, including that he was serving prisoner, on range populated by rival gang, in the prison setting as it existed for him on March 16, 2006. In assessing the alternatives available to Mr. Raphael, the trial judge was required to consider that Mr. Raphael had broken hand, the fight took place in six foot wide corridor, and there were no open doors other than the door to his own cell. The trial judge also had to consider that Mr. Sparvier did not remain passive in this fight. Mr. Sparvier did not appeal to the guards for help or retreat to them, even though he was losing the fight, and indeed he continued to fight throughout the altercation. As one of the guards testified, “they were exchanging blows as normal boxing ring fight.” Even after having been stabbed 14 times, and being restrained by the guards, he was not spent force. He was able to break free from his guards and stomp on, or kick, Mr. Raphael’s head. It also must be remembered that at the initial point of the confrontation, the guards were on the wrong side of locked gate, and it was Mr. Sparvier who put them there. [70] There are many parallels between this case and the Raphael case, and have taken into consideration all of Knife’s circumstances, including the type of circumstances mentioned by Jackson J.A. in Raphael. [71] Firstly, dealing with the subjective element, I find that Knife did not believe that he had no other option. He admitted, in fact, that he did have other options but, rather, he chose not to avail himself of them. He could have notified corrections officers that he felt that he was not safe. There were variety of ways of bringing his concern to the corrections officers’ attention. He could have told the corrections officers personally because he is in regular contact with them, or he could have availed himself of the use of the intercom system. Also, testimony was provided that inmates routinely slip notes to the guards, called “kites”, in which they can secretly notify the corrections officers of their concerns. The accused acknowledged that he was aware of these avenues. [72] However, Knife chose not to avail himself of any of these opportunities. The reason that he chose not to avail himself of any of these options at that time was because he was still embracing the gang lifestyle and was not then prepared to disassociate himself from his gang. From his perspective, this led to two problems. Firstly, it was unseemly, in his view, to ask for assistance from the corrections officers because there is “prisoners’ code” that “what goes on in prison, stays in prison”. Secondly, he indicated that he believed that if he was to request to be moved, other gang members would become suspicious of him, and he feared that he would be the recipient of further violence. [73] Knife also intimated that he was concerned about whether the corrections officers would have moved him because, upon being transferred to the Saskatchewan Penitentiary, he indicated to officials, prior to being placed on Block “B”, that he did not want to go there. The corrections workers, nonetheless, placed him there, which, according to Knife, made him doubt whether they would, in fact, move him if requested. [74] However, do not accept Knife’s testimony in this regard, and it does not leave me in reasonable doubt with respect to the nonexistence of the subjective component of the third prong of the test. Clearly, Knife had options. He testified that he only had 30 days left on his sentence before he would have been moved out of Saskatchewan Penitentiary. As result, placing himself out of harm’s way, should he have chosen to do so, was not lifelong ordeal but would have only occupied 30 days of his time. Further, Knife was aware, despite what he said about his initial request to not be placed on “B” Block, that his request to be moved from “B” Block would have been quickly honoured. This was evident by the fact that Knife knew that the very day Ireland expressed desire to be moved, he was, in fact, moved. Further, and particularly revealing, Knife testified that, subsequent to the incident, on December 28, 2008, he decided to give up the gang lifestyle and requested to be moved, and was moved, from “B” Block. Knife testified that once he made the decision to be moved from “B” Block, he contacted corrections worker and demanded to be taken off the range. He claims that, initially, the corrections worker laughed at him and did not take him seriously. Knife testified that he then used the intercom second time to contact the guards and told them that he wanted to be moved off the “B” Block range that moment. The corrections officer asked “why?”, to which Knife responded that he did not have to give him reason and that it was none of the corrections officer’s business. Knife acknowledged that he was moved immediately from the range. Clearly, Knife knew what to do to get himself out of harm’s way should he have chosen to do so. [75] The evidence from number of corrections officers confirmed that attempts are made to keep the prisoners safe and attempts are made to house compatible inmates together. However, if an inmate wants to move due to safety concerns, they accommodate that request. [76] Further, unlike in the Raphael case, Knife was in monitored common room which was equipped with video surveillance cameras and under the watchful eyes of corrections officers. The accused was aware of this and knew, or should have known, that under those circumstances those in the common room ought to have been considered safe from attack except from the most brash, defiant and contemptuous. [77] Also, it does not make sense that it was somehow necessary to preserve Knife (and his cohorts) from death or grievous bodily harm by inflicting injuries upon just Dorion. What about the other inmates who allegedly joined in the threat with Dorion? Also, Knife testified that his intention was not to kill Dorion but was only intended to hurt him so that he would not, in turn, hurt Knife. However, his statement is inconsistent with the violent actions depicted in the video and with the balance of the evidence before me. His actions, and those of the other inmates that acted in concert with Knife went far beyond what was necessary to repel any alleged threat. [78] Likewise, the objective evaluation also leads to the same conclusion. Evaluated objectively, it was not reasonable for the accused to believe that he could not preserve himself from death or grievous bodily harm other than by assaulting Dorion in the way that he did. Going to his cell, which was an option, or asking to be moved from the range were reasonable options open to him, but rejected for objectively unreasonable reasons. [79] As result, in the final analysis, find that all three prongs of the s. 34(2) defence have not been proved and am not left in reasonable doubt as to whether or not any of them might be established. [80] should add, as well, that am mindful of the comments made by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.R. 742, which guides triers of fact in analysing the testimony of an accused. The concepts raised in R. v. W.(D.) ought to be kept in mind, especially when considering the subjective component of each of the three elements set out in the s. 34(2) defence. In particular, need to assess whether believe the accused’s testimony or, even if do not believe the testimony of the accused, whether am left in reasonable doubt by it. Further, even if am not left in doubt by the evidence of the accused, still must ask myself, on the basis of the evidence which do accept, whether am convinced beyond reasonable doubt by that evidence of the guilt of the accused. [81] Finally, on this point, would be remiss if did not comment that pre‑emptive strikes in the guise of self‑defence are available in only very limited circumstances. Certainly, the law cannot be that if someone makes threat to cause one death or grievous bodily harm, then that would give one licence to cause death or grievous bodily harm to that person at subsequent time of the accused’s choosing. While prisons undoubtedly present difficult and unique problems for those within the system, including both inmates and prison officials, it ought not to be considered zone of anarchy where the laws of the land are not applicable. Rather, the special circumstances of the prison environment must be considered and have been considered by me, but, in these circumstances, the defence of s. 34(2) must fail. C. Common assault on Demeria: s. 34(1) self-defence [82] recap of the salient facts respecting the common assault allegation respecting Demeria is as follows. Coutu throws hot liquid on Dorion’s face and body and then begins to stab him repeatedly. Knife immediately jumps into the fray and also begins to stab Dorion repeatedly. Demeria, who was in Common Room “C” but who had thus far been uninvolved in the altercation, comes to the assistance of the outnumbered Dorion and grapples with Knife. Dreaver then attacks Demeria, who was involved with Knife and stabs Demeria numerous times. Knife turns his attention away from Dorion, at which time an altercation occurs as between Knife and Dreaver versus Demeria. fan is thrown by Dreaver at Demeria. Dreaver throws television at Demeria, after which Knife grabs the television and throws it at Demeria. Dreaver and Knife stab Demeria number of times before Dreaver gets away and retreats to the back of the common room. No evidence as to the injuries sustained by Demeria if any was presented. [83] The question is whether Knife is guilty of common assault on Demeria. [84] The defence argues that it was Demeria who attacked Knife, and Knife is entitled to rely upon the self‑defence provisions of s. 34(1). The defence contends that the Crown’s argument that s. 37 protects Demeria is not applicable because the section could only be used as shield and not sword. [85] The Crown argues that Demeria was justified in doing what he did by virtue of s. 37 of the Criminal Code and that Demeria’s actions in coming to the aid of Dorion were lawful and, therefore, Knife’s reaction against Demeria was an unlawful assault. [86] Section 37(1) of the Criminal Code reads as follows: (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it. [87] There appears to be no definition of the term “any one under his protection”, and, therefore, there is some doubt whether s. 37 is applicable. However, I do not need to assess the application of s. 37 because I find that s. 27 of the Criminal Code is applicable. That section reads: 27. Every one is justified in using as much force as is reasonably necessary (a) to prevent the commission of an offence (i) for which, if it were committed, the person who committed it might be arrested without warrant, and (ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or (b) to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph(a). [88] In this case, Demeria obviously came to the aid of an individual who was being stabbed repeatedly. He was legally justified, therefore, to use as much force as was reasonably necessary to prevent the commission of an offence which would be arrestable without warrant and which was likely to cause immediate and serious injury to Dorion. Consequently, I find that Demeria was clothed in legal justification when he entered the fray. In response, Knife turned his attention to Demeria and assaulted him. I find, as well, that Knife is not entitled to the protection of s. 34(1) because Knife provoked the assault, and the force he used was more than necessary to enable him to defend himself. It is obvious from the video recordings that Knife was armed with a shank, whereas Demeria was not, and that stabbing Demeria and holding him so that he could not get away, as Dreaver and Knife were doing, was far more force than was necessary to enable him to defend himself. [89] As result, find that all of the elements of the common assault offence have also been made out by the Crown beyond reasonable doubt. Conclusion [90] In the final analysis, I find that the Crown has made out all of the elements of both counts beyond a reasonable doubt and, therefore, find Frederick Junior Knife guilty of both Count 1 and Count 2 as specified in the indictment. J. M.D. Popescul

In the evening, the accused inmate and his two co-accused inmates placed themselves in close proximity to the complainant inmate at table at the Penitentiary. The co-accused threw hot liquid from the cup directly into the complainant's face and the three inmates commenced stabbing the complainant with weapon. second complainant inmate attempted to intervene to assist the first complainant and the accused and co-accused began to stab the second complainant. The first complainant suffered severe first and second degree burns to his face and to his shoulders as well as numerous puncture wounds and lacerations but was not critically injured. The accused was charged with aggravated assault on the first complainant and common assault on the second complainant. None of the inmates testified at trial other than the accused. The accused testified that he felt he was being shunned in the Block and had received threats from the first complainant and others in the complainant's group who were brandishing shanks earlier that day. The defence argued that the Crown failed to prove that the injuries caused to the first complainant fell within the definition of 'wound, maim, disfigure or endanger life'; and that the acts done to the first and second complainants were in self-defence as contemplated by s. 34 of the Criminal Code. HELD: The accused was convicted of both counts. 1) In relation to the accused's defence of self-defence pursuant to s. 34(2) pertaining to the first complainant, the Court found the accused did not believe that he was being assaulted within the meaning of the law and, even if he did hold this belief, such a belief was not reasonable in the circumstances. Further, the Court did not accept, on a subjective or objective basis, that the accused reasonably believed that the first complainant had the present ability to carry out the threat, notwithstanding that the physical aspect of the assault need not be imminent or immediate. Lastly, the Court found that the accused did not believe that he had no other option. The accused admitted that he had other options but chose not to avail himself of them. 2) The Court found it did not need to assess the application of s. 37 of the Code in relation to the common assault charge. Rather, the Court found s. 27 of the Code applicable and determined that the second complainant was legally justified to use as much force as was reasonably necessary to prevent the commission of an offence which would be arrestable without warrant. The Court found the second complainant was clothed in legal justification and the accused was not entitled to the protection of s. 34(1) because the accused provoked the assault, and the force he used was more than necessary to defend himself as the accused was armed with a shank and the second complainant was not.

e_2011skqb444.txt

SCHERMAN QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 29 Date: 2016 01 22 Docket: DIV 408 of 2004 Judicial Centre: Regina, Family Law Division BETWEEN: DONETTE DORTHY TESSIER and DARIN TESSIER Counsel: Carmen Khuu for the petitioner Estes Fonkalsrud for the respondent JUDGMENT MEGAW J. JANUARY 22, 2016 INTRODUCTION [1] The respondent applies for an order to discontinue his obligation to pay both child support and spousal support and further for all support arrears to be expunged. He relies upon s. 17 of the Divorce Act, RSC 1985, (2d Supp) and s. 14 of the Federal Child Support Guidelines SOR/97-175 [Guidelines]. [2] The petitioner opposes the application to completely discontinue the child and spousal support obligation and further opposes any adjustment of the arrears of support due. She concedes the spousal support should be discontinued effective January 31, 2016. [3] By order dated January 24, 2005, Mr. Justice McIntyre directed as follows: 5. An income of $150,000 having been imputed to the Respondent, DARIN TESSIER, he shall pay Child Support to the Petitioner, DONNETTE DOROTHY [sic] TESSIER, of $1,711.00 per month commencing December 1, 2004 and on the first day of each month thereafter. The arrears which will exist as of the date of this order are payable at the rate of $500.00 per month; 6. The Respondent, DARIN TESSIER, shall pay interim spousal support to the Petitioner, DONETTE DOROTHY [sic] TESSIER, of $500.00 per month commencing February 1, 2005 and on the first day of each month thereafter; 7. For the purpose of guideline income for sharing of s. expenses, the Respondent has an income of $144,000.00. The Petitioner has an income of $38,170.00. The Respondent’s proportionate share is 79%. The Respondent shall pay to the Petitioner commencing February 1, 2005, 79% of the after tax cost of any childcare expenses incurred by the Petitioner arising out of her employment and the Respondent shall pay his proportionate share to the petitioner within 10 days of production of receipts; [4] The decision of McIntyre J. was an interim order. There was no appeal taken from that order. The matter did not proceed any further. From the time the order was made, the respondent has underpaid on his support obligation and he has always been in arrears of the obligation. Since September, 2005, he has paid only the amount of $350.00 per month. He is presently significantly in arrears of support in an amount exceeding $220,000.00. He has not paid any support since June, 2015 (affidavit of petitioner, para. 47). [5] Over the years, the respondent has been pursued by the Maintenance Enforcement Office [MEO] for collection of the arrears. The first time he was summonsed to court on the issue of arrears, he was directed, again by Mr. Justice McIntyre, to pay $350.00 towards the arrears. He deposes he mistakenly thought he only had to pay this much in total and therefore, somehow, the support was adjusted downwards back in November, 2005. This explanation is provided despite the fact the respondent had the assistance of experienced counsel then and the subsequent pursuit of the respondent by MEO. The direction of McIntyre J. to pay arrears was made November 25, 2005. [6] The respondent has been before the court number of times since 2005. The matter appears to have been continually adjourned to permit the respondent an opportunity to provide further information. It was not until 2015 this variation application was brought on the issue of pursuit of arrears. [7] Over the years, the respondent has been involved in two areas from which it could be thought he would earn an income. The first area, generally, is as truck driver. In this occupation, he deposes he has been sporadically employed from the beginning of 2006 through to the middle of 2013. He indicates he has earned little from this area over the years. [8] In July, 2013, the respondent deposes he began working for Young’s Equipment in Regina. It appears he has been able to earn consistent income there. In 2013, he earned $55,987.06 from Young’s Equipment and Boyd’s Excavating. In 2014, he earned $75,025.70. In 2015, he earned $88,808.88. [9] The second area from which an income could have come is from an invention of the respondent’s to assist in the steering of Dodge trucks. For period of time starting in 2003, the respondent was involved in closely held corporation called Solid Steel Industries Ltd. This was the vehicle through which the steering invention was manufactured and sold. He had business partner. That relationship dissolved in late 2003. His brother then became his business partner. That relationship dissolved in about 2005. Both of the former partners, apparently, continued on with the manufacture and sale of the respondent’s invention. The respondent says he did not continue with any involvement in the invention. [10] It is unclear why the respondent discontinued any interest in this invention. It is unclear why the business relationships dissolved. It is unclear why the respondent, if this is the fact, did not pursue his interest in this invention. It is unclear whether any income could have been earned from this invention. The respondent has not provided any of this information in any sufficient detail. [11] The respondent indicates he suffered from mental health difficulties in the form of depression. He suggests these health problems began in about 2003 and continued perhaps right up to 2013. There is no medical support filed for these health difficulties. There is no indication any medical support was sought. He says the cause of the depression was the breakdown of his family. [12] The respondent deposes the mental health difficulties prevented him from working. He further says he did little other than live at his parents’ home. There is no material filed in support of his statements. [13] The respondent has partner named Vivian Dureault. It appears she has some corporate interest(s). It further appears the respondent did some truck driving work for Ms. Dureault. The petitioner suggests the respondent may have financial interest in the corporate interests of Ms. Dureault. The respondent denies this, but does not provide any material in support of this denial. He provides very little information of the relationship, work or corporate status. It appears the suggestion of potential income has merit. It is not apparent why the respondent has not provided information in this regard. [14] In January, 2006, the respondent made an assignment in bankruptcy. He indicates the bankruptcy was “subsequently stayed” (para. 12, affidavit of the respondent). There is very little information provided on the bankruptcy. There is no information provide on the reason for the stay. [15] The parties have two children. From the time the parties separated, the petitioner has been left essentially to raise and pay for the children by herself. The children have each attended post-secondary education. The respondent has paid none of these costs. The oldest child ceased to be child of the marriage in December, 2015, when she finished her post-secondary education. The youngest child continues to require child support. She is not expected to finish her education until the spring of 2017. [16] Against this factual background, the court has been asked to determine the following issues: 1. Should the support obligation be varied to reflect lower income than that which was imputed to the respondent in the original order of McIntyre J.? 2. Should the arrears of support be expunged as result of the lower income which is said to have been earned by the respondent? 3. What is the respondent’s ongoing obligation to pay child support? 4. What is the respondent’s obligation to pay post-secondary education costs? 5. Should there be an order of costs in this case? [17] By the time this matter arrived in chambers for argument, some items either had been agreed to or were not being contested as between the parties. This agreement significantly changed the landscape as to what actually needed to be decided by the court on the application. [18] Counsel for the respondent, who was not the same counsel that drafted the original variation/expungement materials, indicated the respondent was not relying on the fact of the mental health difficulties as support for the variation/expungement discussion. It was recognized there was complete absence of medical information or other support providing confirmation of the medical condition alleged or its impact on the respondent’s ability to earn income. Accordingly, it was submitted the court should have no regard for the information on the health difficulties. [19] Counsel for the respondent then indicated the court should proceed on the assumption the respondent could have been earning an income over the years equivalent to that which he actually earned at Young’s Equipment without overtime. This amount is $26.50/hour, equating to an annual income of $55,120.00. For 2014, the actual income was to be used to calculate arrears. Then, for 2015, and on go forward basis, the income of the respondent should be set at $88,808.88 and child support should be calculated accordingly. The submission provided arrears of support should then be adjusted in accordance with these income amounts. [20] The submission on suggested imputed income was based on recognition the respondent could have been earning consistent income. While this recognition is of assistance, it is not complete answer to the determination of an appropriate historical income for the respondent. [21] Counsel for the respondent further indicated the respondent was, and is, prepared to pay his proportionate share of post-secondary education costs. The issue will be what income is to be used to calculate the proportionate sharing. [22] Finally, as indicated, counsel for the petitioner conceded spousal support should come to an end effective January 31, 2016. As result of this concession, no argument was advanced on behalf of the respondent to vary the spousal support to an earlier date. [23] Against the backdrop of the facts and these representations, the indicated issues were raised. 1. Should the support obligation be varied to reflect lower income than that which was imputed to the respondent in the original order of McIntyre J.? [24] The respondent seeks to reduce his obligation to pay support, both past and ongoing. He seeks to have his support obligation recast according to what an appropriate, imputed income might be rather than that which was imputed to him in the original interim order. Whether that reduction occurs by way of variation of the order or expungement of arrears does not much matter to the respondent. will deal with the issue of variation first. [25] As indicated, the respondent, by way of submission in chambers, no longer asserts he should be assessed as having no income from 2005 to 2013. Rather, he suggests reasonable income figure over the years would have been $55,120.00. He says that figure accords with what he could have been earning at Young’s Equipment without the overtime being factored in. Again, he completely abandons the original position that his mental health problems prevented him from working. [26] The initial order was an interim order. The matter did not proceed beyond the interim stage. Rather, from April, 2005 through to the present, the respondent has been content to have the existing order in place and did not seek to challenge it by way of trial proceedings to obtain final order different from that pronounced by McIntyre J. [27] In approaching variation, the respondent needs to show material change in circumstances having occurred. The ability to vary an interim order has now been confirmed by the Court of Appeal in Prescesky Prescesky, 2015 SKCA 111 (CanLII) [Prescesky]. The requirement of establishing material change in circumstance is set forth in Willick Willick, 1994 CanLII 28 (SCC), [1994] SCR 670. While recognize am dealing with an interim order, due to the length of time that has elapsed think it appropriate to consider the order in the same context and with the same requirements for material change as is necessary for final order of the court. [28] The recent comments of Jackson J.A. in Prescesky regarding the realty of long-standing interim orders are applicable here. While it would have been preferable to have this matter proceed to final hearing, that is simply not the reality in this, like in many situations. Regardless, the task now is to determine whether the existing order ought to be varied retroactively to impute different, albeit lower, income than was imputed in 2005. [29] The respondent says simply he did not earn the income which was imputed to him by McIntyre J. What he is really saying is the imputed amount was wrong and he should not be saddled with such high income for the calculation of support purposes. While such an argument may have merit when dealing with finding of definitive level of income, which is in error, it does not have merit (necessarily) when dealing with an imputation of income. [30] As observed by Goebel J. in Abdellatif Abdellatif, 2015 SKQB 396 (CanLII): 18 While in many cases this might be sufficient to ground an application to vary (see: s. 14 of the Guidelines), in situation where the order sought to be varied was based upon imputed income, it cannot, in and of itself, be sufficient. Ryan-Froslie J. (as she then was) in Dooley Knight, 2003 SKQB 131 (CanLII), held that simply arguing that the amount imputed was excessive and did not reflect his actual income is not ground for variation. The court must assume that that prior order was correctly made and should not sit in appeal of that order. 19 similar sentiment was expanded upon in the recent decision of the Ontario Superior Court in Trang Trang, 2013 ONSC 1980 (CanLII), 29 RFL (7th) 364 [Trang]. In that case, the court held that an application to vary child support order based upon an imputed income also requires the payor to prove that the circumstances giving rise to the finding of imputed income have changed (see: paras. 51 to 60). The court held: 51 When court imputes income, that's determination of fact. It's not an estimate. It's not guess. It's not provisional order awaiting better disclosure, or further review. It's determination that the court had to calculate number, because it didn't feel it was appropriate to rely on or wait for representations from the payor. 52 party who argues that an imputed income level is no longer appropriate must go beyond establishing their subsequent "declared" income. They must address why income had to be imputed in the first place. They must present evidence of changed circumstances which establish that either: a. It is no longer necessary or appropriate to impute income. The payor's representations as to income should now be accepted, even if they weren't accepted before. b. Even if income should still be imputed, changed circumstances suggest different amount is more appropriate. 53 If "declared income" automatically prevailed on motion to change support, it would defeat the purpose of imputing income in the first place. It might even be disincentive for payors to participate in the initial court process. They could simply ignore support Applications as they often do. They could wait to see if the court imputes income, and how much. If dissatisfied with the amount, the payor could later return to court waving their tax returns, to suggest that the original judge got it wrong. 54 Support claimants should not be forced to go through this two-step process. Our family court system certainly can't afford it. 55 Similarly, the onus should not fall on the support recipient to establish why income should still be imputed on motion to change. That determination has already been made. The onus is on the support payor to establish that there should be change in the way their income is to be calculated. 56 If for example the original support order imputed income because the court concluded an unemployed payor should have been working, it would be illogical to allow the payor to extinguish that determination by returning on motion to change, with proof that he wasn't working. That wouldn't constitute change in circumstances. 57 If trial judge imputed income to self-employed person on the basis that their tax return didn't reflect cash sales and excessive write-offs, there should be presumption that so long as the payor maintains the same business activities and accounting practices, subsequent tax returns will be equally unreliable. 58 Imputed income matters. The reason why income had to be imputed matters. 59 If an aggrieved party feels income was wrongly imputed, they can take timely steps to correct the original determination. They can appeal. They can bring motion to set aside the order based on mistake or misrepresentation. 60 But if payor proceeds by way of motion to change, they must face the presumption that the original order was correct and the original imputation of income was correct. If they want to rely on their declared income, they must establish why this time their representations should be accepted by the court. agree with these comments. [31] When dealing with a request to vary, I must accept the original order was correct at the time it was made. must then determine whether material change has occurred requiring review of the order. Finally, in the event there is material change, what the effect of that change should be. Each step requires decision before moving to the next. [32] In this case, the respondent is able to establish he has been working at full time employment with Young’s Equipment from 2013 to the present. In those years he earned actual income from full-time position as set forth earlier in this decision. [33] accept the reality of the respondent’s present income, and that since 2013, it is as set forth. This actual situation does constitute material change. He is working full-time at this position. There is no suggestion he is under-employed in his new job. The effect of this change is that child support should be calculated from January 1, 2013 ongoing based on the actual incomes. The arrears for that timeframe will be similarly adjusted to reflect the actual income earned. make no adjustment of the spousal support. [34] For the time period 2005 to December 31, 2012, the respondent has not been able to establish why he was unable to work, much less earn the imputed income. The mental health issue is not consideration. But what that left for consideration was an individual who had significant income imputed to him, who apparently had not been reporting an income for several years, and no real explanation as to why he was unable to earn any income much less the income which had been imputed to him. [35] There was evidence presented regarding the business difficulties the respondent endured with respect to his steering invention. There was no evidence, or, perhaps more accurately, no sufficient evidence, to establish why he was unable to continue with the manufacture of the invention. There was no explanation provided as to why he could not have continued to manufacture the invention; whether the invention continued to be relevant; or what became of being “inundated” with calls for production of the invention. [36] Then, even if there was no ability to continue with the manufacture of the invention, why was the respondent not able to find employment in his chosen field, or otherwise to continue to earn an income. It appears he was truck driver and had certain mail routes. It does not appear why he could not continue to drive truck. It is not known what became of the mail routes and whether they continued to be available for him. [37] In short, there is nothing to explain what has changed. The respondent elected not to challenge the imputation of income made 10 years ago. As stated in Trang Trang, 2013 ONSC 1980 (CanLII), 29 RFL (7th) 364, the obligation does not lie on the petitioner to show why the imputed income is still appropriate. The order here under review was made some time ago by McIntyre J. The onus rests squarely on the respondent to justify the need for change. [38] I find the respondent has failed in his onus here for the years 2005 through to, and including, 2012. As result, there will be no variation of the order for that time period. 2. Should the arrears of support be expunged as result of the lower income which is said to have been earned by the respondent? [39] In determining whether arrears of support should be rescinded or reduced, the court is required to determine whether the payor can pay the arrears or whether the payor will be able in the future to pay the arrears. See Ross Vermette, 2007 SKQB 272 (CanLII), 309 Sask 17. [40] In Bowen Halliday, 2015 SKQB 152 (CanLII), McMurtry J. summarized the law with respect to determining the various factors to consider in an application to expunge arrears: 30 If parent does not pay the child support ordered and arrears have accumulated, the court must consider the following factors before determining whether to rescind, reduce or keep whole the obligation to satisfy the arrears. In Allaire Greyeyes, 2008 SKQB 81 (CanLII), 313 Sask 178 [Allaire], Wilson J. wrote: 12 In determining whether to remit arrears of child support, consideration must be given to the factors set out in Jensen v. Jensen (1990), 1990 CanLII 7661 (SK CA), 28 R.F.L. (3d) 350 (Sask. C.A.); Loshney v. Hankins (1993), 1993 CanLII 8920 (SK QB), 48 R.F.L. (3d) 67 (Sask. Q.B.); Wurmlinger v. Cyca, 2003 SKQB 152 (CanLII), [2003] S.J. No. 247 (Sask. Q.B.);Haisman v. Haisman, (1994), 1994 ABCA 249 (CanLII), R.F.L. (4th) (Alta. C.A.) and Aime v. Aime (1990), 1990 CanLII 2613 (MB CA), 27 R.F.L. (3d) (Man. C.A.). These factors are: (i) the nature of the maintenance order sought to be varied; (ii) the ongoing financial capacity of the payor; (iii) the ongoing needs of the child (or children); (iv) any unexplained delay in enforcing arrears; (v) any explanation as to the delay in seeking relief from the arrears; (vi) whether enforcement of payment of arrears would cause hardship to the payor; and (vii) the payor's ability to pay the arrears at the time they were incurred. 31 In Ross, Wright J. held further, at para. 16, that the failure of the payee to enforce child support order is only one factor to take into account when deciding whether to reduce or rescind arrears. She stated: .. Further, when there is an ability to pay, delay or the age of the children should not preclude enforcement unless it can be shown that there is demonstrable prejudice to the respondent and resultant hardship. Otherwise, the effect is to burden the custodial parent with disproportionate share of what is joint obligation. In Johnston v. Johnston (1997), 1997 CanLII 2833 (BC CA), 26 R.F.L. (4th) 131 (B.C.C.A.), Prowse J.A., while generally rejecting delay alone as factor to consider in an application to rescind arrears of child support, said as follows at para. 26: 26 There is, however, some authority for the proposition that the Court will consider delay as factor in assessing the issue of reduction or cancellation of arrears of maintenance if the payor is able to show that the delay has prejudiced him in some material way. (See, for example, Meyers v. Meyers (1995), 1995 CanLII 1797 (BC CA), B.C.L.R. (3d) (C.A.) at p. 6.) In order to establish prejudice, however, the payor must demonstrate not only that he could not pay at the time of the application, but also that he is unlikely to be able to pay in the future. This principle is referred to in Haisman v. Haisman (1994), 1994 ABCA 249 (CanLII), R.F.L. (4th) (Alta. C.A.); leave to appeal dismissed (1995), [1995] S.C.C.A. No. 86, 15 R.F.L. (4th) 51 (note) (S.C.C.). [emphasis mine] [Emphasis in original] [41] Here, the respondent is now earning $88,808.88 per annum. He has previously made an assignment into bankruptcy. do not know what effect that had. It appears he has no other obligations other than this outstanding one to his children and his former spouse. There is nothing to indicate he will not continue to earn the present level of income on into the future. [42] The respondent has paid little towards either the court order or his obligation to provide support. He has been in arrears from the time the order was granted and enforcement steps have been pursued by the MEO. In light of his recalcitrant approach to his support obligation, neither the passage of time nor the quantum of the arrears should deter from the fact he has avoided providing any meaningful financial support to his children and former spouse for the entire time the order has been in place. [43] The authorities speak to the balance which must be in place between recognizing prejudice to the payor by having to pay considerable sum of money and allowing the payor to escape his obligations if enough time elapses. The payor should not be rewarded in this regard for waiting out the payment obligations placed upon him. [44] There is no sufficient information to explain the lengthy delay in making this variation application. There has been continual attempt by MEO to enforce the arrears. [45] In the circumstances, I determine the payor does have the ability to pay the arrears. There is little doubt it will be onerous for him, but then, on the other hand, he has avoided paying anything for considerable period of time. In the result, am not prepared to expunge any of the arrears prior to 2013. [46] The arrears from 2013 to date will be adjusted to accord with the income as found. For the reasons stated, am not prepared to expunge any of those arrears. 3. What is the respondent’s ongoing obligation to pay child support; [47] The respondent shall pay child support for one child based on an income of $88,808.88 from the 1st day of January, 2016, and on the first day of each month thereafter, until varied by further court order. 4. What is the respondent’s obligation to pay post-secondary education costs [48] The respondent shall pay his proportionate share of the university expenses based on the parents being responsible for two-thirds of the total costs. This, then, finds the children being responsible for one-third of these expenses. This breakdown was proposed by the counsel for the petitioner and accepted by counsel for the respondent. [49] The actual amounts to be paid shall be calculated in accordance with the incomes which have found for the respondent over the applicable years. 5. Should there be an order of costs in this case? [50] The respondent has been largely unsuccessful in his application to vary and expunge. In addition, his failure to assist with the post-secondary expenses was brought to light during this application. While he accepted his obligation to pay these amounts, it was only done after the petitioner pursued the issue in her responding materials. [51] In all of the circumstances, direct the petitioner shall receive her taxable costs of this application to be paid forthwith and in any event of the cause. [52] Counsel shall prepare draft order in accordance with these reasons and submit same to me for review. In the event there is disagreement on the contents of the order, the parties have leave to have the matter placed before me by way of conference call to hear submissions. J. M. T. MEGAW

HELD: The application was dismissed. The court found with respect to the issues that: 1) the respondent elected not to challenge the imputation of income made in 2005. The court assumed that the imputation was correct. The respondent had not shown a material change required to vary the obligation nor had he met the onus to justify the need for a change to the amount of child support payable for the years 2005 to 2012. From January 2016, the respondent was ordered to pay child support for one child based upon his current income ; and 2) the respondent had not provided any meaningful financial support for his children for the entire period despite the fact that enforcement steps had been taken by the Maintenance Enforcement Office. The court determined that the respondent had the ability to pay the arrears and it would not expunge them. The arrears from 2013 to date would be adjusted to accord with the respondent’s current income.

b_2016skqb29.txt

J. C.A.C. No. 119488 NOVA SCOTIA COURT OF APPEAL Clarke, C.J.N.S.: Hart and Bateman, JJ.A. BETWEEN: WILLIAM HARRIS and HER MAJESTY THE QUEEN Respondent Maurice G. Smith, Q.C. for the Appellant Denise C. Smith for the Respondent Appeal Heard: November 24, 1995 Judgment Delivered: November 24, 1995 THE COURT: Appeal dismissed from conviction for break, enter and theft contrary to s. 348(1)(b), per oral reasons for judgment of Clarke, C.J.N.S.; Hart and Bateman, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: CLARKE, C.J.N.S.: This is an appeal from the conviction of the appellant that on March 11, 1995, he broke and entered a used car dealership office in Antigonish and committed the offense of theft of a 1994 Chev Blazer contrary to s. 348(1)(b) of the Criminal Code. passing motorist familiar with the Blazer saw it being driven from the lot at 12:15 o'clock in the morning. He informed the police who, upon finding the office had been broken into and the Blazer keys were missing, took chase. They came upon the Blazer on the highway. When it was stopped two persons exited the Blazer and ran away. Two constables followed the tracks of one of them in the snow through wooded area. They noted on one or maybe two occasions the tracks broke through ice in brook. Shortly before 2:00 a.m., the appellant came out of the woods on the Williams Point Road. His lower body was wet. Some chunks of snow and ice were clinging to his clothing. The police said the imprint from his footwear resembled the imprint found in the tracks they followed through the snow. Justice MacLellan, in convicting the appellant, held that the doctrine of recent possession applied. He said that although the evidence was circumstantial, the facts he found to be proved led to no other reasonable inference than the guilt of the appellant. The trial judge found the Blazer was stolen just before 12:15 a.m. on March 11, 1995 as result of break and enter; that the appellant was in the Blazer when it was stopped by the police and that it had been recently stolen; that the appellant ran from the vehicle and made the tracks in the snow which were followed by the police, and that the time periods for the happening of each and all of these events were consistent with his findings of fact. The appellant contends the trial judge erred in law by applying the doctrine mainly because there is no evidence that he was in recent possession of the Blazer. Further he says the trial judge erred by determining the doctrine could apply because the appellant failed to provide an explanation. The doctrine of recent possession was discussed by the Supreme Court of Canada in R. v. Kowlyk (1988), 1988 CanLII 50 (SCC), 43 C.C.C. (3d) (S.C.C.). Mr. Justice McIntyre stated at pages 12-13: In summary, then, it is my view, based on the cases, both English and Canadian, which have referred to, that what has been called the doctrine of recent possession may be succinctly stated in the following terms. Upon proof of the unexplained possession of recently stolen property, the trier of fact may but not must draw an inference of guilt of theft or of offences incidental thereto. Where the circumstances are such that question could arise as to whether the accused was thief or merely possessor, it will be for the trier of fact upon consideration of all the circumstances to decide which, if either, inference should be drawn. In all recent possession cases the inference of guilt is permissive, not mandatory, and when an explanation is offered which might reasonably be true, even though the trier of fact is not satisfied of its truth, the doctrine will not apply. A review of the record and a re-examination of the evidence persuades us that there was sufficient evidence to support the findings of fact made by the trial judge, that the appellant was in possession of the Blazer at the time he fled, and also that the inferences he drew and the conclusion he reached. He examined the evidence in detail and, helpful to an Appeal Court in review, supported his findings with reasons drawn from the evidence. The focus of the remarks of the trial judge concerning lack of explanation were mainly directed to his comparison of the facts in case out of this Court where the accused had testified. (R. v. Ryan (1991), 1991 CanLII 2510 (NS CA), 105 N.S.R. (2d) 355.) In Ryan an explanation of the passenger's presence was given. finding of possession, without explanation, can trigger the doctrine. We are satisfied the factual situation here is unlike Ryan. Also, on appeal, it is appropriate for this Court to observe that this appellant chose not to testify at his trial and thereby offered no explanation. In our opinion the judgment of the trial judge was consistent with Kowlyk and the standards of review described in Yebes v. The Queen (1987), 1987 CanLII 17 (SCC), 36 C.C.C. (3d) 417, and the decisions of the Supreme Court of Canada which have followed Yebes are satisfied. Accordingly, the appeal from conviction is dismissed. C.J.N.S. Concurred in: Hart, J.A. Bateman, J.A. CANADA S. At. No. 01526 PROVINCE OF NOVA SCOTIA 1995 IN THE SUPREME COURT OF NOVA SCOTIA HER MAJESTY THE QUEEN -versus- WILLIAM CECIL HARRIS HEARD: at Antigonish, Nova Scotia before the Honourable Justice Douglas L. MacLellan DATE HEARD: July 25, 1995 COUNSEL: Mr. Richard MacKinnon, Esq., for the Crown Mr. Maurice Smith, Esq. for the Defendant C.A.C. No. 119488 NOVA SCOTIA COURT OF APPEAL BETWEEN: WILLIAM HARRIS and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: Clarke, C.J.N.S. (Orally)

This was an appeal from the conviction of the appellant that he broke and entered a used car dealership and stole a vehicle, contrary to s. 348(1)(b) of the Criminal Code. The theft was reported to police by a passing motorist who saw the vehicle being driven off the car lot early in the morning. The vehicle was spotted on the highway, and when stopped, was exited by two individuals. Two officers followed tracks through a wooded area, and noted that in two areas the tracks broke through ice on a brook. Shortly thereafter the appellant came out of the woods on a nearby road; his lower body was wet and chunks of ice and snow clung to his clothing. The imprint of his footwear resembled that of the tracks in the snow. The appellant was convicted, based on the doctrine of recent possession. He argued there was no evidence he was in recent possession of the stolen vehicle. Dismissing the appeal, that there was sufficient evidence to support the findings of fact made by the trial judge. The judgment of the trial judge was consistent with R. v. Kowlyk (1988), 43 C.C.C. (3d) 1 (S.C.C.).

5_1995canlii4187.txt

nan SC#: 453[2006] 2007 SKPC 90 IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION SASKATOON, SASKATCHEWAN BETWEEN: NORMA ISAAC V. TOWN OF MARTENSVILLE DEFENDANT Self and Jennifer Isaac(daughter) For the plaintiff Brad Weiss and Steven Haichert, SGI For the defendant R.D. Jackson, PCJ JUDGMENT July 30, 2007 BACKGROUND [1] The plaintiff brings action for water damage sustained to her former residence located at 233 - 1st Street South, Martensville, when frozen pipes burst. Her contention is that she instructed the Town Office to shut off her water supply and the failure to do so led to the damages being sustained. [2] The Town of Martensville disputes that such instructions were given and that, in any event, the cause of the pipes bursting was not as result of the water not being turned off, but rather because the plaintiff had the power and heat disconnected. II EVIDENCE ON BEHALF OF THE PLAINTIFF Norma Isaac [3] Ms. Isaac testified that she purchased rental property in 1999 at 233 1st Street South, Martensville. She rented the house to her son for $500.00 per month up until September, 2005, when her son vacated the premises. Her intent was to sell the property to her daughter, Jennifer and her husband, David, who were then living in Saskatoon. She believed they were ultimately going to rebuild on the site after renting out the property for time and perhaps selling the house and having it moved as lake cabin. [4] To this end, Ms. Isaac attended at the Town Office in Martensville on November 28, 2005, and terminated her water account. Her recollection was that she instructed the water be shut off effective the day she was in because she was having the power cut off shortly thereafter, which was effective on December 10. [5] She did not recall signing any authorization to this effect. Rather, it was verbal discussion with the lady at the counter. She stated there was no discussion surrounding the issue “she didn’t respond presumed had made myself clear.” She then produced and entered into evidence the final bill for the water dated December 1, 2005, which she believed she received about the middle of December. [6] On December 23, 2005, Ms. Isaac received cheque from her daughter, Jennifer, for the purchase of the house for $50,000.00. She then made arrangements to travel to Red Deer with her family for Christmas. On December 24, 2005, she received call from her brother-in-law, Dave, advising that the house had received extensive flood damage apparently from burst pipes in the basement. Photographs were entered into evidence detailing the flood damage. [7] Ms. Isaac stated that prior to leaving for Red Deer, she and her husband had checked the house and everything was fine. She indicated they looked in on the house about once week on at least two occasions after the water had been shut off, spending only few minutes each time. She had made no arrangements for anyone to come by the house when they were away in Red Deer. Her brother-in-law had been alerted to the damage by neighbour who witnessed the water coming out the front door. Upon subsequent inspection it was determined that water pipe had burst in the basement causing the basement and main floor to flood. local contractor estimated it would take $25,000.00 to repair. [8] Ms. Isaac testified that no adjustment on the purchase price was ever discussed with her daughter and that transfer of title proceeded in the ordinary course registering into her daughter and son-in-law’s names on January 3, 2006. In September, 2006, her daughter had the house demolished and new home constructed on the property. [9] In cross-examination, Ms. Isaac acknowledged that she had not drained the water lines nor emptied the water tank and knew that there was still water in the lines after the power had been cut off. She maintained she was not disputing that the lines froze and burst just the extent of the damage caused because the town had neglected to turn off the water. [10] She further conceded she may have signed release for final billing acknowledging her signature on the document which was dated November 24, 2005. She also conceded that after January 3, 2006, she did not own the house and that she was taking this action on behalf of her daughter. Jennifer Webster [11] Ms. Webster is the daughter of the plaintiff. She confirmed that she and her husband purchased the subject property with the intent of future development involving possibly duplex, fourplex or personal residence. [12] It was her hope to rent out the property in the interim or sell the house as lake cabin. She purchased the house on December 23, she recalled for $50,000.00. She registered the transfer documents herself and did not discuss any adjustment of the purchase price as result of the flood damage. Rather, they decided to pursue the damages against the Town of Martensville for failing to shut the water off. [13] Ms. Webster recalled speaking with someone at the Town Office named “Bonnie” regarding notice to be given if the new owners were considering demolition of the property. She recalled no other discussion and did not remember telling the town to leave the water on or being told gas and water meters would have to be moved if the property was demolished. III EVIDENCE ON BEHALF OF THE DEFENCE Erin Sackmann [14] Ms. Sackmann is the utility clerk for the Town of Martensville, post she has held since September, 2005. She explained the process required to have water service terminated and disconnected which was to sign the back of the work order. There was no specific form otherwise instructing disconnect request, although such forms are now used to this effect. It was their practice to ensure the signatures were obtained on the back, which she said they did each time. [15] Generally, requests for disconnects would come in summer and very rarely, in winter. They would dissuade any such requests in winter due to the possibility of damage occurring. It was “big issue” she explained to have water disconnected in winter so she would have recalled any such request from Ms. Isaac. [16] Ms. Sackmann testified to having telephone conversation with Ms. Webster in early December and that the possibility of demolition was discussed. If this were to occur, she advised Ms. Webster, then the water had to be disconnected. She recalls Ms. Webster instructing her to keep the water on in case they decided to rent it. The issue of the heat being turned off did not arise, and if it had, Ms. Sackmann would have then ensured the water be disconnected. [17] Ultimately, Ms. Webster did apply for demolition permit on the property on August 2, 2006. Prior to that time, no discussions took place concerning the damage to the property. Angela Kalynuik [18] Ms. Kalynuik was the receptionist at the Town Office who dealt with Ms. Isaac when she came in to terminate her utility account. She had her fill out the work order, sign and date it. She did not request the water be disconnected and accordingly no signature was required or obtained on the back of the form. Neither did Ms. Isaac advise the power was being shut off. [19] Ms. Kalynuik testified she had just started at the Town Office in September of that year and had been thoroughly trained on the proper procedure for disconnection requests. She stated these were uncommon and generally involved “snowbirds” going south or persons doing renovations. Bonnie Gorelitza [20] Ms. Gorelitza is the planning director for Martensville. She too spoke with Ms. Webster by telephone which she noted on her file to be November 21, 2005. The nature of the call concerned possible demolition of the subject property. Ms. Gorelitza informed Ms. Webster that if the property was to be demolished or moved, permit would be required and the proper disconnects would have to be made. She noted on her file that Ms. Webster advised that the property would either be moved or demolished in the spring. IV ANALYSIS [21] After carefully considering the testimony of the witnesses and the exhibits filed herein, the Court concludes that the plaintiff’s action cannot succeed for the following reasons: a) The Court cannot find on the evidence that clear instructions were given by the plaintiff to the town to disconnect the water service. To the contrary, the form executed by the plaintiff clearly indicates request for final billing. The evidence demonstrates misunderstanding at best between what the plaintiff believed she was requesting and what in fact she did instruct. This however cannot be construed as negligence in the circumstances by the town nor does the fact that specific forms are now utilized for disconnect purposes, elevate the matter on the facts before the Court, to negligence by the Town of Martensville; b) The proximate cause of the damage was turning off the heat and power without ensuring that water lines, toilets, and the water tank had been properly drained. It was inevitable in such circumstances that the pipes would freeze and in all likelihood burst thereby causing damage to the subject premises. How much damage this would have caused is difficult, if not impossible, to assess compared to the damage occasioned to the point of being attended to by the neighbour; c) The plaintiff sustained no damages herself. She negotiated the sale price of $50,000.00 with her daughter prior to any damage being sustained to the subject property. No adjustment had to be made to her daughter thereafter for any “loss” occasioned, and accordingly, she was not out of pocket whatsoever; d) She admitted she was bringing action for the benefit of her daughter which was long past the date of transfer of the property to her in January, 2006, the claim being issued August 17, 2006. Accordingly, any claim at this point would have to be made by her daughter, not her, as she had no further standing, having legally divested title and not received any less value on the sale of the property in the process. [22] The plaintiff’s claim is dismissed. There is no order as to costs. PCJ R.D. Jackson

The plaintiff sues the defendant town for water damage sustained to her former residence when frozen pipes burst. The plaintiff claims she told the Town Office to shut off her water supply and the failure to do so let to the damages being sustained. HELD: The claim is dismissed. 1) There is no evidence that the plaintiff gave clear instructions to the town to shut off her water. 2) The proximate cause of the damage was turning off the heat and power without ensuring that water line, toilets, and the water tank had been properly drained. 3) The plaintiff sustained no damages herself. She admits she negotiated the sale price of $50,000 with her daughter prior to any damage being sustained to the property. No adjustment had to be made to her daughter thereafter for any 'loss' occasioned. Any claim would have to be made by her daughter not her.

e_2007skpc90.txt

nan IN THE SUPREME COURT OF NOVA SCOTIA Citation: Nova Scotia Power Inc. v. AMCI Export Corporation, 2007 NSSC 260 Date: 20070830 Docket: SH 219171 Registry: Halifax Between: Nova Scotia Power Incorporated, body corporate v. AMCI Export Corporation, body corporate nan Judge: The Honourable Justice Glen G. McDougall Heard: August 9, 2007, in Halifax, Nova Scotia Counsel: David G. Coles, Q.C., for the plaintiff Craig M. Garson, Q.C., for the defendant By the Court: [1] Nova Scotia Power Incorporated (“NSPI”) applied for summary judgment against AMCI Export Corporation (“AMCI”). [2] NSPI alleged that AMCI failed to supply coal under a Coal Supply Agreement (“Agreement”). The Agreement contained four separate call options for the purchase and delivery of South American Low Sulphur Coal in quarterly instalments of up to 100,000 tonnes. [3] NSPI sought summary judgment for AMCI’s alleged failure to supply the requisite tonnage in quarters 2, 3 and 4 of 2004. In decision released on May 14, 2007 the court granted summary judgment to NSPI for the 56,634.99 tonnes which AMCI failed to supply in quarter 2. It refused to grant summary judgment for either quarter or quarter 4. The decision left it to counsel for the parties to try to reach an agreement on costs. Unfortunately they could not do so thus leaving it to the court to decide. [4] In addition to costs of this application, the court has also been asked to rule on costs of another application brought by AMCI to compel production. The parties ultimately reached compromise thereby avoiding the need for the hearing of this second application, but only after discovery of the affiant who had provided an affidavit in support of the application. [5] The affiant was an expert retained by AMCI to provide an opinion with respect to the commercial reasonableness of the purchase of substitute coal by NSPI. The expert advised counsel for AMCI that he was unable to carry out the analysis due to the insufficiency of materials provided by NSPI. After discover of the expert was conducted in New York City, NSPI agreed to produce the documents that were being sought by AMCI. AMCI is now seeking costs of this application. FIRST APPLICATION [6] The application for summary judgment was originally scheduled for one day. In all it took the better part of two days to conclude. brief court appearance and several telephone conference calls were also needed to discuss adjournment requests and other issues pertaining to disclosure. [7] NSPI was successful in obtaining summary judgment for quarter 2 only. Damages have yet to be determined. This will require further hearing depending on the results of the appeal of my decision on summary judgment. [8] For now, counsel have asked me to decide costs pending the hearing of the appeal. [9] The court has wide discretion when it comes to awarding costs. Civil Procedure Rule 63.02 states: Costs in discretion of court (1) Notwithstanding the provisions of rules 63.03 to 63.15, the costs of any party, the amount thereof, the party by whom, or the fund or estate or portion of an estate out of which they are to be paid, are in the discretion of the court, and the court may, (a) award gross sum in lieu of, or in addition to any taxed costs; (b) allow percentage of the taxed costs, or allow taxed costs from or up to specific stage of proceeding; (c) direct whether or not any costs are to be set off. (2) The court in exercising its discretion as to costs may take into account, (a) any payment into court and the amount of the payment; (b) any offer of contribution. (3) The court may deal with costs at any stage of proceeding. [10] Rule 63.04 is also applicable to this situation. It states: Party and party costs fixed by court (1) Subject to rules 63.06 and 63.10, unless the court otherwise orders, the costs between parties shall be fixed by the court in accordance with the Tariffs and, in such cases, the "amount involved" shall be determined, for the purpose of the Tariffs, by the court. (2) In fixing costs, the court may also consider (a) the amount claimed; (b) the apportionment of liability; (c) the conduct of any party which tended to shorten or unnecessarily lengthen the duration of the proceeding; (d) the manner in which the proceeding was conducted; (e) any step in the proceeding which was improper, vexatious, prolix or unnecessary; (f) any step in the proceeding which was taken through over‑caution, negligence or mistake; (g) the neglect or refusal of any party to make an admission which should have been made; (h) whether or not two or more defendants or respondents should be allowed more than one set of costs, where they have defended the proceeding by different solicitors, or where, although they defended by the same solicitor, they separated unnecessarily in their defence; (i) whether two or more plaintiffs, represented by the same solicitor, initiated separate actions unnecessarily; and (j) any other matter relevant to the question of costs. [11] Given the nature of the application, Tariff pertaining to chambers matters must also be considered. NSPI was not completely successful in its application. It was, however, successful in respect to quarter 2. As such, it is entitled to costs for the two day application which has resolved the issue of liability for this quarter. AMCI’s liability under the Agreement for the other three quarters has still to be determined but the issues should not be as involved as they would otherwise be based on the court’s decision on the summary judgment application. [12] The court is not persuaded to adopt NSPI’s suggestion to increase costs by factor of four as provided for in Tariff C, paragraph (4). Once damages have been determined, NSPI can seek further costs based on the amount involved. For now the court is of the opinion that costs should be awarded at the rate of $2,000.00 per day for a total of $4,000.00 together with taxable disbursements for filing and the like. [13] Counsel for AMCI suggested that NSPI’s costs should be reduced because of the time consumed in cross-examining NSPI’s main witness on damages which are still to be determined. do not accept this suggestion. It was up to AMCI’s counsel to decide how to conduct his cross-examination but NSPI should not have its award of costs reduced even though damages have yet to be determined. [14] NSPI is not precluded from seeking further costs after damages for quarter 2 have been finally determined. AMCI will also be able to make further submissions at that time. SECOND APPLICATION [15] The second application brought by AMCI was not heard in chambers. It was resolved prior to the hearing after discovery of AMCI’s expert witness. [16] The discovery hearing took place in New York City in order to reduce at least some of the inconvenience and costs of conducting it in Colorado, United States of America, where the witness resides. This was done at the suggestion of AMCI’s counsel. [17] After discovery NSPI agreed to produce the additional documents being sought. To reach this resolution the time which would have been consumed cross-examining the affiant at chambers hearing was instead used up in discovery. Although still expensive, it would not have been as time-consuming or as expensive as formal hearing in chambers. AMCI should be entitled to have costs, although not to the extent that it now seeks. I am prepared to award costs for a one-half day application which based on Tariff C is $1000.00. In addition, NSPI shall pay the disbursements incurred by AMCI for filing its application; travel costs for AMCI’s counsel to New York City; and, costs of preparation, travel, food and lodging for its expert witness to attend discovery in New York City. [18] The costs for both applications are to be paid forthwith and are in any event of the cause. McDougall, J.

The plaintiff commenced an action against the defendant for failing to supply three of the four quarterly amounts of coal due pursuant to their contract. Following a two-day summary judgment application, the court granted judgment for one of the three quarters, with damages to be determined. Costs were at issue for the summary judgment application as well as a previous application brought by the defendant to compel document production. The defendant's application was resolved prior to being heard in Chambers, but only after discovery examination was held in New York. Costs awarded for the summary judgment application on the basis of $2,000 per day for a total of $4,000 (the plaintiff is not precluded from seeking further costs after damages have been determined), plus taxable disbursements; costs awarded on the defendant's application as a half-day Chambers application in the amount of $1,000, with the plaintiff to also pay the disbursements incurred by the defendant in filing the application; travel costs for the defendant's counsel to attend in New York; and the costs of preparation, travel, food and lodging for its expert witness to attend the discovery.

e_2007nssc260.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 382 Date: 2006 08 17 Docket: F.L.D. No. 149/2006 Judicial Centre: Regina, Family Law Division BETWEEN: BRENDA LEE KRIESE and PAUL LOUIS VERHELST Counsel: David J. Flett for the petitioner Joanne C. Moser for the respondent JUDGMENT McINTYRE J. August 17, 2006 [1] The petitioner seeks child support and spousal support. The parties signed separation agreement and interspousal contract on July 16, 2004. With respect to spousal support the agreement provides that it is the intention of the parties that spousal support will be based on division of income until July 1, 2011. [2] The respondent worked as computer consultant. He carried on business through corporation, Exodus Technologies Inc. The sole source of revenue of the corporation was revenue earned by the respondent’s efforts as computer consultant. In 2005 he earned revenue as computer consultant of $124,128.00. [3] The interspousal contract provides, inter alia: 7.2 The shareable amount of Technologies earnings shall be the gross income to maximum of $125,000.00 less the actual expenses incurred to earn that income. Those expenses are estimated at $35,000.00 and include expenses related to the health plan of the Technologies. The actual amount of the expenses may be somewhat more or somewhat less than the actual amount of $35,000.00. 7.3 Paul shall receive all of the net income and shall pay one half of the net income to Brenda by way of equal monthly payments of spousal support. The amount of payment shall be adjusted yearly to reflect the changing income of the company after each year end. Any overpayment or under payment shall be made up over period of the next 12 months. The adjustment shall take place on April each year. The adjustment will consider Technologies likely future earnings based upon whether Paul’s contract is renewed with the Provincial Government. 7.5 The one half division of income shall continue up to and including June 30, 2007. Starting in the July 1, 2007 through to and including June 30, 2008 the formula shall be that Brenda shall be entitled to spousal support in the amount of 40% of the net income of Technologies based on the gross income of $125,000.00 by way of equal monthly payments of spousal support. The amount payable shall be reduced in an amount equal to 40% of Brenda’s income that she has earned. The adjustment shall take place on April each year. The adjustment will consider Technologies likely future earnings based upon whether Paul’s contract is renewed with the Provincial Government. Similarly, Brenda’s income will be estimated based upon her anticipated earnings. Should there be discrepancy between the actual income and the anticipated income, the amount will be adjusted when the final amounts are known. 7.6 The following chart shall apply: Now to June 30, 2007 50% July 1, 2007 to June 30, 2008 40% July 1, 2008 to June 30, 2009 30% July 1, 2009 to June 30, 2010 20% July 1, 2010 to June 30, 2011 10% July 1, 2011 onwards 7.7 The parties agree that on and after July 1, 2011 that neither claim spousal support from the other for any reason or cause whatsoever and that this agreement shall constitute full and sufficient waiver of any and all rights. This would include any changes either foreseeable or not foreseeable, radical changes or changes that may be causally related to the marriage. The intent is that this shall be full and final settlement of spousal support. 7.8 Brenda and Paul acknowledge and agree that Brenda has the right to continue with her homeopathy training and education in order to set up homeopathy practice. It may take two years from the present date for Brenda to complete her training and education. During that time Brenda will attempt to obtain part‑time employment. After Brenda receives her training and education in homeopathy, she shall seek work on full‑time basis. In the event that Brenda discontinues her homeopathy training and education, then she shall seek full‑time employment. In the event that Brenda receives any employment income, including self-employment income in any manner, then she will report that employment income to Paul and the appropriate percentage of the said employment income as set forth in paragraph 7.6 hereof shall be deducted off of the spousal support that Brenda is entitled to from Paul. [4] The respondent’s primary source of income through the corporation was contract with the Provincial Government for computer consulting services. In February 2006, the respondent advised the petitioner it appeared his contract with the government was coming to an end. As it turned out the respondent ended up with contract for $65,000.00 for the period April 2006 to March 31, 2007. The respondent works approximately 60 hours per month. The respondent indicates he intends to make career change and is engaged in the business of home renovation and handyman services. He has no prior training or experience in this field. [5] The petitioner currently works part-time for travel agency earning $1,473.00 per month. She may be able to gain full-time employment with her employer at the end of 2006. She had been taking home study courses toward certification in the practice of homoepathy although she has done very little of this since December 2004. She hopes to complete the program sometime late next year. [6] The petitioner argues that as the respondent’s present contract with the Provincial Government is part-time, he should be seeking additional work in the field of computer consulting. She suggests there is no evidence he has done anything to look for suitable work and suggests that he is in fact semi-retired at age 51. For the purposes of both child support and spousal support it is suggested the respondent should be deemed to have an income of $125,000.00. In terms of spousal support after deeming him to have an income of $125,000.00, the agreement should then be applied. [7] The respondent takes the position the interspousal contract recognized that there were risks that his contract with the Provincial Government may not be renewed and on the principles set forth in Miglin v. Miglin, 2003 SCC 24 (CanLII), 2003 SCJ 21;[2003] S.C.R. 303 that the petitioner’s entitlement to spousal support is as set forth in the interspousal contract. [8] In Leedahl v. Leedahl, 2006 SKQB 14 (CanLII);[2006] S.J. No. 15 (QL) (Q.B.), former husband sought to vary his spousal support obligation reached by agreement following settlement pre-trial conference and incorporated into consent order. The consent order provided that the husband was to pay $500.00 month spousal support until $5,000.00 family property settlement was paid in full. The applicant claimed material change in circumstance due to the loss of his trucking business. [9] The court in Leedahl, supra, noted that neither the spousal support agreement nor the consent order contained provision which contemplated variation of the spousal support obligation in the event of material change in circumstances. In that regard the court noted at para. ... In that respect, it is similar to the situation in Spencer v. Spencer, 2005 SKQB 116 (CanLII), (2005) 261 Sask.R. 150 (Q.B.). There, Wilson J. dealt with an application by respondent husband to vary spousal support agreement whose terms were incorporated into consent order which was for fixed term and contained no provision for review. The husband argued there had been significant change in circumstances. The parties had married in September 1995 after they cohabited for four years. They separated in December 2001. In December 2003 they settled the division of their property. The husband also agreed to pay monthly spousal support of $1,200 for three years and three months. The parties agreed to accept this agreement as full and final settlement of these issues. The agreement was incorporated into consent judgment. When the agreement was made the husband was employed with an annual salary of $100,000. In April 2004 the husband’s employment was terminated. He received severance package of $74,038. The 62 year old husband claimed his only source of income was $490 per month that he received from Canada Pension. The wife’s situation was unchanged from the time the agreement was made. Wilson J. dismissed the application, saying that the parties reached their agreement at pre‑trial conference where they were both represented by counsel and the agreement was in substantial compliance with the objectives for spousal support contained in the Divorce Act. The reasons for the decision are set out in the headnote as follows: The parties agreed that an equitable sharing of the economic consequences of marriage and its breakdown could be achieved if the wife was provided with time‑limited support. Although the husband did not anticipate that he would lose his employment, the job loss was not outside the range of reasonable outcomes that could have been anticipated by the parties when they made their agreement. Job markets changed and no employment position was secure. The agreement did not provide for the circumstances that would result in termination or variation of support. The husband should have insisted that spousal support would be reviewable if there was material change in circumstances. The husband achieved finality in situation where the wife was in ill health and had low income. He had to take responsibility for the agreement that he made. He had resources from which he could satisfy his support obligations. The application to vary spousal support was dismissed. [10] In Palmer v. Palmer, 2003 SKQB 438 (CanLII);(2003), 240 Sask. R. 25; (2003), 45 R.F.L. (5th) 447 (Sask. Q.B.), the wife brought an application for interim spousal support. The parties had signed comprehensive agreement which dealt with parenting issues, child support, spousal support and the division of family property. Under the agreement Ms. Palmer received lump sum spousal support of $5,000.00 and ongoing spousal support of $1,000.00 per month from October 2001 to July 2002. In subsequent divorce proceedings Ms. Palmer brought an application for interim spousal support pending trial. She sought to set aside the settlement agreement on the grounds of undue influence and duress or alternatively that the agreement was unfair and unconscionable. [11] The court observed at paras. [12] While Court can order interim spousal support where there is an agreement, it should be hesitant to do so. court on an interim application must be careful not to pre‑judge the issue and thereby usurp the role of the trial judge. To vary an agreement that the parties have relied upon in structuring their affairs on an interim basis would, in most circumstances, be unfair. If interim relief is granted which flies in the face of an agreement, and that agreement is subsequently upheld at trial, the fairness and equity of the interim order may be brought into question. Except in exceptional circumstances, agreements should be respected and upheld until trial when the circumstances surrounding the agreement can be fully canvassed. It is only in rare cases that court should vary from this principle. [13] There are no circumstances in this case which elevate it to one of those “rare cases”. While it is undisputed that the parties’ relationship was long one (more than 25 years), the roles of the parties and the validity of their agreement is clearly disputed. If this Court was to award interim spousal support to Ms. Palmer and the trial judge upheld the agreement, she has no resources to pay back any interim support received. The end result would be manifestly unfair to Mr. Palmer. On the other hand, if trial judge finds that the agreement should be set aside, they have the power to make retroactive spousal support order. Equity requires the agreement be respected pending trial. [12] In this instance the petitioner seeks spousal support order in which the Court is asked to impute income and then apply the provisions of their interspousal contract to determine quantum. The interspousal contract does not contemplate variation of the spousal support obligation in the event of a material change of circumstance. It will be for the trial judge to determine the intention of the parties when the agreement makes reference in paragraphs 7.3 and 7.5 to adjustments which “will consider Technologies likely future earnings based upon whether Paul’s contract is renewed with the Provincial Government.” [13] As noted in Palmer, supra, when the Court is asked to make an interim order and there is an existing interspousal contract which deals with spousal support, it is often not feasible to apply the Miglin, supra, analysis. In addition, we have in this instance, the question of whether or not to impute income. [14] In the circumstances, this is not an appropriate case in which to make an order for interim spousal support. The petitioner is entitled to support under the agreement and the circumstances as they presently exist. The parties will proceed to pre-trial conference and trial if necessary on the question of whether the respondent is obliged to pursue work in his field as computer consultant and whether to impute income. [15] With respect to child support, the petitioner seeks support for Logan and Melanie. Melanie turned 18 November 22, 2005. She completed her Grade XII last June. On May 9, 2006, she started ten-month program in hairdressing training. The parties came to an agreement with respect to assisting her insofar as her tuition payments are concerned. The petitioner seeks only table support for Melanie. There is no dispute that Melanie remains a child of the marriage while she is attending her program. [16] Insofar as the respondent’s income is concerned, the gross income to the corporation is $65,000.00 per annum. There is reference to some expenses being incurred to earn the income but there is no information as to what those expenses are. The respondent did provide “pay stub” for May 2006. It is not really a pay stub, but extrapolating from that statement I conclude the respondent’s gross taxable income from the corporation as a result of the $65,000.00 contract is approximately $53,000.00. This is in sense, an interim order and the question of the respondent’s income for child support purposes can be addressed at the pre-trial conference. [17] Based upon an income of $53,000.00 the respondent shall pay child support to the petitioner commencing May 1, 2006, in the amount of $741.00 per month for the support of their two children. Support for Melanie will continue so long as she continues in her program. [18] The issue of costs shall be left to the trial judge. J. D. E. W. McIntyre

The petitioner seeks child and spousal support. The parties signed a separation agreement and interspousal contract in July 2004. With respect to spousal support the agreement provides that it is the intention of the parties that spousal support will be based on a division of income until July 1, 2011.HELD: 1) The petitioner seeks a spousal support order in which the court is asked to impute income and then apply the provisions of their interspousal contract to determine quantum. The interspousal contract does not contemplate variation of the spousal support obligation in the event of a material change of circumstance. It will be for the trial judge to determine the intention of the parties when the agreement makes reference to the adjustments which 'will consider Technologies likely future earnings based upon whether Paul's contract is renewed with the Provincial Government'. This is not an appropriate case in which to make an order for interim spousal support. The petitioner is entitled to support under the agreement and in the circumstances as they presently exist. 2) With regard to child support, there is no question that Melanie remains a child of the marriage while she is attending her educational program. Insofar at the respondent's income is concerned, the gross income to the corporation is $65,000 per year. The respondent provided a pay stub for May 2006. It is not really a pay stub, but extrapolating from that statement the court concluded that the respondent's gross taxable income from the corporation as a result of the $65,000 contract is approximately $53,000. Child support will be ordered based on $53,000 on an interim basis.

2006skqb382.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 97 Date: 20050802 Between: Docket: 698 Langham Credit Union Limited and Gari Holdings Ltd. Coram: Bayda C.J.S., Lane Richards JJ.A. Counsel: Donald H. Layh for the Appellant James W.R. Taylor, Q.C. for the Respondent Appeal: From: 2002 SKQB 524 (CanLII) Heard: June 21, 2005 Disposition: Appeal allowed Cross-Appeal dismissed Written Reasons: August 2, 2005 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Chief Justice Bayda The Honourable Mr. Justice Lane Richards J.A. [1] This case concerns the fixture financing provisions of The Personal Property Security Act, 1993, S.S. 1993, c. P-6.2 (“PPSA”). The respondent Gari Holdings Ltd. claims damages from the appellant Langham Credit Union Ltd. The claim arises from the Credit Union’s delay in removing from Gari’s land a quonset in which the Credit Union held a security interest. The trial judge found in favour of Gari and awarded damages on the basis that the Credit Union became tenant at sufferance of Gari when it failed to remove the quonset and therefore was obliged to pay rent. [2] In order to resolve this appeal it is necessary to consider whether the PPSA precludes a claim by a land owner against a financer arising from the financer\'s failure to remove a fixture within a commercially reasonable time after giving notice of its intentions in that regard. If that issue is decided in Gari’s favour, it will also be necessary to consider the merits of the specific claims advanced by Gari against the Credit Union. [3] Gari leased vacant lot (“the Property”) in Nipawin to Lakeland Leisure Products Ltd. In 1997, Lakeland placed large metal quonset (“the Building”) on the Property. Prior to the Building being constructed, Lakeland granted security interest in it to financing company. That interest was then assigned to the Credit Union and registered in the Personal Property Registry. The Credit Union also registered fixture filing notice with the Prince Albert Land Titles Office. [4] Lakeland discontinued business in April of 1999. Gari advised the Credit Union that it wanted the Building removed, the municipal property taxes attributable to the Building paid, and the Property restored to its original condition. On July 23, 1999, Gari wrote to the receiver for Lakeland and repeated that position. [5] On August 27, 1999, the Credit Union served Gari with notice pursuant to s. 36 of the PPSA. The notice indicated the indebtedness secured by the Building and stated that the Credit Union intended to remove the Building within 15 days unless the indebtedness was discharged. [6] Gari responded to the notice by way of September 1, 1999 letter from its lawyer. The letter indicated that Gari, pursuant to ss. 36(10) and (11) of the PPSA, claimed reimbursement for damages expected to be caused by the removal of the Building. That amount was estimated at $3,000 to $3,500. Gari’s concern in this regard was that the metal walls of the Building were imbedded in concrete foundation and that removing the Building would involve cutting the walls and leaving behind the foundation with ridge of jagged metal protruding from it. The Credit Union responded with correspondence taking issue with Gari’s right to demand security pursuant to s. 36. [7] On November 5, 1999, Gari’s lawyer wrote to the Credit Union saying that Gari did not contest the Credit Union’s right to remove the Building and indicating that “all [Gari] wants is for the premises to be cleaned up to their original state”. The letter concluded by stating that Gari would not allow access to the Building unless $3,500 was paid into its lawyer’s trust account for purposes of covering the cost of cleanup. [8] The Credit Union then served second notice pursuant to s. 36 of the PPSA. It stated that the indebtedness secured by the Building as of that time, including interest, was $11,127.47 and indicated that the Credit Union intended to seize the Building within 15 days unless that amount was paid. [9] The Credit Union’s position prompted Gari to initiate proceedings in the Court of Queen’s Bench. At the end of December 2000, it applied for an order that removal of the Building be postponed until the Credit Union paid (a) $3,500 as security for reimbursement for possible removal damage; (b) rent of $500 per month from April 1999 through to the date the Building was removed, and (c) $2,818.04 of municipal property taxes for the period April 1999 to December 31, 2000. During the course of argument in this Court, Gari’s counsel advised that the relief in relation to rent and property taxes had been included in the motion not because those matters were conditions precedent to the Credit Union removing the Building but because, as Gari was going to be in court anyway on the matter of security for removal damage, it seemed useful to seek additional relief as well. [10] The Credit Union conceded the issue concerning payment of security very shortly before Gari’s motion was argued. In fiat dated February 8, 2001, Laing J. dismissed the application as it related to rent and reimbursement for taxes. He wrote as follows: The Applicant has been attempting to obtain the consent of the Langham Credit Union for similar order [concerning security in relation to reimbursement for damage] for over one year and it is appropriate to grant the Applicant costs of the application. With respect to the Applicant’s claim for occupation rent and reimbursement of taxes paid over the past year, this portion of the application is dismissed. The material suggests the Applicant had no use for the building and wished it removed from the outset. The appropriate remedy for it to follow in this case would be to seek mandatory injunction that the building be removed from the property and for damages suffered during the period of time after the demand that the building was not so removed. The Personal Property Security Act does not statutorily provide for general damage claim such as the one advanced by the Applicant in this matter. [11] The Building was sold to third party in the spring of 2001. However, it was not removed from the Property until the fall of 2002. That delay flowed, at least in part, from refusal by the Town of Nipawin to grant required permit to the purchaser until property taxes were fully paid. In order to facilitate matters, the Credit Union ultimately paid $2,964.71 to the Town in respect of the taxes. The Building was removed, the site returned to its original state and the $3,500 security deposit returned to the Credit Union. [12] For its part, Gari paid total of $6,227.88 in property taxes attributable to the Building during the time period when it says the Building remained on the Property after it should have been removed. That payment was made in order to avoid tax enforcement proceedings by the Town. II. The Queen’s Bench Decision [13] Gari launched the action which underpins this appeal in October of 2001. As amended, its statement of claim sought compensation from the Credit Union on the basis that the Credit Union was either tenant at will or tenant at sufferance and thus liable for use and occupation of the Property. Gari also advanced claim that it should be “reimbursed either as Quantum Meruit, or because [the Credit Union] has been unjustly enriched, or because the payment [of the property taxes] has created constructive trust of the $6,227.88 in the Defendant.” Without commenting on the potential merit of possible alternative arguments, observe that Gari did not advance claim either in trespass or on the basis that s. 65(5) of the PPSA itself creates cause of action. [14] The trial judge awarded Gari judgment in the amount of $6,227.88 plus costs. In so doing, he rejected the Credit Union’s contention that s. 36 of the PPSA operated to preclude Gari’s claim. [15] The trial judge found that the Credit Union was not tenant at will but that it did become tenant at sufferance when it neglected or refused to remove the Building within reasonable time. He determined the amount owing to Gari as being equal to the additional property taxes Gari had paid as result of the Building being left on the Property and reasoned as follows: [17] As am of the view that there was tenancy at sufferance, the plaintiff's damages should be assessed on the rental value. The plaintiff has established that while the building was on the site contrary to its wishes it had to pay $6,227.88 in municipal taxes levied against the building, as distinct from the land. This does not include the sum of $2,964.71 which the Credit Union paid directly to the Town of Nipawin to satisfy condition imposed by the town for the issuance of removal permit. [18] Gari claims that it received revenue from temporary storage of golf carts and for storage of bale loader. When extrapolated to the number of such units that could have been stored on the site, the rental value of the property could have been as much as $750 month. The plaintiff is willing to accept $500 month to allow for contingencies. In my view the evidence falls well short of proving that the plaintiff could have derived any rent from the property, had the building not been there, beyond the amount that the plaintiff actually recovered. On the other hand the reasonable rental value can be estimated, albeit with limitations, by reference to the amount of improvement taxes the plaintiff had to pay to keep the town from taking the property for taxes. [16] The trial judge concluded by saying that, if there was not tenancy at sufferance, he would have awarded Gari an amount for unjust enrichment in the same amount as the damages determined in connection with the tenancy at sufferance issue. [19] Having resolved the tenancy issue in the plaintiff's favour, it is not necessary to further consider the unjust enrichment claim. However had arrived at the conclusion that there was an unjust enrichment, would have assessed the damages for unjust enrichment in the same amount as the damages in lieu of rent. Whether the building was on the plaintiff's site or some other site, it would have, as commercial building, attracted municipal improvement taxes. In the absence of proof that the taxes on some other site, added to the cost of moving the building to that site, would have been less than the improvement taxes paid by the plaintiff, would have arrived at the same amount of damages using that approach. [17] The main questions raised by the Credit Union in its appeal can be summarized as follows: (a) Is s. 36 of the PPSA comprehensive code which precludes Gari’s claim?; (b) If Gari’s claim is not precluded by the PPSA, is Gari entitled to relief from the Credit Union? [18] It is also necessary to consider Gari’s cross-appeal. It alleges that the trial judge erred in failing to award damages in respect of what it refers to as the rental of the Building. [19] further note that this case was presented by both parties on the ground that the Building was fixture within the meaning of the PPSA. will accordingly proceed on that basis but do not wish to be taken as having resolved that point either one way or the other. Analysis A. Relevant Statutory Provisions [20] Section 36 of the PPSA is designed to displace the basic common law principle that goods affixed to land become part of the land. That rule, of course, generally gives priority to real property owner over financer of goods. [21] Cuming and Wood describe the effect of s. 36 in Saskatchewan and Manitoba Personal Property Security Acts Handbook, (N.p.: Carswell, 1994) at pp. 291-292: Section 36 sets out comprehensive regime that governs security interests in fixtures. In general sense, it continues the policy implicit under the older chattel security legislation by permitting secured party to remove goods that have become affixed to land. However, it puts into place four major improvements which are summarized below: (1) Section 36 adopts single policy governing security interests in fixtures. There is no longer difference in treatment depending on the form of the financing device. Section 36 applies to every type of security agreement. In addition, section 36 applies to lease of goods for term of more than one year. (2) Section 36 requires that the fixture financer register notice in the land title system in order to obtain priority over subsequent purchaser or mortgagee of land. This ensures that purchaser or mortgagee can rely on the integrity of the land titles system. (3) Section 36 creates special rule in relation to building materials. Building materials are not subject to removal pursuant to section 36. This prevents the financer from destroying building by the removal of its parts. (4) Section 36 sets out detailed procedure governing the removal of the fixtures. These provisions attempt to achieve reasonable balancing of interests between the fixture financer and the owner of land. [22] The portions of s. 36 which are most relevant to this appeal are set out below: (3) Except as provided in this section and in section 30, security interest in goods that attaches before or at the time when the goods become fixtures has priority with respect to the goods over claim to the goods made by person with an interest in the land. (9) secured party who, pursuant to this Act, has the right to remove goods from land shall exercise this right of removal in manner that causes no greater damage or injury to the land and to other property situated on it or that puts the occupier of the land to greater inconvenience than is necessarily incidental to the removal of the goods. (10) person, other than the debtor, who has an interest in the land at the time when the goods subject to the security interest are affixed to the land is entitled to reimbursement for any damages to the interest of the person in the land caused during the removal of the goods, but is not entitled to reimbursement for reduction in the value of the land caused by the absence of the goods removed or by the necessity or replacement. (11) The person entitled to reimbursement pursuant to subsection (10) may refuse permission to remove the goods until the secured party has given adequate security for reimbursement. (12) The secured party may apply to court for one or more of the following: (a) an order determining the person entitled to reimbursement pursuant to this section; (b) an order determining the amount and kind of security to be provided by the secured party; (c) an order prescribing the depository for the security; (d) an order authorizing the removal of the goods without the provision of security for reimbursement pursuant to subsection (11). (13) person who has an interest in the land that is subordinate to security interest as provided in this section may, before the goods have been removed from the land by the secured party, retain the goods on payment to the secured party of the lesser of: (a) the amount secured by the security interest that has priority over that interest; and (b) the market value of the goods if the goods were removed from the land. (14) secured party who has right to remove goods from land shall give to each person who appears by the records of the Land Titles Registry to have an interest in the land notice of the intention of the secured party to remove the goods, unless the amount mentioned in subsection (13) is paid on or before specified day that is not less than 15 days after the notice is given in accordance with subsections (15) and (16). B. The “Comprehensive Code” Argument [23] The Credit Union’s central submission is that s. 36 of the PPSA is comprehensive code which fully delineates the relative rights of financers and persons with an interest in land. It contends that the trial judge’s award effectively disregards the priority provisions of s. 36 and substitutes new remedy for the rights expressly set out in ss. 36(9) to (16). [24] am unable to accept that the PPSA goes as far as the Credit Union suggests. It is clear that s. 36 is designed to balance the rights of persons who hold security interest in goods which have become fixtures and persons who have an interest in the land to which the goods are attached. There can be no debate on that point. [25] However, it does not follow that s. 36 either can or should be read so aggressively as to exclude every cause of action or claim relating to the conduct of the financer of the goods as it affects the individual with an interest in land and vice versa. Section 36 may speak exhaustively to the relative priorities of financers and land owners in fixtures. It does not necessarily speak in that way to the full range of rights and claims which those parties might have against each other. [26] Speaking generally, see no principled basis on which person with an interest in land should be denied meaningful relief when financer, without excuse, acts in commercially unreasonable manner by failing or refusing to remove fixture after giving formal notice of its intention to do so. Denying remedy in that situation would put persons with interests in land at an unfair disadvantage vis-à-vis financers and would allow financers to effectively “store” fixtures on the property of others at no cost. The PPSA system is apt to function more fairly and effectively if financers are encouraged, through the existence of appropriate legal consequences, to remove their security within commercially reasonable time after giving notice pursuant to s. 36(14). [27] The Chambers ruling referred to above at para. 10 suggested that the appropriate remedy for person with an interest in land who wishes to have fixture removed is to seek mandatory injunction against the financer. do not mean by this decision to suggest that such an option would not be open to person with an interest in land. However, at the same time, there appears to be no reason why such person should not also be able to recover for loss or damage occasioned by commercially unreasonable failure on the part of financer to remove fixture after having given notice in that regard. [28] Section 65 of the PPSA is consistent with this view. Section 65(2) expressly states that principles of the common law, equity and the law merchant supplement the PPSA and continue to apply except to the extent they are inconsistent with the Act. Section 65(3) goes on to say that rights, duties and obligations arising under security agreement or the PPSA are to be exercised or discharged “in good faith and in commercially reasonable manner.” Further, s. 65(5) directly contemplates that where, without reasonable excuse, person fails to discharge duties or obligations under the Act, the person to whom the duty is owed has right to recover reasonably foreseeable loss or damage arising from that failure. The relevant parts of s. 65 are reproduced below: 65(1) In this section, “secured party” includes receiver. (2) The principles of the common law, equity and the law merchant, except to the extent that they are inconsistent with this Act, supplement this Act and continue to apply. (3) All rights, duties or obligations that arise pursuant to security agreement, this Act or any other applicable law are to be exercised or discharged in good faith and in commercially reasonable manner. (5) If person, without reasonable excuse, fails to discharge any duties or obligations imposed on the person by this Act, the person to whom the duty or obligation is owed has right to recover loss or damage that was reasonably foreseeable as liable to result from the failure. [29] The significance of s. 65 is recognized by Cuming and Wood in the Handbook at p. 463: Section 65(2) provides that principles of the common law, equity and the law merchant continue to apply except insofar as they are inconsistent with the provisions of the Act. The section recognizes that the Act is not complete, self-contained code of law applicable to personal property security transactions. It draws on this law as source of rules to fill the gaps in the system and to provide the basic foundation on which it is supported. For example, since the Act contains only few specific provisions relating to security agreements, the law of contract provides the basic infrastructure for regulating the rights of parties to security agreements. [Footnote omitted] [30] In this case, it is common ground that the Credit Union had right to remove the Building from the Property following Lakeland’s default. Pursuant to s. 36(14) and (15), it provided Gari with notice indicating its intention to do so within 15 days and giving Gari the right to retain the Building on payment of the indebtedness owing under the security agreement. On receipt of the notice, Gari relied on ss. 36(10) and (11) and denied the Credit Union permission to remove the Building until it was given adequate security for damage expected to be caused to its interest in the Property. [31] The Credit Union took the position in its factum that Gari refused to allow the removal of the Building until the Credit Union paid both property taxes in relation to the Building and an additional amount for “rent”. However, the record does not support that version of the facts. The affidavits filed with the Court of Queen’s Bench indicate that, although Gari claimed rent and taxes in April and July of 1999, it had changed its position as of September of that year. By September 1, Gari had retained lawyer and he indicated in letter to counsel for the Credit Union that Gari was only requesting security for the damage reimbursement. Accordingly, in my view, the analysis of the positions of the parties must proceed on that same basis, i.e. on the basis that, as of September 1, Gari was seeking security for possible damage caused by removal of the Building but was not seeking rent and reimbursement for taxes paid. [32] That said, I agree with the Credit Union that it would have been improper for Gari to deny permission to remove the Building unless the Credit Union paid an amount in respect of the property taxes attributable to it. That stance would have been inconsistent with the regime established pursuant to the PPSA. Section 36 provides only that person with an interest in land may refuse permission to remove goods until he or she has received adequate security for reimbursement of damages caused by their removal. Allowing person with an interest in land to oblige financers to pay property taxes before realizing on their security would amount to substantial realignment of the careful balance between the rights of fixture financers and holders of property interests which is reflected in s. 36. On this point agree with the observations of Ball J. in Cando Contracting Ltd. v. Sarnia No. 221 (Rural Municipality), 2002 SKQB 40 (CanLII), [2002] W.W.R. 89 at para 36. [33] In summary, find that s. 36 of the PPSA does not operate to preclude the claims advanced by Gari in this case. C. The Merits of Gari’s Claim [34] In light of my reading of the PPSA, it is necessary to consider the merits of the claims set out in Gari’s pleadings. 1. Tenancy at Sufferance and Tenancy at Will [35] Gari’s principal argument, accepted by the trial judge, is that the Credit Union was tenant at sufferance from the time Lakeland discontinued business on April 15, 1999 until the Building was removed in the fall of 2002. In my respectful opinion, the trial judge erred in his analysis of this issue and, more particularly, erred by misapprehending the nature of the legal relationship between Gari and the Credit Union. [36] The essence of tenancy is the right to possess and occupy land belonging to another. Oosterhoff and Rayner in Anger and Honsberger Real Property, 2nd ed. Vol. (Aurora: Canada Law Book, 1985) describe the basic relationship between landlord and tenant at p. 225: The relationship of landlord and tenant is created by contract expressed or implied, by which one person who is possessed with an interest in real property, and who is called the landlord or lessor, confers on another person, called the tenant or lessee, the right to exclusive possession of the real property or some part of it for period of time which is definite or can be made definite by either party, usually in consideration of periodical payment of rent either in money or its equivalent. [37] tenant at sufferance is one who, having entered on land by lawful title, continues in possession after the title has ended without obtaining the consent of the person entitled to the land. tenant at will, on the other hand, is person who possesses property under an express or implied agreement that the tenancy is determinable at the will of either party. See: Anger and Honsberger Real Property, supra, pp. 230-231; Williams and Rhodes, Canadian Law of Landlord and Tenant, 6th ed. looseleaf (Toronto: Thomson), pp. 4-2 to 4-2.1 and 4-17 to 4-19. [38] In this case, there was obviously landlord and tenant relationship between Lakeland and Gari. That relationship was created by 1997 agreement entitled “Lease with Option to Purchase”. However, Gari and the Credit Union were never landlord and tenant. At best, the Credit Union reserved security interest in goods which were affixed to the Property. The Credit Union had no right of occupancy, exclusive or otherwise. Its entitlements were defined by the financing agreement and the PPSA and related only to the existence of security interest in the Building. [39] It is also significant that Gari’s actions following the failure of Lakeland were inconsistent with the notion that the Credit Union was its tenant. The record reveals that Gari took possession of the Building and rented it out for storage of haying equipment and golf carts. These actions on its part reflect the terms of its lease with Lakeland. Paragraph 21 of the lease provides that it would be terminated if rent remained unpaid for seven days after its due date. Paragraph speaks to the disposition of building fixtures upon termination of the lease and provides that they would be owned by Gari: The lessee shall be permitted to erect or place on the land any buildings, and the lessee shall be permitted to make any improvements to the land, without requiring the consent of the lessor, provided that all buildings and improvements shall comply with any applicable laws or regulations of any relevant municipal, provincial, or federal or other authority. Upon the termination of this lease, should the lessee fail to accept the option to purchase hereunder, all buildings, fixtures and improvements made to the land shall be left on the land and shall be and become the property of the lessor absolutely, except for any portable buildings or other personal property of the lessee not affixed to the land [40] In light of the foregoing, I conclude that the Credit Union could not have been either a tenant at sufferance or a tenant at will of Gari for the fundamental reason that there was no landlord and tenant relationship between them. As a result, Gari’s claims in this regard must fail. 2. Unjust Enrichment [41] The other cause of action which Gari advanced was described in its pleadings as quantum meruit or unjust enrichment. The trial judge indicated that he would have allowed Gari to succeed on that basis if there was not tenancy at sufferance and that, if necessary, he would have awarded compensation for unjust enrichment in the same amount as the damages he awarded in connection with tenancy at sufferance, i.e. an amount equal to the property taxes paid by Gari in respect of the Building. [42] claim for unjust enrichment arises on satisfaction of three factors: (a) an enrichment, (b) corresponding deprivation, and (c) the absence of juristic reason for the enrichment. Unjust enrichment in equity permitted number of remedies including payment for services rendered on the basis of quantum meruit. See: Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] S.C.R. 980. [43] In this case, Gari’s position is that the nature of the alleged unjust enrichment is the benefit gained by the Credit Union in leaving the Building on the Property from April of 1999 to the fall of 2002 rather than paying for it to be stored at some other location. Gari argues that the amount of the benefit conferred on the Credit Union is the “storage” costs it saved by proceeding in that fashion. [44] find it unnecessary to consider the substantive merits of Gari’s claim because, even assuming there was unjust enrichment in the circumstances at hand, the record does not permit determination of the amount of the benefit said to have been conferred on the Credit Union. Put more specifically, the evidence does not establish storage costs for the Building. [45] For his part, as noted, the trial judge was of the view that compensation for unjust enrichment should be in the amount of the property taxes paid by Gari in respect of the Building. However, in my respectful opinion, that line of reasoning misses the mark. As McLachlin J. observed in Peel (Regional Municipality) v. Canada, 1992 CanLII 21 (SCC), [1992] S.C.R. 762 at p. 804, it is not enough that plaintiff in an unjust enrichment case has made payment which it was not required to make, “it must also be shown that the defendant as consequence is in possession of benefit, and it is fair and just for the defendant to disgorge the benefit.” [46] There is no logical correspondence between the taxes levied in respect of the Building and the storage costs which the Credit Union avoided by leaving it on the Property. Tax liability is function of the assessed value of land and improvements. That value cannot be translated directly into the wholly separate concept of storage costs. This is particularly so for fabricated metal structure of the sort in issue here which presumably could have either been moved as whole to location outside of the Town for storage or, perhaps more likely, disassembled and stored in much smaller space than the one occupied by the Building proper. In short, the taxes paid by Gari do not equate in any way with what it says was the benefit received by the Credit Union. [47] In argument, counsel for Gari also suggested that figure of $500 per month could be used to approximate storage costs. That amount is rooted in an affidavit which indicates that Gari had rented the Building for $25 per month to store bale mover and that the Building was large enough to accommodate 30 such machines. This was seen as translating into $750 of monthly rental income. Against that figure, $500 per month was said to be reasonable estimate for storage. [48] am not persuaded of the logic of this line of thinking either. First, it is speculative at best to conclude that, because Gari had been able to rent space for the storage of single machine, it could have filled the Building with similar rentals. Indeed, if that was the case, Gari would presumably have proceeded to rent out the entire Building. Second, and more fundamentally, there is no necessary connection of any kind between the value of the rental stream the Building might generate and the cost of “storing” it. These are entirely different concepts. [49] Further, and by way of significant additional complication, some of the delay in the removal of the Building was due to the Town of Nipawin’s refusal to grant the necessary permit to the purchaser until the taxes had been paid. The Town’s position is perhaps questionable in light of s. 69 of the PPSA, but the significant point is that, in light of this issue, it is unclear how much of the delay in removing the Building can properly be laid at the feet of the Credit Union. As result, the period of time over which “storage” costs should be assessed is quite uncertain. [50] do not believe that unjust enrichment claims need be proven with precise mathematical certainty. However, Gari has failed to present evidence which would allow the Court to meaningfully quantify the benefit conferred on the Credit Union and to provide appropriate relief. As a consequence, I am of the opinion that no effect can be given to the unjust enrichment argument. [51] Gari also referred to the concept of the constructive trust in its pleadings. However, it is not readily apparent how trust would arise in the circumstances of this case and Gari quite properly did not press or develop that feature of its claim in argument before the Court. D. The Cross-Appeal [52] In its cross-appeal, Gari argues that the trial judge erred in failing to award damages in the amount of $500 per month in respect of “rent”. Gari’s approach to this part of the case was that, if the Credit Union was tenant at will or tenant at sufferance, it was obliged to compensate Gari at rate equal to the amount for which the Building could have been rented. In order to establish that amount, Gari extrapolated from evidence in the record as to the revenue it generated from storing bale mover in the Building. [53] have substantial doubts about the theory of damages expressed in the cross-appeal. However, in light of my conclusion that there was no tenancy at sufferance or tenancy at will, there is no need to explore the matter. The cross-appeal necessarily fails because there was no landlord-tenant relationship between Gari and the Credit Union. V. Conclusion [54] conclude that s. 36 of the PPSA does not preclude an action for damages in circumstances of the kind involved in this appeal. However, in light of the causes of action it plead and the evidence it brought forward, Gari’s claim against the Credit Union cannot succeed. The appeal is allowed. Further, as indicated, Gari’s cross-appeal is dismissed. [55] The Credit Union’s main argument concerning s. 36 of the PPSA failed but it nonetheless succeeded in overturning the result at trial. It will have costs in this Court in the usual way on double Column and in the Court of Queen’s Bench on the applicable schedule of the tariff. DATED at the City of Regina, in the Province of Saskatchewan, this 2nd day of August, A.D. 2005. RICHARDS J.A. concur BAYDA C.J.S.

This case concerns the fixture financing provisions of The Personal Property Security Act, 1993 (PPSA). The respondent claims damages from the appellant Credit Union. The claim arises from the Credit Union's delay in removing a Quonset in which the Credit Union held a security interest. The trial judge found in favour of the respondent and awarded damages on the basis that the Credit Union became a tenant at sufferance of the respondent when it failed to remove the Quonset and therefore was obliged to pay rent. The issue is whether the PPSA precludes a claim by a land owner against a financer arising from the financer's failure to remove a fixture within a commercially reasonable time after giving notice of its intentions in that regard. HELD: Appeal allowed. Cross appeal dismissed. In light of the causes of action pled and the evidence brought forward, the respondent's claim against the Credit Union cannot succeed. 1) Section 36 of the PPSA may speak exhaustively to the relative priorities of financers and land owners in fixtures. It does not necessarily speak in that way to the full range of rights and claims that those parties might have against each other. There is no principled basis on which a person with an interest in land should be denied meaningful relief when a financer, without excuse, acts in a commercially unreasonable manner by failing or refusing to remove a fixture after giving formal notice of its intention to do so. 2) It would have been improper for the respondent to deny permission to remove the building unless the Credit Union paid an amount in respect of the property taxes attributable to it. Allowing a person with an interest in land to oblige financers to pay property taxes before realizing on their security would amount to a substantial realignment of the careful balance between the rights of fixture financers and holders of property interest reflected in s. 36 of the PPSA. 3) The Credit Union could not have been either a tenant at sufferance or a tenant at will of the respondent for the fundamental reason that there was no landlord and tenant relationship between them. The respondent's claims in this regard fail. 4) The respondent has failed to present evidence that would allow this Court to quantify the benefit conferred on the Credit Union and to provide appropriate relief. As a consequence, no effect can be given to the unjust enrichment argument. 5) In light of the conclusion that there was no tenancy at sufferance or tenancy at will, the cross-appeal fails.

7_2005skca97.txt

J. Date: 20020905 Docket: CA 183381 NOVA SCOTIA COURT OF APPEAL [Cite as: R.B. v. Children’s Aid Society of Nova Scotia, 2002 NSCA 108] R.B. Applicant/Appellant and CHILDREN’S AID SOCIETY OF NOVA SCOTIA and S.F. Respondents Counsel: Donna D. Franey for the appellant John Underhill for the respondent Children’s Aid Society of Halifax Respondent S.F. not appearing Application Heard: July 25, 2002 Applicant’s brief August 16, 2002 Respondent Society’s brief August 30, 2002 Decision Delivered: September 5, 2002 BEFORE THE HONOURABLE JUSTICE CROMWELL IN CHAMBERS PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 94(1) OF THE CHILDREN AND FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. SECTION 94(1) PROVIDES: 94(1) No person shall publish or make public information that has the effect of identifying child who is witness at or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child. CROMWELL, J.A.: (in Chambers) I. Introduction: [1] R.B. applies to me in Chambers for an order that she be added as a party so that she can appeal a permanent care order respecting her granddaughter. [2] R.B. is the paternal grandmother of two and one-half year old L.T.F. L.T.F. was the subject of protection proceedings brought by the Children’s Aid Society of Halifax in the Family Division. R.B. did not participate in those proceedings. She says she had indicated to the Society that she was willing to be considered as placement for the child if the plan to return the child to her mother did not progress as anticipated. In the end, the proceedings resulted, in June of this year, in an order placing the child in the permanent care and custody of the Children’s Aid Society of Halifax. According to R.B., she found out about the order after the fact. She feels that the Society wrongly shut her out of the process and that the judge in the Family Division erred in not considering family placement with her before making the permanent care order. [3] The application raises two issues. The first is whether I, sitting as judge in Court of Appeal Chambers, have the authority to deal with the application. The second is whether R.B. should be added as party for the purposes of bringing an appeal. [4] Having considered the helpful briefs of counsel and the authorities, I am of the view that a judge of the Court of Appeal in Chambers does not have authority to make the order requested. Even if I had jurisdiction to do so, I would not make the order as, in my opinion, an application to the Family Division for leave to terminate the permanent care order appears likely to be a more appropriate initial way for R.B. to proceed. I, therefore, dismiss the application. II. Adding Parties for the Purposes of Pursuing an Appeal: [5] R.B. submits that there are two bases on which this Court may add her as party for the purposes of appealing the permanent care order. will briefly outline the submissions with respect to each of them. [6] The first is found in ss. 36(1)(f), 31 and 49 of the Children and Family Services Act, S.N.S. 1990, c. as amended. Under s. 31, the definition of proceeding in the Act includes an appeal to this Court of permanent care order made in the Family Division. Section 36 defines party to proceeding as including “... any other person added as party at any stage in the proceeding pursuant to the Family Court Rules”. It is argued that the provision in s. 36, which authorizes the addition of party at any stage of the proceeding, includes the power of this Court to add party for the purposes of an appeal. [7] The second basis on which R.B. says there is jurisdiction to add party for the purposes of appealing is the preserved inherent jurisdiction of this Court. In Société des Acadiens du Nouveau-Brunswick Inc. and the Association des conseillers scolaires francophones du Nouveau-Brunswick v. Association of Parents for Fairness in Education, Grand Falls District 50 Branch, 1986 CanLII 66 (SCC), [1986] S.C.R. 549, the Supreme Court of Canada held that the New Brunswick Court of Appeal had inherited the authority of the High Court of Chancery in England to add party for the purposes of bringing an appeal from decision in which that party had an interest. Briefly put, R.B.’s submission is that this Court is in the same position as the New Brunswick Court of Appeal. [8] The Children’s Aid Society contests the jurisdiction of this Court or judge to make the order sought. However, in light of the conclusions that have reached, need not decide whether the Court has the authority on either or both of the bases advanced by R.B. to add party for the purposes of appealing. To consider the authority of Chambers judge will assume, without deciding, that this Court has that authority. The question, then, is whether judge in Chambers may exercise the power of the Court in this situation. III. Jurisdiction of Chambers Judge: [9] In general, all the powers of the Court of Appeal are exercised by panel of at least three judges. The powers exercisable by one judge of the Court in Chambers are limited to the matters assigned to Chambers judge under Rule 62 or any other Rule or enactment: see Rule 62.24 and Future Inns Canada lnc. v. Nova Scotia (Labour Relations Board) (1996), 1996 CanLII 5240 (NS CA), 154 N.S.R. (2d) 358; N.S.J. No. 434 (Q.L.)(N.S.C.A. Chambers). [10] R.B. submits that Chambers judge generally has authority to deal with procedural matters and the addition of party for the purposes of bringing an appeal is such matter. Even accepting that this rather significant step is procedural matter, the power of Chambers judge in this Court is not dependent on the distinction between matters of procedure and matters of substance. The Chambers judge’s authority, while mainly procedural in nature, depends on specific authority found in the applicable Rules or enactments. [11] If there is an inherent power, derived from English Chancery practice, to add party for the purposes of bringing an appeal, this preserved inherent jurisdiction is that of the Court, not one judge of the Court. In the New Brunswick case cited earlier, Court of Appeal Chambers judge decided that under New Brunswick practice, the inherent jurisdiction to add party for the purposes of appealing should be exercised only by the Court. Assuming (without deciding) that our Court has similar inherent power, there is no rule or enactment to which have been referred which authorizes judge in Chambers to exercise it. [12] R.B. relies on Rule 62.01(j) which defines “respondent” to include “any person, who ... is authorized by the Court or Judge to be party to the appeal...”. do not think this assists R.B.’s position. Putting aside that she seeks to become an appellant, not respondent, Rule 62.01(j) is purely definition provision and should not be interpreted as conferring jurisdiction. [13] If the power to add party derives from the provisions of the Children and Family Services Act, cannot read them as conferring any power to do so on judge of the Court of Appeal. In general, the powers of the Family Court and the Family Division of the Supreme Court are exercised by judge thereof. However, as noted, generally the powers of the Court of Appeal are exercised by panel of at least three judges. In my opinion, if s. 36 confers the authority to make the order asked for by R.B., the authority is conferred on the Court, not on Chambers judge. [14] R.B. argues by analogy from the jurisdiction of Chambers judge to permit intervention on appeal. In my view, however, the jurisdiction of Chambers judge of this Court depends on an express or implied grant of power in rule or enactment and not on analogy. Moreover, the authority of judge to permit intervention was controversial before the amendment of the Rules to expressly permit it, and the amendment did not extend to empowering judge to add party for the purposes of appealing: see Conrad v. Snair (1995), 1995 CanLII 8960 (NS CA), 142 N.S.R. (2d) 224; N.S.J. No. 622 (Q.L.)(N.S.C.A. Chambers); 1874000 Nova Scotia Ltd. v. Adams (1996), 1996 CanLII 5243 (NS CA), 156 N.S.R. (2d) 208; N.S.J. No. 456 (Q.L.)(N.S.C.A. Chambers); Labourers’ International Union Local 1115 v. Dexter Construction Co. (1999), 1999 NSCA 132 (CanLII), 180 N.S.R. (2d) 129; N.S.J. No. 370 (Q.L.)(N.S.C.A. Chambers); Rule 62.35. [15] conclude that do not have jurisdiction to add R.B. as party for the purposes of appealing the permanent care order. IV. Discretion: [16] If Chambers judge had jurisdiction to make the order sought by R.B., that authority would be discretionary one. For number of practical reasons, would be very reluctant to exercise the discretion given that there appears to me to be more appropriate route for R.B. to seek redress initially in this situation. [17] It seems likely that R.B. may be able to seek party status for the purposes of seeking leave to apply in the Family Division for an order terminating the permanent care order: see Children’s Aid Society of Shelburne County v. I.C. (2001), 2001 NSCA 108 (CanLII), 196 N.S.R. (2d) 70; N.S.J. No 260; 2001 NSCA 108. If this is so, that approach would be immensely preferable to adding party for the purposes of an appeal. [18] The Family Division not only has intimate knowledge of the permanent care proceedings, but is better equipped to deal with the evidentiary matters which are likely to arise in the course of R.B.’s attempts to place her position before the Court. The Family Division would also be in the position to deal with the permanent care order on its merits whereas this Court, if persuaded that R.B’s plan for the child should have been heard and considered, would most likely find it necessary to remit the matter to the Family Division for evaluation of her plan for the child. This would add to delay which the Children and Family Services Act tries to avoid. [19] While there might be particular circumstances in which judge of this Court, if he or she had jurisdiction, would make the order sought, there is nothing in the material filed that would persuade me to do so in this case. [20] should add that it is apparent from the material filed that there are number of issues of fact surrounding R.B’s involvement with the child and the proceedings as well as the Society’s communications with her. Nothing which have said in these reasons should be taken as deciding any of these factual issues. V. Disposition: [21] In the result, the application is dismissed. Cromwell, J.A.

The applicant grandparent applied to the Court of Appeal to be made a party to the proceeding so that she could appeal a permanent care order made in respect of her granddaughter. Application dismissed; a judge of the Court of Appeal in Chambers does not have the authority to make the order requested; in any event, an application in the Family Division for leave to terminate the permanent care order would be a more appropriate way for the applicant to proceed.

5_2002nsca108.txt

M.D. ACTON IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 015 Date: January 17, 2011 Information: 24364651, 24364650 Location: Moose Jaw Between: Her Majesty the Queen and Karyn Mae Fayant Appearing: Mr. Rob Parker For the Crown Mr. Mervin Shaw, Q.C. For the Accused DECISION D.J. KOVATCH, Background [1] The accused, Karyn Mae Fayant is charged with mischief under $5,000.00 by smashing a window, and with an aggravated assault upon Joe Cwynar. The major issue for determination is whether the accused can be convicted of the charge of aggravated assault, or whether she should be convicted of one of the lesser and included offences. [2] The complainant, Joe Cwynar, testified that he and the accused have been in an on and off relationship since March 2004. For the last one and half years, he has been residing in Mossbank, Saskatchewan. In April, 2010, he and the complainant met up and were house sitting at Fort Qu’appelle, Saskatchewan. When they concluded house sitting, they decided that they would spend few days together at the complainant’s home in Mossbank. [3] On the way to Mossbank, the accused purchased some alcohol. They arrived at the complainant’s home in the neighbourhood of 6:30 to 7:00 p.m. According to Mr. Cwynar, the accused then began drinking. According to him, the accused became quite drunk and suggested that the two of them go for walk. They did go outside, and then got into an argument because the complainant believed he had lost his keys. They then returned to the home. Once inside the home, the argument escalated. [4] According to Mr. Cwynar, the accused threw some remote controls and smashed couple of his items. The accused then picked up plastic candle holder. This plastic candle holder was entered as an exhibit. It is approximately eighteen to twenty inches long and made of out of hard plastic. As it is made out of plastic, it is not heavy but is nevertheless quite hard object. It also has number of hard corners and edges. [5] Mr. Cwynar testified that he touched the accused’s back, attempting to calm her down. At this time Ms. Fayant spun around very quickly while at the same time holding on to and swinging around with the candle holder. She struck him very hard with the candle holder in the facial area and near his right eye. His glasses were knocked flying. He instantly began to bleed. He went to the bathroom and grabbed towel and then to his bedroom to attempt to lay down. [6] According to Mr. Cwynar, very shortly thereafter the accused left the home. [7] He said that he has had history of eye problems and believed this injury to his eye was serious. He called 911. EMS was alerted, who in turn called the RCMP. Mr. Cwynar was taken to hospital by ambulance. Just before he left by ambulance, he spoke briefly to the RCMP. [8] Cst. Harris of the RCMP testified that after speaking to Mr. Cwynar, they entered and secured his home. Based upon the information that they had received from Mr. Cwynar, they were looking for Ms. Fayant. However, she had already left the home. Inside the home, they seized plastic candle holder that was on the floor. It obviously had blood on it. In addition there was other blood on the floor and other signs of struggle or fight. [9] Cst. Harris and Cst. O’Neill, who was assisting him, decided that they would go to Moose Jaw to interview Mr. Cwynar, and obtain further information. However, while en route, they received information that Ms. Fayant was back at Mr. Cwynar’s house. When they arrived at Mr. Cwynar’s house, they found Ms. Fayant standing outside near broken window. She smelled of alcohol and was obviously quite intoxicated. They placed her under arrest. They later took her to Assiniboia RCMP Detachment, where she was housed in cells overnight. The following morning, they obtained warned statement from Ms. Fayant. Defence counsel admitted that this warned statement was voluntarily obtained and was properly admissible in evidence. [10] Ms. Fayant testified and of course her warned statement was admitted. Her evidence in Court and her warned statement are quite consistent with one another. She agreed that she bought alcohol en route to Mossbank, and once there began drinking. She agreed that she and Mr. Cwynar then began to argue. She said that Mr. Cwynar was not respecting her and she became resentful because of that. She wanted to go home and he wouldn’t take her home. She said she felt trapped. She stated that the accused grabbed her from behind and she turned around very quickly and gave him backhand. She knocked his glasses off his face and they fell to the floor. She testified that she then saw blood, became very panicky, and left. [11] On numerous occasions in the warned statement and in her evidence, Ms. Fayant said she didn’t hit Mr. Cwynar with the candle holder. However, both her warned statement and her evidence are punctuated by the statement: “I don’t remember.” In addition, many of her statements denying that she struck Mr. Cwynar with the candle holder are “rather qualified” denials. For example, in the warned statement she makes the following statements: Q. Is there chance you could have hit him with something because, do you remember, more than just your hand? A. No, don’t remember holding anything... don’t know what could have hit him with. Maybe glass but don’t think so. I’m pretty sure just, just backhanded him... don’t remember hitting him with anything... know and that’s as far as can remember. don’t remember hitting him with anything. [12] In her sworn testimony, Ms. Fayant said she guessed she hit him with her fist. Later, she agreed her recollection wasn’t very good. She then stated it wasn’t in her character to hurt Mr. Cwynar. Further, she has strong feelings for him. She said she didn’t want to hurt him. [13] begin by quickly disposing of the mischief charge. According to my notes, Mr. Cwynar did not testify that the window was not broken prior to that evening. Ms. Fayant did not say that she broke the window. Cst. Harris did not testify that he saw the accused break the window. The officer testified that he saw Ms. Fayant outside the house and near the broken window. It appeared to him that she was about to climb on the barbeque and go through the broken window. There is circumstantial evidence that she broke the window, upon which I would say she probably broke the window. However, in my view, the evidence falls short of proof beyond a reasonable doubt. On this basis I would find her not guilty of the charge of mischief. [14] With respect to the charge of aggravated assault, the inescapable conclusion is that Ms. Fayant struck Mr. Cwynar in the facial area with the candle holder. Mr. Cwynar testified that is what happened. The accused was very qualified in her denial of that. The evidence is that only Ms. Cwynar and Ms. Fayant were present in the house. There is no suggestion that Mr. Cwynar inflicted these injuries upon himself. Ms. Fayant testified that she gave him a backhand. This is simply not believable. In addition to Mr. Cwynar’s evidence as to how the injury occurred, he also testified regarding his injuries, and pictures were taken of him later that evening and again some six weeks after the incident. These pictures clearly establish that there was significant injury to Mr. Cwynar’s eye area and significant bruising following this injury. It is simply not believable that these kind of injuries could have been inflicted by single backhanded blow. am compelled to conclude that the injuries were inflicted by blow from the candle holder. Is Ms. Fayant Guilty of Aggravated Assault or One of the Lesser Included Offences? [15] With respect to this issue, Defence counsel, Mr. Shaw, argues that the Crown has not proved the requisite intent to sustain convictions under s. 267 or s. 268 of the Criminal Code. [16] As far back as the case of R. v. George, 1960 CanLII 45 (SCC), [1960] S.C.R. 871, the Supreme Court of Canada differentiated between offences of specific intent and general intent. The Court concluded that to convict for charge of common assault, the Crown need only prove that the accused intended to apply physical force to another person. [17] believe this principle is still good law today. It has, from time to time, been referred to with approval by our Courts. See for example R. v. Lepage (1989), 1989 CanLII 4548 (SK QB), 74 C.R. (3d) 368 (Sask QB), and R. v. Burden (1981), 1981 CanLII 355 (BC CA), 64 C.C.C. (2d) 68 (B.C.C.A.). [18] In the case at bar, it is readily apparent that the accused applied some force to Mr. Cwynar and as a result, she must at least be convicted of common assault contrary to s. 266 of the Criminal Code. [19] In the case of R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] S.C.R. 944, the Court spoke of the intent required for various assault provisions. At paragraphs thirty-five and thirty-seven, the Court made the following statements: In many offences, such as assault or dangerous driving, the offence is made out regardless of the consequences of the act but the consequences can be used to aggravate liability for the offence. For example, both assault and assault causing bodily harm have identical mens rea requirements and the element of causing bodily harm is merely used to classify the offence. No principle of fundamental justice prevents Parliament from treating crimes with certain consequences as more serious than crimes which lack those consequences... Conduct may fortuitously result in more or less serious consequences depending on the circumstances in which the consequences arise. The same act of assault may injure one person but not another. The implicit rationale of the law in this area is that it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused.(emphasis added) [20] On the basis of these passages, conclude that the mens rea or criminal intent required for common assault under s. 266 and assault causing bodily harm under s. 267 is identical. All that is required is an intent to apply force. The distinction between these two sections is the consequence of bodily harm. [21] In this case, it is very apparent that by the commission of the assault that Mr. Cwynar suffered bodily harm. As a result, and at a minimum, the Crown has established that Ms. Fayant must be convicted of assault causing bodily harm. [22] In the DeSousa case and in the case of R. v. Creighton, 1993 CanLII 61 (SCC), [1993] S.C.R. 3, the Court addressed the issue of an unlawful act causing bodily harm contrary to s. 269 of the Criminal Code and an unlawful act resulting in charge of manslaughter. The Court stated that in order to sustain convictions under these sections, there must be an unlawful act and that the act must be an objectively dangerous act. [23] In the case of R. v. Godin, 1994 CanLII 97 (SCC), [1994] S.C.R. 484, the Court adopted very similar position with respect to aggravated assault under s. 268 of the Code. The Court stated briefly as follows: The mens rea required for s. 268(1) of the Criminal Code, is objective foresight of bodily harm. It is not necessary that there be an intent to wound or maim or disfigure. The section pertains to an assault that has the consequences of wounding, maiming or disfiguring. This result flows from the decisions of the Court in R. v. DeSousa and R. v. Creighton. [24] In this case, I’ve already concluded that Ms. Fayant intentionally struct Mr. Cwynar in the face with hard plastic object. In my view, when an individual intentionally strikes another in the facial area with a hard plastic object, it is objectively foreseeable that wounding, maiming or disfiguring of the victim may result. As a result, I must conclude that Ms. Fayant is guilty of the charge of aggravated assault. [25] Dated at Moose Jaw, Saskatchewan, this 17th day of January, 2011. D.J. Kovatch,

The accused was charged with aggravated assault and mischief. The evidence on the aggravated assault was that the accused had struck the victim in the face with a plastic candle holder. The victim suffered significant injury to his face and eye, which was still noticeable 6 weeks later. The victim testified that the accused had been drinking and the parties got into an argument. The victim touched the accused on the back in an effort to calm her down and she spun around and struck the victim in the face with the candle holder. The accused gave a warned statement and testified at trial that she believed she had backhanded the victim with her fist. In her warned statement, she qualified her denial by saying that her recollection was not clear and that she didn't really remember. The evidence on the mischief was that when the police attended to the residence after the victim had gone by ambulance to hospital and the accused was standing in front of the house in front of a broken window. HELD: The accused was convicted of aggravated assault. The inescapable conclusion from the evidence is that the accused struck the victim in the face with the candle holder. The accused's version that she struck the victim with her fist is not believable when considered in the context of her qualified denials about hitting him with the candle holder, her level of intoxication and the significance of the injury inflicted on the victim. When an individual intentionally strikes another in the face with a hard plastic object, it is objectively foreseeable that wounding, maiming or disfiguring of the victim may result. The accused was acquitted of the mischief charge because there was no direct evidence that she had broken the window and there was no evidence that the window was not broken prior to the offence date.

9_2011skpc15.txt

nan 2001 SKQB 473 Q.B.A. A.D. 2001 No. 003 J.C.B. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: LAWRENCE MATCHEE and HER MAJESTY THE QUEEN RESPONDENT Michael W. Owens for the appellant William R. Campbell for the respondent JUDGMENT October 25, 2001 BALL J. [1] The appellant was convicted on August 8, 2000, of dangerous driving contrary to s. 249(1)(a) of the Criminal Code and sentenced on January 2, 2001, to a fine of $1,200 plus a surcharge of $180 and an 18-month driving prohibition. He appeals his conviction and sentence. Conviction Appeal [2] The grounds of appeal with respect to the conviction are as follows: 1. The evidence does not support guilty verdict for dangerous driving. 2. That the learned Trial Judge misinterpreted the law with respect to the required elements that must be proven when considering charge of "dangerous driving." 3. That the learned Trial Judge erred when he applied the test of R. v. Stellato to the "marked departure" consideration that the Supreme Court of Canada in R. v. Hundal [1993], C.S.R. 867, held to be the prevailing test when determining whether driving can be termed "dangerous" according to the Criminal Code of Canada. The Applicable Law [3] S. 249(1) of the Criminal Code provides: Everyone commits an offence who operates (a) motor vehicle in manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place; [4] The proper standard to be applied to charge under s. 249(1) was established by the Supreme Court of Canada in R. v. Hundal (1993), 1993 CanLII 120 (SCC), 79 C.C.C. (3RD) 97, at page 108: It follows then that trier of fact may convict if satisfied beyond reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in manner that was "dangerous to the public, having regard to all the circumstances..." In making the assessment, the trier of fact should be satisfied that conduct amounted to marked departure from the standard of care that reasonable person would observe in the accused's situation. [5] There must be such marked departure from the standard of care of reasonable person that it can be said beyond reasonable doubt that the driving was dangerous. (See R. v. Rajic (1993), 1993 CanLII 3423 (ON CA), O.J. 819 (Ont. C.A.); R. v. Bartlett (1998), 1998 CanLII 2998 (ON CA), 15 C.R. (5TH) 35 (Ont. C.A.); v. Fiest (1991), 1991 CanLII 7648 (SK QB), 92 Sask. R. 318; and R. v. Holland (N.G.) (1992), 1992 CanLII 8322 (SK CA), 105 Sask R. 122 (C.A.)) [6] Upon convicting the appellant, the learned trial judge made the following comments: In all of these circumstances, must ask myself whether applying the test in Stellato, Mr. Matchee's driving was departure from the norm, and have to say, at the end of the day, think it was. The law doesn't require any longer than Mr. Matchee's departure be marked departure, but in my view, pursuing the vehicle as he did, in the circumstances he did, close enough that at whatever speed he was driving, he managed to run into the back of this other vehicle, amounts to more than mere lapse in attention such as would be required for finding of driving without due care and attention under the provincial legislation, and shades over the line, in my view, albeit perhaps not far over the line but far enough that one ought to, and do, properly characterize it as dangerous driving, and in those circumstances find him guilty as charged. Though to be clear, as have said, it is on his version of events, and not the full Crown description with multiple rammings and so forth. [7] With respect, it was incorrect for the learned trial judge to say that the standard to be applied to charge of dangerous driving is whether the driving "was departure from the norm," and that "the law doesn't require any longer that Mr. Matchee's departure be marked departure." That is not the correct standard to be applied to charge of dangerous driving under s. 249(1)(a) of the Code. [8] R. v. Stellato (1994), 1994 CanLII 94 (SCC), 31 C.R. (4TH) 60, 90 C.C.C. (3 RD) 160 (S.C.C.), affirming 1993 CanLII 3375 (ON CA), 78 C.C.C. (3RD) 380 (Ont. C.A.), dealt with the offence of impaired operation of motor vehicle. Its conclusion that the Crown need only establish proof of any degree of impairment and need not establish a marked departure from normal behaviour did not apply to a charge under s. 249 of the Code. [9] Simple judgmental errors in routine driving do not constitute conduct amounting to a "marked departure" from the standard of care required. Mere negligence is not sufficient, nor is driving without due care and attention. The application by the learned trial judge of the Stellato principle to a charge of dangerous driving under s. 249(1) of the Code was an error in law. The Evidence [10] Where an appeal is taken from summary conviction, the Court may dismiss the appeal if, notwithstanding wrong decision by the trial court on question of law, no substantial wrong or miscarriage of justice has occurred. (See s. 822(1) and s. 686(1)(b)(iii) of the Code) Thus, it remains to be determined whether the evidence accepted by the learned trial judge supported his decision to convict the appellant. [11] The learned trial judge made number of findings of fact. In doing so, he gave the benefit of any reasonable doubt to the accused. At the same time, he accepted the evidence of the two Crown witnesses in respect of factual matters not dealt with by the accused in his evidence. At page 85 of the transcript the learned trial judge stated: When listened to the first Crown witness, Timothy Iron, was impressed. His evidence was given in straight-forward fashion. was left with an impression that he was not embellishing, making things up to fill in gaps in his memory or anything like that. Certainly, the evidence is clear that he, and for that matter the other witnesses, were none of them drinking on this occasion, and so no one's ability to experience the events would be impaired by alcohol. While it's true that Timothy Iron was confronted with discrepancies or apparent discrepancies between what he said to the police in his written statement and what he said today in court, the re-examination conducted by Crown counsel satisfied me that part of the reason for that lies, first of all, in the fact that Mr. Iron had no resort to his written statement before testifying here today, and secondly, that many of the items were that were omitted in his statement were things that he wasn't asked about by the police, so what appeared on the face of it should be discrepancy often resolved itself into something less. And so, as say, found Timothy Iron to be believable witness, and would say that his credit, his believability at the conclusion of his evidence was as strong as it was when he began. Ryan Stewart Iron falls roughly into the same category, in my view. He was little less careful in the testimony that he gave, but that was not marked, and it was certainly not enough to suggest to me that he was not doing his best to tell the truth. The accused's evidence, while it troubles me in some respects, in particular his reference to the convenient damage which he says he discovered upon coming out of the dance at 2:00 o'clock in the morning, to the rear of his vehicle, providing as it does an innocent explanation as to how the vehicle became thus damaged, as opposed to it becoming damaged because he did what the Crown witnesses said he did, while am troubled in several respects by the accused's evidence, and while this case, applying the tests am to apply, is very, very close to the line, cannot say, in all conscience, that am able to completely reject what the evidence-what-the evidence that the accused has given. It might reasonably be true, and in that circumstance he is entitled to the benefit of that, and to be-have his guilt or innocence determined on his version of events. Well, what does that version consist of around the issue of dangerous driving? accept and agree with the characterization of Mr. Matchee's conduct, as Crown counsel put it in closing submissions moment ago. believe that Mr. Matchee was angry when he came out of the arcade and viewed missing tapes, and was of the opinion they had been taken by the occupants of vehicle which he saw leaving the parking lot. believe he was determined to try and recover the property and to confront those he believed had taken it. To that end, am satisfied that, initially through his agent, Willie, and thereafter himself, he gave chase. In the course of that chase collision occurred between the two vehicles, which Mr. Matchee described as "tap" of the back bumper of the car he was pursuing. He said that occurred at moment in the pursuit-my word, not his- when he thought the car was slowing down, thought it was going to stop, and while he didn't say this, took the "tap" to be miscalculation on his part about the speed the car and the truck were going, that it was inadvertent. In Mr. Matchee's evidence, there was no description as to the length of travel over which this pursuit occurred, nor is there any evidence about the speed that was attained, other than the reference he made early in his evidence to the fact that his car had sped out of the parking lot at high rate of speed. There's nothing in his evidence to suggest how fast he went to pursue them, nor over what route, nor the speed that he was going, nor the time of the chase. On the other hand, Mr. Matchee was not asked in particular about other users of the road, but in accepting that his version of events might reasonably be true, it is not necessary for me, and in fact in my view not appropriate for me, to reject the evidence of the Crown witnesses about the other users of the road, most of that being pedestrian traffic. Indeed, Mr. Matchee himself, asked whether he had ever managed during this pursuit to draw abreast of the car, explained that he could not do that because the roads were crowded because there was hockey game on and there were other-too many other vehicles along the roadside, and so forth. [12] As noted by the learned trial judge, the evidence given by the accused did not address how fast he was going (when asked, he answered that the speedometer in his truck was not working ), nor over what route, nor the time of the chase. However, there was ample evidence on those issues from the two Crown witnesses. [13] The driving which led to the charge occurred at night on October 23, 1999. The accused gave chase to an automobile driven by the first Crown witness, Timothy Iron. The vehicles travelled at high speed (the accused acknowledged that they were travelling "fast") both on and off two-lane gravel road. number of pedestrians, including children, were present on the road. During the chase, the two vehicles collided with enough force to dent the rear bumper on the Iron vehicle. [14] The accused did not deny the Crown witnesses' description of the force of the impact or the presence of others. During cross-examination he gave the following answers at page 81 of the transcript: You heard Timothy Iron testify that when he was hit from behind, it was hard enough that his head kind of snapped and his hat fell off. Do you think you hit the car ahead of you that hard? If did, I'm really sorry. never meant to. never meant to maim or hurt anybody, just wanted my property. Did you ever get beside the car with your truck? No. You're sure of that? It's too narrow. They had hockey game going on. And what did that have to do with you getting beside the They park right around the whole arena, just enough for person to drive around to make it out if you were not going to if you were leaving the game. [15] The question is whether the evidence found by the trial judge established both the mens rea and actus reus of the offence beyond a reasonable doubt. In my view, his findings of fact established that the appellant's driving conduct did amount to a marked departure from the standard of care a reasonable person would exercise in those particular circumstances. [16] It was not necessary for the Crown to prove that the accused intended to collide with the automobile driven by Timothy Iron in order to prove the offence of dangerous driving. Whether or not collision occurred, and whether or not the accused intended to collide with the other motor vehicle, were only aspects of the totality of the accused's conduct. The test is whether a reasonably prudent driver in the circumstances ought to have been aware of the risk and of the danger involved in his driving conduct. [17] The accused engaged in a planned and deliberate course of conduct when he gave chase to the automobile driven by Mr. Iron. His course of conduct continued over a significant distance at a high rate of speed at night with children and other pedestrians in the vicinity. It was not necessary for the Crown to establish that the collision with the Iron vehicle caused significant damage or, for that matter, that a collision occurred at all. Thus, the trial judge's acceptance of the accused's assertion that the collision was inadvertent did not mean that the Crown had failed to prove the necessary mens rea. [18] In conclusion, I find that by applying the wrong standard the learned trial judge committed an error of law, but that no miscarriage of justice occurred. Accordingly, the appeal against conviction is dismissed. When the correct standard as enunciated in R. v. Hundal, supra, is applied to the evidence found by the trial judge, the conviction was appropriate Sentence Appeal [19] The appellant appeals the sentence imposed by the trial judge on the basis that it did not take into account the mitigating circumstances, case law or sentencing principles. The appellant does not question the amount of the fine and surcharge imposed by the learned trial judge. However, he questions whether the 18-month prohibition from driving was excessive in the circumstances. [20] The appellant is employed as a truck driver and therefore he relies upon his operator's licence to earn a living. Counsel for the appellant points out that the accused gave chase to the Timothy Iron motor vehicle because he believed its occupants had stolen some tapes from the accused's vehicle. Although the appellant was convicted in June of 1997 for refusal to provide a breath sample under s. 254(5) of the Code and a conviction for .08 under s. 253(b) of the Code in 1989, counsel notes that alcohol was not a factor in this case. [21] Counsel points out that the accused's conduct was at the low end of the continuum of conduct constituting dangerous driving such that it was described by the trial judge as being just "shades over the line." He notes that there was little damage to either motor vehicle and that no personal injuries occurred. [22] Counsel for the accused suggests that the learned trial judge may have been at some disadvantage because he sentenced the accused approximately five months after the trial without having benefit of his trial notes, fact confirmed at page 91 of the transcript. Nevertheless, he notes that at page 99 of the transcript the learned trial judge stated as follows: He says that he has learned from the experience, and believe him when he says that. He strikes me today as thoughtful individual, one with relatively good life. He is earning an income for his family, he is steadily employed. He obviously enjoys good reputation in the community else the chief of his First Nation would not be writing letter of support for him. [23] The prohibition from driving for 18 months imposed by the Court is consistent with the prohibition generally imposed where conduct constituting dangerous driving has resulted in bodily injury or death or, at the very least, serious property damage. Although the accused was convicted for refusal to provide a breath sample two years prior to his conviction for dangerous driving, alcohol was not a factor in this matter. Crown counsel acknowledges that in circumstances of the kind before the Court, one would anticipate driving prohibition of less than the 18 months imposed. [24] In my opinion, a prohibition of 18 months was excessive. In the circumstances a prohibition of nine months' duration is more appropriate and I so order. The fine of $1,200 and surcharge of $180 imposed by the trial judge is confirmed.

The appellant appealed his conviction for dangerous driving (Criminal Code s.249(1)(a)) and sentence of a $1,200 fine, $180 surcharge, and 18 month driving prohibition. In issue was whether the evidence found by the trial judge established both the mens rea and actus reus beyond a reasonable doubt. The sentence appeal was brought on the ground it did not take into account mitigating circumstances, case law or sentencing principles. HELD: The appeal against conviction was dismissed. The driving prohibition was reduced to 9 months. The fine and surcharge were confirmed. 1)By applying the wrong standard, the trial judge committed an error of law, but no miscarriage of justice occurred. When the correct standard, as enunciated in Hundal, is applied to the evidence as found by the trial judge, the conviction was appropriate. 2)The application of the Stellato principle to a charge of dangerous driving under s.249(1) was an error in law. The conclusion that the Crown need only establish proof of any degree of impairment and not a marked departure from normal behaviour does not apply to a charge under s.249. Simple judgmental errors in routine driving do not constitute conduct amounting to a marked departure from the standard of care required. Mere negligence or driving without due care and attention are not sufficient. 3)The accused's evidence did not address how fast he was going (he stated his speedometer was not working) nor over what route or the time of the chase. There was ample evidence on those issues from the two Crown witnesses. 4)The findings of fact established the appellant's driving conduct did amount to a marked departure from the standard of care a reasonable person would exercise in those circumstances. The test is whether a reasonably prudent driver in the circumstances ought to have been aware of the risk and of the danger involved in his driving conduct. The accused engaged in a planned and deliberate course of conduct when he gave chase and continued over a significant distance at a high speed at night with children and other pedestrians in the vicinity. It was not necessary for the Crown to establish the collision caused significant damage or that a collision occurred at all. The acceptance of the accused's assertion that the collision was inadvertent did not mean the Crown failed to prove the necessary mens rea. 5)An 18 month prohibition was excessive. The conduct was at the low end of the continuum. He was employed as a truck driver and relied on his operator's licence to earn a living. He chased the other vehicle because he believed its occupants stole tapes from his vehicle. Although he was convicted for refusal to provide breath samples 2 years ago, alcohol was not a factor here.

e_2001skqb473.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 352 Date: 2015 11 05 Docket: DIV 361/2015 Judicial Centre: Regina BETWEEN: BYRON GRANT BABICH and ERINN MARIA BABICH Counsel: James J. Vogel for the petitioner Ronald J. Miller for the respondent JUDGMENT MEGAW J. November 5, 2015 [1] There are total of five applications before the court in this matter. The two substantive applications have number of parts to them. For ease of review, am going to refer to the part of each application when making my decision on that discrete issue. The parts of the various applications are as follows:1. Application for Divorce – brought by the petitioner;2. To register the child, Jude Babich, in a Montessori School – brought by the petitioner;3. To take the child, Jude Babich, to a speech therapist – brought by the petitioner;4. To vary the existing parenting arrangements set forth in the decision of Megaw J. dated January 20, 2015 – brought by the petitioner;5. To set the arrears of child and spousal support – brought by the respondent;6. To return the 2005 Volkswagen Beetle vehicle – brought by the respondent;7. Objections to the petitioner’s affidavit of September 28, 2015 – brought by the respondent;8. Objections to the petitioner’s affidavit of October 16, 2015 – brought by the respondent. [2] In addition to all of the foregoing applications, there was discussion at the chambers appearance of whether this matter should proceed on to the high conflict mediation program through direction by the court. That issue was raised by counsel for the petitioner and was not disagreed to by counsel for the respondent. However, counsel for the respondent had not had an opportunity to speak to his client and obtain instructions with respect to that matter. [3] It is apparent these parties are in some conflict at this stage. There was some discussion at the hearing of this matter of certain misrepresentations made by one party or the other. The affidavit material contains areas of conflict. [4] This is an interim application. find that to make the decisions necessary on the applications before me, am not required to make any determinations on either the creditability of the parties or on any allegations of misrepresentation having been made. Rather, the facts of this matter, at this stage, speak for themselves and allow for decisions to be made on the various issues. [5] There is more important reason to refrain from making these types of determinations at this stage. In my view, to make any findings of credibility or misrepresentation at this early stage of the proceedings, is not in the best interests of either the parties or the children. The parents have many years of parenting ahead of them. They both obviously love and cherish their children. To seek to have either of them reflected badly in the eyes of the court, or the public, is something that is neither necessary nor desirable. It is hoped they will each take the court’s reluctance in this regard to heart and attempt to move forward with their parenting, concentrating only on the best interests of their children, recognizing always that it takes both parents to carry through on those best interests. [6] In the event the matter proceeds to trial it may be these evidentiary assessments will need to be made. However, now is not the time. [7] The background facts are set out in detail in my initial decision of January 20, 2015 (2015 SQKB 22). am not going to repeat those facts here. am going to attempt to put those facts into context and to highlight those things which have changed or developed over the course of the last year and which are relevant to the applications now before me. [8] At the time the first application was argued, the respondent was five days removed from having given birth to the third child, Roman. As result of that circumstance, matters involving the children and the petitioner’s parenting were very much in flux. It was my view then, and remains my view, to have then ordered an in depth parenting arrangement with shared obligations ignored the realities of the situation facing both of the parties at that time. [9] As well, at the time of the initial application, the respondent indicated she was, and planned to continue to be, stay at home mom. This was necessarily so based on her history while married to the petitioner. It was also necessarily so based on the fact she had mere days previously given birth. It was expected she would be staying home with the new baby for period of time. It was understood there would be recovery and adjustment period as she dealt with the fact there was new born and the two older, but still infant children, needing time to adjust to everything that was happening with this family. [10] Yet further, at the time of the original order, the respondent was going to remain in the family home and the petitioner was going to live at the lake cottage some distance out of the city of Moose Jaw. The family home was very short distance from the public school and the Montessori program, in which the oldest child had been enrolled and the middle child, Jude, was going to be enrolled. [11] It was expected the petitioner would be able to return to live in the new house once construction had been completed. Shortly before their separation, the parties had commenced construction on new residence in Moose Jaw. The parties’ separation had caused that home to be in state of uncertainty. Construction had not been completed. The home was over budget and there were concerns expressed about their ability to complete construction at any time in the near future. [12] It is now fact the new home has been completed and the petitioner has moved into the home within the last few weeks. The new home is few blocks from the family home. As importantly, the new home is within close proximity to both the public school and the Montessori program. [13] At the risk of stating the obvious, the new baby, Roman, is now just about one year old and the petitioner has been having increased parenting time with him. The material indicates Roman is still being breast-fed. However, there is no indication he has any particular special needs. He is, by all accounts, healthy, happy boy and both parties are parenting him in an appropriate fashion. [14] The parties, through their counsel, are making strides to have this matter proceed through to an ultimate resolution. Appraisals have been arranged, and perhaps received, with respect to the farm land. Those appraisals will then need be referred to an accountant to allow for valuations, tax considerations, and available funding to be commented upon. At the hearing of this matter, it was indicated by both counsel, the case was still some distance from being in position to proceed to settlement pre-trial, much less trial. [15] When the case does go to pre-trial, am advised all issues, both property and parenting, will continue to be before the court. In the event there is no resolution, all of those issues will then be the subject of trial. That is to say, the primary residence of the children and parenting remain ultimate issues as between the parties. However, on the applications now before me, primary residence for the children is not the subject of inquiry. [16] The family property aspect of this matter is complicated. It is complicated by the size of the operation; by the dollar amounts that flow through the operation; by the intertwining of various corporate and personal operations; and, by the petitioner’s original suggestion the operation was in financial difficulty. All of these complications lend support to the suggestion this matter is not ready to proceed to pre-trial, at this stage, and will require considerably more work to allow it to be put in that position. It was submitted in argument by both counsel, pre-trial conference is several months away. Even that loose time frame cannot be viewed as entirely accurate because it is dependent on the availability of various experts to prepare timely reports. [17] On the parenting issue, the parties have agreed to have custody and access report prepared by Dr. Gregory Stevens. It is understood the petitioner will be paying for this report at first instance. Dr. Stevens has been retained and has agreed to complete the assessment. However, he has not yet been provided with all of the material he requires to complete the task. It was indicated in chambers he should have that material shortly. It will then take him some time to complete his report. It is not known how long this will take. [18] Against this factual backdrop and update, now turn to consider the various issues. 1. Application for Divorce – brought by the petitioner. [19] The petitioner applies for judgment for divorce. The parties have been separate and apart for in excess of one year. The statutory requirements pursuant to the Divorce Act, RSC 1985, (2d Supp) for the granting of the divorce are present. The necessary affidavit material has been placed on the court file. [20] The respondent originally opposed the divorce being granted on the basis the petitioner was in arrears of both his child and spousal support payments. [21] The respondent’s original position is not ground for holding up the divorce. Pursuant to s. 11 of the Divorce Act the court is required to ensure adequate arrangements are made for the care of the children. Those adequate arrangements with respect to support are contained in my initial judgment of January 20, 2015. The fact the petitioner is alleged to be in arrears of that support is matter for enforcement and further argument. It is noted the petitioner denies he is in arrears and accordingly, decision on that issue will have to await pre-trial and trial. [22] At the hearing of this application, counsel for the respondent raised further possible reason to delay the implementation of the divorce. He queried whether there would be any adverse tax consequences to divorce being granted in light of the state of the family property as between the parties. There was no indication of what that difficulty might be. Rather, there was simply suggestion there may be some issues. [23] The petitioner seeks to have his divorce in order that he may continue to move forward with his life. He is in new dating relationship. While that relationship is not the reason for the divorce application, it further supports the petitioner’s seeking of divorce. [24] In the circumstances before me, I can see no reason for the denial of the divorce at this stage. Accordingly, the judgment for divorce is granted. The judgment will become effective 31 days from the date of this decision. 2. To register the child, Jude Babich, in a Montessori School – brought by the petitioner. [25] The petitioner, in his materials, indicates Jude is somewhat delayed both in his speech and other development. It is suggested this delay is as result of his lack of interaction with other children his age. [26] The respondent does not disagree with Jude attending the Montessori program in Moose Jaw. However, she was of the view the fact Jude is not yet fully potty trained was an impediment to him attending the school. She indicates it was her intention to have Jude commence the program in January 2016 when he would, hopefully, be fully potty trained. [27] The petitioner has consulted with the Montessori staff and been advised Jude’s ongoing potty training is not an issue for him to be now enrolled in the Montessori program. Despite indications the respondent had paid this enrollment, the petitioner indicates he in fact has made the payments. Presumably, these payments were made in order that Jude’s place in the school could be preserved. [28] Both parents agree the Montessori program is appropriate for Jude and will be of assistance in his development. On the basis of the evidence before me, it is therefore appropriate Jude now be enrolled in the Montessori program. Both of the parties are able to transport him to the program. The evidence indicates it would be beneficial to Jude to have the interaction and the development that the Montessori program provides. The evidence further indicates his lack of full time potty training is not prohibitive to him being enrolled in the program. [29] This item is one of those things that arose during the course of an action and following an interim order being made. Not all matters involving the children can be reasonably anticipated at the time an initial interim order is made. Accordingly, decision on this matter is required now. [30] While the request to register this child in the Montessori program is change, it is not variation of the existing order. Rather, view this as new matter brought by the petitioner and an addition to the existing order. [31] Accordingly, I order Jude may be registered in the Montessori program by the petitioner and begin attending as soon as the program is able to accommodate such attendance. The cost of that program shall be paid, at this stage, by the petitioner. This direction as to cost is without prejudice to any ultimate decision that might be made in that regard at the trial of this action. Hopefully, the parties will be able to agree on who will transport Jude to his Montessori classes. However, in the event they are unable to agree, and the respondent is unable to transport Jude, she shall immediately advise the petitioner and he will then be responsible for getting Jude to the program. 3. To take the child, Jude Babich, to a speech therapist – brought by the petitioner. [32] It appears this issue was resolved prior to the matter coming to chambers. The fact it continued to be argued in chambers is perhaps more reflection of the lack of communication between the parties than any real issue surrounding this part of Jude’s development. [33] The evidence indicates Jude’s speech development is potentially delayed. The petitioner wanted to take Jude to speech therapist in Regina, with which his family had some familiarity. He was prepared to pay the entire cost of the appointment and any treatment. His desire was to avoid the public health system in order that Jude’s treatment might be acted upon more promptly if it proceeded through private stream. [34] In the meantime, the respondent has taken steps to have an appointment booked with speech therapist in Moose Jaw to allow Jude to be assessed and, presumably, speech treatment program to be developed. The rationale for the Moose Jaw appointment is that it allows the respondent to more conveniently have Jude’s treatment attended to. She would not then have to travel to Regina to participate in the assessments, treatment and program. [35] It appears the petitioner does not oppose the respondent’s suggestions. The real concern, likely for both parties, is some assurance the matter be proceeded with and acted upon expediously. As result, direct that this specific issue remain with me. Either party has leave, upon providing two days notice, to have the issue of the speech therapist brought back before me for further argument, if necessary. This argument may proceed either in person or by telephone conference call to be arranged by the Local Registrar. [36] am making this direction simply to ensure the speech therapist issue can be resolved if there are any difficulties experienced with the parties not attending to it promptly or in an appropriate fashion. In light of the direction have made here, there will be no order as to costs with respect to this aspect of the application. will now leave it for the parties to proceed with resolution of this issue. If further court intervention is required, the matter can then be brought back before me with such additional materials as counsel think appropriate in the circumstances. [37] view this issue on the same basis as the previous one. This is new matter which has arisen and upon which decision is required to be made. 4. To vary the existing parenting arrangements set forth in the decision of Megaw J. dated January 20, 2015 – brought by the petitioner. [38] The order of January 20, 2015 was an interim order. It was given at that time to deal with the situation which was then before the court. As indicated, it is important to remember that situation involved newly born infant. The respondent was uncertain as to the plans and the need for nanny. That situation has now developed over the last year such that the respondent has hired full-time nanny and accordingly, her parenting obligations are not full time with the children. As importantly, the youngest child is now one-year-old and has been developing relationship with the respondent and with the petitioner. [39] It is noted the respondent does not necessarily oppose the petitioner having an increased parenting role with all three children. However, she wants to remain in control of that development. [40] When reviewing an interim order, it is incumbent upon the court to remember the threshold test with respect to any changes or variations of that order. In Guenther Guenther (1999), 1999 CanLII 12554 (SK QB), 181 Sask 83 (Sask QB) [Guenther] Laing J. settled the threshold as follows: What this application ignores and there have been others recently, is the consistent case law which states the courts should not vary interim custody arrangements whether legal or de facto in the absence of evidence that the child or children are in some way at risk, or other compelling reason. In Harden v. Harden (1987), 1987 CanLII 4876 (SK CA), 54 Sask. R. 155 (C.A.), Sherstobitoff J.A. on behalf of the Court adopted the statement of Kerans J.A. of the Alberta Court of Appeal in R. v. R. (1983), 1983 ABCA 156 (CanLII), 34 R.F.L. (2d) 277 at p. 284 wherein Kerans J.A. stated: it is at the time of an interim disposition that one should not lightly disturb de facto arrangements: see Cropper v. Cropper (1974), 16 R.F.L. 113 (Ont. C.A.). We should remind ourselves that interim custody is just that: makeshift solution until the correct answer can be discovered. If judge could tell what is best at the outset, there is no need for an interim order. Interim orders are designed to minimize conflict between parents and cause the least harm to the child and determination of the cause. It appears from the foregoing case law, it constitutes an error in principle, and reversible error in law to vary interim custody arrangements pending trial in the absence of evidence of risk to the child. The foregoing case law indicates that once an interim custody arrangement has been in place for some time, whether de facto, by court order, or by agreement of the parties, the non-primary care parent should not apply on an interim basis to vary the arrangement (except where risk to the child exists), but proceed to final order. In this province, that means obtaining pre-trial date for pre-trial conference, and if the matter is not resolved at that stage, proceed to trial where the Court will determine what is in the best interests of the child. [41] This threshold test was then commented on by Sandomirsky J. in Agawa Davis, 2011 SKQB 214 (CanLII), 378 Sask 136 [Agawa] when he stated as follows: 14 However, Guenther must be read with s. of The Children’s Law Act. In particular the court notes ss. 6(3). Here, in ss. 6(3) is clear legislative authority to vary an interim order on any terms and conditions the court considers appropriate, before (emphasis added) the granting of an order under ss. 6(1). 15 The underlying rationale of the Guenther decision and authorities upon which it relies, is quite practical. However, it must be taken in proper chronological context. If the existing interim order is recent and there are no new factors which have arisen since the existing order was made, the effect of which renders the existing order obsolete, then the parties are required to move on to trial or pre-trial. At pre-trial or trial the issues of custody and access may be resolved upon the best evidence, that is given in open court under oath and subject to cross-examination. In open court the trial judge has the opportunity to observe each witness, to listen to the testimony of the witnesses as they testify, to observe the witnesses testifying, and to ask questions where appropriate. On an application to vary presented in affidavit form, the evidence is often conflicted and poorly suited to making such an important decision. 16 The court begins an application to vary by seeking evidence of such material change of facts so as to warrant changing the previous order, whether the previous order was of an interim nature or final order or judgment. The court weighs the same evidence only once. Therefore, absent material change of fact and evidence, variation must be denied. [42] The Saskatchewan Court of Appeal in Napper-Whiting Whiting, 2014 SKCA 33 (CanLII), 433 Sask 235 has endorsed the threshold test set forth in Guenther. [43] am mindful this Court is reluctant to engage upon either review or change to interim parenting arrangements. It has been stated many times, but bears repeating, interim arrangements are intended to be an immediate measure to allow the parties to regularize their parenting arrangements pending final determination by the court. That final determination involves hearing on the evidence and weighing and review of that evidence. At the interim stage, all that is before the court is affidavit material upon which resolutions of disputed fact, credibility or other evidence weighing techniques cannot reasonably be done. [44] However, reluctance to vary or alter interim arrangements should not be seen as an absolute ban by the court. The court must, of course, accept its jurisdictional responsibility to deal with parenting arrangements as they arise. Therefore, as pointed out by Sandomirsky J., all of the circumstances must be reviewed to determine whether an alteration of the interim decision is appropriate at any particular time. Of course, the court is reluctant to interfere in interim arrangements and attempts to tweak them on an ongoing continual basis. As well, the court is reluctant to encourage parties to engage in interim battles rather than simply getting the action on for final determination. [45] But in the words of Laing J., an interim order can be varied if there is evidence of risk to the children or if there is compelling evidence warranting an alteration. There is no suggestion on the material before me that there is any risk to the children. However, thorough review of the factual scenario does reveal compelling evidence, at this stage, to effect variation of the existing interim order. As recognized by Sandomirsky J., if there is compelling evidence of material change, the court may than change what has been in place. [46] note the authorities talk of “compelling evidence” to change interim orders and “material change” to vary final orders. am not certain much stands on this different terminology. Indeed, in Agawa, the court used “material change” on the interim order then under review. [47] Rather than concentrating on semantics, am of the view the court should carefully review the material to determine (in the absence of risk to the child) whether there exists compelling reason to change an interim order. Or, should the matter just proceed through the litigation process. Is the court compelled to change or merely urged to tweak? [48] The interim order here was granted almost one year ago. At the time, parenting arrangements were bit of an unknown. The youngest child was but five days old. The other children were still infants. The respondent indicated she would be the primary parent with the children and no nanny had been hired, at that stage. am aware though of the Court of Appeal direction that the mere passage of time is not sufficient reason to vary an existing order: Wiegers Wiegers, 2008 SKCA (CanLII), 307 Sask 117. [49] The parties are one year removed from the original decision. The matter will not get to pre-trial conference for minimum of several months and perhaps as much or more than year. While the parties are moving diligently towards pre-trial conference, the complicated financial nature of this action prevents pre-trial conference from simply being set in the absence of the expert evidence necessary for assistance. [50] Furthermore, the custody and access report is going to be prepared. While primary residence for the children is not an issue on the application before me, it is an issue generally in this action. The custody and access assessment will presumably assist the court ultimately in determining the primary residence issue and ongoing parenting treatment. In any event, the custody and access assessment will assist the court in determining, ultimately, what the parenting roles should be for each of the parties. [51] As a result of the foregoing, it is not appropriate to have the matter of increasing parenting time proceed to a pre-trial conference, as a stand-alone issue, even an expedited pre-trial conference. There is material that needs to be prepared and the changes sought are not of such momentous occasion they should be avoided simply because they come from an interim order. Rather, it is my view there is compelling evidence before the court warranting the change at this stage with respect to the parenting arrangements. [52] The youngest child, Roman, is now one-year-old. He has been spending increasing time with the petitioner. The respondent, during counsel’s submission, recognized that further time by the petitioner with the child was appropriate and wanted to be the one in control of developing that time. The petitioner seeks to have his parenting time set rather than at the whim of the respondent. [53] There is nothing in the material before me to suggest further time for the youngest child with the petitioner is not in the child’s best interests. Rather, it appears to be accepted such further time is in the child’s best interest. [54] Maximizing the available time between parents is recognized in both the Divorce Act and The Children’s Law Act, 1997, SS 1997, C-8.2 and generally is to be in child’s best interest. Here, the petitioner seeks to have additional time on Wednesdays and Saturdays with the child. He seeks to have the child from Wednesday’s at 1:00 p.m. to 7:30 p.m. and on Saturdays from 11:00 a.m. to 4:00 p.m. [55] This request is reasonable in the circumstances and in the child’s best interests. As result, order the petitioner have parenting time with Roman on this basis. Arrangements will need to be made for the respondent to express her breast milk while the baby is being breast-fed in order that the petitioner will be able to feed the baby while in his care. Leave is granted to either party to have the matter returned to me on two days notice to deal with any further issues in this regard. [56] The petitioner also seeks increased time with the two older children in order that he may get them to their necessary activities and the children can continue to develop their bond with him. There was recognition in the original order the parties would agree on additional time for the children. On the material before me, it does not appear they have been able to agree on this additional time and accordingly, this order will be imposing some additional time. make this determination on the same basis as was done for the youngest child. [57] In the result, am prepared to extend the parenting time the petitioner has with the two oldest children from Friday after school to Monday morning at 8:00 a.m. In addition, he shall have those children from Wednesday after school overnight until Thursday at 8:00 a.m. [58] Concern was raised whether Kruz would get to his hockey practices and games and whether Jude could be enrolled in the learn to skate program. determine it is in the best interests of the children, due to the history with these athletic endeavours, that Jude be enrolled in the learn to skate program. In the event the respondent is unable to transport either of these children to their hockey or learn to skate sessions, she shall forthwith notify the petitioner of her inability. The petitioner shall then be entitled to transport the children to these activities. In the event any difficulty arises with the children getting to their activities, either party has leave to bring the matter back before me on two days notice. [59] have not dealt with the issue of Kruz’ participation in wrestling. This child is enrolled in one activity now. Participation in other activities is not compelling issue now. This will need to await the pre-trial conference. Or, it may be the parties can agree on this due to the child’s apparent affinity for this sport. 5. To set the arrears of child and spousal support – brought by the respondent. [60] The parties submitted materials dealing with the payments that have been made for spousal and child support. The materials were in conflict and it was generally unclear what payments have been made and how these payments should be credited towards support. It is noted the parties agreed, following the initial support order, the petitioner could make certain deductions from the support in order that financial obligations could be paid directly by him. It may be this precise situation is why such arrangements ought to be the exception. [61] The parties are now agreed, as between themselves, the petitioner shall be entitled to deduct from the support payable the amount due for the mortgage on the family home; the loan payment on the Denali vehicle; the license plate cost on the Denali vehicle; the utilities associated with the family home; the property taxes on the family home; the premiums due on all insurance policies; and, the premium due on the house insurance. [62] Where matters stand with respect to who has paid what and what exactly is in arrears is difficult to discern from the affidavit material filed. Both counsel recognized this difficulty during the course of their submissions. It was proposed by the court, and agreed by counsel, the issue of arrears due under the support provisions of my previous order should await further discussion at the pre-trial conference. This would allow the parties to spend some further time checking their figures to ensure appropriate credit is given for payments which have agreed to be paid. It would also allow more complete accounting to be done. Finally, it would allow the parties to deal with the issue of the life insurance and any arrangements which need to be made to cancel or otherwise deal with this item. [63] As a result of this agreement, the issue of arrears of support and enforcement of any arrears from the date of the order to today’s date is to await the conclusion of the pre-trial conference. In the event difficulties develop in the interim, either party is given leave to have the matter returned to me upon providing the other party with two days notice of their intention to continue the argument. have not limited the circumstances under which this matter may be returned to me. This then leaves return available for any issues that may arise under this heading. 6. To return the 2005 Volkswagen Beetle vehicle – brought by the respondent. [64] Prior to the parties’ separation the respondent had owned and operated 2005 Volkswagen Beetle. At the time of the separation it appears this vehicle was left on the farm. The respondent had demanded return of the vehicle. The vehicle was damaged on the farm and may be total loss. There was no insurance on the vehicle. The petitioner arranged to have the vehicle towed to the respondent’s home. Why he took this step is not clear to the court. [65] It appears the foregoing developments all occurred after the various applications had been served and filed. It was agreed by counsel for the respondent there was nothing further for the court to do, at this stage, on the issue of the Volkswagen. It may be that issue continues to be something requiring resolution as the family property issues wend their way to trial. [66] However, at this stage, there is nothing further for the court to do. Accordingly, this issue will be adjourned sine die. Either party shall have leave to have it returned before me upon providing two days notice. There is no present indication this will be required. However, leave it open in this fashion to provide an avenue for the parties to come back to court for, hopefully, quick resolution in the event further discussions are necessary. 7. Objections to the petitioner’s affidavit of September 28, 2015 – brought by the respondent. [67] There were series of complaints with respect to the affidavit material filed by the petitioner. I do not find the complaints to be generally well founded and rule on each concern as follows: Para. This is relevant and speaks directly to the speech therapist; Para. 16 This is not in violation of the Rule with respect to hearsay. The individual is identified; Para. 17 The letter is hearsay but in the circumstances, allow it; Para. 18 This is not hearsay for the same reasons set forth for para. 16; Para. 21 This is statement of fact and allow it; Para. 22 This is not hearsay. It is provided not for the truth of its contents but rather for the fact it was said; Para. 24 Is not in violation of the Rule. The individual is identified on this interim application; Para. 54 This is not speculation or opinion. It is statement of fact; Para. 61 This is hearsay without the proper basis set and accordingly, the portion of the paragraph indicated is struck; Para. 64 This is statement by the respondent and accordingly, allow it; Para. 65 This is not speculation but rather statement of fact. However, the portion dealing with what the teacher said is hearsay and it will be struck; and Para. 71 This is not speculation. It is statement of fact from the petitioner’s perspective. 8. Objections to the petitioner’s affidavit of October 16, 2015 brought by the respondent. [68] With respect to the notice of objection to affidavit evidence of the petitioner’s affidavit sworn October 16, 2015 find as follows: Para. This evidence is provided with respect to the speech therapist issue and is provided after the original affidavit was sworn. It is not new evidence not in reply. The statement was made by the respondent and accordingly, allow it; Para. find this hearsay to be permissible pursuant to the Rule. The individual is identified on this interim application; Para. find this to be opinion and it is struck; Para. 12 This information is provided in response to that raised by the respondent and accordingly, allow it; Para. 13 This information is provided in response to that stated by the respondent and accordingly, allow it. Para. 14 This information is provided in response to that stated by the respondent and accordingly, allow it; Para. 15 This information is provided in response to that stated by the respondent and accordingly, allow it; Para. 17 This information is provided in response to that stated by the respondent and accordingly, allow it; Para. 18 This is provided in explanation for that which precedes it and allow it; Para. 20 This appears to be new evidence not provided in response and it will be struck; Para. 21 This appears to be new evidence not provided in response and it will be struck; Para. 22 While this is technically new evidence it has arisen since the previous affidavit was sworn and is relevant to the matters before me and allow it; Paras. 23, 24 and 25 These are an explanation of what took place on September 29, 2015 and allow them. Para. 31 This is statement of fact and not of opinion, and allow it; Para. 33 These statements are provided in response to the whole speech therapy issue and allow it; Para. 34 This is statement of fact and allow it; Para. 35 This is statement of fact and allow it; Para. 44 This is statement of fact from the petitioner’s perspective and allow it; Para. 45 This is statement of fact from the petitioner’s perspective and allow it; Para. 50 This is new evidence not provided in response and shall be struck; Para. 60 The general tenor of this paragraph is the provision of argument and opinion. It will be struck; Para. 76 This appears to be new evidence not in response to that raised and it will be struck; Paras. 80, 81, 82, 83, 84 and 85 These are matters raised in response to what is going on with Kruz. Accordingly, allow them; Para. 86 This is argument and it will be struck; Para. 87 This is new evidence not in response to that raised and it will be struck; and Para. 88, 89, 90 and 91 These are with respect to the issue of the hockey practice and generally in response to that stated by the respondent and allow it. [69] The petitioner has generally been successful on his applications in this regard. The respondent was somewhat successful on the notice of objection to affidavit evidence [70] In the circumstances, I direct the petitioner shall be entitled to costs in the fixed amount of $1,000.00 with respect to all of the matters brought before the court. This amount is to be paid forthwith and in any event of the cause. The respondent shall be entitled to costs in the amount of $200.00 with respect to both notices of objection to affidavit evidence. This amount shall be paid forthwith and in any event of the cause. e. The respondent shall be able to offset the costs award in her favour against her costs obligation and pay the difference [71] I have determined not to send this matter to the high conflict mediation program. m. do not consider this matter at that stage yet. There are conflict issues and communication problems. It may be the argument of the issues contained in this judgement will move the parties to attempt to bridge these difficulties. It may be decision on these issues will go some distance to resolving the short-term issues. If so, that is in the parties’ best interest. If not, the mediation suggestion may be raised again.

Family Law – Custody and Access – Best Interests of ChildFamily Law – Custody and Access – Interim – VariationFamily Law – DivorceFamily Law – Evidence – AffidavitThe parties were in a high-conflict situation and brought five interim applications with various requests. They had three children, the youngest being born five days before a previous application. At the initial application the respondent mother was living in the family home and the petitioner was living at the family cottage and expected to move into the new home when it was ready. The petitioner did move into the home, which was a few blocks from the family home. The youngest child was almost a year old and the petitioner was having increased parenting time with him. The parties agreed to have a custody and access report prepared. The issues were: 1) divorce; 2) registration of the middle child in Montessori school. The respondent opposed the child attending the school because he was not yet potty trained. The petitioner advised that the school was okay with the child not being potty trained; 3) to take the child to a speech therapist. The parties ended up resolving the issue before chambers; 4) varying the existing parenting arrangements. There was an interim order from January 2015 made shortly after the third child was born. The respondent had since hired a full-time nanny. The respondent did not necessarily oppose the petitioner spending more time with the youngest child, but she wanted to be the one to control the developing of that time. The petitioner wanted the child Wednesday afternoon to evening and Sunday from 11:00 am to 4:00 pm. He also wanted increased time with the two older children so that he could get them to their necessary activities and so that they could continue to develop their bond with him; 5) arrears of child and spousal support; 6) the respondent’s request to return the 2005 vehicle. The vehicle had been at the parties’ farm and was damaged beyond repair without insurance. The petitioner then towed the vehicle to the respondent’s home; 7) objections to one of the petitioner’s affidavits; and 8) costs. HELD: The issues were decided as follows: 1) the divorce was granted because the parties had been separated in excess of a year and no satisfactory reasons were argued for not allowing it; 2) the court held that it would be appropriate for the child to be enrolled in the Montessori school. The cost of the program was ordered to be paid by the petitioner. The parties were to agree on the child’s transportation to the school and if they could not agree the petitioner would transport him; 3) the court kept the issue under its jurisdiction so that either party could bring the matter back upon two days’ notice; 4) the pre-trial conference was months away and the court did not find it appropriate to have the matter of increased parenting time proceed to a pre-trial conference, as a stand-alone issue. The court found that it was in the best interests of all the children to have further time with the petitioner as he requested. The court also dealt with transportation for the hockey and the middle child’s skating; 5) counsel agreed that the issue of arrears due under the support provisions would await further discussion at the pre-trial conference with either party having leave to bring the matter back on two days’ notice; 6) the matter was adjourned sine die on two days’ notice; 7) the complaints were not generally well-founded; and 8) the petitioner was entitled to costs of $1,000 in any event of the cause. The respondent was entitled to costs of $200 in any event of the cause. The court declined to send the matter to the high-conflict mediation program.

7_2015skqb352.txt

SUPREME COURT OF NOVA SCOTIA Citation: R. v. MacDonald, 2009 NSSC 420 Date: 20090918 Docket: CRH 313239 Registry: Halifax Between: Her Majesty the Queen v. Brian Clarence MacDonald Judge: The Honourable Justice M. Heather Robertson Heard: September 17 and 18, 2009 Decision: September 18, 2009 (Orally) Written Release: March 19, 2010 Counsel: Glenn A. Hubbard, for the Crown Roger Burrill, for the defence Robertson, J.: (Orally): [1] Brian Clarence MacDonald is Halifax street person, well known to the police. He is accused of having assaulted another street person, Huey Newton Godron, on the porch of 1348 Martello Street in Halifax. This was the residence of cleric at All Saints Cathedral, which is located next door. The minister lives there with her family, who had provided shelter to Brian MacDonald and Huey Godron over the few months preceding the day of the alleged incident, by allowing them to sleep on this covered porch at least out of the rain. [2] The evidence of her husband, Mr. Moxley, was that they and their neighbours looked out for the street people who lived across in Victoria Park and helped these two in particular. His evidence was that although these two slept on the porch, other street people congregated there during the day. [3] The charges against Brian MacDonald are that of aggravated assault of Huey Newton Godron, use or threatened use of weapon, unlawful possession of weapon and failure to comply with his recognizance of August 2, 2008, related to alcohol and weapon possession. [4] The entire case of the Crown rests on three statements made by the accused during the course of the detention, first on s. 87 Liquor Control Act violation for public drunkenness and then on the more serious charges as he became almost immediately the suspect in the assault on Mr. Godron as they were known to be heavy drinkers who shared the porch. [5] Mr. Godron was subpoenaed to the Court and testified. However, his evidence was that he was simply too drunk to remember what happened that day. The police and the Crown were aware that he did not intend to be cooperative witness. Thus, the Crown's case ended with the video tape of the accused. They sought admission of Mr. MacDonald's inculpatory statements to the police officers. [6] It is alleged by the officers that Mr. Godron actually assaulted Mr. MacDonald first earlier in the day and that he, Mr. MacDonald went to the hospital as result. Upon release, they allege Mr. Brian MacDonald returned to the porch at 1348 Martello Street, found Mr. Godron lying on the pew and assaulted him with piece of iron rebar sending Mr. Godron to the hospital with head injuries. [7] The police were called to that address at approximately 4:30 pm and found Mr. Godron in need of medical attention. He was then sent to the local hospital by ambulance. Mr. MacDonald was not present. The police officers set up crime scene investigation on the porch of the residents and brought in the identification unit, the evidence of that was all obtained from the evidence of Constable Joshua McNeil and Detective Constable Hanson, and then they returned to the station. [8] Later that day they were called by local resident who reported that the accused had returned to the porch some time after 6:00 p.m. They attended 1348 Martello Street again and found Mr. MacDonald in very intoxicated state, so much so that he could not stand up and needed two officers to escort him to the police car. Constable McNeil took him to the Halifax police station in his car. [9] During this transport, Mr. MacDonald made mutterings in the back of the car, many incoherent ramblings about Paul McCartney but then the words, "Is he dead?", "He beat me so beat him back." Constable McNeil cautioned him at that time and the accused went silent. [10] As he was then helping him into the station, Mr. MacDonald muttered, "I beat him with broom." This was at approximately 6:30 or 6:40 in the evening. Mr. MacDonald was not informed that he was being detained for the aggravated assault on Mr. Godron and did not understand the extent of his legal jeopardy at this time. [11] The second utterances were made to Detective Constable Michael Sullivan who came to the interview room in which Mr. MacDonald was being held at 8:10 p.m. He did receive Charter caution from Detective Constable Sullivan relating to the assault charges. His inculpatory statements at that time were "Is he dead?", "Mike, tried to kill him." [12] Detective Constable Sullivan determined that he could not interview the accused that night as he was too heavily intoxicated and did not understand the Charter caution. [13] The Crown has prudently accepted that these statements should not be admitted into evidence and cannot meet the threshold of admission due to the severe intoxication of the accused and failure to understand the Charter. [14] So we are now concerned with the third statement video taped by Detective Constables Thomas and Ayers on June 12, 2009, at 9:57 in the morning, some 15 hours after the accused came into custody. [15] There are couple of legal issues here, blended with the facts. The Crown is required to civil standard to prove that the statement was made voluntarily. As set out in R. v. Oickle, 1984 CanLII 3610 (NS CA), [1984] 11 C.C.C. (3d) 180 (NSCA), this involves the court making contextual analysis and assessment of the evidence, in particular the operating mind of the accused, the presence of any oppressive circumstances, or threats or promises made to the accused. [16] The court should provide record of the whole context in which the statement is made. [17] do have slight concern that the interview in question, which occurred between 9:57 a.m. and 10:22 a.m., was preceded by 12 minutes of contact with the accused and the two police officers, for which there was no record. accept, however, that there is low threshold here with respect to the degree of drunkenness, re: voluntariness and see no evidence of oppression, threats or promises at this juncture. [18] The more important issue is the capacity of the accused to understand the Charter caution given by Detective Constable Thomas at approximately 10:00 a.m., July 12th. They knew Brian MacDonald and he was well known to these officers. They knew of his difficulties with addiction. [19] At the outset of the statement, Brian MacDonald was given his Charter rights. He was advised of his right to contact counsel without delay and his right to duty counsel. He was asked if he understood his rights. He was then asked by Detective Constable Thomas "Do you wanna call a lawyer?" Brian MacDonald\'s response seems to be as follows: "Nah. Probably be one down around there anyway, John Black or ... ." [20] The defence submits that this response exhibited fundamental misunderstanding by Brian MacDonald of his basic constitutional rights under s.10(b) of the Charter. The police would have been aware of the misunderstanding and as result, in order to comply with their informational obligations under s.10(b), were required to clear up any misunderstanding the detainee may have exhibited about his rights. [21] This could have been achieved by asking the question: "Mr. MacDonald, do you wish to have legal counsel now?" Detective Constables Thomas and Ayers would have been aware that John Black is employed as duty counsel at the courts and not then available to Mr. MacDonald. [22] In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] S.C.R. 173, at paragraph 17, the Supreme Court explained that the informational duties of the police under s.10(b) are as follows. The state authorities are obligated: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (2) if detainee has indicated desire to exercise this right, to provide the detainee with reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). [23] The state authorities must inform detainee of the right to contact counsel without delay: Under these circumstances, it is critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in "timely and comprehensible" manner... Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Hebert. (Bartle, para 19) (Emphasis added) [24] The issue of duty counsel is also explored in R. v. Brydges, 1990 CanLII 123 (SCC), [1990] S.C.R. 190. [25] In R. v. Baig, 1987 CanLII 40 (SCC), [1987] S.C.R. 537: absent proof of circumstances indicating that the detainee did not understand his right to counsel when he or she was informed of it, then the onus is on the detainee to prove that he or she was denied an opportunity to ask for counsel at the time of detention. [26] In R. v. Bartle, supra, paragraph 19, Lamer C.J., stated the law as follows: Moreover, in light of the rule that, absent special circumstances indicating that detainee may not understand the s.10(b) caution, such as language difficulties or known or obvious mental disability, police are not required to assure themselves that detainee fully understands the s.10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible. [27] Most recently, in R. v. Devries, 2009 ONCA 477 (CanLII), [2009] O.J. 2421 and agree that Justice Doherty had an opportunity to comment but in different context of that case of its facts, but nevertheless his remarks upon the informational duty of the police are interesting and they are located at paragraph 38 of that decision. He says: I, of course, do not suggest that the police are never obligated to go beyond the information required to comply with the informational component of s.10(b). Questions or comments made by detainee or other circumstances at the time the s.10(b) caution is given may indicate misunderstanding by the detainee of the nature of the s.10(b) rights. In those circumstances, the arresting officer will have to provide further explanation of the rights: ... [28] have reviewed the video statement now three times and have replayed the portion of the tape where Mr. MacDonald referenced John Black several more times. [29] can say that Mr. MacDonald's reply to the words "Do you wanna lawyer?" and the reply was muttered and hard to interpret but appears to be "Nah. There'll probably be one down around there anyway (pause) John Black." [30] The Crown submits that these words mean that he chose not to avail himself of immediate counsel and made an informed decision to seek counsel of John Black when he went to court. [31] Detective Constable Thomas said he interpreted the words to mean he knew John Black would be at the courthouse and he would speak to John Black there. [32] The Court received by agreement signed letter from John Black that explains his familiarity with the accused as his role as duty counsel at the courthouse. [33] In viewing the video tape in its entirety, had concern that the accused although not then drunk, was somewhat confused in his utterance, particularly as it related to time lines of the events of June 11, 2009, when the interviewing police officers challenged Mr. MacDonald with their version of the events. [34] The Crown submits that the accused's forgetfulness of when the assaults occurred is his attempt to avoid responsibility for the separate assault and retaliation of Mr. Godron. [35] was much less certain and found that in the entire context of his replies to the police questions he was anything but clear in responses and seemed at times muddled as to time frames of events. [36] Certainly with respect to the Charter caution of immediate right to counsel I believe Mr. MacDonald\'s mind wandered off to the need to acquire counsel to represent him at trial. [37] I do not believe he was focussed on the present and his immediate right to have counsel then and there before he made any statement to the police. [38] His muttered reply created enough uncertainty that in my view the situation begged for Detective Constable Thomas to make a clarification such as, "Brian, you have the right to counsel now before you make any statement to us." [39] Detective Constable Thomas explained that in dealing with other accused, if he feels there is any lack of understanding of rights, he repeats the caution one line at time and asks after each sentence, "Do you understand?" He did not do so in this case. [40] He also testified that his printed caution does not contain the word “now”, but that this would be implied in the words of the caution earlier read: "You have the right to retain and instruct lawyer without delay. You also have the right to free and immediate legal advice from duty counsel by making free telephone calls (and the numbers were provided). Do you understand? Do you wish to call lawyer?” [41] In these circumstances, it is my view that the accused was under the disability of severe addiction; well known to the police. He was blind drunk 12 hours earlier, falling down and unable to stand. [42] By 10:00 a.m. the next day though sober, believe he remained muddled. His reply to the question, "Do you want a lawyer?" required clarification of the informational component of the right to counsel. It required more than the mere recitation of the caution. The Charter caution is not mantra to be delivered in formalistic way. [43] accept that on the balance of probabilities that the accused did not make an informed choice to decline immediate advice from counsel before making any statement to the police. believe he wandered from the present moment and expressed equivocation and did not fully understand the caution. [44] In the result, his s.10(b) rights have been violated. I therefore exclude the statement from evidence. [45] With respect to the consideration of s.24(2) of the Charter, the Supreme Court of Canada has recently set new guidelines to assess this inquiry. See R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.J. No. 32 and R. v. Harrison, 2009 SCC 34 (CanLII), [2009] S.C.J. No. 34. [46] The Crown suggests that the Charter breach does not reach the threshold of exclusion, pointing out that the police officers did not, at any rate, act in bad faith. [47] considered whether admission of this statement notwithstanding the s.10(b) violation would bring the administration of justice into disrepute. have reflected on the seriousness of the state's breach, the impact of the breach on the Charter protected rights and interests of the accused and society's interest in adjudicating the merits of the case. [48] In my view, it is balancing of these interests. find that the administration of justice would indeed be held in disrepute in these circumstances. [49] This is different situation than those cases involving guns and narcotics. [50] This is an absolute fundamental right to get advice from counsel before making statement to the police. [51] Access to counsel is the gateway of Charter rights particularly in these circumstances where this statement is the only evidence to be offered by the Crown in seeking conviction. [52] It would be egregious to allow admission of the videotaped statement into evidence. Justice M. Heather Robertson

The accused was charged with aggravated assault, use of a weapon, unlawful possession of a weapon and breach of a recognizance. The admissibility of the accused's videotaped statement was at issue with regard to his capacity to understand the Charter caution given by the police. When asked if he wished to contact a lawyer, the accused had responded in the negative, noting that there would 'probably be one down around there anyway.' statement excluded from evidence; the accused's s. 10(b) rights had been violated. It was clear that the accused was confused and not focused on the present and that his mind had wandered off to the need to acquire counsel to represent him at trial as opposed to his immediate right to have counsel. His muttered reply created enough uncertainty that the officer should have made an effort to clarify the informational component of the right to counsel.

9_2009nssc420.txt

2002 SKQB 213 F.L.D. A.D. 1998 No. 387 J.C.S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: SUSAN JEANNE BURKE and BARRY RUSSEL BURKE RESPONDENT D. J. Kendall for the petitioner A. Wiebe, Q.C. for the respondent FIAT WILKINSON J. May 17, 2002 [1] In this application to vary spousal support, the issue is whether there has been a material change in circumstances by virtue of a change in either the husband’s or wife’s employment status, or financial means or needs, warranting an increase in spousal support. This is the standard of review prescribed in the parties’ interspousal contract of September 14, 1999. Under that agreement the husband pays $3,000 per month in spousal support. [2] The parties are at odds as to whether the husband has experienced an increase in income and whether the wife’s needs have been affected by cohabitation with new partner. [3] The husband’s position is summarized in his affidavit as follows: .. own 36% interest in trucking company called “Titan Transport Ltd.” As result of general downturn in the economy during the year 2001, the profits of Titan Transport have been significantly reduced. This decline was exacerbated by the events in New York and Washington on September 11, 2001. As result of this economic decline our company closed the Winnipeg Branch and laid off two employees in our Calgary office. Our accountant calculates that the company's bottom line has declined by 62% from between the year end 2000 and the year end 2001. 6. My income consists of base salary, management bonus and shareholder bonus. The bonuses are based on the previous year’s profits of the company. The company bank (Bank of Hong Kong) requires us to pay our shareholder bonus, after tax, back into the company. also have rental income in the amount of $400 per month. [4] The husband broke down his sources of income chronologically, as follows: Salary Working Bonus Shareholder Bonus 169,013 Shareholder bonus is paid out to the three of us to zero down to $200,000 small business limit. My percentage is on my share status of 36% of the total 100 shares in the company. The income tax is paid on the monies and loaned back to the company to keep our cash flow up as per bank. The 2001 bonus of $30,400 is broken down as $18,000 of working bonus and we got “WCB” refund due to low experience and that was paid out to us and my share was $12,400 so it wasn’t on profit for the year as that has dipped significantly. [5] Significant argument was centred on whether the bonuses were paid from the corporation’s current income (the wife’s argument) or from the corporation’s prior year’s income (the husband’s argument). The wife also argues that the “working bonus” does not have to be repaid to the corporation and there is no independent verification that the shareholders bonus must be repaid, or that they are, in fact, being retained in the company. There is no breakdown of shareholder’s loan accounts as between shareholders. The only information available (from the financial statements) is the year end totals in the shareholders loan account and they are as follows: 1996 $105,520 1997 128,000 1998 164,275 1999 116,318 2000 99,055 2001 139,445 The fluctuations are not explained. [6] The company’s retained earnings, year by year are as follows: 1997 $169,561 1998 292,184 1999 422,227 2000 559,785 2001 661,730 (to November 30) [7] The husband’s assertion that his 2001 shareholder bonus represents profits earned by the company in 2000 is more likely correct. With respect to corporate income over $200,000, it is not an uncommon practice to “bonus down” and thereby achieve tax deferral. Business income in Canadian controlled corporation in an amount up to $200,000 is subject to the reduced corporate tax rate. The excess can be distributed to shareholders in the 180 days following the corporation’s tax year. As the individual receiving the bonus is only taxed when in actual receipt, one-year tax deferral may be achieved. Likewise, it is not uncommon that corporation’s arrangement with its bank or lending institution requires the bonuses to be repaid to the corporation in the form of shareholder’s loans, and not withdrawn until certain debt:equity levels are achieved. Similar provisions are sometimes contained within shareholder’s agreements. [8] Thus an individual may have viable income, but the enjoyment of that income is postponed for period of time although it represents significant benefit in the future. When issues of support are involved it is difficult to know how that deferred income should fairly be treated and in some cases, particularly where child support is concerned, it has been treated as current income to the obligor. The restrictions on withdrawal must be objectively justified as legitimate, reasonable business purpose or an unavoidable contractual requirement. That is asserted here, but not objectively proved. The bank’s restrictions are not specified. The fluctuation in shareholder’s loans accounts, without clarification, supports the inference monies can be withdrawn. The company’s financial statements show that debt:equity ratios have improved by considerable margins. In these circumstances it is not sufficient to offer hearsay evidence such as “our accountant calculates the company’s bottom line has declined by 62%...” or bare assertion that the bank requires the bonuses to be repaid to the company. [9] There is another objection that can be made regarding the husband’s analysis of his income. If the practice of “bonusing down” has been consistency applied, it would follow that if one excludes the shareholder bonus from income for present purposes, the bonus would logically have been excluded when calculating his income in 1999. It would not be fair or reasonable or consistent to do otherwise. His salary, plus working bonus, in 1999 was $67,050. His equivalent income currently is $122,488 (salary $92,088, working bonus $30,400). Arguably, it might be reasonable to exclude the non-recurring WCB refund in which case his current income would be $110,088. Even if no bonuses are payable in 2002 as result of lower corporate profits in 2001, there is no indication his fixed salary will decline. His salary level in 2001 was high notwithstanding the assertion that corporate income declined sharply that year. On the most favourable scenario for the husband, his income has increased roughly 50%. It is material and significant increase in income even without regard to the shareholder bonus. There is also the fact the husband has new partner who pays him rental income, and that certain of his expenses for travel and auto expenses are now paid by the company. [10] I am satisfied the only material change in the wife’s means and needs is the fact she is residing with a new partner. Their arrangement essentially allows him to reside in her home at no cost in exchange for his performing yard work and housework. (The wife suffers from MS and is unable to work). Despite this arrangement the wife has claimed annual expenses of $2,450 for house repairs, maintenance and yard care and $2,600 for house cleaning, the very duties her new partner was to perform. He is employed, but his income is not stated. He makes no apparent financial contribution to the household. The benefits inherent in shared living arrangement are not adequately or reasonably accounted for in the wife’s presentation. She has requested 50% increase in support, because the husband’s income had increased 50%. By the same logic, one might argue her expenses should be halved due to the shared cost of living, if those shared costs were reasonably accounted for. These can hardly be endorsed as sound approaches to the determination of spousal support. [11] In all the circumstances, an increase is warranted, but not to the extent claimed by the wife. Spousal support will be varied to $3,500 per month effective May 1, 2002 and continuing on the first day of each month thereafter until further order. [12] The wife will have costs fixed in the amount of $1,000.

FIAT. The issue in this application to vary spousal support was whether there had been a material change in either the husband's or wife's employment status, financial means or needs, warranting an increase in spousal support since their 1999 interspousal contract. The wife requested a 50% increase based on the husband's income increase of 50%. She suffered from MS and was unable to work. HELD: Spousal support was varied to $3,500 monthly. The only material change in the wife's means and needs is that fact she is residing with a new partner who resides in her home in exchange for yard work and housework. Although he worked, he made no apparent financial contribution to the household. The wife was awarded costs fixed at $1,000.

5_2002skqb213.txt

SUPREME COURT OF NOVA SCOTIA Citation: Innocente v. Canada (Attorney General), 2011 NSSC 184 Date: 20110512 Docket: Hfx.No. 311509 Registry: Halifax Between: Daniel Innocente v. Attorney General of Canada DECISION Judge: The Honourable Justice Kevin Coady Heard: April 7, 2011, in Halifax, Nova Scotia Decision: May 12, 2011 Counsel: J. Walter Thompson, QC, for the plaintiff Sarah Drodge, for the defendant By the Court: [1] The Defendant Attorney General of Canada (AGC) moves for an order for summary judgment on the pleadings pursuant to Civil Procedure Rule 13.03 (1)(a) and (c) on the grounds that: 1) The statement of claim discloses no reasonable cause of action; and 2) The statement of claim otherwise makes claim that is clearly unsustainable when the pleading is read on its own. BACKGROUND: [2] In 1996 the Plaintiff was charged with seven drug and weapons related offences. In 1997 he was charged with possession of proceeds of crime and possession of narcotic for the purpose of trafficking. Prior to being charged in 1996, the AGC obtained search warrant and restraint order from this court pursuant to section 462.32 and 462.33 of the Criminal Code of Canada. These orders prohibited the Plaintiff from disposing of or otherwise dealing in any manner with any interest in his residential property at 47 Granite Cove Drive, Five Island Lake, Nova Scotia. [3] number of these charges were stayed on November 17, 2001. However in 1999 Mr. Innocente was tried and convicted of conspiracy to traffic in cannabis resin and sentenced to seven years imprisonment. [4] On May 21, 2009, the Plaintiff filed statement of claim against the AGC alleging that he suffered damages as result of the “improper withholding of his real and personal property” by the Defendant. In response the AGC brought motion for summary judgment on the pleadings. The motion was heard by Justice LeBlanc in September 2009. [5] Justice LeBlanc dismissed the statement of claim in its entirety but without prejudice to the Plaintiff’s right to file an amended statement of claim. In reaching his decision he found that the statement of claim “as presently framed does not make out cause of action.” On January 6, 2011, Mr. Innocente filed an amended statement of claim. In response the AGC brought this motion claiming that the renewed motion still does not disclose reasonable cause of action and provides insufficient details of the claim. [6] It is not disputed that the AGC undertook, as part of the 1996 warrant and restraint orders, to comply with any court order as to damages and costs sustained by Mr. Innocente as result of the restraint order. Section 462.32(b) states as follows: Before issuing warrant under this section, judge shall require the Attorney General to give such undertakings as the judge considers appropriate with respect to the payment of damages or costs, or both, in relation to the issuance and execution of the warrant. [7] Section 462.33(7) states as follows: Before making an order under subsection (3), judge shall require the Attorney General to give such undertakings as the judge considers appropriate with respect to the payment of damages or costs, or both, in relation to (a) the making of an order in respect of property situated within or outside Canada; and (b) the execution of an order in respect of property situated within Canada. [8] Mr. Innocente submits that after the criminal proceedings were over, the AGC did not seek forfeiture or any remedy pursuant to section 462.32 and 463.32 of the Criminal Code or any remedy with respect to the seized property. He submits that in 2004 the AGC applied for and was granted an order revoking the 1996 orders of warrant and restraint. He argues that by that time he lost his house to foreclosure and his personal property was returned in “dilapidated stated.” Mr. Innocente describes his claim as follows at page of his brief: Mr. Innocente, in this action, claims damages and costs in relation to the issuance and the execution of the restraint order on his real property and the warrant for the seizure of his personal property. He says the restraint and the seizure became improper because without proceeding to forfeiture the restraint and forfeiture lost all purpose and foundation. He says that the restraint obtained by the Attorney General caused the sale of his real property at substantial loss and after eight years, substantial depreciation of his personal property. The personal property was listed. He says, in summary, that the Attorney General is liable under its undertaking because the Attorney General never proceeded with forfeiture on his conviction for the Henneberry conspiracy and all other charges were either stayed, withdrawn or dismissed. POSITION OF THE APPLICANT DEFENDANT: [9] The AGC argues that there is no recognized cause of action because Mr. Innocente does not attack the validity of the 1996 warrant and restraint order. It is the view of the AGC that such challenge is the only avenue available to Mr. Innocente. The AGC points out that these orders do not terminate upon conviction and relies on sections 462.33(10) and 462.35 of the Criminal Code to support this position. reading of these sections establish that restraint order may survive conviction. [10] The AGC points out that Justice LeBlanc, on the previous summary judgment application, found as follows at paragraph 32: An undertaking to respond in damages and costs results from the making and the execution of special warrant and detention order. It does not appear that the undertaking gives rise to claim other than by way of attack on the making or execution of the special warrant or restraint order. [11] The AGC argues that the amended statement of claim does not change this fact and, as such, should be struck. [12] Additionally the AGC argues that the statement of claim does not disclose sufficient material facts to enable the AGC to discern the basis of the Plaintiff’s claim for damages. They submit that Mr. Innocente does not plead how the AGC caused him to sell his property at substantial loss or how the restraint order affected that event. The AGC also submits that Mr. Innocente does not plead what the “dilapidated state” of his personal property means or what property he is referencing. [13] Additionally the AGC argues that Mr. Innocente’s characterization of this action as “novel claim” does not necessitate trial. They submit that the law is settled that claim does not automatically survive motion to strike simply because the claim is novel or unprecedented. The AGC relies on the following cite from Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 (CanLII), [2007] S.C.R. 83 at paragraph 19: Both the majority and dissenting reasons acknowledged that imposing such duty of care would represent novel duty at law. The benefit of making determination on Rule 21 motion about whether such duty should be recognized, is obvious. If there is no legally recognized duty of care to the family owed by the defendants, there is no legal justification for protracted and expensive trial. If, on the other hand, such duty is accepted, trial is necessary to determine whether, on the facts of this case, that duty has been breached. [14] It is the position of the AGC that terming this action “novel” does not allow the plaintiff to avoid the rules concerning pleadings. POSITION OF THE RESPONDENT PLAINTIFF: [15] Mr. Innocente acknowledges that the charges laid against him may sustain seizure and restraint order under the Criminal Code. He further acknowledges, for the purpose of this action, that the 1999 seizure and warrant were properly obtained and does not challenge the process by which they were authorized. [16] Mr. Innocente argues that Justice LeBlanc was wrong when he stated “it does not appear that the undertaking gives rise to claim other than by way of attack on the making or execution of the special warrant or restraint order.” It is of some note that Mr. Innocente has not appealed Justice LeBlanc’s ruling on the first summary judgment application, given his position on this application. It is also of note that Mr. Innocente was convicted of conspiracy to traffic and sentenced to seven years imprisonment. He hangs this claim on the fact that the crown did not push the matter all the way to forfeiture and, instead, returned it to him in 2004. [17] Mr. Innocente has not provided authority for his position that recovery pursuant to these undertakings does not require an attack on the validity of the enabling orders. He does not provide authority for his position that failure to proceed to forfeiture triggers these undertakings. The AGC has not provided clear authority that Mr. Innocente’s positions are wrong in law. The fact that the crown can extend these orders does not settle the above stated issues. While the undertakings are founded in the Criminal Code, they amount to contract between the crown and the offender. Section 462.32(4) of the code imposes duty on the crown to take “reasonable care to ensure that the property is preserved.” This is an indication of the will of parliament to provide the citizen with some protection when the state seizes property before conviction. [18] have not been provided with the details of these undertakings. have no evidence as to whether they are standardized or vary from case to case. Nonetheless, it seems clear to me that the undertaking creates cause of action. This does not suggest that Mr. Innocente’s cause of action has any merit, only that it exists. [19] Mr. Innocente further argues that he has provided sufficient details in his statement of claim to enable the AGC to discern the basis of his claim for damages. He submits that greater detail will emerge as the action proceeds through discovery examination. He states that there is nothing novel about his action given it is rooted in legislation. THE CAUSE OF ACTION: [20] I have concluded that Mr. Innocente has a cause of action arising from the statutory undertakings given by the AGC in 1996. While this is a significant factor, it does not necessarily defend against this summary judgment application based on the pleadings. PARTICULARS OF DAMAGES: [21] The AGC argues that notwithstanding finding a cause of action, the plaintiff’s amended statement of claim does not plead sufficient material facts to comply with the rules. The following rules address the sufficiency of claim: 4.02(4) The statement of claim must notify the defendant of all the claims to be raised by the plaintiff at trial, conform with Rule 38 Pleading, and include each of the following: (a) description of the parties; (b) concise statement of the material facts relied on by the plaintiff, but not argument or the evidence by which the material facts are to be proved; (c) reference to legislation relied on by the plaintiff, if the material facts that make the legislation applicable have been stated; (d) concise statement of the remedies claimed, except costs. 38.02 General principles of pleading (1) party must, by the pleading the party files, provide notice to the other party of all claims, defences, or grounds to be raised by the party signing the pleading. (2) The pleading must be concise, but it must provide information sufficient to accomplish both of the following: (a) the other party will know the case the party has to meet when preparing for, and participating in, the trial or hearing; (b) the other party will not be surprised when the party signing the pleading seeks to prove material fact. (3) Material facts must be pleaded, but the evidence to prove material fact must not be pleaded. 38.03 Pleading claim or defence in an action (1) claim or defence in an action, and claim or defence in counterclaim, crossclaim, or third party claim, must be made by statement of claim that conforms with Rules 4.02(4) and 4.03(5), of Rule Action, or statement of defence that conforms with Rule 4.05(4) of Rule 4. (2) The following additional rules of pleading apply to all pleadings in an action: (a) description of person in pleadings must not contain more personal information than is necessary to identify the person and show the person’s relationship to claim or defence; (b) claims or defences may be pleaded in the alternative, but the facts supporting an alternative claim or defence must be pleaded distinctly; (c) pleading that refers to material document, such as contract, written communication, or deed must identify the document and concisely describe its effect without quoting the text, unless the exact words of the text are themselves material; (d) pleading that alleges notice is given must state when the notice was given, identify the person notified, and concisely describe its content without quoting the text, unless the exact words of the text are themselves material. (3) pleading must provide full particulars of claim alleging unconscionable conduct, such as fraud, fraudulent misrepresentation, misappropriation, or malice. [22] The AGC submits that the amended statement of claim gives no indication as to how they allegedly caused damages in respect to his real and personal property. [23] am unaware that Justice LeBlanc found that the original statement of claim was deficient in this respect. He described the AGC position at paragraph 13: [13] Among the alleged deficiencies identified by the Attorney General in the pleading are the absence of “material facts to explain what relevance the restraint order had on [Mr. Innocente’s] decision to sell his house or on the value of his house when he sold it in June 2002;” the lack of specifics on “what personal property was allegedly seized, or when it was returned,” or, for that matter, “what exactly, if anything, he claims happened to his personal property” during the period it was seized, or whether the claim “is based solely on the alleged deterioration and loss of value” of the personal property. [24] Justice LeBlanc went on to say at paragraph 34 that “given this lack of clarity, the plaintiff’s assertion that he is entitled to damages ... is dubious.” [25] now must look at the amended statement of claim to determine whether it offers any more detail than the original. have reviewed the amendments in paragraph through 12. find these paragraphs to be nothing more than history of the 1996-2004 legal proceedings. These paragraphs add nothing about the alleged real estate loss or the dilapidation of personal property. There is nothing stated that would answer any of the questions asked in paragraph 13 previously referenced. [26] The next amendment is paragraph 16 which states: 16. Mr. Innocente says that in 1995, the Defendant conducted an analysis of his net worth and concluded that his net worth was $750,000.00. He says that by the time the order restraining and seizing his property of June 24, 1996 was revoked, his net worth had been diminished to nothing. [27] This amounts to nothing more than bald statement without any supporting details. I conclude that the amendments add nothing to the statement of claim that was before Justice LeBlanc. [28] Civil Procedure Rule 13:03 sets out the principles governing summary judgment on the pleadings: (1) judge must set aside statement of claim, or statement of defence, that is deficient in any of the following ways: (a) it discloses no cause of action or basis for defence or contest; (b) it makes claim based on cause of action in the exclusive jurisdiction of another court; (c) it otherwise makes claim, or sets up defence or ground of contest, that is clearly unsustainable when the pleading is read on its own. (2) The judge must grant summary judgment of one of the following kinds, when pleading is set aside in the following circumstances: .... (b) dismissal of the proceeding, when the statement of claim is set aside wholly; .... (d) dismissal of claim, when all parts of the statement of claim that pertain to the claim are set aside. (3) motion for summary judgment on the pleadings must be determined only on the pleadings, and no affidavit may be filed in support of or opposition to the motion.... [29] Hamilton J.A. described the test under the former Rule 14.25 (1972) which was replaced by Rule 13.03. In MacQueen v. Ispat Sidbec Inc., 2007 NSCA 33 (CanLII) she stated at paragraph 8: All parties agree that pleading should only be struck if it is “plain and obvious” that the claim does not disclose cause of action; that the action is “obviously unsustainable.” This test was recently approved by this Court in Mabey v. Mabey (2005), 2005 NSCA 35 (CanLII), 230 N.S.R. (2d) 272 (N.S. C.A.): [13] It is well settled that the test pursuant to Rule 14.25(1)(a) is that the application will not be granted unless the action is “obviously unsustainable.” In considering an application to strike out pleading it is not the court’s function to try the issues but rather to decide if there are issues to be tried. The power to strike out pleadings is to be used sparingly and where the action raises substantial issues it should not be struck out: Vladi Private Islands Ltd. v. Haase et al. (1990), 1990 CanLII 2418 (NS CA), 96 N.S.R. (2d) 323, 253 A.P.R. 323 (C.A.). An application for variation should not be struck out unless it is certain to fail, or it is plain and obvious that it will not succeed. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the respondent to present strong defence should prevent the applicant from proceeding with his or her case: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] S.C.R. 959, 117 N.R. 321. [30] Civil Procedure Rule 13:03(1) states that statement of claim must be set aside for “any” of the three enumerated grounds. rely on the third ground to conclude that this action must be set aside because it is “clearly unsustainable when the pleading is read on its own.” [31] find that Mr. Innocente’s claim is clearly unsustainable. Accordingly his amended statement of claim is dismissed with costs to the AGC in the amount of $500.00.

Rule 13.03 – Summary judgment on pleadings, motion granted on the basis of Rule 13.03(1)(c)). While the claim discloses a possible cause of action based on the Attorney General's statutory undertakings, this alone doesn't decide the matter. The amendments add nothing by way of necessary detail to the claim, which doesn't plead sufficient material facts to comply with the Rules on pleadings (see Rule 4.02).

7_2011nssc184.txt

CANADA S. H. No. 78282 PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS and ASBESTOS WORKERS, LOCAL 116 and THE HONOURABLE LEROY S. LEGERE, The Minister of Labour and Manpower for the Province of Nova Scotia DECISION HEARD BEFORE: The Honourable Mr. Justice K. Peter Richard PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 25, 1991 (Orally) DECISION DATE: September 25, 1991 COUNSEL: Raymond F. Larkin for the Applicant Jonathan Davies for the Respondent Eric Durnford, Q.C. for the Intervenor 1991 S. H. No. 78282 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS and ASBESTOS WORKERS, LOCAL 116 and THE HONOURABLE LEROY S. LEGERE, The Minister of Labour and Manpower for the Province of Nova Scotia Respondent Richard, J. (Orally) This is matter of major concern in the construction industry in Nova Scotia. It arises from decision sometime ago, by myself in Boyd Garland v. International Union of Operating Engineers, Local 721 [1988], 85 N.S.R. (2d) 397, which was upheld on appeal. have opted to give brief oral decision to dispose of this matter, so that the parties may move further as they see fit. The Appeal Court has spoken in the Boyd Garland case and am bound by that decision. If the case is to be re‑considered, then it is proper for the Appeal Division to do that. In the first instance I have to deal with the question of whether or not certiorari lies in this case, with respect to the actions of the Deputy Minister. The whole matter arose as result of June 2, 1991 letter, addressed to Mr. Larkin and signed by Paul F. Langlois, Assistant to the Deputy Minister. No question has been raised as to whether or not Mr. Langlois was speaking for the Deputy Minister at that time, or the Minister, so nothing turns on that point. To quote from Mr. Langlois' letter: "I have conducted a check of our records and found that Local 116 is neither certified nor is party to a voluntary recognition agreement with Steen Contractors Limited. It has also been confirmed that Steen Contractors Limited is not member of the Labour Management Bureau Limited's Insulator Trade Division. Since none of these conditions have been met, there is no collective agreement binding on the parties and, consequently, no authority to make an appointment under Section 107 of the Trade Union Act." am of the view, after having reviewed the authorities, that Coopers and Lybrand v. Minister of National Revenue 1978 CanLII 13 (SCC), [1978], 24 N.R. 163 (S.C.C.), concerns an interpretion of the relevant provisions of the Federal Court Act. am more persuaded by the decisions in Morin v. Comite National, 60 N.R. (123) and in Martineau v. Matsqui Institution 1979 CanLII 184 (SCC), [1979], 30 N.R. 119, which, in my view, state the present statuts of the law with respect to an application for certiorari. refer to quotation from Morin v. Comite National, where the Court relied on the British case, Padfield v. Minister of Agriculture [1968], A.C. 997, and quoted from it as follows: The Minister in exercising his powers and duties, conferred upon him by statute, can only be controlled by prerogative writ which will only issue if he acts unlawfully. Unlawful behavior by the Minister may be stated with sufficient accuracy for the purposes of the present appeal (and here adopt the classification of Lord Parker, C.J. in the Divisional Court) (a) by an outright refusal to consider the relevant matters, or (b) by misdirecting himself in point of law, or (c) by taking into account some wholly irrelevant or extraneous consideration, or (d) by wholly omitting to take into account relevant consideration." I again refer to the letter of Mr. Langlois, where he states:" ... Local 116 is neither certified nor is party to a voluntary agreement ...". So, the Minister, in refusing to appoint an arbitrator in this case considered those two preconditions. now refer to page of the Boyd and Garland decision which is at the crux of this entire matter: In its submission Boyd argued that there are only two methods by which an employer can become bound by collective agreement and those are (1) certification and (2) voluntary recognition. In the absence of any statutory provisions, that is quite true. However, by virtue of sections 89 et seq of the Trade Union Act the legislature has provided for a rather hybrid scheme of labour relations applicable to the construction industry. One of the features of that scheme is that an employer can assign its bargaining and negotiating rights to an accredited employers\' association\'. The Labour Management Bureau is just such an association. These provisions, in effect, provide for a third method of union recognition ‑ quite apart from certification and voluntary recognition. Having entered into the agreement with the Labour Management Bureau, Boyd is clearly bound by any agreement made on its behalf'." then refer to the decision of the Appeal Division in Boyd and Garland where Chipman, J.A. stated, in part: "I accept he view of Richard, J. that the provisions of Part II establish a scheme where, in the construction industry, there is an exception to the general rule that there are only two methods by which a union can obtain bargaining rights for the employees, i.e. (a) certification and (b) voluntary recognition." On that basis, it is my finding in accordance with the tests laid out in the Morin case, that Mr. Langlois, misinterpreted point of law and thus gave rise to the review of his decision by this Court. He misdirected himself on a point of law by stating that there were only two methods by which a party can attain bargaining rights, whereas Boyd and Garland, on appeal affirmed there was a third method pursuant to Part 2 of the Act. For that reason, there is sufficient ground to grant an order of mandamus with certiorari in aid, ordering the Minister to exercise his discretion under Section 107(4) of the Trade Union Act according to law as set out in Part 2 of the Act as confirmed by Boyd and Garland. It seems to me that this removes any barrier to appointing an arbitrator to hear the subject grievance. The parties will bear their own costs on this application. J. Halifax, Nova Scotia September 25, 1991 1991 S. H. No. 78282 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, LOCAL 116 and THE HONOURABLE LEROY S. LEGERE, The Minister of Labour and Manpower for the Province of Nova Scotia RESPONDENT DECISION OF RICHARD, J.

The applicant union sought an order of mandamus with certiorari in aid, ordering the defendant Minister to exercise his discretion to appoint an arbitrator to hear a grievance. The Minister had refused on the grounds the union was neither certified nor a party to a voluntary agreement. Granting the application, that the Minister had misdirected himself on a point of law. Quite apart from certification and voluntary recognition, the union could attain bargaining rights pursuant to Part II of the Trade Union Act, which allowed an employer in the construction industry to assign bargaining and negotiating rights to an 'accredited employers' association' such as the Construction Management Labour Bureau Ltd. The Court ordered the Minister to exercise his discretion under s.107(4) of the Act according to law as set out in Part II of the Act and confirmed by the Appeal Division in Boyd & Garland.

5_1991canlii4241.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 56 Date: 20080424 Between: Docket: 1375 Kareem Almajidi and Her Majesty the Queen Coram: Lane, Jackson Hunter JJ.A. Counsel: David W. Andrews, Q.C. for the appellant Lane W. Wiegers for the Crown Appeal: From: Q.B.C. No. 31 of 2006, J.C. of Regina Heard: April 24, 2008 Disposition: Conviction Appeal Dismissed (orally) Sentence Appeal Allowed (orally) Written Reasons: April 25, 2008 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Hunter Jackson J.A. I. Introduction [1] Kareem Almajidi was charged with sexually assaulting D.K. contrary to s. 271 of the Criminal Code and also assaulting her, using a weapon, to wit a baseball bat, contrary to s. 267(a) of the Code. He was tried by a jury, which convicted him. He was sentenced to two years in a federal penitentiary plus two years probation. He appeals both conviction and sentence. [2] The evidence of the Crown consisted of D.K., her friend A.Q., and two police officers, Cst. Crumley, the main investigator, and Cst. Tunison. Mr. Almajidi testified on his own behalf. [3] In brief compass, D.K. and A.Q. testified they had been drinking during the day and continued on into the evening at local bar on October 20, 2005. At some point in the evening, D.K. met Mr. Almajidi for the first time and then left shortly thereafter to go to Mr. Almajidi's home. [4] D.K. is 35 years old. She is sex trade worker. She testified that while nothing was said about the matter, she left the bar with Mr. Almajidi thinking he wanted to pay to have sexual relations with her. [5] Mr. Almajidi is 45 years old. He was born in Iraq and has been living in Regina for approximately 13 years. He does not read or write English. He works at casual labour. He testified that it was D.K. who started talking to him, asking where he lived and, in effect, invited herself over to his home. He said he did not know that she was prostitute and, if he had known, he never would have permitted her to enter his home. [6] Upon arriving at his home, D.K. testified that Mr. Almajidi refused to pay for sexual relations and she refused to have consensual sex, at which point, according to her, he tried to force himself upon her including forcibly restraining her, removing her clothing and generally touching her body in sexual manner. She said that he began to choke her, when she then punched him in the face and choked him, and he then struck her face. When this part of the episode came to an end, she tried to make her escape, at which point she stated he struck her on the back three times with baseball bat. D.K. returned home in considerable distress and called 911. She was taken to the hospital where she was treated and also interviewed by the police. Police photos reveal fresh injuries to her face and red welt or welts on her back. When Mr. Almajidi was arrested in his home, baseball bat was seized from beside his bed. [7] According to Mr. Almajidi, D.K. forcefully demanded money for sexual relations. When he refused to pay, she struck him, at which point he threw her out of his house. Police photos reveal injuries to his face, which appear to be of less significant nature than the ones showing in the pictures of D.K. III. Conviction Appeal [8] D.K.’s testimony at trial differed from what she said at the preliminary inquiry on number of matters. She also testified as to some matters that were contradicted by her friend, A.Q., and by the police. On the specific question of these inconsistencies, the trial judge instructed the jury: Did the witness' testimony seem reasonable and consistent as she or he gave it? Is it similar to or different from what other witnesses said about the same events? Did the witness say or do something different on an earlier occasion? Do any inconsistencies in the witness' evidence make the main points more or less believable and reliable? Is the inconsistency about something important or minor detail? And that's quite relevant in this case. Does it seem like an honest mistake? Is it deliberate lie? Is the inconsistency because the witness said something different, or because she or he failed to mention something? Is there any explanation for it? Does the explanation make sense?[1] [Emphasis added.] He continued: There were discrepancies in [D.K.’s] testimony. And these are matters that you will have to consider between her Testimony-In-Chief, and in Cross- Examination and her evidence at the preliminary inquiry. And bear in mind my initial instructions on the credibility of witnesses and how you deal with the discrepancies. Some of these, and I'm not going to review them all, but some of the discrepancies include: 1. the time they went to the Jolly Roger. 2. whether they consumed liquor prior to their attendance at the Jolly Roger. 3. the amount of liquor that they consumed at the Jolly Roger. 4. the amount of money she demanded for sex. 5. Whether she grabbed Kareem by the throat. Those were some of them.[2] [9] The appellant makes two main arguments in relation to the jury charge. First, he argues that the trial judge should have addressed the jury further with respect to the various types of inconsistencies and contradictions, explained their significance and related them to the position of the defence. On this point, appellant's counsel cites McWilliams' Canadian Criminal Evidence,[3] and the need not simply to point out an inconsistency with no further direction. [10] Secondly, appellant\'s counsel argues that the trial judge should have mentioned these additional inconsistencies or discrepancies: 1. While the complainant indicated that she bruised easily, there were no bruises on her neck to corroborate her statement that she was choked while on the bed; 2. At the preliminary inquiry, the complainant said that she choked the accused, but at trial denied that she had done so until the preliminary hearing transcript was read her at which point she conceded that "it could be possible;" 3. The complainant testified that she punched the accused in the nose and that he bled on her right hand and arm and possibly on her shirt or jacket, and that she told the police that this had occurred. Cst. Crumley, however, testified they were not told that and if they had been so advised, they would have asked the identification unit to collect evidence and take pictures; 4. The complainant testified she told the police she left sock at the appellant's home but, again, Cst. Crumley has no notes indicating this was told to her as it would have been something that she would have attended to; 5. While the complainant testified the accused used force to pry her legs apart, there were no bruises on her legs; 6. At the preliminary inquiry, the complainant testified that he used both hand and his legs to spread her legs apart, but at trial made reference only to legs; 7. D.K. said she was able to identify the accused by means of photo line-up, but in fact she was unable to do so and the accused was arrested solely by virtue of the fact she remembered the address of his home. [11] With respect to the five discrepancies that the trial judge did identify for the jury, the appellant's counsel asserts that these were not adequately addressed by the trial judge in his charge. For example, the appellant's counsel argues that the trial judge's reference to "the time they went to the Jolly Roger" should have been related to the issue of how long the complainant had been consuming alcohol before the encounter with his client, which goes to the question of her ability to recall. similar comment is made in relation to the quantity of alcohol consumed during the day and at the bar with the point being that if D.K. had consumed the seven drinks that she mentioned in two hour timeframe her degree of intoxication would have been considerably greater and her ability to assess facts and recall them would have been affected. [12] In my respectful view, however, these arguments do not give rise to grounds for intervention. While there is general obligation on the trial judge to instruct the jury by reviewing the evidence and addressing inconsistencies, how the obligation is fulfilled will vary from case to case. There can be no absolute rule or formula giving rise automatically to new trial. Much depends on the context of the whole of the trial and such matters as the nature of the inconsistency, whether the witness can be said to have sufficiently addressed it and whether it goes to the essence of an element of the offence charged. This is precisely what take the trial judge to have said to the jury when instructing them as to how they should consider the inconsistencies in this case. [13] Once Mr. Almajidi testified, identity, place and time were admitted. That an altercation of some sort took place was also admitted. The inconsistencies identified by counsel have to be weighed by this Court in light of this and according to their impact on the fundamental questions that the jury had to decide, i.e., whether the touching was of sexual nature without consent and whether the appellant struck D.K. with baseball bat. [14] This was short trial lasting parts of two days with the Court ending early on both days. On the third day, counsel addressed the jury in the morning and the trial judge charged them in the afternoon. Trial counsel's address was exceptionally thorough as had been his cross-examination of the complainant. He advised the jury that the complainant's testimony would not stand up under scrutiny and had not stood up under scrutiny, and that his purpose was to draw inconsistencies to their attention, of which he said there were many.[4] He canvassed what he advised the jury to be some 14 inconsistencies, either between the complainant's testimony at trial and her testimony at the preliminary inquiry, or inconsistencies between her testimony and that of her friend, A.Q., with whom she lives, and other lapses of memory such as the blood on her body and the missing sock. [15] Crown counsel, in his turn, also addressed the fact of the inconsistencies in the complainant's testimony, reminding the jury as to the length of time the complainant had been cross-examined at the preliminary inquiry and at trial, and that there had been lapse of time of almost 18 months between the alleged incident and the trial, urging the jury to move past the inconsistencies and decide the two questions in the case which were whether she had been sexually assaulted and assaulted with bat. [16] The danger the trial judge faced in drawing the jury's attention to the inconsistencies would have been the necessity of drawing their attention to that which significantly corroborated D.K.’s testimony: (i) she arrived home with fresh injuries on her face and back and her immediate response was to call 911; (ii) A.Q. corroborated that she was in pain and she was distraught; (iii) the police officer testified to fresh injuries and the extent that she was distraught; (iv) the police received call to attend at the General Hospital at 9:32 p.m., which corroborated the general timeframe of the incidents as stated by the complainant; and (v) the police seized baseball bat from the appellant's home. Other matters must have been plain to the jury such as the fact that D.K., in spite of all the inconsistencies, never wavered from her central testimony, which was Mr. Almajidi touched her sexually without her consent and he struck her with baseball bat. [17] As to the potential role of counsel’s submissions on the trial judge’s obligation to charge the jury, note that in R. v. MacKinnon[5] Doherty J.A. wrote: ... Counsel's closing cannot relieve the trial judge of his obligation to ensure that the jury understands the significance of the evidence to the issues in the case. Certainly, the trial judge can consider counsel's closing arguments in deciding how to discharge his or her obligation. Reference to, or incorporation by reference to, counsel's submissions are techniques which may be used by trial judge to assist in relating the evidence to the positions of the parties on the contested issues. [18] In MacKinnon, the trial judge could not simply rely on closing arguments, but that case is factually distinct from the case at bar in that the trial judge in this case did address the issue of inconsistencies on the fundamental point albeit not as fully as counsel would have liked and the matters in issue cannot be considered to be complex. The trial judge here as well generally related the evidence of the complainant and the accused to the elements. [19] The trial judge made it clear that the jury was free to accept the submissions made by either counsel. He told them: Both counsel for Kareem and learned Crown counsel have reviewed the facts at some length and that is their responsibility and duty as trial counsel. But what they have said about the facts, based on the evidence, can either be accepted by you or rejected by you. It is for you alone to make that determination.[6] [20] While the extensive addresses are not determinative of the result of appellate review, they support the trial judge’s choice not to delve deeply into what should have been made of each of the inconsistencies. In that respect, agree with Crown counsel that R. v. Ambrose[7] is apposite. In that case, the accused were charged with murder. The allegations were based solely on circumstantial evidence. At trial, the appellants argued there were discrepancies in the circumstantial evidence capable of fostering reasonable doubt. As in the present case, appellants' counsel made complete submissions to the jury that clearly outlined his theory. In that circumstance, the trial judge referred the jury to those submissions rather than repeating them. On appeal, Spence J., for the Court, dealt with the appellants' claim that the evidence had not been related to the defence theory with these words: ... If counsel for the defence based the theory of the defence upon discrepancies in 1371 printed pages of evidence given by Crown witnesses then it was his duty in his address to outline those discrepancies. The learned trial judge was of the opinion that counsel for the defence had done so most adequately and was, therefore, think, properly of the opinion that it was neither necessary nor desirable that he should repeat the outline of those discrepancies in his charge.... To have burdened the jury with recital of discrepancies which had already been outlined in the very long and most complete address of counsel for the accused would not have served any useful purpose and might well have so confused the jury as to detract from their efficient discharge of their sworn duty.[8] [Emphasis added.] [21] mention as well that, at the outset of the trial, the trial judge provided guidance to the jurors on the issue of credibility. He forewarned them that it would be an important issue in the case before them. He further advised them that the purpose of counsel's cross-examination would be to test the reliability of the witnesses' testimony. He reminded them that he would offer them some further direction in that regard once the evidence was complete, but that fact-finding and determining issues of credibility were solely their tasks. [22] In my respectful view, the charge that followed two days later was entirely correct to the circumstances of this case. note as well that the trial judge stressed the reasonable doubt standard and he concluded his charge with the direction consistent with R. v. W.(D.).[9] [23] After the charge, counsel pointed out three factual errors that the trial judge had made during his charge, which he proceeded to correct. Indeed, one of those errors would have reinforced in the jurors' minds that no discussion took place with respect to payment before D.K. and Mr. Almajidi got to his home. D.K. thought it was pick up, but no words were spoken to that effect by either D.K. or Mr. Almajidi before D.K. arrived at his home. No other complaints were made about the charge. [24] The purpose of appellate review is to ensure that juries are properly instructed. (See: R. v. Jacquard[10].) In my view, the charge in this case meets that standard. [25] When one assesses the case through the lens of the Yebes test[11] of reasonableness, conclude that the verdict is not unreasonable. [26] For these reasons, the appeal against conviction is dismissed. IV. Appeal from Sentence [27] Mr. Almajidi was sentenced to two years in penitentiary plus two years probation. The sentencing transcript shows that there was essentially consensus between Crown and defence as to the sentence that should be imposed. Both Crown and defence were of the opinion that period of probation would be an important addition to the period of incarceration and that, all things being equal, the federal system was considered more appropriate for the service of lengthy sentence so as to permit Mr. Almajidi access to sex offender treatment. [28] Subsequent to his sentencing, Mr. Almajidi was informed by Canada Border Services Agency, Inland Immigration Enforcement, that with sentence of two years or more, he would have no appeal against an order declaring him inadmissible to Canada. Apparently, if a sentence of two years less a day is imposed, Mr. Almajidi will be guaranteed the opportunity of appearing personally or having legal counsel represent him on his appeal of such an order. [29] The issue of whether an appellate court can take into account the effect of sentence on deportation appeal rights has arisen before in Canada. The most recent case of R. v. Leila[12] contains useful summary of other appellate cases on this issue. The jurisprudence supports the proposition that a sentence\'s unintended effect on immigration status can be a relevant factor on a sentence appeal. In Leila, the Court concluded that "the loss of the appellant's immigration appeal rights is disproportionately severe collateral sanction, which was unforeseen by the appellant and his counsel at the sentencing hearing and apparently unintended by the sentencing judge."[13] In the result, the Court reduced the appellant's sentence to one that would allow him to preserve his immigration appeal rights. The same response is appropriate in this case. [30] Thus, we would dismiss the appeal from conviction and allow the appeal from sentence. The sentence of two years is set aside, and a sentence of two years less a day imposed in its place. The probation and all other orders made by the trial judge remain in effect. [1] Charge to the Jury, p. 7, line 14 to p. 8, line 1. [2] Ibid., p. 18, lines 7-21. [3] The Hon. Mr. Justice S. Casey Hill, David M. Tanovich, Louis P. Strezos, McWilliams' Canadian Criminal Evidence, looseleaf, 4th ed., vol (Aurora, Ont.: Canada Law Book, 2007) at p. 18-69. [4] Transcript of Proceedings, vol. 2, p. 386. [5] (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.). [6] Charge to the Jury, p. 3, lines 13-19. [7] 1976 CanLII 201 (SCC), [1977] S.C.R. 717. [8] Ibid., pp. 725-26. [9] 1991 CanLII 93 (SCC), [1991] S.C.R. 742. [10] 1997 CanLII 374 (SCC), [1997] S.C.R. 314 at para. 32. [11] R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168 at pp. 185-186. [12]2008 BCCA (CanLII). [13] Ibid., para.

The accused was convicted by a jury of sexual assault and assault with a weapon. He was sentenced to 2 years in a federal penitentiary plus 2 years probation. He appeals both conviction and sentence. The accused and complainant met in a bar for the first time and then went to the accused's apartment. The complainant is a sex trade worker and was of the view that the accused was prepared to pay for sex. The accused stated that he did not know the complainant was a prostitute and thought she had 'picked him up'. Upon arriving at the appellant's home, he refused to pay for sex and the complainant refused consensual sex, at which point the appellant forced himself upon her, forcibly restrained her, removed her clothing and touched her body in a sexual manner, choked her and struck her in the face. As she tried to escape, the appellant struck her three times in the back with a baseball bat. The appellant argues there were two problems with the jury charge: 1) that the trial judge should have addressed the jury further with respect to the various types of inconsistencies and contradictions in the complainant's testimony and explained their significance, and 2) the trial judge should have mentioned a number of additional inconsistencies. HELD: Appeal against conviction dismissed. The issues with the jury charge do not give rise to intervention by this Court. While there is a general obligation on the trial judge to instruct the jury by reviewing the evidence and addressing inconsistencies, how the obligation is fulfilled will vary from case to case. There is no absolute formula automatically giving rise to a new trial. Much depends on the context of the whole trial and such things as the nature of the inconsistency and whether it goes to the essence of an element of the offence. The trial judge's charge was entirely correct in the circumstances of this case. Appeal against sentence is allowed and a sentence of 2 years less 1 day is substituted. The sentence imposed by the trial judge was based on a consensus between the crown and defence counsels. Both were of the view that a sentence in the federal system was more appropriate since it would permit the appellant to access sex offender treatment. After sentencing, the appellant, who is an immigrant, was informed that with a sentence of 2 years, he would have no appeal against an order declaring him inadmissible to Canada. If a sentence of less than 2 years is imposed, he will be guaranteed the opportunity to appear personally or by counsel on his appeal of such an order. The jurisprudence supports the proposition that a sentence's unintended effect on immigration status can be a relevant factor on sentence appeal.

5_2008skca56.txt

J. 1993 S.N. 09208 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN ‑and- JOHN ALEXANDER PARR, CECIL JAMES KEEPING, BARBARA JEAN KEEPING, BRIAN WILLIAM DEMPSEY, JOSEPH ALEXANDER CAMPBELL, ALERT GEORGE MUISE, LAUCHIE FREDERICK CAMPBELL, JOHN WILLIAM OLIVER, ANITA MARIE O’CONNELL, KELLY FLORENCE CAMPBELL, RAYMOND GEORGE MUISE Applicants Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on January 27, 2008. DECISION Heard Before: Justice Robert MacDonald in Chambers Date Heard: October 11 and 12, 1994 in Sydney, Nova Scotia Written Decision Released: November 9, 1994 COUNSEL APPLICANTS William Burchell John Parr John W. Morgan Cecil James Keeping David Raniseth Barbara Jean Keeping Nash Brogan Brian William Dempsey John MacDonald Joseph Campbell Anthony Magliaro John Oliver M. Joseph Rizzetto Albert Muise Art Mollon Anita O’Connell Mary Francis Roach MacDonald Kelly Campbell Darcy MacPherson Lauchie F. Campbell David Campbell Raymond George Muise CROWN RESPONDENT James Martin Her Majesty the Queen Federal Crown Attorney Ban on Publication concerning the charges in this case was placed by Preliminary Inquiry Judge to continue until commencement of trial. Therefore any content of this file which quotes or reveals evidence contained from the Preliminary Inquiry is banned from publication and so will continue until the date of trial. This is an application by way of certiorari to quash the committal order of the Honourable Judge Matheson, Provincial Court Judge against the above named defendants. The defendants are charged that they: "Between the first day of June, 1993 and the 15th day of July, 1993, at or near New Waterford and elsewhere in the Province of Nova Scotia, did unlawfully conspire together the one with the other or others and with persons unknown to commit the indictable offence of trafficking in narcotic, to wit: cocaine, contrary to Section 491 of the Narcotic Control Act, thereby committing an offence under Section 465(1)(c) of the Criminal Code of Canada." All the accused elected trial by Judge and Jury and Preliminary Inquiry was held during seven days between March 27th and April 8th, 1994, after which the learned Judge committed all accused to stand trial. BACKGROUND [This paragraph contains evidence from the Preliminary Inquiry and, thus, has been redacted.] [This paragraph contains evidence from the Preliminary Inquiry and, thus, has been redacted.] The intercepts formed the background of the charges against the accused. I'll come back to them. The powers and jurisdiction of Judge holding Preliminary Inquiry are largely controlled by the following Criminal Code sections: "Section 537.[465] (1) justice acting under this Part may (I) regulate the course of the inquiry in any way that appears to him to be desirable and that is not inconsistent with this Act." "Section 540.[468] (1) Where an accused is before justice holding preliminary inquiry, the justice shall (a) take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross‑examine them..." "Section 541. [469] (1) When the evidence of the witnesses called on the part of the prosecution has been taken down and, where required by this Part, has been read, the justice shall address the accused as follows or to the like effect: Having heard the evidence, do you wish to say anything in answer to the charge or any other indictable offence, in respect of the same transaction, founded on the facts that are disclosed by the evidence? You are not bound to say anything, but whatever you do say will be taken down in writing and may be given in evidence against you at your trial. You must clearly understand that you have nothing to hope from any promise of favour and nothing to fear from any threat that may have been held out to you to induce you to make any admission or confession of guilt, but whatever you now say may be given in evidence against you at your trial notwithstanding the promise or threat. (2) Where the accused says anything in answer to the address made by the justice pursuant to subsection (1), his answer shall be taken down in writing and shall be signed by the justice and kept with the evidence of the witnesses and dealt with in accordance with this Part. (3) When subsections (1) and (2) have been complied with, the justice shall ask the accused if he wishes to call any witnesses. (4) The justice shall hear each witness called by the accused who testifies to any matter relevant to the inquiry, and for the purposes of this subsection, section 540 applies, with such modifications as the circumstances require." "Section 548. [475] (1) When all the evidence has been taken by the justice, he shall, (a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or (b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction. (2) Where the justice orders the accused to stand trial for an indictable offence, other than or in addition to the one with which the accused was charged, the justice shall endorse on the information the charges on which he orders theaccused to stand trial. (3) The validity of an order to stand trial is not affected by any defect apparent on the face of the information in respect of which the preliminary inquiry is held or in respect of any charge on which the accused is ordered to stand trial unless, in the opinion of the court before which an objection to the information or charge is taken, the accused has been misled or prejudiced in his defence by reason of that defect." An application for certiorari is an inquiry on the record of the lower tribunal. The Criminal Code, makes it clear that Judge of the Provincial Court entered upon the Preliminary Inquiry, with jurisdiction. The question before me is whether or not the jurisdiction was exceeded, or lost during the course of the Inquiry. The applicants argue that the Honourable Judge Matheson, exceeded or lost his jurisdiction for one or more of the following reasons, which are adopted essentially from the Respondent's brief, but believe cover all the points of argument brought before me by the Applicants: "that the learned Provincial Court Judge exceeded or lost jurisdiction during the course of the preliminary inquiry by: (a) failing to allow cross‑examination of the affiant to the authorization on his supporting affidavit, (b) by allowing the accused to leave the courtroom during the course of the inquiry (c) committing the accused to stand trial when there was insufficient evidence to do so, (d) that the learned Provincial Court Judge was biased against the accused, (e) that the learned Provincial Court Judge denied Lauchie Campbell his right to counsel (f) that the learned Provincial Court Judge denied Lauchie Campbell his right to make full answer and defence. (g) that actions of the learned Provincial Court Judge constituted denial of natural justice (h) that there was not sufficient evidence of the identification of Barbara Keeping." ABSENCE OF ACCUSED FROM THE COURTROOM, AND OPPORTUNITY TO CROSS EXAMINE. Section 540(1) (a) states: (1) Where an accused is before justice holding preliminary inquiry, the justice shall (a) take the evidence under oath, in the presence of the accused, of the witnesses called on the part of the prosecution and allow the accused or his counsel to cross‑examine them; ..." There is some evidence that would indicate the accused came into and went out of the courtroom from time to time at their own volition. This is not surprising considering that there were eleven defendants, eleven counsel, court officers et cetera in the courtroom. Without prisoner's box, there is no way, that the presiding Judge could control this traffic, and at the same time carry on with his Inquiry. At page 73 of the transcript, the Crown made this comment to the court: "Your Honour Mr. Burchell and his client (John Parr) are not in court. am concerned about that, one or the other should at least be here." few minutes later Mr. MacPherson counsel for Lauchie Campbell arrived and indicated to the court that Mr. Parr chose to remain just outside the courtroom. During the debate that followed, it was alleged, that the learned judge was prejudiced; there was so some argument about adjournments of the Prelimiary Hearing. In v. Garofoli 1988 CanLII 3270 (ON CA), 1988, 41 CCC (3d) 97, Martin, J.A. quotes Mr. Justice Brooke in v. Tzimopoulos as follows: "An accused person should not be able to thwart the rights of others in society by deliberately absenting himself from his trial. Balancing his rights against those of others and of society with respect to the trial it is fair that the trial proceed and, indeed, in my opinion, it offends basic principle of fundamental justice if the trial must be aborted because the appellant absconds." [My emphasis] The effect of one absconding, or just absenting himself, is the same insofar as the progress of the hearing is concerned. The case quoted from above, was trial. This application, is from Preliminary Inquiry, created for the purpose of ascertaining whether or not there is sufficient evidence in the hands of the prosecutor, to require the accused to be committed for trial. It also has second purpose, which was emphatically argued before me, that it was for the further purpose of disclosure. Whether that is so or not, both reasons for the Preliminary Inquiry, are for the benefit of an accused, if he chooses to sit it out in the ante room of the court, then that should be "presence" enough to satisfy Section 540. There is also Section 544, which permits justice to carry on an Inquiry when an accused has absconded and permits the accused's counsel to carry on with the proceedings. Whether there is evidence of absconding, or simply absence, does it make any real difference? In my opinion, there was not in this regard, and in these circumstances any breach of mandatory provision of the Criminal Code. believe there was ample opportunity for all counsel to cross examine witnesses called by the Crown. Corporal MacQueen, was cross examined by Mr. Brogan, Mr. Raniseth, Mr. Iannetti, Mr. Morgan and Mr. MacPherson. Other counsel for the defendants, insofar as can see, had no question for the Crown witnesses, and did not wish to make questions when asked. If there were any limitations placed on the cross examining, it was within the jurisdiction of the learned Judge and it was in the exercise of that jurisdiction that the learned Judge placed these limitations. It is not for this court, on certiorari, to interfere with the exercise of the Judge's decisions within his jurisdiction. BIAS Following the argument over the absence of Mr. Parr. from the courtroom, an argument ensued between various counsel and the learned Judge, in which an allegation of prejudice was made against the Judge. Although the transcript indicates that statements were made by the learned Judge which perhaps would have been better unsaid, upon the reading of the whole of the transcript, such statements did not in my opinion inhibit or intimidate counsel and the inquiry went on for further five days. In my opinion there was no loss of jurisdiction. INTERCEPTED TELEPHONE CALLS [This paragraph contains evidence from the Preliminary Inquiry and, thus, has been redacted.] [This paragraph contains evidence from the Preliminary Inquiry and, thus, has been redacted.] Corporal MacQueen at page 155 (Volume 1) of the transcript: [This paragraph contains evidence from the Preliminary Inquiry and,thus, has been redacted.] [This paragraph contains evidence from the Preliminary Inquiry and, thus, has been redacted.] IDENTIFICATION Certain counsel argued that their clients had not been properly identified. Section 548 (1)(a) and (b) state: [475] (1) When all the evidence has been taken by the justice, he shall (a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or (b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction." [my emphasis] "If in his opinion", this places the jurisdiction over committal for trial in the hands of the Judge of the Preliminary Inquiry. His opinion dominates, providing he has some evidence, which he considers sufficient, to place the accused on his trial. It is not for the Chambers Judge to second guess the Judge of the Preliminary Inquiry, as long as there is some evidence. On all the evidence, and against the background of the intercepted telephone calls, there is some evidence pertaining to identification, which justifies the learned Judge's committal in this respect. SUFFICIENCY OF EVIDENCE Whether or not there is sufficiency of evidence against the accused to commit them or any of them for trial on the conspiracy charge, is matter within the jurisdiction of the Judge of the Preliminary Inquiry. It is to be determined by the exercise of his opinion. If the Court of Review can find some evidence upon which the judge could form the opinion that is sufficient to an extent that jury could reasonably find an accused guilty of conspiracy, then the Reviewing Court should not speculate further, the committal should be confirmed. MANDATORY STATUTORY PROVISIONS Section 541 dictates what the Judge of the Preliminary Inquiry will do following presentation of all the evidence called by the prosecution. On page 398 to 401 of the transcript, the following exchanges took place: “THE COURT: was just going to exclude ah Lauchie Campbell and ah..is it Mr. Oliver...ifs Keeping.? Yes it's Cecil James Keeping., Oliver and Keeping maybe seated. MR. RANISETH: Your Honour with respect to my client would ah like... THE COURT: Exclude her too? MR. RANISETH: Yes. THE COURT: And that is? MR. RANISETH: Mrs. Keeping. THE COURT: Yes, Barbara Keeping. MR. MARTIN: Alright, Your Honour, just wish to confirm the particular individuals for which your reading the address... MR. MACPHERSON: Excuse me, there maybe some confusion here...it was my understanding that Your Honour excluded Mr. Campbell...but he's not being addressed at this point, is that correct? THE COURT: Lauchie Campbell is not no. MR. MARTIN: John Oliver is. THE COURT: John Oliver is. MR. MARTIN: Thank you, Your Honour. THE COURT: I'll go back over them again. John Parr, Albert Muise, John Oliver, Raymond Muise, Joseph Alexander Campbell, Brian William Dempsey, Kelly Campbell and Anita O’Connell. I'm going to address all of you and then ask you some questions individually through your counsel. So, ask you not to respond until your counsel responds. Having heard the evidence do you wish to say anything in answer to the charge or any other indictable offence in respect to the same transaction founded on the facts that are disclosed by the evidence. You are not bound to say anything, but whatever you do say will be taken down in writing and maybe given in evidence against you at your trial. You must clearly understand that you have nothing to fear from any threat that may have been held out to you to induce you to make any admission or confession of guilt. But whatever you now say maybe given in evidence against you at your trial notwithstanding the promise or threat. Ah John Alexander Parr do you wish to say anything? MR. BURCHELL: Nothing to say, Your Honour. THE COURT: Do you wish to call any witnesses? MR. BURCHELL: No evidence to call Your Honour. THE COURT: commit him to stand in the Supreme Court before Jury. Albert Muise. MR. MUISE.: My counsel is not present, Your Honour. THE COURT: Yes? MR. MUISE.: My counsel is not present. THE COURT: appreciate that. Do you wish to say anything? MR. MUISE.: No Your Honour. THE COURT: Do you wish to call any evidence? MR. MUISE: No Your Honour. THE COURT: commit you also to stand trial ah before the Supreme Court with Judge and Jury. Ah John William Oliver. You're without counsel today too? Page 400 MR. OLIVER: Yes Your Honour. THE COURT: Do you have anything you wish to say? MR. OLIVER: Nothing. THE COURT: And do you wish to call any evidence? MR. OLIVER: No Your Honour. THE COURT: commit you to stand trial in the Supreme Court before Judge and Jury. Ah...Raymond Muise. MR. IANETTI: Raymond Muise has nothing to say, Your Honour, and he has no witnesses to call, but will make submission on his behalf on the issue of committal. THE COURT: commit him to stand trial in the Supreme Court...did you have submission to make? MR. IANETTI: Yes did your Honour, will. THE COURT: Well I'll come back to you. If any counsel have submissions to make, I'll hear you, and interrupt me and ask for the right to speak. Ah..Joseph Alexander Campbell? BY DEFENCE: Ah, nothing at this time, Your Honour. THE COURT: Very good, commit him to stand trial in Supreme Court before Supreme Court Judge and Jury. Ah..Brian William Dempsey. MR. BROGAN: He has nothing to say Your Honour, no witnesses. THE COURT: commit him to stand trial before the Supreme Court Judge and Jury. Ah, Kelly Campbell. Kelly Campbell is she here. MS. MACDONALD: Yes, she is standing at the back Your Honour. THE COURT: Oh there she is, and your acting for Kelly Campbell.. Does she wish to say anything or call any evidence? MS. MACDONALD: Well Your Honour there are few..or no evidence, but there are some comments would want to make. THE COURT: You want to make..well I'll ask you to hold them for now, you maybe seated Miss. Campbell. And Anita O’connell. ah Mr. Mollon? MR. MOLLON: No evidence, no witness being called at this time Your Honour, no argument. THE COURT: commit here to stand trial in the Supreme Court before Judge and Jury. So we have to hear from ah Mr. lanetti for Raymond Muise and we have to hear from Miss MacDonald, and then we have the other three remaining..." As interpret that somewhat confused exchange, Section 541(1) was read to the following and they were committed for trial: John Parr, Albert Muise, John Oliver, Raymond Muise, Joseph Campbell, Brian Dempsey, Kelly Campbell and Anita O’Connell. Excluded from the reading of Section 541(1) were Barbara Keeping, Lauchie Campbell and James Keeeping (page 398, Volume II of the transcript). On subsequent day, on page 286 of my transcript (the pages of which were badly mixed up and out of sequence) the following appears: "THE COURT: Mrs. Keeping,, would you stand please? read to you yesterday about your opportunity to speak and so on. Do you wish to say anything? MR. RANISETH: We have no statement to make, but we..we do wish to make submission." and on page 288: "THE COURT: I'm satisfied that on the whole of the evidence Barbara Keeping should be committed to stand trial and so commit her..." This was after the calling for examination of couple of witnesses on behalf, believe, of Barbara Keeping, Lauchie Campbell and James Keeping. Judge Matheson did not address these accused as set out in Section 541(1), the day previous, when he did address the accused in those words, he excluded the Keepings and Laurie Campbell. The question now before me, is whether the above quotes are "to the like effect" of the address required under Section 541. [Emphasis added] The learned Judge having specifically excluded the Keepings and Laurie Campbell from the reading of Section 541(1), cannot bring them back under this mandatory requirement by simply reminding them that they heard it read yesterday. Neither do believe the words "your opportunity to speak out and and so on" are to the "like effect" of the words of Section 541(1). The avoidance of the literal formality of the required reading of Section 541 should not be so easily accomplished. In my opinion the learned Judge neglected the mandatory requirements of Section 541 in respect to Barbara Keeping and Cecil James Keeping and Lauchie Campbell and their committal for trial should therefore be quashed. In summary then, the committals of the following are confirmed: John Parr, Albert Muise, John Oliver, Raymond Muise, Joseph Campbell, Brian Dempsey, Kelly Campbell and Anita O’Connell; and the committal of Barbara Keeping, Cecil, James Keeping and Lauchie Campbell are quashed. ROBERT MACDONALD

This is an application by way of certiorari to quash the committal order of the preliminary inquiry judge. Quashing three of the 11 committals, that the judge failed to follow the literal formality of s. 541(1) of the Criminal Code. After specifically excluding the three from the reading of s. 541(1), the judge simply reminded them they had heard the reading on the previous day. The jurisdiction of the preliminary inquiry judge was also discussed.

3_1994canlii8808.txt

2002 SKQB 207 D.I.V. A.D. 1999 No. 678 J.C.R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: CONNI LYNN (CUSTER) FRANKLIN and TOD MASON CUSTER RESPONDENT Mary Lou Senko for the petitioner Lynda D. Bordessa for the respondent FIAT BALL J. May 15, 2002 [1] The respondent father applies to vary a consent order dated April 5, 2001, by reducing his required child support payments from $236.00 per month to $19.00 per month. The consent order was granted one month after the respondent had quit his employment at Lilydale Foods in Wynyard. Although he remained unemployed, the respondent agreed to pay child support based upon an imputed annual income of $17,386.00, which is what he had been earning at Lilydale Foods. [2] The material indicates that the respondent’s circumstances have changed since April of 2001. First, he is now employed as tow truck driver, and says that he is earning an annualized income of only $7,510.00. Second, following the consent order he purchased a one-half ton truck on which he has been making payments of $624.00 per month. Third, he is no longer residing with his girlfriend, with whom he shared expenses. The second and third of these “changed circumstances” do not justify any reduction in his child support obligations. [3] Income should not be imputed to a payor based on former employment that is no longer available or practicable. (See: Magee v. Magee (1997), 1997 CanLII 11187 (SK QB), 159 Sask. R. 223 (Q.B.). The respondent says that he quit his employment at Lilydale Foods, which involved shift work and weekends, so that he could exercise access to his children. Given that he agreed to pay child support based upon imputed income from his former employment, either he expected to earn comparable income elsewhere (failing which he could return to Lilydale Foods), or he quit to avoid his child support obligation. [4] The real issue is whether the respondent is intentionally underemployed or unemployed within the meaning of s. 19(1)(a) of the Federal Child Support Guidelines (SOR/97-175, as am.). I cannot decide that issue on the basis of the material filed. do not know if his former employment remains available or practicable or what efforts he has made to secure alternate employment. [5] I am therefore directing a trial of the issue of whether the respondent is intentionally underemployed to be held before me on a date to be set by the local registrar in consultation with counsel. The onus will be on the respondent to establish that his current employment is commensurate with his ability, experience, training and the market place in which he resides.

FIAT. The father applied to vary the April 2001 consent order, granted 1 month after he quit his employment, by reducing monthly child support payments from $236 to $19. He agreed to pay support based on an imputed annual income of $17,386, although he remained unemployed. HELD: A trial of the issue was directed, as it could not be decided on the material filed whether he was intentionally unemployed or underemployed. The father's circumstances had changed since the consent order. The fact he no longer resided with a girlfriend and was making payments on a truck did not justify any reduction. Income should not be imputed based on former employment that is no longer available or practicable.

d_2002skqb207.txt

nan S.C.C. No. 02702 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S.; Hallett and Chipman, JJ.A. BETWEEN: GLENN BRIAN BOURGEOIS and HER MAJESTY THE QUEEN Respondent The Appellant in Person Gordon S. Gale, Q.C. for the Respondent Appeal Heard: November 24, 1992 Judgment Delivered: November 26, 1992 THE COURT: Appeal dismissed from sentences to be served consecutively of four years (armed robbery) and one year (weapons) per reasons for judgment of Clarke, C.J.N.S., Hallett and Chipman, JJ.A. concurring. CLARKE, C.J.N.S.; The appellant, Mr. Bourgeois, was charged with two offences. The first, generally known as armed robbery, was contrary to s. 343(d) of the Criminal Code which reads: 343. Every one commits robbery who ... (d) steals from any person while armed with an offensive weapon or imitation thereof. The maximum penalty is imprisonment for life (s. 344). The second offence, generally called unlawful use and possession of firearm, was contrary to s. 85(1)(a) of the Code which provides: (1) Every one who uses firearm (a) while committing or attempting to commit an indictable offence, ... whether or not he causes or means to cause bodily harm to any person as result thereof, is guilty of an indictable offence and liable to imprisonment... The minimum penalty in the case of first offence is not less than one year and the maximum is not more than fourteen years (s. 85(1)(c)). The circumstances arose from an armed robbery at store at Halifax. Both counsel for the Crown and the defence informed the trial judge that around 4:30 o'clock in the afternoon of the day of the robbery, Mr. Bourgeois was involved in conversation about the use of gun in the robbery of store in concert with another person. Mr. Bourgeois was in the store when the armed robbery occurred about 6:00 o'clock in the same afternoon, by another person, known to Mr. Bourgeois, entering the store masked and carrying hand gun. Later the hand gun used in the robbery and kit bag containing the clothes of the masked robber were found in Mr. Bourgeois' possession. Mr. Bourgeois pled guilty to each of the two offences with which he was charged. He was represented by lawyer who spoke on his behalf. He was sentenced to four years imprisonment for the armed robbery and one year for the weapons offence, to be served consecutively. Thus the total period of imprisonment is five years. In addition the trial judge imposed an order prohibiting Mr. Bourgeois from having possession of firearms, ammunition and explosives for ten years from the date of his release, as is provided by s. 100(1) of the Criminal Code. Mr. Bourgeois was 21 years old and the parent of one child when these offences were committed. He had prior record of several convictions, including dispositions entered by the Youth Court. He was on probation when the present offences occurred. This is an appeal against the sentences imposed by the trial judge. Although Mr. Bourgeois submits there were extenuating circumstances in his favour that should have detracted from his conviction, there is nothing that this court can do about that. He was represented by counsel. He pled guilty. After hearing the submissions made by Mr. Bourgeois' lawyer, and before he was sentenced, the trial judge gave Mr. Bourgeois an opportunity to make any further representations he wished. The record indicates none were made. That his counsel understood the law that made Mr. Bourgeois party to the offences is evidenced by his observation to the trial judge when he said: "... Mr. Bourgeois is technically guilty of the two charges even though he was not actually the person who was holding the gun." (Transcript, p. 9) The court has carefully reviewed the record in this matter and considered the submissions that have been made by both Mr. Bourgeois and counsel of the Crown. The trial judge considered the serious nature of the offences and the necessity of deterring this kind of criminal conduct. He took into account, as mitigating factor, that Mr. Bourgeois had pled guilty at "virtually the first opportunity". The lawyers for both Mr. Bourgeois and the Crown jointly recommended that the court impose sentences of three to four years for the armed robbery and one year for the weapons offence. Section 85(2) of the Criminal Code mandates the sentence for the weapons offence "shall be served consecutively". The trial judge, after reviewing the circumstances of the offences and the principles of sentencing applicable to them, accepted the recommendations advanced to the court and imposed the sentences which are now under appeal. In doing so, he committed no error. The sentences are consistent with the range that this court has approved in many of its judgments where armed robbery and weapons violations have occurred. These are crimes of violence where strongly deterrent sentences must be imposed. While granting leave to appeal, I would dismiss the appeal for the reasons given. C.J.N.S. Concurred in: Hallett, J.A. Chipman, J.A. This page contained graphical images which may only be viewed in the original decision. NOTICE OF APPEAL OR APPLICATION FOR LEAVE TO APPEAL (Where Accused not Represented by Solicitor) IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION (Name of Appellant) ‑versus- HER MAJESTY THE QUEEN as represented by the Attorney General Respondent Name of appellant Place of trial Name of Court (2) Name of judge Offence(s) of which convicted (2) FORM 65.07B (Rule 65.07) S.C.C. No. 02702 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: GLENN BRIAN BOURGEOIS and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: CLARKE, C.J.N.S.

The appellant contended the trial judge erred in sentencing him to four years for an armed robbery charge, one year on a weapons charge to be served consecutively and a 10 year prohibition order because there were extenuating circumstances which should have resulted in a reduction in sentence. Dismissing the appeals, that the trial judge made no errors in his considerations. The sentences were consistent with the range the Appeal Court had approved in numerous judgments.

e_1992canlii2523.txt

C. A. No. 02835 NOVA SCOTIA COURT OF APPEAL Jones, Hart and Matthews BETWEEN: CITY OF HALIFAX and OAKRIDGE CONSULTANTS LIMITED Respondent Gerald J. Goneau for the Appellant Peter A. Mclnroy for the Respondent Appeal Heard: June 15, 1993 Judgment Delivered: June 15, 1993 THE COURT: Appeal dismissed per oral reasons for judgment of Jones, J.A.; Hart and Matthews, JJ.A. concurring. The reasons for judgment of the court were delivered orally by: JONES, J.A.: This is an appeal from a decision of the Nova Scotia Municipal Board directing the City of Halifax to amend zoning map ZM‑17 for the purpose of increasing the height precinct on the property at 5222‑30 Tobin Street, Halifax to 75 feet. The property is owned by the respondent company. The property is located within an R‑3 (multiple dwelling) zone established by the city's land‑use by‑law. The existing land‑use by‑law makes the property subject to height precinct or limit of 45 feet as set out in zoning map ZM‑17. The Generalized Future Land Use Map of the M.P.S. designates this property and most of the properties in the block as "High Density Residential". The density allowed in the R‑3 zone is 250 persons per acre. The property is 3/4 of an acre and can accommodate density of 180 people. The respondent proposes to build an apartment building on the property. The present height restriction would allow six story building plus an extended roof. The property can accommodate nine story building within all existing zoning regulations except the height precinct. The respondent applied to the city for variance on the height restriction to 75 feet. The application was reviewed by the city's planning staff and favourable recommendation was made to Council. After the necessary public hearings the application was refused by Council. Only two members of Council spoke during the debate, one in opposition and one in favour. The opposing member was primarily opposed to change in the height restriction because of the residential nature of the area. The developer appealed to the Board. The Board held public hearing during which it heard several area residents opposing the change. Mr. John Hanusiak, member of the city's planning department testified as follows: "All that this application amounts to, is an increase in two floors, 20 feet, from here to that wall perhaps, in extra height. The larger development meets, and meets comfortably, every by‑law requirement of the R‑3 zone; angle controls, parking, open space, unit composition. What staff held, is that if six‑storey, plus pitched roof is deemed acceptable, under the Municipal Development Plan, as an appropriate use, then we would find it difficult suggesting, or defending decision that would say, adding two additional floors, which meet all the requirements of the by‑law, would be considered inappropriate. And that's long description. The two paragraphs that we deal with we know what the as of right is. We know that's appropriate. This is not giant leap, and not huge request, for two additional floors, building volume how it relates, how it impacts." In lengthy decision after reviewing the evidence the Board concluded: "The Board has carefully considered the policies of the M.P.S. It is the intent of the M.P.S. that residential development occur in the City of Halifax. It is the intent of the M.P.S. that specific areas be designated as High Rise Development. It is the intent of the M.P.S. that such development occur without undue impact on adjacent land use. It is the intent of the M.P.S. that the subject area is included in designated High Density Residential area zoned R‑3 with height precinct as defined of 45 feet. It is also the intent of the M.P.S. that such development would not have an undue impact on adjacent land use. The Board has made finding that the incremental affect of the amendment to increase the height precinct has minimal impact on adjacent use. Council could not refuse an as‑of-­right development on the site. Therefore, Council's decision to refuse to amend the height precinct because it would have an undue impact on adjacent land use cannot be considered to carry out the intent of the M.P.S. The Board has found no other policy of the M.P.S. which would support Council's decision not to approve the amendment. As required by Section 70(6) of the Planning Act, the Board hereby determines that the decision of Council cannot reasonably be said to carry out the intent of the M.P.S. and allows the appeal." The city has appealed from that decision. The appeal is restricted to question of law or jurisdiction. In its factum the appellant has raised the following issues: "1. The standard of review to be applied in an appeal taken on question of law. 2. Did the Board in its decision dated February 19, 1993 err in law and exceed its jurisdiction by misconstruing or misapplying the provisions of section 70(4) and 70(6) of the Planning Act.?" Sections 70(4) and 70(6) of the Planning Act provide as follows: "70(4) The Board shall determine whether the decision of the council reasonably carries out the intent of the municipal planning strategy. 70(6) The Board shall not allow the appeal unless the Board determines that the decision of the council cannot reasonably be said to carry out the intent of the municipal planning strategy." Essentially the City argues that the decision of Council was consistent with the intent of the municipal planning strategy and therefore the Board was not entitled to interfere with the decision of council. We are satisfied after a careful review of the decision that the Board did not exceed its jurisdiction in reviewing the decision of Council. It is clear from the decision that the Board carefully reviewed the relevant provisions of the Planning Act in coming to decision. In the result the appeal is dismissed without costs. J.A. Concurred in: Hart, J.A. Matthews J.A. NSMB-11-92-P NOVA SCOTIA UTILITY REVIEW BOARD This page contained graphical images which may only be viewed in the original decision. IN THE MATTER OF: An Appeal under the Planning Act, R.S.N.S. 1989, c. 346, by OAKRIDGE CONSULTANTS LIMITED from decision of the Council of the City of Halifax made May 28, 1992, which refused to approve an amendment to the Zoning Map to increase the height limit from 45 feet to 75 feet to allow the construction of 9‑storey apartment building at 5222‑30 Tobin Street, Halifax. BEFORE: MICHAEL G. JOHNSON, F.C.A., Chairman, CHARLES J. McMANUS, P.Eng., Member. COUNSEL: PETER A. McINROY, LL.B., on behalf of the Appellant, Oakridge Consultants Limited; LEANNE W. MacMILLAN, LL.B., on behalf of an Interested Party, Dr. Petra Mudie; GERALD GONEAU, LL.B., on behalf of the City of Halifax. HEARING DATE: July 2, 1992 September 23, 24, 1992. DECISION DATE: February 19, 1993. DECISION: Appeal Allowed. The Nova Scotia Municipal Board (now the Nova Scotia Utility and Review Board) first scheduled hearing of this appeal C.A. No. 02835 NOVA SCOTIA COURT OF APPEAL BETWEEN: CITY OF HALIFAX ‑and- OAKRIDGE CONSULTANTS LIMITED Respondent REASONS FOR JUDGMENT BY: JONES, J.A.

This was an appeal of a Municipal Board decision which overturned city council's refusal to allow the respondent's application to vary the height restriction on a proposed project. The proposal met all requirements of the Municipal Planning Strategy. Dismissing the appeal, that the Board did not exceed its jurisdiction in reviewing council's decision.

c_1993canlii3236.txt

THE COURT OF APPEAL FOR SASKATCHEWAN BANK OF MONTREAL (Plaintiff) APPELLANT and I.M. KRISP FOODS LTD., PIMNICO MANAGEMENT LTD., ISRAEL STEEN, REGINA BUS DEPOT LUNCH LTD., REUBEN DAVID, MARK LONDON, SID'S SUNFLOWER SEEDS (1984) LTD. (Defendants) RESPONDENTS FIRSTLINE TRUST COMPANY, (Garnishee) RESPONDENT CORAM: The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson COUNSEL: Mr. G. Melfair and Mr. R. Van Beselaere for the appellant, plaintiff. Mr. C. Hadubiak for the garnishee, respondent No one appearing for the respondent/defendant DISPOSITION: Appeal heard: November 10, 1995 Appeal allowed: October 17, 1996 On Appeal From: Q.B. 7030/85 J.C. Regina Appeal File: 2200 Reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Lane In dissent: The Honourable Mr. Justice Wakeling JACKSON J.A. find myself in respectful disagreement with my colleague Wakeling's analysis and conclusion. Whether money owed under guaranteed investment certificate (“GIC”) is debt "accruing due" under subsection 5(1) of The Attachment of Debts Act, R.S.S. 1978, c. A-32 and therefore subject to garnishment cannot be determined by reference only to garnishability of promissory notes not yet due. Other cases pertaining to similar debts must also be rationalized. It is for this reason have embarked on my own analysis and arrived at different conclusion. On December 24, 1991 Reuben David purchased from Firstline Trust Company $10,000 GIC maturing five years later. On May 4, 1993 the Bank of Montreal obtained judgment against Mr. David and others for $65,753.50. On August 11, 1993 the Bank served garnishee summons on Firstline in an effort to garnishee the money owed to Mr. David under the GIC. On August 13, 1993, Firstline responded to the summons saying "there is debt [sic] to Reuban [sic] David, by Firstline Trust Company. Mr. David has year Guaranteed Investment Certificate maturing December 24, 1996 in the amount of $10,000 with interest paid annually at 8.50%. This instrument is not cashable and therefore cannot be redeemed prior to maturity." In January 1994 Mr. David died. Pursuant to Firstline's practice, it paid $10,100.14 to Mr. David's estate. (Firstline held $850 as interest earned on the GIC as compensation for early payment.) When the Bank learned of this, it applied in Queen's Bench chambers under s.18 of The Attachment of Debts Act for judgment against Firstline in the amount of $10,100.14. The learned chambers judge dismissed the application saying there was no obligation on Firstline to pay monies into Court and therefore, no judgment could issue. The applicable statutory reference is subsection 5(1) of The Attachment of Debts Act which provides: 5(1) Service of the summons on the garnishee shall bind any debt due or accruing due from the garnishee to the defendant or judgment debtor and all wages or salary that become due or payable at any time within five days after service of the summons. Thus, to successfully enforce its judgment, judgment creditor must be able to prove "debt due or accruing due" from the garnishee to the judgment debtor. Both sides to this dispute agreed there was debt owing from Firstline to Mr. David under the GIC, but that it was not presently due. The issue was whether it was "accruing due". As preliminary matter, this judgment’s scope should be clearly delineated. The main point before this Court was consideration of Firstline's claim that the debt under the GIC was not attachable because it was not accruing due when the garnishee summons was served, i.e., that service of the garnishee summons did not “bind” the debt within the meaning of s. 5(1) of The Attachment of Debts Act. subsidiary point was raised as to whether the Court can exercise discretion to refuse garnishment. The Bank's position was that the garnishee summons was sufficient to compel payment to it on the GIC's maturity date. It did not argue for payment as of the date of service, but said service of the garnishee summons prevented Firstline from paying the GIC to Mr. David's estate. The Bank submitted there were no conditions which were required to be fulfilled to complete the obligation other than the passage of time. The GIC should have been held and paid out to the Bank, barring proof of better claim, on the GIC's maturity date. Firstline's position was that the debt owing under the GIC was not accruing due primarily because Mr. David could assign his right to payment to someone else. This right of assignment, it was argued, either prevented the debt from accruing due or made it conditional one and therefore not garnishable. It was also said garnishment should not be permitted because practical difficulties would be encountered if creditor could attach long-term GIC. These arguments require consideration of what is meant by both the phrases "accruing due" and "conditional debt". 1. Meaning of "accruing due" Few phrases have been as problematic to define as "debt due or accruing due". The Shorter Oxford English Dictionary, 3rd ed. defines "accruing" as "arising in due course", but an examination of English and Canadian authority reveals that not all debts "arising in due course" are permitted to be garnisheed. (See Professor Dunlop's extensive research for the British Columbia Law Reform Commission's Report on Attachment of Debts Act, 1978 at 17 to 29 and his text Creditor-Debtor Law in Canada, 2nd ed. at 374 to 385.) This means that when court is asked to permit garnishment with respect to type of debt not previously considered, it is necessary to make comparisons with debts arising under similar instruments. Given the long history of attachment of debts law, this exercise reveals some inconsistencies in the law which must be rationalized each time new type of debt is considered. In addition, although Canadian authorities refer to and to some extent rely upon English attachment of debts law, there are some marked departures from the English common law approach. The leading authority is Webb v. Stenton (1883), 11 Q.B.D. 518 where the Court of Appeal considered whether money held in trust for the judgment debtor was "accruing due". The Court's principal concern was whether trustee who was not under duty to pay the beneficiary under the trust owed "a debt" to the beneficiary. Resolution of this issue required consideration of whether the words "accruing due" expanded the category of garnishable debts to include debt which may arise in the future. The most oft-quoted explanation of what is attachable comes from the judgment of Lindley, L.J. (at p. 527): should say, apart from any authority, that debt legal or equitable can be attached whether it be debt owing or accruing; but it must be debt, and debt is sum of money which is now payable or will become payable in the future by reason of present obligation, debitum in presenti, solvendum in futuro. An accruing debt, therefore, is debt not yet actually payable, but debt which is represented by an existing obligation. The Court held, in the result, that moneys which may or may not become payable from trustee to his or her beneficiary were not "debts". The addition of the words "accruing due" did not expand what could be considered debt, but in coming to this conclusion each judge concluded that existing debts payable in the future are attachable. Thus, if debt is in existence at the time the garnishee summons is served, it need not be presently payable to be attached. garnishee summons attaches debts payable in the future because of the phrase "accruing due". Without more, this should mean that the debt under GIC is attachable. It is clearly "debt" and, because it is payable in the future, it is "accruing due". Nonetheless, Courts have found certain debts payable in the future to be not capable of garnishment. The language used to deny garnishment usually relates to finding that the debt is conditional one and therefore not "accruing due". Here, the conditional nature of the debt under the GIC was said to arise because the right to payment could be assigned. For the sake of dealing with this argument, have assumed it to be possible to find debt to be conditional even though the parties have admitted there is debt owing. do have some difficulty with this in light of Webb v. Stenton. That case, which really is the origin of the idea of the conditional debt, considers the question of conditionality to determine whether there is debt at all and not whether an existing debt is accruing due. am however content to leave the point as nothing turns on it in this case and because of the many authorities subsequent to Webb v. Stenton which refer to separate category of debt known as conditional debt or which consider the question of conditionality to determine whether debt is accruing due. 2. Whether the assignability of GIC precludes garnishment? Paragraph of the GIC stated "it can be made assignable and transferrable any time upon completion of the form below, and with payment of the applicable fees". This, so the argument went, prevented the debt from being considered one which was "accruing due" to Mr. David because it was "conditional" upon him not having assigned the debt to third party before the maturity date. In my opinion this argument mixes two different streams of the law of garnishment the law pertaining to "conditional debts" and that dealing with the garnishability of notes. will first set forth the law in support of the proposition that note is not garnishable. Roblee v. Rankin (1886), 1884 CanLII 31 (SCC), 11 S.C.R. 137 is the starting point. The issue considered was whether an overdue note was garnishable. Of the five judges who heard Roblee, Henry J. and Gwynne J. went beyond the issue before the Court and expressed similar views about whether notes per se were garnishable. Henry J. said (at p. 152): The words of the statute are: "all debts owing by the garnishee to the judgment debtor shall be attached to answer the judgment recovered against them." Can it be for moment contended that debt is anytheless debt because it is secured and evidenced by promissory note overdue? It is not hard to appreciate the difference in such case between current note and one overdue. In respect of the former, there is really no debt due by the maker to the payee, and if endorsed to third party while current, he or some other holder would become the creditor therefor of the drawer. current note cannot therefore, be attached, or if the garnishee, as such, shall be called upon to pay the amount, such payment would be no defence to an action at the suit of an endorsee, or any subsequent holder, at all events, if the note were endorsed before falling due. Gwynne J. made similar comment (at p. 154): Now the reason why debt, secured and made payable by promissory note, is not attachable to satisfy judgment recovered against the payee while the note is still current not yet arrived at maturity is because the amount made payable by such note is not, before maturity, either debt owing by, or accruing due from, the maker to the payee within the words of the statute. The amount secured by the note, until maturity, is not debt owing by the maker and due to the payee or to any one. By the custom of merchants, which governs promissory notes, it is accruing due to the person who shall be the holder thereof at maturity, and therefore cannot be said to be accruing due to the payee, the judgment debtor, within the words of the statute. These comments were endorsed by Turgeon J.A. in McIlrath Lumber Co. Ltd. v. Shore, 1931 CanLII 254 (SK CA), [1931] W.W.R. 785 (Sask. C.A.) at p. 787: At the time the garnishee summons was served upon him the promissory note was not due. But this note is negotiable instrument. It was accruing due, not necessarily due to the defendant, but to the holder in due course at the time for payment, who might be the defendant or another person. The maker of such note who makes payment upon it to the person in whose favour it is drawn, without making sure that each person is still the holder, acts at his peril, as was illustrated recently in the case of Dealers Finance Corpn. Ltd. v. Sedgwick, decided by this Court (ante p. 598). Consequently the debt in question was not one due or accruing due to the defendant Frances E. Shore at the time of the garnishee proceedings within the meaning of The Attachment of Debts Act. Nothing in that Act can be so construed as to interfere with the incidents of promissory notes as regulated by The Bills of Exchange Act, R.S.C., 1927 c. 16. The majority of the Court in McIlrath said simply the note was not attachable because it was not yet due. McKay J.A. said (at p. 792): Considering now the objection that the note is not an attachable debt, the note not being due at the time it was attached, the weight of authority supports this contention: Jackson v. Cassidy (1883) O.R. 521; Roblee v. Rankin (1884) 1884 CanLII 31 (SCC), 11 S.C.R. 137, at 150, 152 and 154; Simpson v. Phillips (1896) Terr. L.R. 385; Halsted v. Herschmann (1908) 1908 CanLII 269 (MB QB), 18 Man. R. 103, W.L.R. 641 Lekas v. Zappas (1913) 1913 CanLII 172 (SK CA), W.W.R. 1148, Sask. L.R. 197, 23 W.L.R. 560; 14 Halsbury, 93. ..... On the authorities above first referred to on this subject, am of the opinion that the note herein referred to was not attachable. In my respectful opinion, I do not conclude that the garnishability of the debt owing under a promissory note is prevented because the debt is a conditional one and made so by reason of the possibility of assignment. None of the judgments in Roblee or McIlrath speak in terms of "conditional debt" or refer to the early leading cases pertaining to conditional debts: Howell v. Metropolitan District Railway Company (1881-1882), 19 Ch. D. 508; Heward Milling Company v. Barrett, (1909) Sask. L.R. 210 (S.C.); and Barsi v. Farcas, 1923 CanLII 175 (SK CA), [1924] W.W.R. 707 (Sask. C.A.). The first specific reference to conditional debt in the garnishment context appears in Howell where Chitty J. considered whether money owed by an authority which had expropriated land was garnishable by the land owner's creditors. The land had not yet been conveyed. The land owner had successfully sued the authority to receive the compensation, but it had not been paid nor had the land been conveyed. Chitty J. held that money due from the expropriating authority "did not constitute debt payable or accruing immediately the verdict and judgment were obtained, for the [landowner] was not entitled to the money, either at law or in equity, except on executing or tendering conveyance to the company" (at p. 515). Later, on the same page, he spoke in terms of the payment of the purchase-money being "conditional" upon the execution or tender of conveyance by the vendor: The purchase-money was not debt actually "due or accruing" within the meaning of the garnishee orders, for the right to it was conditional upon the execution or tender of conveyance by the vendor. Howell was followed in 1909 Saskatchewan case: Heward Milling Company v. Barrett, supra. In Heward contractor had abandoned construction project before completion. Monies were owed for work done, but the contract provided that the owner could take possession and complete the work, charging it against the amount due to the contractor, if the contract were to be abandoned. One of the contractor's creditors sought to garnishee the money owed to the contractor at the time of abandonment. Prendergast J. acknowledged the standard definition of what is attachable: debt payable now or in the future, and then said, referring to Howell (at p. 213): But it is not sufficient to look at the general nature of the debt itself; all the circumstances attaching to the contract creating the debt must be considered, and in Howell v. Metropolitan District Railway (1882), 51 L.J. Ch. 159, and 19 Ch.D. 508, it was held that "the true test is whether anything else has to be done by the judgment debtor as condition precedent to payment". He held that payment to the contractor was conditional upon completion of the contract and therefore could not be garnisheed. The next significant case was Barsi v. Farcas, supra. In Barsi, judgment creditor sought to garnishee money owed from the purchaser under an agreement for sale to the vendor/judgment debtor. After referring to early English authority, Lamont J.A., with whom Haultain C.J.S. agreed, defined "accruing due" in the same terms as Webb, supra (at p. 709): Under our Act, garnishee summons binds only "debt due" or "accruing due". To constitute an attachable debt, there must be an actual debt, legal or equitable, due from the garnishee to the judgment debtor. His debt must be either presently payable, or presently due though payable at future date. Then, in reliance on Howell and Heward he said the debt must also be perfected one, and not conditional. Lamont J.A. concluded (at p. 711) "it follows, therefore, that debt depending upon an unfulfilled condition is not attachable". Applying this law, Lamont J.A. found the debt owed by the purchaser under the agreement for sale to be conditional because the obligation to pay was dependent upon the vendor/judgment debtor being able to show he had good title. In coming to this conclusion Lamont J.A. contrasted the position of purchaser under an agreement for sale with that of mortgagor under mortgage. He said (at pp. 712-713): In my opinion there is clear distinction between moneys due or accruing under mortgage and those under an agreement of sale. Under mortgage, the debt becomes an unconditional liability at the time fixed for payment. Under an agreement of sale, the debt at the time fixed for payment is conditional upon the vendors being able to make title, and where he has no title the purchase-money never becomes payable. As indicated, neither Roblee nor McIlrath refer to the above cases. Roblee was decided just after Howell and Barsi v. Farcas predates McIlrath. also note there is significant debate about the basis upon which promissory note is not garnishable. See Geva, "Execution Against Negotiable Instruments", in Springman and Gertner, eds., Debtor-Creditor Law: Practice and Doctrine (1985) at 100 to 104 and Dunlop, supra at 383. This is not the case to delve too deeply into the garnishability of notes, but it is clear that simply saying the assignability of note creates conditional debt is not the complete answer to the issue at hand. Since Barsi v. Farcas, the question of what constitutes condition preventing debt from being considered "accruing due" has been considered on many occasions. In furtherance of the issue, propose to look at two types of debts: (i) monies owing under contract awaiting an architect's certificate; and (ii) monies owing under term deposit. Sandy v. Yukon Construction Co. Ltd. et al. (1960-61) 1960 CanLII 276 (AB CA), 33 W.W.R. 490 (Alta. C.A.) considered whether monies owing under construction contract awaiting the architect's certificate were garnishable. In Sandy subcontractor's creditors sought to garnishee money owed to him. contract term stipulated that the amount certified by the architect to be due in respect of sub-contract work would not become payable until fourteen days after receipt of the architect's certificate. It was argued that this clause prevented the debt from coming into existence until the certificate was given. The Court had to choose between two divergent English authorities: O'Driscoll v. Manchester Insurance Committee [1915] K.B. 499 and Dunlop Ranken Ltd. v. Hendall Steel Structures Ltd. [1957] All E.R. 344. The first held that monies awaiting an architect's certificate were garnishable. The second distinguished the first on the basis of the type of building contract. The Court in Sandy did not accept the distinction. Johnson J.A., speaking for the Court, said the only time monies owing under construction contract in such circumstances would not be garnishable is "if the giving of the certificate is condition precedent to any debt coming into existence and not merely condition precedent to there being any right to receive the debt" (at p. 494). This Court approved Sandy and O'Driscoll in Prince Albert v. Diehl (1985), 1985 CanLII 2646 (SK CA), 43 Sask. R. 296 (C.A.). Prince Albert was not an architect's certificate case, but Wakeling J.A. quoted from both Sandy and O'Driscoll and concluded that to determine whether debt is "accruing due", Court must decide whether "both the debt and its payment rest in the future" (at p. 298). The second type of debt not held to be subject to condition and held to be garnishable is that arising between financial institution and the holder of term deposit. The first Canadian decision permitting the garnishment of this type of obligation was Bel-Fran Investments Ltd. v. Pantuity Holdings Ltd. and Bank of Montreal (Garnishee), 1975 CanLII 917 (BC SC), [1975] W.W.R. 374 (B.C.S.C.). In Bel-Fran, the judgment debtor deposited $725,000 with the Bank of Montreal subject to the terms of "term deposit receipt" dated January 10, 1975 and maturing April 9, 1975. When the garnishee summons was served, the term deposit had not yet matured. The term deposit receipt was not transferable. Payment would only be made upon surrender of the term deposit at the issuing branch and completion of receipt provided for that purpose. The sum of the term deposit could be withdrawn in "whole or in part subject to the bank's right to require seven days prior notice thereof". To decide whether the term deposit was garnishable, Anderson J. considered Bagley v. Winsome, [1952] All E.R. 637 (C.A.) which held that deposit account was not garnishable. The terms of the deposit account in Bagley required 14 days' notice for all withdrawals. Personal application had to be made and the deposit book produced before any money could be withdrawn. Sir Raymond Evershed M.R. considered the deposit book to be document of title to the deposit account which meant that delivery of it to third person could operate as an effective donatio mortis causa. He said the bank was entitled to insist on fulfilment of the condition requiring production of the deposit book which "may or may not be satisfied at some indefinite future time, and in the meantime the judgment creditor cannot...be in better position than the party to the contract with the bank...". Bel-Fran did not follow Bagley. Instead, Anderson J. held that term deposit not yet matured could be attached under The Attachment of Debts Act. He said the conditions of the term deposit concerned only the bank and as such were mere matters of procedure and administration satisfied by the service of the garnishing order. In addition, he stated (at p. 382): It should also be noted that the principles enunciated in Bagley are no longer applicable in the United Kingdom because deposit accounts were made attachable by Parliament after the Bagley decision was handed down. doubt whether we should introduce into Canada the common law of England which no longer applies by reason of statutory intervention. The application to set aside the garnishee order was dismissed. Although Alberta has taken somewhat different course (see Provincial Treasurer of Alberta and R. in Right of Canada v. Hutterian Brethren Church of Smoky Lake et al. (1980), 1980 ABCA 101 (CanLII), 12 Alta. L.R. (2d) 368 (C.A.)), Saskatchewan courts have followed Bel-Fran and held that term deposit is attachable. See Melville District Credit Union v. Jeffers et al., (1982) 1981 CanLII 2361 (SK QB), 16 Sask. R. 254 (Q.B.); Farm Start v. Dagenais (1983), 1983 CanLII 2142 (SK QB), 31 Sask. R. 81 (Q.B.); and Spiritwood Credit Union v. Dagenais (1985), 1985 CanLII 2368 (SK CA), 40 Sask. R. 205 (C.A.). In Farm Start Maher J. dealt with term deposit in which the withdrawal of the full amount was permitted, provided the bank was given 24 hours notice. Maher J. held that there was no question but that the term deposit was attachable as it was debt due or accruing due within the meaning of s. of The Attachment of Debts Act. In Spiritwood Brownridge J.A. found no error in Maher J.'s decision in Farm Start. The only exception is Tradewinds International Inc. v. Saskatchewan Food Processors Association and Sherwood Credit Union (Garnishee) (unreported, Queen's Bench, September 22, 1994) which was relied upon by the learned chambers judge in this case. In Tradewinds the term deposit could not be withdrawn prior to its maturity which was to occur seven days after the judgment creditor served the garnishee summons. The learned chambers judge refused judgment saying first that the creditor could not stand in better position than the debtor and secondly that the term deposit represented contractual obligation to pay money at future date and was therefore not garnishable. The first part of this reasoning has been overtaken by case law subsequent to Donohoe v. Hull Bros. (1895), 1895 CanLII 56 (SCC), 24 S.C.R. 683. (See Dunlop, supra at 377 and the many cases referred to in this judgment where garnishment was permitted even though an action could not be maintained at the point of garnishment to recover the debt.) The latter part of Tradewinds overlooked that aspect of subsection 5(1) which permits attachment of debts which are "accruing due". Tradewinds is contrary to Spiritwood and misapplies the law summarized in Barsi v. Farcas. So what are we to make of all this? The early authority shows it is not just debts which are immediately payable which are capable of attachment. Debts existing as of the moment the garnishee summons is served, but payable in the future, are garnishable. (Indeed, the words "accruing due" were added to overcome the more restrictive phrase "due and owing" (See Dunlop supra at 372)). In addition, the historical review demonstrates that there have been some gradual but significant changes in the law of garnishment as applied in this province. Given the strong obiter comments in Prince Albert and this Court's treatment of garnishment of term deposits, it would be difficult to conclude debt owing under GIC is not accruing due and therefor not garnishable. Based on the above cases, the assignability of GIC is not the type of condition which has been held to affect the determination that debt is accruing due. In those cases where condition has been found to affect debt's status as accruing due it has been certain, when the garnishee summons was served, that further condition must be fulfilled: (a) conveyance of good title Howell and Barsi; (b) completion of the contract Heward; (c) success on appeal Prince Albert. Not only must the condition be certain; the consequence of the failure to fulfill it must be the garnishee will not have to pay the debt. condition must by its nature relieve the garnishee from its obligation to pay the judgment debtor and thereby prevent the debt from accruing due. When garnishee summons is served with respect to GIC, the judgment debtor may assign it. But that is true with respect to almost every debt, even those which are accruing due in relatively short time period. The Personal Property Security Act S.S. 1993, c. P-6.2 and The Choses in Action Act R.R.S. 1965, c. 395 contemplate and provide for the assignment of contractual debts. This may be done innocently before service of copy of the garnishee summons (see: s. 5(3) of the Act) or it may be done with intent to defeat the claim of the garnisheeing party. In either case, the possibility of interests conflicting has not prevented the Courts from consistently finding that debt accruing due at some distant time is garnishable. For example, money due under mortgage may be assigned after garnishee summons is served, but that has not prevented the courts from concluding that money due under mortgage is garnishable. (See Barsi v. Farcas.) And even in those cases where the instrument precludes assignment, it does not prevent the judgment debtor from granting security interest in the debt. agree that the judgment debtor in Bel-Fran could not assign the term deposit, but do not accept that this is significant. The significant feature of Sandy and Bel-Fran, as applied in Spiritwood, is that in this jurisdiction at least, there is shift in what constitutes condition. In both the term deposit cases and the architect certificate cases it would have been open to find condition which would have prevented garnishment, but the Courts did not. In my opinion, to now say that assignment makes debt conditional resists the changes which began with Bel-Fran and, for that reason, should not be approved. In many respects concern about the possibility of assignment relates to the possible length of GIC. There have been no reported cases that have required, as condition of garnishment, that the debt be paid shortly. By its definition, as elaborated upon in this judgment, debt accruing due is one which is payable in the future. Some jurisdictions have moved to continuing garnishee which permits garnishment of debt payable within six or ten years after the notice is served (see Dunlop, supra at 392). (See also The Enforcement of Maintenance Orders Act, S.S. 1984-85-86, c. E-9.2, s. 16.) From all this conclude there is nothing inherently wrong in attaching debt payable at some distant point in the future. note also that the legislature did not impose time limit in subsection 5(1) of The Attachment of Debts Act with respect to debts accruing due, but did so with respect to wages. It is not for the Courts to impose what by its nature must be an arbitrary limit when the legislature has not done so. In summary, service of the garnishee summons did “bind” the debt owing under the GIC. To use the language of Prendergast J. in Heward Milling, supra nothing else needed to be done by Mr. David before payment was required to be made. The money was not yet payable but, like the authorities in Barsi v. Farcas would say, it was debt which was subject to no conditions other than the effluxion of time. 3. Practical Considerations affecting the Garnishment of Debts under GIC Having found the debt owing under GIC to be debt accruing due, it remains to be considered whether the Court has the authority to refuse judgment because of the difficulties which may be caused to third parties. Firstline submitted that this Court should not permit the attachment of long-term GIC because the garnishee would potentially be required to pay several years after service of the garnishee summons. For third parties there is no system of registration which would advise them attachment had occurred. Therefore, nothing prevents someone in Mr. David's position from granting security interest in the GIC or transferring it to subsequent third party. Firstline argued that it could not have been the legislature's intent to contribute to such uncertainty. There are no Saskatchewan cases on point, but in Dunlop, supra at 400 to 404, the author presented line of authority where the courts have exercised discretion in determining whether garnishee summons would issue or an order would be set aside based on factors other than whether there was debt due or accruing due. None of these cases are authority for the proposition that court could declare an otherwise garnishable debt of particular type not to be garnishable. Each case represented an exercise of discretion with respect to the particular debt and facts before the court. If the authority exists in this jurisdiction which permits court discretion to deny in particular case the garnishability of debt, this is not the case to exercise that discretion. As indicated at the outset, the Bank did not say Firstline should have paid when the garnishee summons was served. According to the Bank, it wanted to assert its claim on the maturity date. At that time the issue of priorities would be determined. Because of the early payment to the estate, we know there were no intervening claims and no priority issue arose. It would be completely inappropriate to deny judgment in these circumstances. Speaking generally, do not believe the difficulties are as great as Firstline has described. Leaving aside the effect of the GIC, which purports to require filing of the assignment form with Firstline and paying fee, issues of priority can arise not only with respect to subsequent claims but with respect to claims arising prior to service of the garnishee summons. However desirable registration of an attaching order might be, no system of registration will prevent the possibility of conflict. It is for this reason the garnishee is directed to pay the money into Court and procedure has been developed to determine priority (see: ss. 10 to 17 of the Act). Long instrument life increases the risk of conflict with third parties, but the judgment creditor also assumes some financial cost in choosing to garnishee GIC maturing far into the future. The judgment creditor's risks include the same risk of conflict and the missed opportunity to pursue quicker enforcement mechanisms, if such exist. If the judgment creditor pursues other enforcement mechanisms while attempting to garnishee the GIC debt, it increases its costs and runs the risk of paying unnecessarily those of the garnishee. There are no doubt some potential problems arising from finding that GIC is garnishable, but this cannot dictate whether or not it is covered by the statute. The possibility of future problems must be balanced with the equities between unsecured creditors and debtors. An unsecured creditor should be able to use the more efficacious attachment remedy where possible to do so. Conclusion In conclusion, the GIC was attachable pursuant to s. 5(1) of The Attachment of Debts Act. The appeal is allowed. No other issues being raised, judgment will be entered against Firstline in accordance with section 18 of that Act. Execution shall issue to levy $10,100.14, or for so much as is sufficient to satisfy the judgment against Mr. David, together with the cost of the garnishee proceedings, and costs in the usual way in this Court and in the Queen's Bench. DATED at the City of Regina, in the Province of Saskatchewan, this 17th day of October, A.D. 1996. JACKSON J.A. LANE J.A. WAKELING J.A. The issue on this appeal is whether $10,000 payable under a GIC issued by First Line Trust Company (First Line) and maturing in December of 1996 is subject to garnishee as a “debt due or accruing due” within the meaning of s. 5(1) of The Attachment of Debts Act, R.S.S. 1978 c. A-32. The issue arose in this way. The Bank of Montreal (Bank) obtained judgment in May of 1993 for $63,668.50 against number of parties including the respondent Reuben David (David). In August of 1993, the Bank served garnishee summons upon the respondent First Line seeking to attach the sum of $10,000.00 owing by First Line to David under the above described GIC. By letter to the clerk of the court dated August 13, 1993, First Line acknowledged the existence of the indebtedness but paid nothing into court because the debt was not payable until its maturity. Nothing further was done by any of the parties until after David's death in January of 1994. In the course of the administration of his estate, First Line, based on policy of that company, paid $10,100.14 to the David estate. It now continues to hold the sum of $850.00 as interest that accrued on the GIC but was not payable to the estate as consequence of its election to receive payment prior to maturity. The Bank was not party to this payment to David’s estate and in June of this year brought an application for judgment against First Line based on the Bank's contention it had attached the money owing by First Line under the GIC and payment should not have been made to the estate as it was due to the Bank on its maturity. In dismissing this application, the chambers judge relied on the fiat in Trade Winds International Inc. v. Saskatchewan Food Processors Association and Sherwood Credit Union (garnishee) (unreported September 22, 1994) in which Sirois J. stated: The garnishee summons served on the Sherwood Credit Union on June 22, 1994 did not bind any debt due or accruing due from the garnishee to the association. The term deposits were non redeemable and could not be withdrawn at anytime prior to their maturity date on June 29, 1994. The garnishee attached nothing. The debt must be either presently payable or presently due though payable at future date. Neither situation existed here: See Barsi v. Farcus [1984] W.W.R. 707. The creditor could not stand in better position than the debtor. The term deposits here seemed like contractual obligation to pay money at future date. The Plaintiff did not dispute the garnishee's position in the two months after the notice of dispute was filed, to ascertain the validity of the garnishee summons. hold that the term deposits weren't attached under the garnishee summons. [Emphasis in original] The chambers judge dismissed the Bank’s application and went further to also indicate that instead of proceeding by way of garnishee the Bank could have seized the GIC under execution and then had it sold by the sheriff. This appeal from that order is brought by the Bank on the ground that First Line’s obligation under this GIC constituted “debt due or accruing due” within the meaning of s. 5(1) of The Attachment of Debts Act and therefore was subject to garnishee. However, before proceeding with consideration of this principal ground of appeal, it is useful to dispose of two other issues raised somewhat peripherally by the chambers judge. Firstly, there is no reason to deal with the comment in the Trade Winds fiat that the creditor cannot be in better position than the debtor to demand payment under the GIC. That statement is probably correct, but it is not factor here as the Bank was not seeking payment of the GIC before its maturity date. It was the position of the Bank the debt had been garnisheed and payment on maturity would be made to the Bank rather than to David or his estate. Second, nothing is gained by further consideration of the comment of the chambers judge as to the right of the Bank to seize the GIC under execution. That was merely obiter and does not bear on whether or not the debt owing under the GIC had been attached by the garnishee. Turning then to the principal ground of appeal, it seems generally accepted that any consideration of what constitutes “debt due or accruing due” has as its starting point review of the judgment of this Court in Barsi v. Farcus, 1923 CanLII 175 (SK CA), [1924] W.W.R. 707. The following head note provides sufficiently accurate summary of the result of that judgment: Under The Attachment of Debts Act, Sask., garnishee summons binds only "debt due or accruing due". To constitute an attachable debt there must be an existing obligation, payable either presently or at future date. It must also be perfected debt and not conditional one. This appeal turns on the resolution of the two issues that case has established, namely whether the indebtedness could be described as due or accruing due and whether it was an unconditional debt? The first of these questions seem to have reasonably straightforward answer. Barsi v. Farcas and those that follow it have consistently accepted that debt can be said to be accruing due if the due date of the existing obligation is presently identifiable. That is the case here as the debt was incontestably present debt due on its maturity date and therefore qualifies as one that was accruing due. (See Spiritwood Credit Union v. Dagenais (1985), Sask. R. 205 and Prince Albert Credit Union v. Diehl (1986), 1985 CanLII 2646 (SK CA), 43 Sask. R. 296). The answer to the second question as to whether or not it was conditional debt is not so readily apparent. It seems to be dependent upon whether the opportunity of assignment constitutes basis for the conclusion the debt is conditional obligation. It appears that at least since Roblee v. Rank (1886), 1884 CanLII 31 (SCC), 11 S.C.R. 137 only promissory note which was past due was attachable by garnishee. The following portion of the judgment of Gwynne J. indicates the reasoning applied by the Court (p. 154): Now the reason why debt, secured and made payable by promissory note, is not attachable to satisfy judgment recovered against the payee while the note is still current not yet arrived at maturity is because the amount made payable by such note is not, before maturity, either debt owing by, or accruing due from, the maker to the payee within the words of the statute. The amount secured by the note, until maturity, is not debt owing by the maker and due to the payee or to any one. By the custom of merchants, which governs promissory notes, it is accruing due to the person who shall be the holder thereof at maturity, and therefore cannot be said to be accruing due to the payee, the judgment debtor, within the words of the statute. No such reason however, exists for holding that debt secured by promissory note, when overdue and still in the hands of the payee, cannot be attached to satisfy judgment recovered against the payee, for in that case the amount does constitute debt owing by the maker, and due and payable to the judgment debtor. This view was endorsed by this court although by obiter comment, in Lekas v. Zappas (1913) 1913 CanLII 172 (SK CA), W.W.R. 1148 and was more specifically dealt with in McIlrath Lumber Company Limited v. Shore et al, 1931 CanLII 254 (SK CA), [1931] W.W.R. 785 in which Turgeon J.A., on behalf of the Court had this to say at p. 787: At the time the garnishee summons was served upon him the promissory note was not due. But this note is negotiable instrument. It was accruing due, not necessarily due to the defendant, but to the holder in due course at the time for payment, who might be the defendant or another person. The maker of such note who makes payment upon it to the person in whose favour it is drawn, without making sure that each person is still the holder, acts at his peril, was illustrated recently in the case of Dealers Finance Corpn. Ltd. v. Sedgwick, decided by this Court (ante p. 598). Consequently the debt in question was not one due or accruing due to the defendant Frances E. Shore at the time of the garnishee proceeding within the meaning of The Attachment of Debts Act. Nothing in that Act can be so construed as to interfere with the incidents of promissory notes as regulated by The Bills of Exchange Act, R.S.C., 1927 c. 16. It is true that the concern expressed in that judgment related to The Bills of Exchange Act, but am unable to see why statutory right of assignment by endorsement warrants greater degree of recognition and respect then does the common law right of assignment when both have the same legal consequence. It is apparent that so far as this Court is concerned, promissory note which is not due is not garnishable because of the prospect it may not be payable to the debtor when it becomes due. There may be decisions to the contrary in other jurisdictions, but the author of Creditor-Debtor Law in Canada expresses the view at p. 385 of his text that this approach “represents current Canadian law”. The concept as it relates to promissory notes is not dependant upon how much opportunity there is for endorsement, the note may be payable in year or day, the principle is that it is not subject to attachment until it is past due. This approach avoids the need to factor in the difficult judgment of how likely the chance of endorsement may be as it accepts any chance will serve to exempt the note from attachment by garnishee. Given this is the present state of the law as it relates to promissory note, have to ask if there is any significant difference between promissory note and GIC. They are certainly not the same but they do both contain the basic elements of promise to pay sum certain at designated date. If promissory note is not subject to garnishee before it is past due, for whatever reason, it seems to me the GIC must also fall into that category, at least cannot see any basis for logical distinction. Given virtually every obligation is subject to assignment one is led to wonder why the prospect of assignment is only applicable to promissory notes and obligations of similar nature. The best that can answer is that in most cases the debt is one that is due and the garnishee is effective immediately so no right then remains which would be subject to assignment. Had the debt been assigned previous to the service of the garnishee, then clearly the debt would not be attached. The concern for assignment is therefore only relative to those debts which are accruing due in the future with perhaps particular reference to those debts where commercial practice makes assignment rather more likely, which conclude could have application to this G.I.C. which contains no provision for early payment and by its own terms is assignable. also conclude that the validity of this concern regarding assignment is supported by the decisions where the right to garnishee bank deposit certificate has been upheld. In each case, the certificate has had provision for early payment and the judgments have held the garnishee was deemed to have triggered the request for early payment which in essence was means of eliminating the opportunity for assignment as the certificate was then payable to the holder and beyond subsequent assignment. These cases refer to include Bel-Fran Investments Ltd. v. Pantuity Holdings Limited and Bank of Montreal (Garnishee), 1975 CanLII 917 (BC SC), [1975] W.W.R. 374, Farmstart v. Dagenais (1981), 1983 CanLII 2142 (SK QB), 31 Sask R. 81, McGregor v. Bamerical International Financial Corpn. Ltd. et al, 1976 CanLII 1555 (BC SC), [1977] W.W.R. 653. None of these judgments provide the analysis have just made, but the only logical reason can put to the determination of early payment is that it avoided the need to address the question of whether the debt owing under the certificate was conditional obligation and like promissory note which was not yet due, was not garnishable. An approach which seems consistent with that taken in Provincial Treasurer of Alberta and R. in Right of Canada v. Hutterian Brethren Church of Smoky Lake et al (1980), 1980 ABCA 101 (CanLII), 12 Alta. L.R. (2d) 368 (Alta. C.A.) where garnishee was held to be an effective demand for an accelerated payment where the terms of the GIC provided for an earlier payment. In the final analysis, conclude that debt payable under promissory note which is not due is not garnishable, at least in this jurisdiction, and the same reasoning must apply to the debt accruing due under this GIC which has essentially the same characteristics as promissory note. am aware that in some jurisdictions, Ontario being one, the applicable rules have been changed to specifically provide that debt payable within six years of the service of the garnishee is garnishable. This leads me to believe that this area of the law may well benefit from review of The Attachment of Debts Act. It may be that the result have reached no longer adequately serves the business community especially since commercial paper of this nature is now much more prevalent then it was when the earlier decisions have relied upon were decided. In the result, while it is clear am not endorsing the reasons of the chamber judge, concur in the result he reached and the appeal is therefore dismissed with costs on double Column V. Dated at the City of Regina, in the Province of Saskatchewan, this 17th day of October, A.D. 1996. WAKELING J.A.

The issue was whether $10,000 payable under a GIC was subject to garnishee as a debt due or accruing due within the meaning of s5(1) of the Attachment of Debts Act. The Bank had served a garnishee summons on First Line seeking to attach money owing to David. First Line paid nothing because the debt was not payable until its maturity. When the debtor died First Line paid the money to his estate. Relying on Tradewinds, the chambers judge dismissed the Bank's application. The appeal turned on whether the debt was accruing due or whether it was a conditional debt because it could be assigned. HELD: The appeal was allowed. The GIC was attachable pursuant to s5(1) of the Attachment of Debts Act. 1)The main point was whether the debt was not attachable because it was not accruing due when the garnishee summons was served in that it did not bind the debt. 2)The leading authority, Webb v. Stenton, concluded that existing debts payable in the future are attachable. 3)The garnishability of the debt owing under a promissory note is not prevented because the debt is conditional by reason of the possibility of assignment. 4)Saskatchewan courts have followed Bel-Fran holding that a term deposit is attachable. The only exception is Tradewinds which overlooked the aspect of s5(1) which permits attaching of debts which are accruing due. Tradewinds is contrary to Spiritwood and misapplies the law summarized in Barsi v. Farcas. The historic review demonstrated that there have been gradual changes in the law of garnishment. Based on the cases reviewed the assignability of a GIC is not the type of condition which has been held to affect the determination that a debt is accruing due. 5)Because of the early payment to the estate there were no intervening claims and no priority issue arose. It would be inappropriate to deny judgment in the circumstances. DISSENT: The appeal would be dismissed for reasons other than those reached by the chambers judge. 1)The statement that the creditor cannot be in a better position than the debtor to demand payment under the GIC is probably correct but was not a factor as the Bank was not seeking payment before its maturity date. The Bank's position was the debt had been garnisheed and payment should have been made to the Bank on maturity. 2)The chamber judge's comment that the Bank could have seized the GIC under execution and then had it sold by the sheriff was obiter. 3)The debt was a present debt due on its maturity date and therefore qualified as one that was accruing due. 4)Whether it was conditional depended upon whether the opportunity of assignment constitutes a conditional obligation. There is no significant difference between a promissory note and a GIC as they both contain a promise to pay a sum certain at a designated date. 5)Some jurisdictions specifically provide that a debt payable within six years of the service of the garnishee is garnishable.

b_1996canlii5058.txt

J. Q.B. A.D. 1988 No. 246 J.C.Y. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF YORKTON BETWEEN: KATHERINE ANNE FISHER and WAYNE STANLEY GERRARD A. Phillips, Q.C. for the petitioner M.J. Baumgartner for the respondent FIAT WILKINSON J. October 22, 1998 [1] This is an application to vary maintenance under TheFederal Child Support Guidelines [Divorce Act Regulations,SOR/97-175] in respect of two children, Jessilyn Jae GerrardFisher, born March 18, 1981 and Javan William Gerrard Fisher,born June 3, 1982. There are two issues:1. determination of income for the father, afarmer who has also been employed at theEsterhazy potash mine on a full-time basissince May of 1997; and2. whether the expenses of the eldest childattending Grade XII at Western ChristianCollege in Dauphin, Manitoba constituteextraordinary expenses for secondary schooleducation pursuant to s. 7(1)(d) of theGuidelines. [2] The mother currently earns $27,600 per annum from employment with computer consulting firm. The father`s income from 1995 to the current date is set out below. He made projections with respect to his 1998 farm income and expenses: Year Employment Unemployment Farm gross Farm net Total Income Insurance Income Income Income 1995 15,694 9,250 18,534 (2,369) (22,575) 1996 5,340 7,068 48,799 3,901 16,309 1997 20,654 59,629 (376) 20,396 1998 31,022 35,185 (21,664) (to July 15) (projected) [3] The father explains his reduced farm income as due to poor yields. He has no inventory of grain on hand and all his expenses of $56,849 are purportedly for the current crop year. At the mine, his hourly rate of pay for straight time is $20 per hour which includes $4.50 per hour production bonus which is not paid on overtime. He worked substantial overtime at the mine in 1998 but that ceased in July and the father says that mine production slows down in the fall and he anticipates being laid off in October. He says he has significant vehicle expenses for travelling 192 km (round trip) to the mine from his farm in Yorkton every workday, for 16 workdays per month. These expenses total $1,409.81 per month and include vehicle depreciation. He says these expenses were not deducted from income in 1997 but he has since received accounting advice and he believes some of these expenses may be deductible on an allocation of 1/3 to personal use, 1/3 to employment expenses and 1/3 to farm expenses. He says if he is laid off he might be entitled to some employment insurance benefits after the waiting period but his income in 1998 might reasonably be less than in 1997 given his anticipated farm losses. He says support should be determined based on his 1997 income. [4] The mother argues that the most reliable indicator of true income is the 1998 year because of the significantly higher amount he earned at the mine. She says that income should be determined by projecting his income at straight wages until October 15, 1998, thereby giving recognition to the possibility of lay-off and the reduction in overtime. Accordingly, she added to his year-to-date earnings the additional sum of $11,420 calculated at $20 per hour multiplied by 12 hours per day, multiplied by 16 days per month to arrive at projected employment income for 1998 of [5] As to farming expenses for 1998, the mother says that gas and repairs are overstated by $3,000 in comparison to the three previous taxation years. There are $2,000 in expenses for horse which is the step child`s pet. There are $3,633 in capital payments ($2,233 for machinery and $1,400 for land) which are claimed as operating expenses. If these are added back to income, the projected farm loss is reduced to $13,030.89 and the total adjusted income for the year would be $29,411. She argues there should be further adjustments to farm income for capital cost allowance claimed with 15 to 25 percent of the capital cost allowance being added back. [6] It has been stated in numerous cases that the objective under the Guidelines is to find the most reliable and the fairest indicator of income. In this situation there have been significant changes in the sources of income. But if the situation with respect to employment income improved in 1998 over 1997, it was the reverse in the farming situation with 1997 being significantly better year. I consider itfair and reasonable to take an average of the 1997 andprojected 1998 income. The preceding years are not significant because the father`s current employment at the mine commenced in May of 1997. [7] In determining the father`s 1998 income, the mother`s arguments are persuasive. make an adjustment in the calculations so that the hours of work over three months total 480 hours regular time (160 hours per month) at $20 per hour for total additional pay of $9,600. This results in projected income of $40,622 for 1998. [8] With respect to travelling expenses, it may well be that some portion is deductible. But the father received accounting advice and that should have been submitted in evidence to explain the basis for the deduction and to establish the actual amount qualifying for the deduction. In the absence of such evidence, and where no deduction has been made in the past, am not prepared to consider it. [9] With respect to farm expenses, the mother has set out reasonable basis for disallowing certain expenses. The claims for gas and repairs are significantly higher than in previous years and no explanation is offered. The capitalpayments for land and machinery, and the costs of the step-child`s pet should properly be excluded. [10] With respect to capital costs allowance, the father had previously rented equipment from his father and his 1996 return shows and expense of $4,000 for machine rental paid. In 1997 he acquired equipment of his own, including Chevrolet half-ton, GM Yukon, and one-third share in two other pieces of farm equipment, grain vac and Morris air seeder. Theacquisition of the equipment and the claiming of capital costallowance in these circumstances, in lieu of rentingequipment, is not patently unreasonable. [11] possible exception is the GM Yukon acquired in 1997 at cost of $43,175. For the purposes of s. 19(1)(g) of the Guidelines, an expense may be unreasonable because the acquisition of the item that generates the expense is unreasonable in all of the circumstances. In the father`s income bracket, and in the context of his obligation to support his children, the acquisition of $43,000 vehicle is an extravagance of significant proportions. Furthermore, his allocation of one-half the cost to farming use may be questionable given the distances travelled to and from the mine during the course of his employment. The acquisition of that vehicle gave rise to capital cost allowance claim of $1,833 in 1997 and at depreciation rate of 20 percent would have provided capital cost allowance claim of $1,650 in 1998. The farm income will be adjusted in 1997 and 1998 by adding back 25 percent of the capital cost allowance for this [12] The adjusted income for 1998 is: Employment 40,622.00 Farm (12,618.50) Total: 28,003.50 [13] The adjusted income for 1997 is $22,111. The average of the 1997 and 1998 income is $24,370. The Table amount for two children on gross annual income of $24,370 is $347 per [14] With respect to the extraordinary cost of post- secondary expenses, the mother says Jessilyn has been attending high school at Western Christian College in Dauphin, Manitoba. Her school fees are $7,000 per year and the members of the church congregation contributed $3,028. The information presented falls short of the standard the Court requires in advancing claim for extraordinary expenses. There are indications, in the only complete tax return the mother filed, that she claimed $205 for tuition fees and education amounts transferred from child in 1996. Pursuant to s. 7(3) of the Guidelines, the Court must take into account any tax benefits or credits relating to the claimed expense. Having regard tothe criteria in s. 7 of the Guidelines, there is no evidencewhy the child attends high school there, why the expense isnecessary in relation to the child`s best interests or whetherthe child has any means to contribute to the expense. Thataspect of the claim is refused, but with leave to return theissue to the Court with appropriate supporting materials. [15] In summary, the respondent whose gross annual incomeis determined to be $24,370 shall pay to the petitioner forthe support of the two children the Table amount of $347 permonth payable on the first day of September, 1998 and on thefirst day of each and every month thereafter until furtherorder. [16] There will be no order as to costs.

FIAT. An application to vary maintenance for two children under the Federal Child Supprt Guidelines. At issue were the determination of the father's income and whether the expenses of the eldest child attending Grade 12 in Manitoba constituted extaordinary expenses for secondary school education pursuant to s7(1)(d). The father's reduced farm income was explained as due to poor crop yields. He anticipated being laid off from his work at the mine in October. He claimed significant vehicle expenses for his travel to work. The mother contested many of his expenses as being overstated. HELD: The respondent's child support obligation was $347 per month. 1)It was fair and reasonable to take an average of the 1997 and projected 1998 income. The preceeding years were not significant because the father's current income at the mine commenced in May 1997. Travelling expenses would not be considered in the absence of the accounting advice to explain the basis for the deduction and to establish the actual amount and where no deduction has been made in the past. No explanation was offered for why the claims for gas and repairs were significantly higher than in previous years. The capital payments for land and machinery and the costs of the stepchild's horse were excluded. In the circumstances the acquisition of equipment and capital cost allowance, in lieu of renting, was not patently unreasonable. The farm income was adjusted in 1997 and 1998 by adding back 25 percent of the capital cost allowance for the new truck. The acquisition of a $43,000 vehicle was an extravagance given his income bracket and his obligation to support his children. His allocation of one-half its cost to farming was questionable given the distances tavelled during his employment at the mine. 2)There was no evidence why the child attended high school in Manitoba, why the expense was necessary in relation to the child's best interest and whether the child had any means to contribute. Leave was given to return the matter to the Court with the appropriate supporting materials. 3)No order as to costs.

c_1998canlii13533.txt

SCHERMAN QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 29 Date: 2018 01 24 Docket: DIV 113 of 2006 Judicial Centre: Regina (Family Law Division) BETWEEN: JEFFERY ALLAN REID and BARBARA LYNN ELLIS-REID Counsel: Mary Lou Senko for the petitioner Chris Gratton for the respondent FIAT ZARZECZNY J. JANUARY 24, 2018 THE APPLICATION [1] The applicant/petitioner, Jeffery Reid, filed second Application for Variation with the court September 29, 2017, seeking to vary Consent Interim Order issued by Zarzeczny J. August 7, 2007 [Order]. THE INTERIM CONSENT ORDER [2] The provisions of the Order addressed Mr. Reid’s child and spousal support obligations. It was based upon the petitioner’s then income of $48,196 and the respondent’s income of $0. Paragraph 2(b) of the Order provided that Mr. Reid: …shall pay to the Respondent for child support and s. expenses the sum of $150 per month commencing August 1, 2007 and continuing on the first of each and every month thereafter for so long as the child is child within the meaning of the Divorce Act. [Emphasis added] [3] The parties agreed by this provision of the Order that: Given the amount of spousal support, the parties agree that these are reasonable arrangements for the support of the child pursuant to s. 15.1(8) of the Divorce Act. [4] Paragraph 3(a) of the Order provided that Mr. Reid would pay to Ms. Ellis-Reid as spousal support the sum of “$1,250 per month commencing August 1, 2007 and continuing on the first of each and every month thereafter until further Order or agreement.” [Emphasis added] [5] Subparagraph 3(d) of the Order provided that spousal support is reviewable “if the CPP claim is successful and may be recalculated retroactively.” Subparagraph 3(c) obliged Ms. Ellis-Reid to advise Mr. Reid once her CPP claim was ruled upon. This requirement reflected the understanding between the parties that because Ms. Ellis-Reid claimed she was disabled and therefore unable to work, she would make an application for CPP disability benefits/payments. THE POSITION OF THE PARTIES [6] Succinctly stated, and as reflected in the written Briefs of Argument filed by counsel for each of the parties upon the hearing of this variation application in chambers, the position of the parties is as follows: [7] Mr. Reid, advises the court that he has continued to pay the $150 per month child support and $1,250 per month spousal support ordered to the present date. He was, when the Order was made and now continues to be, member of the Canadian Armed Forces. At para. 23 of his affidavit he deposes that: The compulsory retirement age for the Canadian Military is 60 years old, which will turn on December 5, 2019. am currently planning on retiring one year early in 2018. My estimated total annual income at this time will be $37,500 per year, but am willing to continue to provide child support in the Guideline amount until Elizabeth receives her first degree. [8] Insofar as spousal support is concerned, Mr. Reid seeks an order from the court terminating his obligations for payment. This is based upon Ms. Ellis-Reid’s failure to obtain employment of any significance since the Order and her failure to diligently make and pursue an application for CPP disability benefits for which she may be eligible as required by the Order. Mr. Reid also bases his position on the fact that the marriage was an 11 year marriage. He has continued to pay over 12 years of spousal support. [9] As the court understands it, insofar as material changes in circumstances are concerned, Mr. Reid relies upon the following: i) his intention to retire early from the Canadian Armed Forces which will reduce his income from $67,000 to $37,500; ii) the fact that Ms. Ellis-Reid has not applied for split in his CPP credits (which he supports) which may make her eligible for disability pension; and iii) Insofar as his child support obligations are concerned, his daughter, Elizabeth, receives incomes and financial support for her university studies from student loans, bursaries, scholarships and summer and part-time academic year employment. While he acknowledges he must and intends to support Elizabeth, the amount should take into account these financial resources and support should only continue for her first degree. [10] These circumstances, Mr. Reid claims, meet the material change threshold for successful variation application. [11] Ms. Ellis-Reid opposes Mr. Reid’s variation application. Her position, advanced by her counsel, is that Mr. Reid has not established the threshold requirement of material change in circumstances. The general circumstances of the parties are basically the same, albeit with some changes (in law not material) from those existing throughout the period of time that Mr. Reid has paid the child and spousal support payments that he has. In response to his now declared intention to take early retirement, no sound reason for Mr. Reid’s choice to retire early is provided. It appears simply to be matter of choice, not necessity. Implicitly she takes the position that so long as he has spousal and child support obligations that choice, in law, should not be open to him. [12] Ms. Ellis-Reid responds, through her counsel’s submissions, that she is prepared to take reasonable steps and to diligently pursue new CPP disability application which she had previously pursued but which was denied because she did not have sufficient CPP credits. Now that Mr. Reid is prepared to either apply for or agree to split his CPP credits or support her application to do so, she will reapply. To do so she requires and is waiting to receive sufficient supporting medical reports from her current (but new) medical specialist that she consults in Saskatoon where she now lives with her daughter Elizabeth. [13] There are two issues to be decided with respect to this variation application, namely: 1. Has the applicant met the threshold obligation to satisfy the court that there is (are) material change in circumstance(s) to support the court’s variation of the Order? 2. If the applicant has met the “material change in circumstance” threshold, what should be the disposition of his variation application? [14] The decisions of the Supreme Court in the cases of Willick Willick, 1994 CanLII 28 (SCC), [1994] SCR 670 and G.(L.) B.(G.), 1995 CanLII 65 (SCC), [1995] SCR 370, identify and illustrate how the principle of “material change of circumstances” applies in the context of applications to vary child and/or spousal support orders. The guiding question cited is “if known at the time of the original order, would the change have resulted in different order?” [15] Mr. Reid recommenced his military career in early 2000 and served in the military at the time he authorized the Order he now seeks to vary. Much younger at that time than he is now, nevertheless he would have then and must throughout the duration of his payment of support, been aware of the retirement regulations for persons serving in the Canadian military. He nevertheless agreed, by the provisions of the Order, to continue to make child support payments to support his daughter so long as she remained child within the provisions of the Divorce Act, RSC 1985, (2d Supp). [16] His affidavits also recognize and acknowledge that at the time he entered into the Order, Ms. Ellis-Reid had no income and she suffered from at least two of the now longer list of medically disabling conditions set out in her affidavit. She continues to assert she is disabled and unable to engage in employment. [17] Cases in Saskatchewan have consistently concluded that voluntary early retirement, or for that matter, the choice of a payor to either leave the work force, stop working, go back to school or change jobs for lesser pay, all by choice as opposed to necessity, do not constitute a material change of circumstance sufficient to support a variation application to eliminate or reduce a payor’s obligation to pay child or spousal support (see Zaleschuk v Zaleschuk, 2009 SKQB 356 (CanLII), 340 Sask R 305 and the cases therein cited including Poitras v Poitras, 2006 SKQB 96 (CanLII), 276 Sask R 163; Grey v Grey, 2003 SKQB 266 (CanLII), 237 Sask R 109). [18] In the circumstances of these parties, both at the time the Order was entered into and now in excess of the 10 years that its provisions have been (to the credit of Mr. Reid) complied with, I have concluded that there is not a material change of circumstances established in this case as legally required to support the granting of the variation application. [19] Mr. Reid continues to be employed with the Canadian Armed Forces and can maintain this employment for another two years. Ms. Ellis-Reid claims to be and have been disabled and unable to work. As the Order contemplates, she now undertakes to diligently pursue split of her and Mr. Reid’s CPP credits and reapply for CPP disability benefits previously applied for but denied. [20] The parties’ daughter Elizabeth continues to be child within the meaning of the Divorce Act based upon the authorities applicable to children attending university full-time. [21] The changed circumstances argued for are, at best, future contingencies not present changes. The parties have been content to follow the existing Order, both payor and recipient, for the last 10 years in all their circumstances prevailing during that time. see no basis in law or fact to vary that status quo. note further that the parties have agreed to inextricably intertwine the payor’s spousal and child support obligations to the total “lump sum” payment of $1,400 for tax purposes favouring large sum payable for spousal support and lesser sum than that which would be required for child support. If future consent order is reached, the parties should reconsider the advisability of doing so. [22] For the reasons stated and analysis undertaken, I dismiss the applicant’s variation application. [23] Before leaving this matter wish to make the following additional comments and observations. While have dismissed Mr. Reid’s variation application, it may well be the case that from and after the date of his mandatory retirement, which is scarcely two years away, his circumstances including the substantial decrease in his income from the current level of approximately $67,000, may well constitute material change in circumstance prompting yet another variation application at that time. It may also be that Elizabeth will have completed her first degree. In addition, Mr. Reid advises he is prepared to fully support Ms. Ellis-Reid’s eligibility to apply for and obtain split of Mr. Reid’s CPP credits. This when achieved, will allow her to reapply for CPP disability benefits. If she is successful and receives disability pension, that increase in Ms. Ellis-Reid’s income, combined with the reduction of Mr. Reid’s income upon retirement, may also support the conclusion that all these events combined are sufficient material changes in the circumstances of the parties to then support variation application being made if an agreement is not reached. [24] For this reason, and in the interests of avoiding multiple court proceedings in the future, in dismissing the present variation application, I further order the following: 1. That Ms. Barbara Lynn Ellis-Reid immediately proceed to complete an application to split the CPP credits to the account of Jeffery Allan Reid equally, the same to be supported by Jeffery Allan Reid either through a joint application made or consent endorsed upon the application made by Barbara Lynn Ellis-Reid. Both parties will cooperate to execute such further or other documents as necessary to achieve the CPP credit split; 2. That upon confirmation of the split of the CPP credits, Barbara Lynn Ellis-Reid will, within 60 days thereafter, apply for CPP disability benefits and pursue the application diligently. She shall provide all information reasonably required by CPP to support her application; and 3. That Barbara Lynn Ellis-Reid will keep Jeffery Allan Reid informed of all communications received from the CPP disability claims administrators and provide copies of such correspondence to him immediately upon receipt. J. T.C. ZARZECZNY

HELD: The application was dismissed. The court found that the applicant had not proven that there was a material change in circumstances as voluntary early retirements do not constitute material change of circumstance. It ordered the respondent to immediately proceed to complete an application to split the applicant’s CPP credits.

c_2018skqb29.txt

S.C.A. No. 02434 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hart and Jones, JJ.A. BETWEEN: THE MINISTER OF FINANCE and JOHN RISLEY Respondent John D. Wood for the appellant Harvey L. Morrison for the respondent Appeal Heard: November 12, 1991 Judgment Delivered: November 12, 1991 THE COURT: Appeal dismissed without costs per oral reasons for judgment of Jones, J.A.; Clarke, C.J.N.S. and Hart, J.A. concurring The reasons for judgment were delivered orally by: JONES, J.A.: This is an appeal by the Minister of Finance under the Health Services Tax Act. The Sarah Kate, sailing vessel, was purchased by the respondent, John Risley in Finland in 1988. The vessel sailed to the Carribean where it remained until May of 1989. From May to October, 1989, the vessel was based in Camden, Maine. In July, 1989, the vessel was in Halifax at the end of the Marblehead race. In August of that same year the vessel participated in the Chester races. On both occasions the vessel was allowed into Canada under customs permit. No customs or excise tax was paid. The vessel returned to Maine after the races. In the fall it went to the Carribean for the winter. The boat has been used as charter vessel in Maine and the Carribean. The vessel is registered in Lunenburg, Nova Scotia. Mr. Risley has home in Chester, Nova Scotia and is resident of Nova Scotia. On July 23, 1990, an assessment of $195,785.90 was made against Mr. Risley because the vessel was registered in Nova Scotia and had been used in the province. Notice of objection to the assessment was filed and eventually the matter came before the N.S. Tax Review Board. On January 14, 1991, after reviewing the provisions of the Health Services Tax Act, board member, W.J. Skinner concluded that the vessel did not have a sufficient presence in the province to attract tax under s. 7(1) of the Act. The Minister has now appealed from that decision. The only issue on the appeal is: "Whether the Nova Scotia Tax Review Board erred in law in its interpretation of s. 7(1) of the Health Services Tax Act, R.S.N.S. 1989, c. 198, by holding that there was not sufficient presence of the yacht 'Sarah Kate' in the Province of Nova Scotia for the application of s. 7(1)." Under s. 21(1) of the Health Services Tax Act an appeal lies from decision of the Board on any point of law raised upon the hearing of the appeal. Section 7(1) of the Health Services Tax Act, R.S.N.S. 1989, c. 198, provides as follows: "7(1) Every person who brings into the Province or who receives delivery in the Province of tangible personal property acquired by him for value for his own consumption or use in the Province, or for the consumption or use in the Province of other persons at his expense, or on behalf of, or as agent for, principal, who desires to acquire such property for the consumption or use in the Province by such principal or other persons at his expense, shall immediately report the matter in writing to the Commissioner and supply to him the invoice and all other pertinent information as required by him in respect of the consumption or use of such property, and at the same time shall pay to Her Majesty in right of the Province the same tax in respect of the consumption or sue of such property as would have been payable if the property had been purchased at retail sale in the Province." The appellant contends that as the vessel was brought into Nova Scotia and used in the Province it immediately became subject to the Health Services Tax Act. The respondent argues that the Province can only impose "direct taxation within the Province" and that temporary presence is not sufficient to raise an assessment under the Act. He relies on the decisions of the Supreme Court of Canada in R. v. Air Canada, 1980 CanLII 16 (SCC), [1980] S.C.R. 303 and Canadian Pacific Airlines v. British Columbia (1989), 1989 CanLII 94 (SCC), 59 D.L.R. (4th) 218. In the Air Canada case the issue concerned the application of The Retail Sales Tax Act, R.S.M. c.R.150 to Air Canada operations and services in through flights which did not touch down in Manitoba and in flights which landed or took off in that province. The assessment was with respect to aircraft, aircraft engines and parts consumed and services, meals and liquor, consumed or supplied in the company's aircraft. Section 3(1) of the Act provided that every purchaser of tangible personal property was required to pay tax to the province Chief Justice Laskin in delivering the judgment of the Court stated at p. 316: "I am prepared, on this view, to assume that the Province has some legislative jurisdiction in the air space above it so that the pivotal question is whether Air Canada aircraft, engaged in overflights are 'within the Province', as this quoted phrase is used in s. 92(2) which empowers Province to impose 'direct taxation within the Province in order to the raising of revenue for provincial purposes'. Merely going through the air space over Manitoba does not give the aircraft situs there to support tax which constitutionally must be 'within the Province'. In the case of aircraft operations, there must be substantial, at least more than nominal, presence in the Province to provide basis for imposing tax in respect of the entry of aircraft into the Province." In Canadian Pacific Airlines Ltd. v. British Columbia, 1989 CanLII 94 (SCC), 59 D.L.R. (4th) 218 the Supreme Court of Canada had to consider whether the Social Services Tax Act, R.S.B.C. 1979, c. 388 applied: "(a) to the respondent airlines' aircraft, engines, components, parts, equipment and rotable spares (hereafter compendiously referred to as 'aircraft and parts') when used on flights that originate from, terminate in or connect two points in the province, and (b) to sales by the airlines of alcoholic beverages which are served to passengers on such flights after the aircraft is airborne and has achieved cruising speed." Mr. Justice La Forest stated at p. 222: "In general terms, the Social Service Tax Act of which counterpart exists in most of the provinces) imposes tax on person who purchases tangible personal property at retail sale in the province for his own consumption or use. The tax is based on percentage of the purchase price. similar tax is imposed on person who brings such property in the province for his consumption or use. In the case of the airline's aircraft and parts brought into the province, the tax, by virtue of administrative formulae not provided by statute, is applied only in respect of flights originating from, terminating in, or connecting two points in the province. According to the formulae, the tax is calculated on the percentage of miles travelled by the aircraft in provincial airspace to the total miles travelled. More specifically, s. 2(1) imposes the tax in the usual case to which the Act applies, purchase in the province. 2(1) purchaser shall pay to Her Majesty in right of the Province at the time of making the purchase tax at the rate of 4% of the purchase price of the property purchased. Section defines 'purchaser' and 'retail sale' in manner that makes it clear that the taxpayer is (minor additions apart) purchaser who purchases tangible personal property at retail sale in the province for his own use or consumption. These provisions read: 'purchaser' means person who acquires tangible personal property at sale in the Province for his own consumption or use, or for the consumption or use by other persons at his expense, or on behalf of, or as the agent for, principal who desires to acquire such property for consumption or use by that principal or other persons at his expense, and includes promotional distributor to the extent that the purchase price of the tangible personal property provided by way of promotional distribution exceeds the amount of the payment specifically made for it by the person to whom the tangible personal property is so provided; 'retail sale' means sale to purchaser for purposes of consumption or use and not for resale; Section makes provision for collecting the tax through the seller, who is deemed to be an agent of the Minister for the purpose. Rounding out the scheme is s. 2(4) which imposes similar tax on persons who reside or carry on business in the province who acquire tangible personal property outside the province. Section 2(4) imposes the tax on any such person who brings into, or receives in the province, any such property acquired by him for value for his own consumption or use. It reads as follows: 2(4) person residing or ordinarily resident or carrying on business in the Province who brings or sends into the Province or who receives delivery in the Province of tangible personal property for his own consumption or use, or for the consumption or use of other persons at his expense, or on behalf of, or as the agent for, principal who desires to acquire such property for the consumption or use by that principal or other persons at his expense, shall immediately report the matter in writing to the commissioner and supply to him all pertinent information as required by him in respect of the consumption or use of the property, and furthermore, at the same time, shall pay to Her Majesty in right of the Province tax at the rate of 4% of the purchase price of the tangible personal property." In applying these provisions the British Columbia Court of Appeal held that if an aircraft lands, loads and unloads and performs maintenance, the airline is using aircraft in the Province and was subject to the tax under the Act. Mr. Justice La Forest stated at p. 230: "The first issue to be determined is whether on its true construction the Act applies to the aircraft and parts. The province claims it does by virtue of s. 2(4) of the Act, which have already cited in full. That provision applies to residents, and more pertinently, to any person 'carrying on business in the Province who brings or sends into the Province or who receives delivery in the Province of tangible personal property for his own consumption or use...' [emphasis added]. Section 2(4), like other provisions in statute, must be read both in its specific context and in its context as whole. That consideration must be firmly kept in mind in considering whether the entry into the province of the aircraft and parts in the course of the operations of the airlines previously described constitutes 'bringing' or 'sending' them into province or 'receiving delivery' of them there. While would not, in the absence of detailed examination, wish to categorize the Act as being solely intended to impose retail tax payable by the ultimate consumer of the goods, there can be no doubt, as mentioned before, that this is its predominant purpose. The Act, in its general structure and intent, closely resembles the type of enactment originally approved by the courts in Atlantic Smoke Shops Ltd. v. Conlon, 1943 CanLII 372 (UK JCPC), [1943] D.L.R. 81, [1943] A.C. 550, [1943] W.W.R. 113 (P.C.), and later generalized to include all tangible personal property: see Cairns Construction Ltd. v. Government of Saskatchewan (1960), 1960 CanLII 59 (SCC), 24 D.L.R. (2d) 1, (1960] S.C.R. 619, 35 W.W.R. 241, (S.C.C.). This predominant purpose, in my view, is of considerable assistance in understanding the import of s. 2(4). Indeed, Viscount Simon L.C. in the Conlon case (p. 91) observed of similar provision that it was manifest that it was enacted merely as supplementary provision. The nature of this particular provision also argues for its interpretation in the light of the overall scheme. It is provision which, if it stood alone, might well be construed as infringing upon s. 121 of the Constitution Act, 1867 which provides that 121. All Articles of Growth, Produce, or Manufacture of any one of the Provinces shall...be admitted free into each of the other Provinces. Viscount Simon in Conlon, it is true, rather underplayed that possibility, but subsequent cases have indicated that the courts would closely scrutinize tax that in Rand J.'s words 'in its essence and purpose is related to provincial boundary': see Murphy v. C.P.R. Co. (1958), 1958 CanLII (SCC), 15 D.L.R. (2d) 145, [1958] S.C.R. 626, 77 C.R.T.C. 322 (S.C.C.), per Rand and Cartwright, JJ.; see also Comment by F.R. Scott, 12 Can. Bar. Rev. 303 (1934), at p. 308. This context, it seems to me, strongly supports the view that the general purpose of s. 2(4) is to serve as supplementary provision 'to guard against the methods of avoidance of' the purchase tax: see Viscount Simon in Conlon, at p. 91. If that view is correct, what the provision was intended to do was to prevent the evasion of the tax and consequent loss of revenue by the simple expedient of consumer purchasing goods outside the province. The provision equalizes the burden by taxing out‑of‑province purchases by provincial residents at the same rates as if the purchases had taken place in the province. The out‑of‑province purchaser pays the tax when he 'brings or sends the goods' in the province or 'receives delivery' for his use or consumption. This is confirmed, think by the words used in the provision, and especially if one considers them in connection with the purported application of the provision to the facts of this case. What think is contemplated is the bringing of purchased item into the province on permanent basis, at which time it is taxable once and for all at stated percentage of the purchase price as the provision clearly provides." The Court concluded that the statute did not apply to the airlines aircraft and parts. We see no substantial difference between the provisions of the B.C. statute and the Nova Scotia Health Services Tax Act. In our view the reasoning in Canadian Pacific Airlines Ltd. applies to the present case. We see no error on the part of the Tax Review Board in concluding that the vessel was not subject to tax in this case. The appeal is dismissed without costs. J.A. Concurred in: Clarke, C.J.N.S. Hart, J.A. 1990 HST 035 of EVIDENCE and PROCEEDINGS THE NOVA SCOTIA TAX REVIEW BOARD IN THE MATTER OF: The Health Services Tax Act, R.S.N.S. 1989, c.198 AND IN THE MATTER OF: Art Appeal from decision of the Provincial Tax Commissioner respecting Notice of Objection to the Notice of Assessment 40868 BETWEEN: JOHN RISLEY and THE PROVINCIAL TAX COMMISSION, Health Services Tax Division, Department of Finance BEFORE: Mr. Bill Skinner, Board Member AT: Halifax, Nova Scotia ON: December 17, 1990 Mr. Harvey L. Morrison, Esq. Solicitor for Appellant Mr. J. Wood, Esq. Solicitor for Respondent S.C.A. No. 02434 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: THE MINISTER OF FINANCE and JOHN RISLEY Respondent REASONS FOR JUDGMENT BY: JONES, J.A.

A sailboat, which was owned by a resident in Nova Scotia and registered in the province, but which was purchased in Finland and kept in the United States and the Carribean, and which was twice in Nova Scotia under customs permits to participate in races, did not have a sufficient presence in the province to be subject to an assessment under the Health Services Tax Act.

8_1991canlii2444.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 444 Date: 2010 12 01 Docket: C.R. of 2008 Judicial Centre: Moose Jaw BETWEEN: HER MAJESTY THE QUEEN and GERARD STEPHANE JOSEPH TURPIN Counsel: James I. S. Sutherland for the accused Douglas G. Curliss for the Crown JUDGMENT BALL J. December 1, 2010 [1] The accused is charged with possession of cocaine and marihuana for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as am. He applies for an order excluding evidence of cocaine and marihuana found concealed in his motor home on the basis that his rights under ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms, (the “Charter”) were violated. This decision follows voir dire held to determine the admissibility of the evidence. For the reasons which follow, find that the evidence must be excluded. THE FACTS [2] On the afternoon of June 13, 2007, the accused was driving a motor home on the TransCanada highway near Caronport, Saskatchewan when he was stopped by RCMP Cst. Ian Warner. [3] Cst. Warner was one member of “roving traffic unit” of RCMP officers working that day on the TransCanada highway. Other members of the unit were Cst. Darcy Wilson, then seven year member of the RCMP stationed in Rosetown, Saskatchewan, Cst. Trent Sperlie, then nine year member stationed in Maidstone, Saskatchewan and Cpl. Kenneth McLaughlin, then an 18 year member stationed in nearby Moose Jaw, Saskatchewan. [4] All of the members of the roving traffic unit were experienced in traffic stops resulting in the detection of quantities of drugs. For the previous 15 months Cst. Warner had worked with police service dog named Nugget, one of only two single profile narcotic dogs in the province. Cst. Sperlie, who is now assigned to the Integrated Drug Unit in Saskatoon, was the handler of Levi, the other single profile narcotic dog in the province. Nugget and Levi are sniffer dogs trained to detect marihuana, hashish, psilocybin, cocaine, heroin, and methamphetamine. Cst. Wilson had attended the Pipeline Convoy Course, the Pipeline Instructors’ Course, and advanced courses sponsored by Canadian and American drug detection agencies. Cpl. McLaughlin had also attended and instructed at the Pipeline Convoy Course. [5] The members assigned to the roving unit had been monitoring traffic on the TransCanada highway in the Caronport area for several days. Notwithstanding the specialized nature of their training and drug dog handling responsibilities, Cst. Wilson testified that they had been working in the area for few days as regular traffic officers performing regular traffic duties. [6] On June 13, 2007 each of Cst. Warner, Cst. Wilson and Cst. Sperlie were driving their marked police cars in the vicinity of Caronport. All three vehicles were equipped with video cameras and audio recording devices. Csts. Wilson and Warner were working in close proximity to each other during their encounter with the accused. [7] Cst. Warner was observing traffic from connecting road between the divided TransCanada highway. He saw an older motor home travelling in an easterly direction weave from the centre line over the fog line on the right hand side of the road approximately six times. The motor home did not cross the centre line and was not speeding. Cst. Warner was concerned that the driver might have been drinking. He engaged the emergency lights on his vehicle to signal the driver to pull over onto the shoulder. The motor home decelerated at an appropriate pace and stopped in an appropriate place on the shoulder of the road. It was then 2:13 p.m. [8] After stopping the motor home but before approaching the driver, Cst. Warner made vehicle query on CPIC. The motor home bore British Columbia license plate No. 486 GLG. The CPIC query confirmed that the motor home had not been reported stolen. [9] It was very windy afternoon. Cst. Warner approached the motor home and informed the driver, who was the accused, that he had stopped him because the motor home had been weaving. He stated his concern that the accused might have been drinking. The accused replied that he had not been drinking and that there was no alcohol in the vehicle. [10] When he first approached the motor home Cst. Warner observed that the accused was wearing sunglasses and smoking freshly lit cigarette. Cst. Warner testified that in his experience impaired drivers would often light fresh cigarette in an attempt to mask the odour of alcohol coming from them and from inside their vehicle. However, he did not ask the accused to remove his sunglasses or to put out his cigarette. [11] Cst. Warner testified that he made other observations. First, he said that the driver was unusually nervous, that his hand was trembling as he handed over his documents, that he made little or no eye contact, that he looked straight forward, and he only spoke in short one or two word answers. He stated that the driver’s nervousness went “beyond the typical” highway stop and was “more typical of cases in which he had found motorist hauling drugs”. He also noted that there were no other occupants and no visible luggage or other items in the motor home. [12] The accused was at all times responsive to the questions put to him. He was asked to produce his driver’s license and registration and he produced them without difficulty. Cst. Warner did not note any indicia of impairment. He did not ask the accused to step out of the vehicle so that he could observe his coordination and balance nor did he administer any other sobriety tests. He agreed that this was because he was satisfied there was no basis for suspecting the accused was impaired. [13] Having received the driver’s license and vehicle registration from the accused, Cst. Warner returned to his police car. The documents indicated that the motor home was 1986 model Empress by Triple on GMC chassis. They also indicated that it was owned by the accused, Gerard Turpin. Nothing about the vehicle registration aroused suspicion. [14] Using mobile work station to conduct CPIC data base check on the driver by name, Cst. Warner noted entries for “take auto without consent” conviction 1985, and entries for assault and assault police officer convictions in 1988. He also made name inquiries on police databases named Police Information Retrieval System (PIRS) and Police Reporting Occurrence System (PROS). The last of those inquiries was submitted at 2:20:21 p.m. [15] Three minutes after Cst. Warner had returned to his police car with Mr. Turpin’s driver’s license and registration, Cst. Wilson arrived on the scene. He parked on the shoulder of the road behind Cst. Warner’s vehicle and activated his emergency lights. Although the police cars being driven by both Cst. Warner and Cst. Wilson were equipped with windshield view video cameras and audio recording devices, neither of them activated that equipment. Cst. Wilson testified that he did not use his video camera because it caused fuses to short out; Cst. Warner stated that he did not use his because of problems with the camera draining the battery on the car. Neither were in the practice of using their audio recording devices. [16] The two police officers had brief conversation during which Cst. Warner recalled telling Cst. Wilson two things. First, he told him that the accused had previous conviction for auto theft. Second, he told him that the accused appeared nervous. [17] Cst. Wilson testified that Cst. Warner said more: that he told Cst. Wilson he did not detect any signs of gross impairment; that he had smelled cigarette smoke but no alcohol; and that he had not confirmed the registration documents against the vehicle identification number (VIN) to confirm “the true identity of the vehicle”. [18] Cst. Wilson acknowledged that he never looked at the license and registration that had been produced by the accused, or at the computer screen in Cst. Warner’s car. Nevertheless, his evidence was that he decided to “take over the secondary phase which is re-approach the vehicle and confirm the identity of it”. Cst. Warner’s evidence was somewhat different: he testified that Cst. Wilson decided to go and check the driver for signs of impairment or smell of alcohol to assess his level of sobriety. As well, Cst. Warner said, it was Cst. Wilson who “sort of made the connection for possible stolen vehicle”. THE POSSESSION OF STOLEN PROPERTY INVESTIGATION [19] While the two police officers were conferring in Cst. Warner’s vehicle, the accused remained in the motor home. Cst. Wilson left the police car and approached the motor home. He testified that his intention was to check sobriety, vehicle fitness, registration, ownership and to confirm the registration documents against the VIN. [20] Cst. Wilson testified that as he approached the motor home he detected strong odour of “Bounce” (a brand of fabric softener) coming from its interior. Cst. Wilson attributed this to an attempt by the accused to mask the smell of alcohol or drugs. [21] On this point, Cst. Warner testified that he too recalled smelling fabric softener and that he later looked for the source, which he determined to be side cupboard. Notwithstanding the importance of this potential odour masking agent, he could not recall what was in the cupboard because he did not feel it was pertinent. As well, he made no note of it in any report. [22] Cst. Sperlie, who was soon to attend the scene to participate in the search of the motor home, did not detect any masking odour, and testified that he would have noticed if there had been anything remarkable. Similarly, Cst. McLaughlin, who would also attend in due course, noticed no such odour.[1] [23] Cst. Wilson expressed the opinion that the accused was unusually nervous. He asserted that the accused was breathing rapidly and that his “carotid artery” was “pulsating”. He acknowledged, however, that he had no idea what the accused’s baseline respiratory rate was and that he could not actually see his carotid artery. Instead, he testified that he could see “fluttering on the side of the neck” which he assumed was caused by “the moving of the blood”. [24] In cross-examination, Cst. Wilson acknowledged that his understanding of symptoms of nervousness, such as pulsating arteries, was derived entirely from things told him by “law enforcement personnel”. He also acknowledged that the accused also did not display many symptoms typically associated with nervousness: Specifically, he did not have shaky, quivering voice; he was not sweating; his mouth was not dry and his hands were not shaking. [25] Cst. Wilson testified that he asked the accused if he was on any medication and when he had last used any liquor or narcotics. The accused replied that he had used liquor the week previous and narcotics long time ago. Cst. Wilson noted that the accused became more nervous at that point and no longer made eye contact.[2] [26] Cst. Wilson asked the accused how long he had been driving. He found it suspicious that the accused did not answer the question directly. Instead, he responded that he was going to stop at the next city. Asked the question again, the accused said he had been driving for 12 hours. This meant that he had likely left Vancouver at 2:30 the previous morning. [27] The accused then volunteered that he was travelling from Vancouver to Thunder Bay to visit his sister for couple of weeks. Cst. Wilson testified that in his experience, Vancouver was source of illegal drugs and Thunder Bay was destination; that long hours of driving were consistent with drug courier; and that he believed it possible the volunteered story about the sister was an attempt to legitimize trip that would otherwise be suspicious. He acknowledged that he knew nothing about the accused’s personal circumstances and that he did not ask. [28] Cst. Wilson asked the accused if he had any more documents on him pertaining to the vehicle. The accused opened his wallet, showed it to the police officer, and said “no, gave the other documents to the other officer”. Cst. Wilson attached significance to the fact that inside the wallet were number of $20.00 bills which he estimated to be about $2,000.00. He stated that he found it odd for that amount of currency to be on person. [29] Notwithstanding these observations Cst. Wilson did not embark on an investigation into the possibility that the accused was carrying contraband. Rather, he asserted that he pursued an investigation into the “true identity” of the vehicle. He looked at the VIN number found on plate on the dashboard of the motor home. He stated that the plate appeared to be relatively old, but that the rivets securing the plate to the dashboard were shiny and the area surrounding the VIN plate was clean. (Those observations were not discernable from police photograph of the dash plate.) He stated that in his experience and training, this could mean that the VIN plate had been changed or tampered with. [30] In order to confirm that the VIN number on the dashboard plate in fact belonged to the vehicle, Cst. Wilson stated that he decided to compare it to the VIN number found on the federal safety certification label on the doorpost. The doorpost label contained two numbers. One number, found under the heading “VIN”, was different from the number of the dashboard plate. second number, found under the heading “INC.VEH.VIN.”, was the same as the VIN number on the dashboard plate.[3] [31] Cst. Wilson asserts that he misread the doorpost label in that he did not see the “INC.VEH.VIN.” number, and therefore did not recognize that it matched the VIN number on the dashboard plate. Having misread the label, and because of “the driver’s nervousness and previous record” he decided to arrest him for possession of stolen property. At that point he had spent one or two minutes with the accused. [32] Cst. Wilson acknowledged that he would not have arrested the accused if he had matched the VIN number on the dash to the “INC.VEH.VIN.” on the door. He stated that his error in reading the VIN numbers was as result of “inexperience and being in rush”. He accepted that there was no reason for him to be in rush. He also acknowledged that he was experienced in investigations of this kind and that he had recently completed an SGI course relating to the examination of stolen motor vehicle registrations and fraudulent ownership documents. [33] Cst. Wilson returned to Cst. Warner’s police car. The two police officers had very brief conversation. They both then returned to the motor home and instructed the accused to exit the vehicle. He was placed under arrest for “possession of stolen property and VIN tampering”. [34] As the accused left the motor home, he placed his wallet in the visor of the motor home. Cst. Wilson considered that to be “strange”. He then formally placed the accused under arrest and advised him of his rights to counsel and warnings. The accused stated that he did not wish to contact lawyer. He was placed in the back of Cst. Warner’s police car. All of this had transpired within the first nine minutes of the initial stop. [35] Crown and defence agree that the first time either of the officers queried VIN number on the police computer data base was at 2:36 p.m., or 23 minutes after the motor home was initially stopped. Cst. Warner used his cell phone to call the Regina Communications Centre. The only number queried was the number on the dash plate. The Communications Centre advised that it would query the licence plate and VIN number through the British Columbia License Bureau (ICBC). [36] Approximately five minutes later Cst. Warner received response to his query. He was informed that the motor vehicle had been issued three license plates in the past one and one-half years information that turned out to be an erroneous understanding of the ICBC information on the part of the Communications Centre. In actuality, the motor home had been issued only one license plate and two temporary operating permits. [37] In the meantime Cst. Wilson testified that he pursued his possession of stolen property investigation by searching the motor home. He asserted that he was looking for any additional labels, paint colour changes or information that might confirm or refute the vehicle’s true owner and identity. He looked under the dash, in the glove box, under carpet and in the cupboards. He checked the VIN number of the engine block and noted that it was different from the VIN numbers on the registration. He asked the accused if the engine had been replaced. The accused confirmed that it had been replaced when he purchased the vehicle one and one-half years earlier. [38] certificate containing VIN number for the motor home was located in closet. That number matched the number on the dash plate of the vehicle. Cst. Wilson then opened some exterior panels “trying to find anything that would assist in identifying the true identity of the vehicle”. [39] Examination of the motor vehicle following the accused’s arrest took an estimated 35 minutes. During the course of the search, which included closets, cupboards and other storage compartments on the interior and exterior of the vehicle, Cst. Wilson made observations which, he said, caused him to begin suspecting that “this person was hauling contraband”. For example, he asserted that the smell of “Bounce” was stronger in the back corner of the motor home. As well, the officers observed fresh black caulking around various external panels and at the front corners of both sides of the motor home, black PVC pipe up both sides with fresh black caulking alongside it, non-manufacturer’s (Robertson) wood screws holding the panels together and, on the driver’s side, panel that looked as if it had been pried back and replaced and secured with caulking. THE DRUG INVESTIGATION [40] Approximately 40 to 50 minutes after the accused was initially stopped on the highway and 30 to 35 minutes after he had been taken into custody and placed in the back of the police car, Cst. Sperlie and his dog Levi drove by and joined the other police officers. Cst. Wilson informed Cst. Sperlie that they “were just about to get involved into CDSA investigation”, that the accused was going to be detained, and that they would probably be using the drug sniffer dog during their investigation. [41] Cst. Wilson informed the accused that he was being detained for investigation into his suspected transportation of narcotics. He then instructed Cst. Warner to have Nugget search the motor home. As Nugget was being deployed, Cst. Sperlie was in the police car speaking to the accused. [42] Approximately five minutes later, Nugget showed positive reaction at vent near the right rear of the motor home. According to Cst. Wilson, that reaction caused him to move from “reasonable suspicion for detention” to “reasonable and probable grounds for arrest”. He informed the accused that he was under arrest. [43] Cst. Sperlie then joined the other police officers in their search of the interior of the motor home. He noticed that piece of plywood under mattress appeared to have been installed in manner that sealed off what would ordinarily be an accessible storage compartment. Underneath the vehicle, panel from the rear axle to the back had been recently painted in flat black. The bottom of the motor home’s holding tank had been cut off and replaced with screws, meaning that it would not be watertight. [44] few minutes past 4:00 p.m., or almost two hours after the initial stop, Cpl. Kenneth McLaughlin arrived on the scene from Moose Jaw. He had received call from Cst. Wilson, who asked him to attend to transport the accused to Moose Jaw because Cst. Wilson’s vehicle was overheating. When he arrived, he found Csts. Wilson, Warner and Sperlie searching the motor home. [45] Although his purpose in attending was to transport the accused to Moose Jaw, Cpl. McLaughlin took part in the search of the motor home for the next half hour. At that point, the police officers had drilled small hole into the wall of an exterior storage compartment and, using scope, had discovered ziploc bags hidden behind the exterior panel. [46] Cpl. McLaughlin attempted to drill through the wood panel under the mattress but was unable to do so. The officers then pried the panel off. Underneath it they found stainless steel plate and under that black duffel bags containing bricks of cocaine. This led to the discovery that the motor home had been extensively modified to facilitate the transportation of illegal drugs. The plumbing and holding tank systems had been disabled, walls had been moved and secret compartments created, and hydraulics with switching system had been installed to provide access to the compartments. [47] At 4:38 p.m., Cpl. McLaughlin “re-arrested” the accused by stating that he was under arrest for possession for the purpose of trafficking. He advised him of his right to counsel and his right to remain silent. The accused responded at this point that he understood and, for the first time, stated that he wanted to speak to lawyer. He was transported to Moose Jaw and put through the booking process at the Moose Jaw police station. At approximately 5:30 in the afternoon, he was given access to telephone and provided with an opportunity to speak to lawyer. [48] The motor home was towed into Moose Jaw to be more thoroughly searched. In total, 45 kilograms of cocaine were discovered in the motor home. Depending on how it was sold, the cocaine was worth between 1.1 and 2.5 Million Dollars. It was in the form of bricks within 11 layers of packaging which included heat sealed plastic, black tarry substance and black latex. The word “sofia” appeared on the third layer of the packaging. [49] In addition, the vehicle contained 262 pounds of marihuana (worth between $471,000.00 and $733,000.00) in heat sealed plastic bags. As well, two bundles of $20.00 bills totalling $3,080.00 were found under shelf in cupboard. [50] While the motor home was being searched in Moose Jaw, one of the assisting police officers pointed out to Cst. Wilson that the VIN number on the dash plate of the motor home and the INC.VEH.VIN. number on the door post label were one and the same. ISSUES [51] The accused submits that his rights under ss. 8, 9 and 10 of the Charter were infringed. His application and the submissions of counsel, raise the following issues: 1. Was the accused’s right to be secure against unreasonable search or seizure under s. of the Charter infringed: (i) did the accused have reasonable expectation of privacy in his vehicle? (ii) was the search of the motor home incidental to his arrest for possession of stolen property an intrusion of his privacy right? (iii) was the deployment of the police sniffer dog to search the motor home violation of his privacy right? 2. Was the accused’s right not to be arbitrarily detained under s. of the Charter infringed: (i) when he was arrested for possession of stolen property? or (ii) when he was detained for an offence under the Controlled Drugs and Substances Act before the deployment of the drug sniffer dog? 3. Was the accused’s right to retain and instruct counsel without delay under ss. 10(b) of the Charter violated when he was held at the roadside and “booked in” before being given access to counsel? 4. Should the evidence be excluded under ss. 24(2) of the Charter? 1. Was the accused’s right to be secure against unreasonable search or seizure under s. of the Charter infringed? [52] Section of the Charter provides: 8. Everyone has the right to be secure against unreasonable search or seizure. [53] There have been many cases involving motor vehicle stops that evolve into searches for drugs. Most have involved warrantless searches of the motor vehicle and its driver, often with the aid of police sniffer dog. Some reported decisions involving drug seizures from vehicles by one or more of Cst. Warner, Cst. Sperlie, Cst. Wilson, Cpl. McLaughlin and police dogs Nugget and/or Levi have included R. v. Yeh 2009 SKCA 112 (CanLII), 337 Sask. R. (C.A.); R. v. McKenzie 2009 SKQB 415 (CanLII), 342 Sask. R. 281 (Q.B.) and R. v. Ramos 2009 SKQB 469 (CanLII), 348 Sask. R. 219 (Q.B.) and R. v. Volk 2010 SKCA (CanLII), 343 Sask. R. 133 (C.A.). In all of those cases, the vehicles were stopped within few kilometres of the stop in this case. In Ramos the vehicle stop occurred within few kilometres and, two days after the stop in this case. mention these cases only because it may be necessary to consider whether the police conduct in this case was an example of pattern of conduct. (i) Did the accused have reasonable expectation of privacy in his vehicle? [54] The accused’s right to challenge the legality of the search and seizure under s. of the Charter depends upon his ability to establish that, on an assessment of the totality of the circumstances, he had reasonable expectation of privacy in the place searched or the items seized. If he cannot establish that reasonable expectation of privacy, he cannot obtain ss. 24(2) remedy (R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] S.C.R. 341 (S.C.C.) at paras. 19-20). [55] The search of the motor home in this case was done without warrant. Warrantless searches are presumptively unreasonable and contrary to s. of the Charter. It is for the Crown to establish, on balance of probabilities, that the search was lawful and that the manner in which it was carried out was reasonable (R. v. Nolet, 2010 SCC 24 (CanLII), [2010] S.C.R. 851 (S.C.C.)). [56] number of cases have dealt with the extent to which driver has an expectation of privacy in his/her motor vehicle. In Nolet, Binnie J. stated at paras. 30 and 31: 30 agree with the trial judge that drivers ordinarily have some expectation of privacy in the sleeping area of cab of the tractor-trailer, including the space behind the front seats where the duffle bag with the money was found. Whether or not an individual has subjective expectation of privacy, and whether or not that expectation is objectively reasonable, is an assessment to be made having regard to the totality of the circumstances: R. v. Edwards, 1996 CanLII 255 (SCC), [1996] S.C.R. 128, at para. 45; R. v. Tessling, 2004 SCC 67 (CanLII), [2004] S.C.R. 432; R. v. Kang-Brown, 2008 SCC 18 (CanLII), [2008] S.C.R. 456, at paras. 8-10 and 48. The onus of proof of such reasonable expectation [page 871] to probability standard, lies on the Charter claimant. 31 While the appellants did not testify about their subjective belief, the court may presume that individuals would expect measure of privacy in what, for long-distance trucker, suffices as temporary mobile home. The expectation is objectively reasonable because living quarters, however rudimentary, should not be classified as Charter-free zone; Johnson v. Ontario (Minister of Revenue) (1990), 1990 CanLII 6742 (ON CA), 75 O.R. (2d) 558 (C.A.), and R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] S.C.R. 341. Nevertheless, the level of expectation is necessarily low because the cab of tractor-trailer rig is not only place of rest but place of work, and the whole of the cab is therefore vulnerable to frequent random checks in relation to highway transport matters. As Wilkinson J.A. pointed out, “[k]nowledge of the transportation legislation is requirement to be licensed as driver. The [appellants] would be well aware of the possibility of mandatory inspections and searches, whether for documents or for potential violation of any one of the countless obligations imposed by the regulatory scheme” (para. 70). Accordingly, there can be little expectation of privacy, even in the sleeping area of truck (particularly one which is travelling in violation of relevant highway regulations). stop may quickly precipitate search, and the occupants either know or ought to know of that reality and govern themselves accordingly. [57] In this case, although the vehicle appeared to be motor home, it had been extensively modified for the purpose of carrying contraband. As practical matter, it was no longer useable as motor home because its domestic systems, such as water and sewage, had been disabled. It was, quite simply, vehicle designed and reconfigured for the purpose of transporting illicit drugs from west to east. [58] Subjectively, the accused could not reasonably expect an enhanced degree of privacy on the basis that his vehicle was disguised, but not useable, as motor home. find that he had no greater privacy interest in the motor home than he would have had in any other passenger vehicle which he owned and operated and to which he had the ability to regulate access. That is, his reasonable expectation of privacy was less than what person would ordinarily have for example, in residence, in personal computer (as in R. v. Morelli 2010 SCC (CanLII), [2010] S.C.R. 253 (S.C.C.)) or in the sleeping quarters of tractor-trailer rig (as in R. v. Nolet, (supra)). (ii) Was the search of the motor vehicle incidental to his arrest for possession of stolen property an intrusion into the accused’s privacy right? [59] My review of the evidence satisfies me that the members of the roving traffic unit on duty that day in the Caronport area that is, Cst. Ian Warner, Cst. Darcy Wilson and Cst. Trent Sperlie were there to search motor vehicles suspected of transporting drugs on the TransCanada highway. It also satisfies me that neither Cst. Wilson nor any of the other police officers had reasonable suspicion that the motor home being driven by the accused was stolen much less that it was carrying drugs. Finally, it satisfies me that the real purpose of the detention and arrest of the accused for “possession of stolen property and VIN tampering” was to search the vehicle for drugs. [60] The “grounds” relied upon by Cst. Wilson to support his assertion that he reasonably suspected the accused to be in possession of stolen property were not capable of verification. First and foremost, his precipitous conclusion that the VIN numbers on the dash and door did not match was clearly wrong. His assertion that the accused was more nervous than “typical” driver was neither measurable or objectively verifiable. His evidence that the accused’s carotid artery (which Cst. Wilson acknowledged he could not see) was pulsating was more likely product of what he was taught at Pipeline Convoy training than it was true reflection of what he observed that day. He chose to not even look at, much less consider, the available information indicating that the vehicle was not in fact stolen, including the valid registration presented by the accused and the information on the computer screen received in response to Cst. Warner’s CPIC inquiry. [61] Virtually all of the other observations made by Cst. Wilson had little if anything to do with the possibility the vehicle was stolen. Rather, they related to what he believed could be “indicators” the vehicle was carrying contraband. All of this supports an inference that the detention and arrest of the accused for possession of stolen property was a pretext to justify a search of the vehicle for illegal drugs. In conducting that search police officers were acting on no more than a hunch based on intuition. [62] Cst. Wilson asserted that he detected strong odour of what he believed to be “Bounce” as he first approached the motor home on the highway that afternoon. For reasons which am about to give, consider that unlikely. Again, however, even if it was true that scent would have had nothing to do with his belief that the motor home was stolen and everything to do with the real reason for his search. According to Cst. Wilson, he considered an odour of that kind to be an “indicator” vehicle is carrying illicit drugs. [63] As noted earlier, counsel for the Crown invites me to find that the presence of the “laundry room smell” which Cst. Wilson believed to be “Bounce” was corroborated by the discovery, some three years later, of an aerosol can of Febreze air freshener in the motor home. He also asks me to infer that this scent was created when the accused surreptitiously left his seat and sprayed Febreze into the interior of the vehicle as the two police officers conferred for few moments in Cst. Warner’s police car. [64] find it improbable that Cst. Wilson detected scent while outside the vehicle, improbable that the accused sprayed anything inside the vehicle in the few moments after he was stopped, and unlikely that an aerosol can of Febreze was in the vehicle when it was searched. [65] First, the can of Febreze was brought into the courtroom and sprayed by police witness. It did not have strong odour. June 13, 2007 was windy day, making it unlikely that relatively benign scent from inside the vehicle could have been detected as “strong odour” on the highway outside the vehicle. [66] Second, both Cst. Sperlie and Cpl. McLaughlin testified that they did not detect any odour that could have been masking agent as they searched the interior of the motor home. As well, none of the police officers detected any odour of drugs to be masked. [67] Third, and most significantly, the vehicle was thoroughly searched after the drugs it was carrying were detected. All of the evidence was carefully catalogued. All of the items found in the motor home, including the accused’s personal possessions and food, were removed from the motor home and placed in bags and boxes. There was no record of any “Bounce”, “Febreze”, Tide or similar product in any of the various police reports. Given Cst. Wilson’s assertions about the importance of potential masking odour like “Bounce”, it is difficult to imagine that each and every one of the highly trained police officers would have overlooked the presence of product of that kind during their search. [68] In R. v. Caslake, 1998 CanLII 838 (SCC), [1998] S.C.R. 51 (S.C.C.) Lamer C.J. stated at paras. 22-23 that if search is to be truly incidental to an arrest, there must be some reasonable prospect of securing evidence of the offence for which the accused is being arrested. In this case, there was not. There was only the possibility, based on suspicion alone, that search of the motor home might turn up contraband. [69] I find that the search of the motor home incidental to the accused’s arrest for possession of stolen property was an intrusion into his right to be secure from unreasonable search or seizure. (iii) Was the deployment of the police sniffer dog to search the motor home violation of his privacy right? [70] The extent to which the use of drug sniffer dog may breach an individual’s s. privacy interests has been considered in number of recent decisions. In R. v. Kang-Brown 2008 SCC 18 (CanLII), [2008] S.C.R. 456 (S.C.C.), Binnie J. stated at para. [25] In my view, for reasons developed in A.M., the police are entitled to call in aid sniffer dogs where they have reasonable grounds to suspect the presence of contraband. This Charter standard of "reasonable suspicion" is based, as stated, on the minimal intrusiveness, narrowly targeted objective and high accuracy of "sniffs" by specifically trained dogs like Chevy. [71] Accepting in this case that the accused had reasonable expectation of privacy in his vehicle and that the use of the sniffer dog constituted search, it remains to be determined whether the search performed was unreasonable. The standard on which the use of sniffer dogs is evaluated is that of “reasonable suspicion”. In Kang-Brown, Binnie J. found that the fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that reasonable suspicion requires more than just sincerely held subjective belief. Instead, reasonable suspicion must be supported by factual elements which can be adduced in evidence and that permit an independent judicial assessment. Further, the distinction between “reasonable suspicion” and the higher standard of “reasonable and probable grounds” is merely the degree of probability that person is involved in criminal activity. In both cases, objectively ascertainable facts must exist to support the search (per Binnie J. para. 75). [72] Similarly, in R. v. Yeh, (supra), the Court of Appeal confirmed that the standard for detaining person for investigative detention and for engaging sniffer dog is the same, namely reasonable suspicion, and that hunch based on intuition gained by experience does not constitute reasonable suspicion. [73] By the time the sniffer dog was deployed in this case, the police had reasonable suspicion the motor home was carrying drugs. The after market modifications to the motor home were significant and objectively verifiable. However, their search of the motor home and their observations of its modifications had been incidental to their arbitrary arrest of the accused for possession of stolen property. Thus, the grounds on which they based their reasonable suspicion did not support deployment of the sniffer dog. 2. Was the accused’s right not to be arbitrarily detained under s. of the Charter infringed? (i) when he was arrested for possession of stolen property? [74] Section of the Charter provides: 9. Everyone has the right not to be arbitrarily detained or imprisoned. [75] Police have wide constitutional power to stop motorists, at random, to check for driver’s license, registration, insurance, mechanical fitness of vehicle, and the sobriety of the driver. Such stops are generally prescribed by provincial statute and justified under s. of the Charter. In Saskatchewan stops for those purposes are authorized by The Traffic Safety Act, S.S. 2004, c. T-18.1, ss. 57, 209.1 and 278. [76] In R. v. Dhuna 2009 ABCA 103 (CanLII), Alta L.R. (5th) 47, [2009] A.J. No. 273 (QL) the Alberta Court of Appeal held that this authority to detain the driver of motor vehicle extends to stops for the purpose of investigating reasonable and specific concerns that the vehicle had been recently stolen. [77] The accused submits that once the police officers satisfied themselves that he was not impaired, they had no further grounds to detain him. He says further that the police not only lacked reasonable and probable grounds to arrest him for possession of stolen property, they lacked the grounds to detain him under the standard for investigative detention elaborated in R. v. Mann 2004 SCC 52 (CanLII), [2004] S.C.R. 59 (S.C.C.). [78] There is no question that the accused was detained: he was arrested for possession of stolen property and placed in the back of Cst. Warner’s police car where he remained confined for over four hours. The question is whether his arrest was arbitrary under s. 9. [79] In R. v. Nolet, (supra), two accused were travelling eastward along the TransCanada highway in Saskatchewan in an empty 53 foot commercial tractor-trailer unit licensed in Quebec. An RCMP officer pulled them over for “spot check” and discovered number of regulatory problems relating to the vehicle’s registration and logbook. One discovery led to another, and in the end the police found $115,000.00 in cash and 392 pounds of marihuana. Binnie J., for the entire court, stated at paras. and and at para. 23: Clearly random checks of vehicles for highway purposes must be limited to their intended purpose and cannot be turned into “an unfounded general inquisition or an unreasonable search”: R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615, at p. 624. Nevertheless, roadside stops sometimes develop in unpredictable ways. It is necessary for court to proceed step by step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry. Analysed in this way, believe the majority reached the correct conclusion. would dismiss the appeal. ... 23 Random roadside stops must be limited to their intended purposes. “A check stop does not and cannot constitute general search warrant for searching every vehicle, driver and passenger that is pulled over”, per Cory J., in Mellenthin, at p. 629. It thus becomes necessary to examine the authority claimed by the police at each step from the original demand to the appellants to pull their truck over on the Trans-Canada Highway to the discovery of the cash and subsequently the marijuana couple of hours later as well as the follow-up “inventory search” the next morning, to determine at what point, if at all, the police infringed the rights of the appellants under s. or s. of the Charter. roadside stop is not static event. Information as it emerges may entitle the police to proceed further, or, as the case may be, end their enquiries and allow the vehicle to resume its journey. [80] I have already found that Cst. Wilson, who made the decision to arrest the accused, did not have reasonable and probable grounds to believe the motor home was stolen. He had not carried out even a cursory investigation into the possibility that it might have been stolen. His inability to compare the two clearly matching vehicle identification numbers, if not the result of wilful blindness, was at least flagrantly negligent. But for that, he would not have arrested the accused because he had no grounds to do so. [81] The accused’s right not to be arbitrarily detained was infringed when he was arrested by Cst. Wilson for possession of stolen property. (ii) when he was detained for an offence under the Controlled Drug and Substances Act before the deployment of the drug sniffer dog [82] I have earlier determined that the observations made by the police officers which caused them to reasonably suspect the accused was hauling contraband in his motor home were a product of their search incidental to his arbitrary arrest for possession of stolen property. As such, the detention of the accused for potential offence under the Controlled Drugs and Substances Act was equally arbitrary. The detention had little practical effect on the accused, however, who remained confined to the back of the police car as consequence of his earlier arrest for possession of stolen property. 3. Was the accused’s right to retain and instruct counsel without delay under s. 10(b) of the Charter violated when he was held at the roadside and “booked in” before being given access to counsel? [83] Section 10(b) of the Charter provides: 10. Everyone has the right on arrest or detention ... (b) to retain and instruct counsel without delay and to be informed of that right; [84] In R. v. Suberu 2009 SCC 33 (CanLII), [2009], S.C.R.460 the Supreme Court of Canada held that the s. 10(b) right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes. In this case, the accused was detained for an offence under the Controlled Drug and Substances Act. He was informed that he had the right to speak to lawyer and he stated that he wished to do so. At that point he faced significant legal jeopardy. He was already within the effective control of the police. [85] Rather than transport the accused to Moose Jaw at that point Cpl. McLaughlin chose to join the other three police officers in their ongoing search of the motor home. It was another half hour before he was “re-arrested”, and another one and half hours before he was transported to Moose Jaw (a distance of 30 km.), “booked in” and given an opportunity to contact lawyer. Thus, he was not given an opportunity to retain and instruct counsel in a timely fashion. [86] That said, there is no evidence the police attempted to elicit incriminatory information from the accused during the time he was held at the roadside. Even without Cpl. McLaughlin’s participation, the ongoing search would have continued in any event. Thus, although the accused’s s. 10(b) right was breached, there was no causal connection between the breach and the discovery of the drugs. 4. Should the evidence be excluded under s. 24(2) of the Charter? [87] Subsections 24(1) and of the Charter read as follows: 24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [88] The purpose of ss. 24(2) of the Charter is to maintain the rule of law and the values underlying the Charter. It is not meant to punish police misconduct or to compensate an accused for violation of his or her rights. The objective of ss. 24(2) is systemic. Its focus is long-term, prospective and societal (R. v. Grant 2009 SCC 32 (CanLII), [2009] S.C.R. 353 (S.C.C.) at paras. 67-70). The concern is less with the particular case than on the impact over time of admitting evidence obtained by infringing constitutionally protected rights (R. v. Morelli, (supra), at para. 108). [89] There are three prerequisites for the exclusion of evidence under ss. 24(2). The applicant must establish each of them by balance of probabilities. First, the applicant must show that his or her rights or freedoms guaranteed by the Charter have been infringed or denied. Second, the evidence in question must have been obtained in manner that infringed or denied that right or freedom. Third, the circumstances must be such that admission of the evidence could bring the administration of justice into disrepute. Unless all three of those conditions are present, the evidence cannot be excluded under ss. 24(2) (R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 (S.C.C.) at p. 276 R. v. Manninen, 1987 CanLII 67 (SCC), [1987] S.C.R. 1233 (S.C.C.) at p. 1241). [90] In R. v. Grant, (supra), the Supreme Court of Canada revised the approach to be taken by trial court faced with an application for exclusion under s. 24(2). It stated that the court is to assess and balance: (1) the seriousness of the Charter-infringing conduct; (2) the impact of the breach of the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. 1. Seriousness of the Charter-infringing conduct [91] At this first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from it by excluding evidence in order to preserve public confidence in and ensure state adherence to the rule of law. [92] Here, the initial stop of the motor home was justified, but the ensuing s. 8 and s. 9 breaches (i.e. the search of the motor home incidental to the arbitrary arrest of the accused for possession of stolen property), were very serious. The officer was so determined to find evidence of contraband that he became blinded to the constitutional requirements of reasonable suspicion for investigative detention and reasonable and probable grounds for arrest. He claimed to be looking for evidence that the vehicle was stolen when he was almost certainly engaged in search for evidence of drugs. [93] While I do not believe Cst. Wilson intended to breach the Charter from the outset, I find that his actions showed a flagrant disregard for Charter requirements. The search of the motor home without reasonable grounds to do so was serious breach of s. 8, but attempting to justify the search by arresting the accused without reasonable suspicion he had committed any offence compounded that breach with breach of s.9. 2. Impact of breach on the Charter protected interests of the accused [94] The second stage of the Grant inquiry calls for an evaluation of the extent to which the Charter breaches actually undermined the interests protected by the infringed right. have found that the accused had diminished expectation of privacy in his modified motor home. Those who use the highways know they can be stopped at virtually any time for reasons of highway safety as for impaired driving, for example. [95] Nevertheless, his privacy interests were violated. The question is how seriously they were impacted. The more serious the incursion, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. [96] Where evidence has been obtained as result of an unreasonable search and seizure, there is presumption that the violation of s. of the Charter is serious one. The Crown can overcome that presumption by showing that the police had reasonable and probable grounds to act as they did, or that there were compelling and urgent circumstances. [97] There were no compelling and urgent circumstances in this case. The accused was alone and the site had been well secured by number of experienced, well equipped police officers. The precipitous and arbitrary arrest of the accused for possession of stolen property and the resulting search of his motor home had significant impact on his liberty and privacy interests. It also formed the basis of his subsequent arrest for offences under the Controlled Drugs and Substances Act. [98] Although the encounter with the police may not have been seriously demeaning to the accused, the experience of being arrested, held in custody and subjected to search without reasonable justification impacted on his rightful expectation of liberty and privacy in more than trivial way. Subject always to valid highway stops, the accused had an expectation of being left alone. [99] I conclude that the deprivation of liberty and privacy resulting from the unconstitutional detention and arrest of the accused and consequent search was therefore a significant, but not egregious, intrusion on his Charter protected interests. [100] Although stop short of finding that there was evidence of pervasive systemic abuse by the police officers involved in this case, do note that in R. v. McKenzie, (supra), McLellan J. stated: [47] In my view, the opinions expressed by Cst. Sperle did not meet the "reasonable suspicion" standard required for valid sniffer dog search at best he was acting on hunch. Furthermore, it must be pointed out that both Cst. Warner and Cst. Sperle were from northern Saskatchewan and they claim to have been on routine traffic patrol with "sniff dog" in the southern part of the province. The posted speed limit where the car was travelling was 110 km per hour. The radar clocked the accused as travelling at 112 km per hour which is only two km over the speed limit. have concern that the two officers may have been in the area with the purpose of conducting random traffic stops for the sole purpose of checking for drugs being transported from west to east which, according to Cst. Sperle, is common occurrence. It is therefore quite conceivable that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located. [48] When consider all of the facts in this case, can only conclude that the search performed by the officers was unreasonable. The same comments could be made in this case. [101] In summary, apart from the initial stop of the accused, find that the s.8 Charter breach represented flagrant disregard for Charter rights and the police conduct should not lightly be condoned. 3. Society’s interest in an adjudication on the merits [102] At the third stage of the Grant inquiry, the court asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown’s case should be considered at this stage. [103] In Grant, the majority held (at paras. 79-85) that society has greater interest in having determination on the merits when crime is serious. At the same time, it has an important interest in having justice system that is above reproach, especially when the penal consequences for the accused are high. In R. v. Yeh, (supra), Richards J.A. extracted and relied upon the following additional principles from Grant: [81] ... exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. ... The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution. [126] ... in determining whether admission of the derivative evidence would bring the administration into disrepute relates to society’s interest in having the case adjudicated on its merits. Since evidence in this category is real or physical, there is usually less concern as to the reliability of the evidence. Thus, the public interest in having trial adjudicated on its merits will usually favour admission of the derivative evidence. [104] The charge in this case is serious one. It involves very large quantity of drugs. The evidence of the drugs obtained as result of the Charter breaches is highly reliable. It is critical to the Crown’s case and virtually conclusive of the accused’s guilt of the offences with which he is charged. Having regard to the truth seeking function of the court, admitting it would not be unfair. [105] The third line of inquiry therefore favours the admission of the evidence to promote the public’s interest in having the case adjudicated on its merits. 4. Balancing the factors [106] Assessments made pursuant to each of the three lines of inquiry enunciated by Grant must be balanced to determine whether, in all of the circumstances, whether admitting the evidence would bring the administration of justice into disrepute. The ss. 24(2) analysis should not be reduced to simple contest between the degree of police misconduct and the seriousness of the offence. The balancing is not mathematical exercise, nor is it capable of mathematical precision. It is qualitative. As stated by the Supreme Court of Canada in R. Harrison 2009 SCC 34 (CanLII), [2009] S.C.R. 494 (S.C.C.) at para. ... Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed. [107] The Supreme Court of Canada issued its decisions in both Harrison and Grant on the same say. In Harrison, evidence of 35 kilograms of cocaine obtained from the accused’s SUV was excluded because it had been obtained through violation of his ss. and Charter rights. The evidence was highly reliable and important to the Crown’s case on very serious charge. These factors, which came under the third line of inquiry as set forth in Grant, supported admission of the evidence. However, the court found that they were overcome by other factors relating to the first and second lines of inquiry of the Grant approach. It found that the police officer had acted recklessly and without sufficient regard for Charter rights. He had detained the accused and searched his vehicle on hunch and without any semblance of reasonable grounds. He later aggravated his initial misconduct by giving misleading in-court testimony. The impact of the detention and search on the accused’s privacy and liberty interests was significant, although not egregious. [108] On balance, the court in Harrison found that the factors favouring exclusion outweighed those favouring admission. Despite the seriousness of the offence and the reliability of the evidence, the court concluded that admitting the evidence would bring the administration of justice into disrepute. Admission would, in doing so, imply that the court condoned the serious misconduct of the police and the significant incursion on the rights of the accused. [109] The circumstances of this case are indistinguishable in principle from the circumstances in Harrison. In both cases the police misconduct and the ss. and Charter breaches were flagrant. In one respect the police misconduct in this case may have been more serious: given the comments of McLellan J. in R. v. McKenzie (supra), quoted at para. 47 above, the cavalier approach to search and seizure demonstrated by the members of the roving traffic unit may not have been unique to this case. As in Harrison, the accused in this case is charged with serious offences and the evidence is important and reliable. However, as in Harrison, those factors are outweighed by the principle that the long term repute of the administration of justice will be harmed by condonation of wilful and flagrant Charter breaches which significantly impact on protected rights. Admitting the evidence in these circumstances would amount to judicial declaration that in the administration of criminal law, the end justifies the means if the offence is serious and the evidence is reliable. [110] Accordingly, I find that admitting the evidence would bring the administration of justice into disrepute and that the standards is paramount. For that reason, I find the evidence seized from the motor home on June 13, 2007 must be excluded. [1] During the voir dire, which was held three years later, Cpl. McLaughlin, Cst. Warner and Cst. Wilson revisited the still impounded motor home. They found an aerosol can of Febreze fabric softener and small (2" 4") box of Tide laundry detergent in cardboard box in the motor home. The Crown asks the court to infer that as Cst. Wilson and Cst. Warner were conferring in Cst. Warner’s police car, the accused left the driver’s seat, located can of Febreze and sprayed it inside the motor home to mask the smell of drugs. [2] The Crown asks the court to infer that the accused became more nervous at that point because he was carrying illegal drugs. The defence asks the court to infer that the accused became more nervous at that point because he had just been asked to disclose when he had last committed criminal offence. The defence references the evidence of the same Cst. Wilson in relation to very similar stop and search of the TransCanada highway which took place on April 18, 2007 case in which he acknowledged that he was essentially asking the driver when he last committed criminal offence. See R. v. Yeh 2009 SKCA 112 (CanLII), 337 Sask. R. (C.A.) at para. 19. [3] INC.VEH.VIN. is an abbreviation for “Incomplete Vehicle [Manufacturers] V.I.N.” which must be used for vehicles manufactured in stages by virtue of the Motor Vehicle Safety Regulations (C.R.C., c. 1038) [4] “VIN tampering” is not an offence known to either the Criminal Code, R.S.C. 1985, c. C-46 or Statute of Saskatchewan.

The accused was charged under s. 5(2) of the Controlled Drugs and Substances Act after a highway traffic stop in which the accused was driving a motorhome that was found to be modified to carry cocaine and marijuana by a group of officers designated to search for drugs in vehicles. The cocaine found in the motorhome had an estimated street value of between 1.1 and 2.5 million dollars. The marijuana had an estimated street value between $471,000 and $733,000. The officer who stopped the motorhome saw it weave from the centre line to the fog line approximately six times. The officer testified that he suspected the driver might be impaired by alcohol. The officer stopped the vehicle and found no indicia of impairment by alcohol. The officer ran the motorhome on his computer system and found that it was registered to the driver. Another officer arrived on scene and approached the motorhome. The second officer noted a smell of fabric softener in the vehicle and testified that the accused appeared unusually nervous. The second officer testified that fabric sheets are frequently used to mask the odour of drugs. The second officer testified that he suspected the Vehicle Identification number on the dash had been tampered with because the rivets looked too new. He testified that he compared the Vehicle Identification Number on the dash to the number on the door and found they did not match. He later acknowledged that he was in error and later discovered that the numbers did match. The second officer commenced a search of the vehicle purportedly to search for paperwork that would confirm that the vehicle was not stolen. The accused was arrested for possession of stolen property. As the officer searched the vehicle, he noted signs that it had been modified. A drug sniffer dog was brought to the scene and had a positive reaction near the rear vent of the motorhome. The officers conducted a search of the vehicle which revealed that the motorhome hnd been significantly modified for the purpose of transporting illegal drugs. The accused was arrested for trafficking. The accused advised the officers that he wanted to contact a lawyer after he was arrested for trafficking. Another officer attended the scene to transport the accused to the detachment. That officer assisted with the search of the motorhome for approximately half an hour before driving the accused another hour and a half to the detachment where he was allowed to contact a lawyer. The accused argued that his rights under ss. 8, 9 and 10 of the Charter were infringed and sought exclusion under s. 24(2). HELD: Section 8 û The motorhome had been extensively modified for the purpose of carrying contraband and could no longer be used as a motor home because its domestic systems had been disabled. The accused was entitled to no greater expectation of privacy in the vehicle than he would have had in any other passenger vehicle that he had the ability to regulate access to. The officers did not have a reasonable suspicion that the motorhome was stolen. The real purpose of the detention and arrest for possession of stolen property was to search the vehicle for drugs. The observations of the second officer on scene to support his reasonable suspicion that the motorhome was stolen were not capable of verification. He chose not to look at or consider the available information indicating the vehicle was not stolen including: the valid registration presented by the accused and the information from the CPIC query. Virtually all of the other observations of this officer had little to do with the possibility of a stolen vehicle and were indicators of a vehicle suspected of carrying contraband. In conducting the search, the officers were acting on little more than a hunch based on intuition. The search of the motorhome incidental to the accused's arrest for possession of stolen property amounted to a breach of s. 8. By the time the sniffer dog was deployed, the police had a reasonable suspicion that the accused was transporting drugs. However, the search of the motorhome and observations of its modifications were incidental to the arbitrary arrest of the accused for possession of stolen property, therefore, their grounds for the reasonable suspicion did not support the deployment of the sniffer dog. Section 9 û The arresting officer did not have reasonable and probable grounds to believe the motor home had been stolen when he arrested the accused. He had not carried out even a cursory investigation into the possibility that it might have been stolen. His inability to compare the two vehicle identification numbers accurately was willful blindness or flagrantly negligent. The accused was arbitrarily detained when he was arrested for possession of stolen property. The observations that lead to the reasonable and probable grounds to arrest the accused for trafficking were derived from his arbitrary arrest for possession of stolen property. The detention had little practical effect on the accused because he remained confined to the back of the police car as a result of the earlier arrest for possession of stolen property. Section 10 û The accused was not provided with an opportunity to retain and instruct counsel in a timely fashion. However, the police did not attempt to elicit any incriminating evidence from the accused during the time it took to get him to the detachment to call a lawyer. There is no causal connection between the breach of the accused's rights under s. 10(b) and the discovery of the drugs. The evidence was excluded under s. 24(2). The breaches of the accused's rights under ss. 8 and 9 were very serious. The officer was so determined to find evidence of contraband that he became blinded to the constitutional requirements of a reasonable suspicion for investigative detention and reasonable and probable grounds for arrest. His actions showed a flagrant disregard for Charter requirements. The deprivation of liberty and privacy resulting from the breaches was significant but not egregious. These two factors favor excluding the evidence. The charge is a serious one and involves a large quantity of drugs. The evidence is highly reliable and critical to the Crown's case. The truth seeking function of the Court favours admitting the evidence. On balance, the administration of justice would be brought into disrepute if the evidence was admitted and that standard is paramount.

2_2010skqb444.txt

J. Q.B.G. A.D. J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: HUSKY OIL OPERATIONS LTD. and MINISTER OF FINANCE, PROVINCE OF SASKATCHEWAN RESPONDENT Murray W. Douglas and for the appellant Jeffrey W. Estabrooks Garry J. Moran for the respondent JUDGMENT McINTYRE J. February 5, 1996 This is an appeal by Husky Oil Operations Ltd.("Husky") from a decision of the Board of RevenueCommissioners of Saskatchewan (the "Board"). The respondent, under the provisions of The Education and Health Tax Act, R.S.S. 1978, c. E-3, as am. (the "Act") and The Department of Revenue and Financial Services Act, S.S. 1983, c. D-22.02 as am. S.S. 1988-89, c. 42, s. 29 amending the title and chapter of the Act to read The Revenue and Financial Services Act, c. R-22.01, conducted an audit resulting in the assessment of sales tax in the amount of $37,842.07. Husky appealed to theBoard which upheld the assessment. The appeal to this Court arises under s. 21 of The Revenue and Financial Services Act which provides, in part: 21(1) Subject to subsection (2), person aggrieved by decision of the board made pursuant to section 20 may appeal to the court. (11) On appeal, the facts are deemed to have been conclusively established by the findings of the board, except where question is raised on the appeal that the finding of any particular fact or facts has been made by the board on evidence which does not warrant that finding. (12) At the hearing of the appeal, the court shall hear and consider the cause based on the material which was before the board at the hearing conducted before it and on any further material or evidence that the court may, on any terms that it considers appropriate, permit. (13) The court may: (a) affirm the decision of the board; (b) amend or reverse the decision of the board insofar as it is based on any error in law; or (c) refer the matter of assessment back to the minister for reconsideration. The Board's findings of fact included the following: 2.The assessment pertains to charges incurred by the Appellant in contract with Valtek Controls Ltd. of Alberta. Valtek supplied certain valves for use at the Appellants [sic] Upgrader project located in Lloydminster Saskatchewan. The valves, meeting the definition of tangible personal property as defined in the Act, were subject to Education and Health Tax which the Appellant paid. The Appellant did not pay taxon what is referred to as "Documentation charges". 3.The charges are for documentation specifically ordered by the Appellant from Valtek and consists of Certified Dimensional Drawings which include all valve parts and part numbers in metric units. The primary function of such documentation is ongoing technical support for the valves operation, maintenance, change of parts and modifications. This documentation is not supplied with or included in the price of valves as supplied by Valtek but was provided for in response to the Appellants [sic] specific request to meet its particular requirements. 4.The valves and documentation were ordered on the same purchase order and were identified as separate items. Clause 22 of the purchase order, terms and conditions, specifies that title passes upon payment. The documentation was separately invoiced. The payment and receipt of the documentation preceded the payment and receipt of the valves. Title to each item under contract passed from Valtek to the Appellant in Alberta at the time of each payment for the portion of the items invoiced. Title acquisition of the documentation was not conditional upon any action or status of the valves or vice versa. The documentation was designed for specific application as opposed to general application guide. 6.By letter of April 29, 1993 Valtek wrote the Appellant stating: "Enclosed is summary listing of all purchase orders issued by Husky Oil for the Bi-Provincial Project, their respective values, and the position that was allocated to "Documentation". The documentation charge amounts to 10% of the value of the order. Documentation refers to certified drawings, bills of material, test result records, CMTR's final inspection, release notes etc." The pertinent legislative provisions of the Act 3(1) In this Act: (b) "consideration" means money paid or agreed to be paid, property delivered or exchanged or agreed to be delivered or exchanged, things done or agreed to be done, rights or any other consideration whatsoever and includes service charge, transportation charge, or any other cost, or tax, levy or duty imposed by any level of government other than the tax imposed pursuant to Part IX of the Excise Tax Act (Canada), as amended from time to time, in respect of the sale of taxable service or tangible personal property whether or not the charge, cost, tax, levy or duty included is shown separately on any invoice or in the books of the seller or of the purchaser (n) "value" means, subject to subsections 5(1), (17), (17.1) and (17.2), the consideration given or agreed to be given by the consumer or user for taxable service or the transfer of the ownership of or title to tangible personal property and includes charges added for electrical energy under section 36 of The Power Corporation Act 5(9) Every person residing or ordinarily resident or carrying on business in Saskatchewan who brings into the province or who receives delivery in the province of tangible personal property for his own consumption or use, or for the consumption or use of other persons at his expense, or on behalf of or as agent for principal who desires to acquire the property for consumption or use by the principal or other persons at his expense, shall immediately report the matter to the minister or his appointee and forward or produce to him the invoice, if any, in respect of the property and any other information required by him with respect to the property and shall pay the same tax in respect of the consumption or use of the property as would have been payable if the property had been purchased at retail in the province at the price that would have been paid in Saskatchewan if the tangible personal property had been purchased at retail in the province. (12) The expression "price" in subsections (9) and (9.2) includes the value of the tangible personal property, transportation costs and any other costs whatsoever incurred in bringing the property into Saskatchewan and in preparing the property for use or consumption in Saskatchewan, borne or to be borne by the user or consumer or any person at his expense or on his behalf or as his agent. 8(1) The following classes of tangible personal property and taxable services are exempt from the tax imposed by this Act when purchased by retain sale in the province: (f) books, magazines and periodicals. And the relevant portions of The Education and Health Tax Act Regulations, R.R.S. c. E-3 Reg. ("Reg. 1") include: 5(1) In subsection 8(1) of the Act and in these regulations: (b)"books" means: (i) books that are printed and bound with permanent bindings; (ii) unbound literary and technical papers; (iii) loose-leaf sheets or pages that are printed and punched for insertion in ring or post binder; that are published solely for educational, technical, cultural or literary purposes and that contain no advertising, but does not include: (iv) albums; (v) catalogues; (vi)directories; (vii) fashion books; (viii) financial reports; (ix) loose-leaf sheets or pages that are printed and punched for insertion in albums, catalogues, directories, fashion books, price lists, rate books and time tables; (x) paper ruled for accounting or bookkeeping purposes; (xi) post and ring binders; (xii) price lists; (xiii) rate books; (xiv) time tables; (xv) any other reading materials or articles that are similar, or used for purpose similar, to any of the classes of materials described in subclauses (iv) to (xiv) The parties had agreed that the documents in issue fall within the definition of tangible personal property as set out in the Act and would constitute technical papers that would have technical purpose. As result, the Board framed the issue before it as follows: 1. Was the documentation purchased by the Appellant part of the consideration attributable to the purchase of valves or was it an independent purchase? 2. If it is determined the purchase was an independent one is it exempt from tax by virtue of Section 8(1)(f) of the Act? In response to the first issue the Board found: In the board's opinion the Appellant purchased the subject documentation independent of the valves. It could be said the purchases are interrelated and the documentation would be of no value without the valves. However, the evidence clearly shows the valves and documentation were purchased separately and it was not condition that the supply of one was dependant on the supply of the other. Documentation was an additional purchase by the Appellant and one the Appellant would have been responsible for without purchase of the valves, although, it is highly unlikely the Appellant would have ordered the documentation without valve purchase because of their obvious relationship. As previously stated the valves were ordered and shipped to the job site in Lloydminster, Saskatchewan where they were installed in the Appellant's plant. The documentation which [sic] was not on site during installation. In fact they it [sic] not arrive at the site until well after valve installation which leads the board to conclude the purchase of the documentation was not required for preparing the valves for use but rather for the ongoing maintenance of the valves as submitted by the Appellant. In response to the first question the board determined the purchase of documentation was independent of the valves and therefore not consideration in establishing the final price of the valves. Thus, the documentation stands as tangible personal property and is subject to tax as such by virtue of Subsection 5(9) of the Act unless the Appellant can claim an exemption under Section 8(1)(f) of the Act. The respondent argues the Board erred in its conclusion that the purchase of the documentation was not required for preparing the valves for use in Saskatchewan. In the respondent's view the material before the Board was more consistent with the documentation charges being part of the purchase of the valves and one cannot avoid the tax consequence by allocating the price to alleged components or by separately invoicing various charges. The respondent's position is based upon the combined effect of ss. 3(1)(b), 3(1)(n) and 5(12) of the Act. The respondent's view of the affect of these sections is accurate. The Board, however, correctly identified the issue as one of whether or not the drawings were required for "preparing the property for use in Saskatchewan" as required by s. 5(12) of the Act. Subsection 21(11) of The Revenue and Financial Services Act provides that on an appeal the facts are deemed to have been conclusively established by the findings of the Board unless made on evidence which does not warrant that finding. The respondent argues that the application of the statutory requirements in this instance whether the documentation was required for preparing the property for use in Saskatchewan to the evidence before the Board is question of law reviewable by this Court. Alternatively, the respondent argues the evidence did not warrant the findings made by the Board. The respondent's argument requires review of the role and jurisdiction of the Court on an appeal of this nature. The role of the Court is in the nature of judicial review. In Kroma Color Photo Labs Inc. v. Saskatchewan (Minister of Finance) (1993), 1981 CanLII 2186 (SK CA), 11 Sask. R. 28 (C.A.) the chambers' judge who had been hearing an appeal under s. 21 of The Revenue and Financial Services Act had taken the view that the board had not made determination as to whether certain items had been purchased for resale and it was therefore open to him to reach his own decision on this question. The Court of Appeal stated at pp. 29 and 30: The view of the Chambers judge that there was no factual determination by the Board is not accurate as the Board's decision contained the following statements: "4. Kroma Kolor Photo Labs used the above-named items in the normal course of business. "2) other items are provided as service and are not sold to the customer and therefore attracts tax pursuant to section 49 of the Education and Health Tax Act. These items include sleeving, masks, plastimounts and slide boxes." (emphasis added) This indicates the Board addressed the question of whether the three items were purchased for resale and concluded they were not. Section 22 of the Revenue and Financial Services Act requires that findings of fact made by the Board are to be accepted and applied in any further judicial review of the Board's decision. It is of no consequence but might say find no difficulty in accepting the Board's conclusion on this important factual determination. [Emphasis added] The Court's role is supervisory in nature. Questions of law are within the purview of the Court. On questions of fact the Court's role is restricted to circumstances where the evidence does not warrant findings of fact made by the Board. By this take the legislators to mean that the Court is not to substitute its view of the evidence for that of the Board simply because it may be of different view. The observations of H. W. R. Wade in his text Administrative Law, 4th ed. (Oxford: Clarendon Press, 1977) at pp. 274 and 275 are, in my view, appropriate to the jurisdiction conferred by s. 21(11) of The Revenue and Financial Services Act on this Court insofar as issues of fact are concerned. Findings of fact are the domain where deciding authority or tribunal can fairly expect to be master in its own house. Just as the courts look jealously on decisions by other bodies on matters of law, so they look indulgently on their decisions on matters of fact. But the limit of this indulgence is reached where findings are based on no satisfactory evidence at all. It is one thing to weigh conflicting evidence which might justify conclusion either way. It is another thing altogether to make insupportable findings. "No evidence" does not mean only total dearth of evidence. It extends to any case where the evidence, taken as whole, is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. In terms of the evidence before the Board on thismatter there was evidence which could support eitherinterpretation of the facts. There was not an absence of evidence such that the Board could not reasonably reach the conclusion which it did. Insofar as the respondent argues that the Board's application of the statutory requirement (that the documents were required to prepare the valves for use in Saskatchewan) to the evidence is question of law, disagree. The respondent's argument is in essence to distinguish between findings of primary fact based upon an assessment of the evidence before the Board and the application of statutory provision to those primary facts, characterizing the latter as question of law open to review by this Court. That gives rise to the question as to when is determination by the Board one of fact and when is it one of law? Bayda C.J.S. dealt with the dilemma in Re Peters et al. and University Hospital Board (1983), 1983 CanLII 2066 (SK CA), 147 D.L.R. (3d) 385 at 395 (C.A.): The answer to the question whether particular set of facts falls within the scope or purview of term in statute is one of fact or law depends largely upon the term itself. Where the term is simple and ordinary, and, as it were, can be reduced no further in simplicity or definition, and which to define would require words that themselves need definition, the question is one of fact. The terms "resident" and "insulting" are good examples. Where the term gives rise to some complexity, or has acquired special or technical meaning, the question is likely, but not always one of law. This view was ratified by the Court of Appeal in its subsequent decisions in Re Saskatchewan Human Rights Commission et al. and Canadian Odeon Theatres Ltd. (1985), 18 D.L.R. (4th) 93 and Re Pasqua Hospital and Harmatiuk (1988), 1987 CanLII 981 (SK CA), 42 D.L.R. (4th) 134. In my view the determination of whether the documents were required for preparing the property for use in Saskatchewan is question of fact. There is nothing complex or technical about the statutory requirement. The words used are simple and ordinary. The Board determined as finding of fact that the documentation was not required for preparing the valves for use in Saskatchewan and there was evidence before the Board upon which it was open to them to come to that conclusion. The issue raised by Husky on the appeal was theinterpretation adopted by the Board of the word "published" asused in s. 5(1)(b) of Reg. 1 when defining the word "books". This goes to the second issue before the Board. If, as theBoard found, the purchase of the drawings was an independenttransaction, was it exempt from tax by virtue of s. 8(1)(f) ofthe Act? The Board had the following to say: The Appellant and Respondent agree the subject documentation would constitute "technical papers" and accordingly fall within the definition of "books". The only obstacle remaining then is to qualify for an exemption under Section 8(1)(f) is that the technical papers must be published and that they contain no advertising. The board notes and accepts the definition of "publish" set out on page of the Respondents [sic] submission. The supplier, Valtek, according to the facts, shipped the documents to Engineering and Procurement Contractors offices in Calgary for use in preparing other documentation and then to the Appellant's Calgary office. Late in 1991 the Appellant shipped the documentation to its BPU site in Saskatchewan. It is apparent from the evidence submitted the supplier, Valtek, never published the documents. They were merely shipped to the destination designated by the Appellant which in the boards [sic] view would not represent the requirement of being "published" as provided for in the Act. Accordingly, it is the board's finding that the Appellant fails to meet the requirements of Section 8(1)(f) of the Act and is therefore not entitled to claim an exemption. Husky argues the word "published" is not meant to restrict the meaning of those words which precede it, that is (i) books; (ii) unbound literary and technical papers; (iii) loose-leaf sheets or pages; but rather it is an introduction to the purposes outlined solely for educational, technical, cultural or literary purposes. Alternatively the appellant argues the word "published" is to be interpreted broadly, i.e., the act of communicating to the public where the public can be one person or more. The respondent argues you cannot have publication in the context of papers passing between two private parties pursuant to contract. Publication contemplates distribution or availability to more than one person. The respondent relies upon the decision in Re Edmonton Journal and Attorney-General for Alberta et al. (1985), 1985 CanLII 1233 (AB QB), 22 D.L.R. (4th) 446 at 452 (Alta. Q.B.) which provided the following definition of "published", which was the definition adopted by the board herein: Dictionaries define "publish" as follows: Websters Third New International Dictionary: 1a: to declare publicly: make generally known 3a: to place before the public (as through mass medium) Blacks Law Dictionary, 5th ed.: To make public; to circulate; to make known to people in general. To issue; to put into circulation. To utter; to present (e.g. forged instrument) for payment. To declare or assert, directly or indirectly, by words or actions, that forged instrument is genuine. An advising of the public or making know [sic] of something to the public for purpose. The respondent argued that the Court could look to administrative policy as factor which may be considered in cases of doubt about the meaning of legislation. See Gene A. Nowegijick v. R. et al., 1983 CanLII 18 (SCC), [1983] S.C.R. 29 at 37. In that regard Husky noted that every province with sales tax exempts books. Most of the wording is very similar to Saskatchewan's exemption, but there are small variances in the structure of the wording and the punctuation. Nova Scotia and New Brunswick, it was noted, used wording very close to Saskatchewan's except that they do not use the word "published". Instead they introduce the restriction on books with the words "that are solely for educational, technical, cultural or literary purposes ." Despite not using the word "published" in the legislation, Nova Scotia's "Vendor Guide G1035" which is virtually the same as Saskatchewan's Information Bulletin No. EH-9 describes exempt books as "Books that are printed and bound and are published solely for educational, technical, cultural or literary purposes". Husky suggested that the term "published" in the context of the Nova Scotia sale tax does not have particular meaning other than to introduce the restrictions on the type of books that are exempt. Husky also noted that in the New Brunswick Sales Tax Guide No. 0008, the word "publication" is defined as follows: K. "Publication" means the printing and distribution, usually for sale, of books, magazines, newspapers, etc. Husky concludes that in New Brunswick publication does not require public distribution or sale to the public. In fact, it does not necessarily involve sale in all circumstances. If the word "published" restricts the words which precede it and requires an element of distribution or availability to the public, Husky argues it is sufficient if the documents are delivered to one member of the public and relies upon Re Peel Board of Education and et al. (1987), 59 O.R. (2d) 654 at 659 (H.C.J.) and R. v. Liversidge (1970), 73 W.W.R. 29 at 38 (B.C.C.C.). In Husky's view publication is an act of communication from one to another and the word public includes one person or more. The first question to be determined is whether the word "published" qualifies the words which precede it or whether it relates to the purposes for which the book, literary or technical papers or loose-leaf sheets were published. If the word "published" qualifies the preceding words, it draws distinction between published and unpublished books or published and unpublished technical papers and exempts from tax only those which are published. To take it one step further, if the interpretation adopted by the Board is correct, the Minister in determining whether an item is published book or technical paper, he must determine whether the production, distribution or availability is sufficiently public or broadly available so as to constitute published versus an unpublished technical paper. The alternative does not focus upon the extent to which the book or technical paper is produced, distributed or available to sufficiently broad audience but rather the purpose for which it was produced, distributed or made available, i.e., solely for educational, technical, cultural or literary purposes. find the latter consistent with the context in which the word "published" is used in s. 5(1)(b) of Reg. 1. Technical papers by their nature, are often going to be directed to narrow audience. To focus upon the extent towhich technical papers are directed at a public audience so asto determine their taxability makes no sense and is at oddswith the very proposition that technical papers can be exemptfrom tax. If the word "published" is intended to focus upon purpose that is, items produced, distributed or available solely for educational, technical, cultural or literary purposes, it is far more consistent and harmonious with the context in which the words appear and far more precise in terms of criteria to determine taxability. Having determined that the word "published" isintended to speak to purpose and not the extent of theaudience, it is probably not necessary to comment upon thedefinition adopted by the Board. would note, however, that the definition adopted does give rise to the artificiality noted earlier i.e. determining whether technical papers are produced, distributed or available to sufficiently broad audience. Is it one, two, ten? There is no guideline or criteria for the taxing authority to apply. If the word "published" were intended to qualify the preceding words, then would agree with Husky that an audience of one is sufficient. This eliminates having to focus upon whether the audience is sufficiently broad which as noted, is anomalous when one considers its application to technical papers. The broad interpretation eliminates this anomaly. In conclusion, the appeal is allowed and the decisionof the Board reversed. The appellant shall have its costs of the appeal.

The respondent conducted an audit resulting in the assessment of sales tax. Husky Oil appealed the decision by the Board of Revenue Commissioners which held Husky liable to pay tax on documentation charges. The primary function of the documentation was ongoing technical support for the valves operation, maintenance and modifications. The valves and documentation were identified as separate items on the same purchase order and arrived at the job site separately. The Board decided that the appellant purchased the documentation independent of the valves and were subject to tax under ss.5(9) unless exempted under ss.8(1)(f). The parties agreed the documents fell within the definition of tangible property as set out in the Act. At issue was the interpretation by the Board of the word 'published' as used in ss.5(1)(b) of eg. 1 when defining the word 'books' and whether the drawings were exempt from tax. HELD: The appeal was allowed and the decision of the Board reversed. Costs were awarded to the appellant. 1)The role of the Court was in the nature of judicial review and supervisory in nature. The Court's role on questions of fact is restricted to circumstances where the evidence does not support findings of fact. 2)There was evidence which could support either interpretation of the facts. 3)The determination of whether the documents were required for preparing the property for use in Saskatchewan is a question of fact. There was nothing technical about the statutory requirement. The words used are simple and ordinary. It was open to the Board to determine as a finding of fact that the documentation was not required for preparing the valves for use. 4)Technical papers by their nature are often going to a narrow audience. To focus upon the extent to which technical papers are directed at a public audience so as to determine their taxability makes no sense and is at odds with the proposition that technical papers can be exempt from tax. The broad interpretation eliminates this anomaly. 5)Having determined that the word published is intended to speak to purpose and not to extent of the audience it was not necessary to comment upon the definition adopted by the Board.

4_1996canlii6841.txt

J. Docket: CA156272 Date: 19991109 NOVA SCOTIA COURT OF APPEAL [Cite as: Warren, et al v. Nova Scotia (Director of Assessment), et al, 1999 NSCA 135] Chipman, Roscoe and Flinn, JJ.A. BETWEEN: THE DIRECTOR OF ASSESSMENT Randall R. Duplak, Q.C. and Gwendolyn Fountain Appellant for the Appellant Thomas M. Macdonald and for the Board Paul Warren, in person Respondent J. PAUL WARREN and BERNADETTE WARREN and the CAPE BRETON Demetri Kachafanas REGIONAL MUNICIPALITY for the Respondent, Cape Breton Regional Municipality Respondents Appeal Heard: November 9, 1999 Judgment Delivered: November 9, 1999 THE COURT: The appeal is dismissed, per reasons for judgment given orally by Chipman, J.A.; Roscoe and Flinn, JJ.A., concurring. Chipman, J.A.(Orally): [1] This is an appeal by the Director of Assessment from a decision of the Nova Scotia Utility and Review Board. An appeal to this Court lies on any question relating to the Board’s jurisdiction or upon any question of law; s.30(1) of the Nova Scotia Utility and Review Board Act, 1992, c.11. [2] The Regional Assessment Appeal Court made decision respecting property in Port Morien in the respondent Cape Breton Regional Municipality. The respondent Paul Warren appealed the decision by filing notice of appeal with the Board on October 13,1998. He did not serve notice on the clerk of the Municipality, but the clerk of the Board forwarded the notice to the Municipality. The Director did not deny that the clerk of the Municipality received copy of the notice of appeal within thirty days of the decision of the Regional Assessment Appeal Court. The Director did, however, take the position that the Board did not have jurisdiction to hear the appeal because Mr. Warren failed to serve notice on the clerk of the Municipality as required by s. 86(1) of the Assessment Act, R.S.N.S. 1989, c.23. [3] Section 85 and s. 86(1) of the Assessment Act read: 85 Any person aggrieved by decision of the assessment appeal court, including the clerk on behalf of the municipality and the Director, may appeal therefrom to the Nova Scotia Utility and Review Board 86 (1) Notwithstanding the provisions of any other Act, any person aggrieved by decision of the regional assessment appeal court may appeal by serving notice of appeal, within thirty days from the day when notice of the decision was received, on the clerk of the municipality in which the property is situate, the Director, the person in whose name the property is assessed if he is not that person and the person who appealed the assessment if he is not that person, and by filing copy of the notice of appeal with the Clerk of the Nova Scotia Utility and Review Board, and not otherwise. [4] preliminary hearing was held by the Board to address the Directors’ objection to its jurisdiction. The Director filed an affidavit by the clerk of the Municipality deposing that Warren had failed to serve him with the notice of appeal. In the affidavit he stated he received copy of the notice from the clerk of the Board and he attached to his affidavit letter in which he took the position that he disagreed with any attempt by the Director to deny Warren hearing before the Board, and further took the position that the Municipality was sufficiently notified by the Board through its clerk. [5] The Board, by decision dated May 14, 1999, dismissed the Director’s preliminary motion holding that it did have jurisdiction to hear the appeal. In the Board’s view, as long as the person required to be served with the notice of appeal did in fact receive it within thirty days from the decision of the Regional Assessment Appeal Court the purpose of the requirement in s. 86(1) of the Assessment Act was fulfilled. [6] Before us, the Director contends that the Board erred in law in holding that it had jurisdiction because Warren simply did not comply with the provisions of the Act, and there are no provisions for extending the time or otherwise relieving from failure to comply with the service requirements. [7] We are unanimously of the opinion that this appeal must fail because, although s. 86(1) of the Assessment Act was not complied with respecting service on the Municipality, that party expressly waived its right to notice required by the statute. That party can waive statutory requirement of notice was recognized by the Rand, J. in Canadian Acceptance Corporation Limited v. Fisher (1958), 1958 CanLII 56 (SCC), 14 D.L.R. (2d) 225 (S.C.C.). [8] The principle of waiver of statutory requirement was applied by the Divisional Court of the Ontario High Court of Justice In Re N.H.D. Developments Limited and Regional Assessment Commissioner, Region No. 11 et al. (1980) 1980 CanLII 1596 (ON SC), 118 D.L.R. (3d) 365, 30 L.R. (2d) 689. In that case, the Ontario Municipal Board held that it had no jurisdiction to hear an assessment appeal because the taxpayer failed to comply with the service requirement of s. 63(6) of the Assessment Act, R.S.O. 1970, c.32, notwithstanding that the party who was not properly served waived the service requirement. [9] Section 63(3) of the Assessment Act, R.S.O. 1970, c. 32, like s. 85 of the Assessment Act, supra, provided right of appeal to the Ontario Municipal Board. Section 63(6) of the Assessment Act, R.S.O. 1970, c.32, like s. 86(1) of the Assessment Act, supra, set out the requirements of service of the notice of appeal. [10] In allowing the appeal from the Board’s decision Southey, J. said: With the greatest respect to the learned member of the Board, who recognized that the problem was one of some difficulty, we are all of the view that the requirements for service contained in s. 63(6) do not go to the jurisdiction of the Board to hear an appeal from the Assessment Review Court. That jurisdiction is derived in the first instance in this case from s. 63(3). Because the matter is not one of jurisdiction, there is no question in our minds that party for whose benefit the provisions for service set out in s. 63(6) have been enacted can waive compliance with those provisions. When such waiver occurs, the failure to comply with the provisions for service do not constitute bar to the Board’s hearing the appeal. [11] We think that reasoning applies to the case before us. [12] It is not therefore necessary to consider the other points raised in argument. The appeal is dismissed with costs to each of the respondents, Warren and the Municipality, in the amount of Five Hundred Dollars ($500.00) plus disbursements to be paid by the appellant. Chipman, J.A. Concurred in: Roscoe, J.A. Flinn, J.A.

The appellant appealed a preliminary decision of the Nova Scotia Utility and Review Board which held that it had jurisdiction to hear an assessment appeal where, although the appellant failed to comply with the service requirement of s. 86(1) of the Assessment Act, the party not properly served waived the requirement. Dismissing the appeal with costs, that where the party that was not properly served expressly waived its right to notice as required by statute, the Board had jurisdiction to hear the appeal.

d_1999nsca135.txt

J. 2005 SKQB 211 Q.B. A.D. 2003 No. 337 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: CHARLENE MILLAR and HARLEY JASON STROUTS RESPONDENT P. J. Bitz, Q.C. for the petitioner J. B. Benesh for the respondent JUDGMENT MAHER J. May 6, 2005 INTRODUCTION [1] The petitioner (“Charlene”) and the respondent (“Harley”) are the parents of Harley Keeler Strouts-Millar (“Keeler”) born May 27, 2002. The parents separated in October of 2003. They agreed to an order of joint custody with Keeler primarily residing with Charlene. Charlene wishes to move with Keeler from Saskatoon to Edmonton and Harley is opposed to such a move. [2] The issues are as follows: 1. Is it in the best interests of Keeler to relocate from Saskatoon to Edmonton, Alberta with Charlene? 2. If it is in the best interests of Keeler to move to Edmonton, what is an appropriate access schedule for Harley to be with Keeler? [3] Charlene and Harley met in July of 2001. When Charlene was nineteen years old and Harley twenty-seven they commenced living together at Harley’s home in September of 2001. Charlene found out she was pregnant in October of 2001 and Keeler was born May 27, 2002. Harley and Charlene separated in mid-October of 2003. [4] On January 16, 2004, Wilson J. of this court, granted an interim order that provided Charlene and Harley would have joint custody of Keeler with Keeler to reside primarily with Charlene. The order provided that Harley was to have parenting time with Keeler as follows: Tuesday and Thursday each week 5:00 p.m. to 7:00 p.m.; Saturdays commencing at 10:00 a.m. until Sunday at 7:00 p.m.; The access to be at the home of Harley’s parents. This order established Harley’s income at $20,965 and Charlene’s income at $7,258. Harley was ordered to pay child support of $169 per month and 74% of any child care costs. [5] After the order the parties agreed that weekly access would be changed to Wednesdays and Fridays from 5:00 p.m. to 8:00 p.m. They also agreed in the latter part of 2004 that Harley would take Keeler to daycare each morning that Charlene worked and also pick him up because Charlene did not get home from work until 6:30 p.m. [6] Charlene has Monday as her day off and Keeler spends the day with her. When Harley takes Keeler to daycare, Tuesday through Friday each week, he picks Keeler up from Charlene’s between 7:15 and 7:30 a.m. and then picks Keeler up from daycare at approximately 5:15 p.m. On Tuesday and Thursday he keeps Keeler until 6:30 p.m. when he returns Keeler to Charlene’s apartment. On Wednesday and Friday he picks Keeler up at 5:15 and because this is his access day he then returns Keeler to Charlene’s at 8:00 p.m. Charlene’s Position: [7] Charlene is employed at the Bombay Store in Saskatoon at Midtown Plaza as an assistant manager. She works six days week, Tuesday to Sunday inclusive. She has no vehicle or driver’s licence so relies on the Saskatoon Transit Service for her transportation. [8] Charlene has some concerns about Harley’s ability to parent Keeler because in January of 2003 he had grand mal seizure. This seizure resulted in Harley being hospitalized for approximately one week. He is on medication but Charlene believes that he still gets seizures and therefore access should be at Harley’s parents’ residence. [9] On Charlene’s day off she devotes her full attention to Keeler. They play together, watch movies, prepare meals and do chores such as washing dishes. On her work days they are up at 7:00 a.m. If she is to drop Keeler off at daycare she must leave her home by 7:40 a.m. to take bus to day care. She then takes second bus from the daycare at 8:15 to work and usually returns home form work at about 6:30 p.m. This winter Harley agreed that he would pick Keeler up from Charlene’s apartment at between 7:15 and 7:30 a.m. and take him to daycare. Harley agreed to pick Keeler up from daycare Tuesday to Friday at about 5:15 and bring Keeler back to her apartment on Tuesdays and Thursdays at 6:30 p.m. and on Wednesdays and Fridays at 8:00 p.m. [10] Charlene is concerned about furthering her education. She has her grade twelve and when she met Harley she had taken year off from further studies. She has looked at taking hair dressing courses, psychology, and interior design. However, while she was working at company called Party World in 2003 she had the opportunity to do some accounting and found it to be challenging. Charlene has looked at obtaining further education in the accounting field. She reviewed the ten month program at the Saskatoon Business College. In her opinion the program was not worth the money. Her high school marks were not high enough for her to gain admission to the U. of S. She checked out Saskatchewan Institute of Applied Arts and Sciences programs. They offer business administration program but it is at Moose Jaw, Saskatchewan. Charlene is not prepared to relocate to Moose Jaw since she has no family or friends in that city. [11] Charlene next checked on the internet as to programs in accounting that were available in Edmonton because she had cousin who had taken accounting there. She also had further interest in moving to Edmonton as in the summer of 2004, her mother, step-father plus siblings had moved from Saskatoon to White Court, Alberta. [12] Charlene inquired about the accounting programs at Grant MacEwan College and arranged to travel to Edmonton in October of 2004. She found out there were programs for mature admissions which provided flexible scheduling and were, in her view, more affordable than the accounting programs offered in Saskatoon. Grant MacEwan College offers two year accounting program starting either in September of 2005 or January of 2006. She obtained package of materials from the Northern Alberta Institute of Technology which offers two year accounting program. On her visit to Edmonton she did not have time to go to the NAIT campus. [14] Charlene did some checking in Edmonton on apartments and found that two bedroom apartments range from $450 to $700 per month depending on where you live. Her current rent for two bedroom apartment is $500 per month. She said there appeared to be daycare on every corner near Grant MacEwan College. However, she made no direct inquiries because she did not know if she would be able to move or not. [15] Charlene said that if she was allowed to move to Edmonton, Harley could have access one weekend per month plus four, seven-day week visits per year or three, ten-day visits per year. She would arrange for access exchange to occur at Lloydminster, Saskatchewan. [16] She has also inquired of Bombay, her employer, about transferring her employment from Saskatoon to Edmonton. She was told that she couldn’t transfer in management position. However, if she was looking for part-time position in Edmonton it would appear to be no problem, although there were no current vacancies. Her plan is that her sister, Melissa, would move from White Court, Alberta to live with them in Edmonton. Harley’s Position: [17] Harley is thirty years of age and has been employed at several companies in the Saskatoon area primarily in the area of shipping and receiving. He is currently employed in that capacity with Ramboc Enterprises. His income for 2004 was $21,873.36 and he estimates his 2005 income will be $24,000. He currently rents residence at 122 Ross Crescent in Saskatoon. This residence is three bedroom home which he shares with roommate. There is an extra bedroom which he has set up and furnished for Keeler. [18] Harley has had seizures since he was eight years of age. The seizures are controlled by medication which he takes regularly. He has his blood monitored monthly. The seizure that occurred in January, 2003, was the only time he was hospitalized for seizures. This occurred at the time he lost his job after he had been employed for ten years with Acklands-Grainger and was under lot of stress. He has driver’s licence and there is no indication of any restrictions on his licence. The only time he has symptoms of seizures is when he is in bed generally in the early morning. [19] Harley has significant family network in Saskatoon. His parents, Rick and Pam Strouts, live in the City. They have established bedroom in their home so that Keeler has his own room when he stays there on weekends. Harley has brother and sister, grandparents, numerous aunts, uncles, nieces, nephews, and cousins in the Saskatoon area. His family and extended family get together for special occasions such as Christmas, Easter and Thanksgiving. Keeler goes to these family events plus the occasional family wedding. [20] Harley has cared for Keeler since Keeler was an infant. When Harley lost his job in January of 2003, he cared for Keeler on full time basis after Charlene returned to work to support the family while he was unemployed. [21] Harley is involved with Keeler almost daily. This winter on Tuesdays through to Fridays when Charlene was going to work he would go to Charlene’s apartment to pick up Keeler each morning at around 7:15. If Keeler wasn’t ready he would help dress him, change his diaper, put his jacket and boots on and then take Keeler to daycare by around 7:30 a.m. When he finished work at 5:00 p.m. he would go to the daycare and pick Keeler up. On Tuesdays and Thursdays he usually took Keeler to his parents or the rink, returning Keeler to Charlene’s by 6:30 p.m. On Wednesdays and Fridays he would pick Keeler up at 5:15, on these days Keeler would have supper with him at his parents’ house. They would play trains, blocks, watch videos until he returned Keeler to Charlene’s at 8:00 p.m. [22] Charlene first told him about her plans to move with Keeler to Edmonton in August of 2004, shortly after her mother and step-father had moved to White Court, Alberta. She told him she wanted to go to school in Edmonton and help with her father’s business at White Court, Alberta. Harley said he was not pleased with the idea as he might only see Keeler once month when he now sees Keeler just about every day. [23] Harley says that he likes the current arrangement and the only change would be if he could have Keeler at his house instead of always having to take him to his parents’. If Charlene would take her courses in Saskatoon at an evening program he would be happy to take care of Keeler. Charlene could take accounting classes in Saskatoon through the SIAST distance education program at Kelsey Campus in Saskatoon. [24] Harley doesn’t have to be asked twice to look after Keeler. Harley took time off work in November and December to take Keeler to the doctor. On November when Keeler was sick, Charlene called him and he took the day off work to care for Keeler. [25] Harley feels that he and Charlene communicate reasonably well on issues surrounding Keeler. On one weekend month Charlene now has Keeler even though the interim order says that he is to have Keeler every weekend. [26] Harley has made no inquiries about the possibility of finding employment for himself in Edmonton. He is reluctant to do that because he has job and family in Saskatoon. His position is that he would like the current arrangement to remain in place and would be happy to see Keeler every day. [27] The Children’s Law Act, 1997, S.S. 1997, c. C-8.2, provides as follows: Custody or access application 6(1) Notwithstanding sections to 5, on the application of parent or other person having, in the opinion of the court, sufficient interest, the court may, by order: (a)grant custody of or access to child to one or more persons; (b)determine any aspect of the incidents of the right to custody or access; and (c)make any additional order that the court considers necessary and proper in the circumstances. (4) On application, the court may vary or discharge any order made pursuant to this section where there has been material change in circumstances since the date of the order. (5) When making an order pursuant to subsection (1), the court shall: (a)give effect to the principle that child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact; and (b)include in the order condition requiring any person who has custody of child and who intends to change the place of residence of that child to notify, as set out in subsection (6), any person who is granted access to that child or any other person who has custody of that child of: (I) the change; (ii) the time at which the change will be made; and (iii) the new place of residence of the child. (7) When making an order pursuant to this section, the court, in the manner and on the conditions that the court considers appropriate, may provide for: (a) the division and sharing of parental responsibilities; and (b) the granting of access. (8) Where an order is made for supervised access pursuant to this section, the court may specify in the order the amount of any cost for the supervision that each party is required to pay. 1. Is it in the best interest of Keeler to relocate from Saskatoon to Edmonton with Charlene? [28] At the commencement of the trial the parties agreed that there should be an order for joint custody and provided Charlene remained in Saskatoon, Keeler’s primary residence was to be with her. The issue that am to determine is whether it is in Keeler’s best interest to relocate with Charlene to Edmonton, Alberta. [29] This is the first determination of residence of Keeler given that the order of June 16, 2004, was an interim order. In my considerations on the proposed relocation of Keeler to Edmonton am mindful of the comments of McLachlin J. (as she then was) in Gordon v. Goertz 1996 CanLII 191 (SCC), [1996] S.C.R. 27 where she said the following at para. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) disruption to the child of change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [30] McLachlin J. also commented on the best interest test para. 20: 20 The best interests of the child test has been characterized as "indeterminate" and "more useful as legal aspiration than as legal analysis": per Abella J.A. in MacGyver v. Richards (1995), 1995 CanLII 8886 (ON CA), 11 R.F.L. (4th) 432 (Ont. C.A.), at p. 443. Nevertheless, it stands as an eloquent expression of Parliament's view that the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake. The multitude of factors that may impinge on the child's best interest make measure of indeterminacy inevitable. more precise test would risk sacrificing the child's best interests to expediency and certainty. Moreover, Parliament has offered assistance by providing two specific directions one relating to the conduct of the parents, the other to the ideal of maximizing beneficial contact between the child and both parents. [31] Madam Justice L’Heureux-Dube in Gordon v. Goertz, (supra) considered the significance of the primary caregiver and psychological parent when the court is determining the “best interests” of child: The assessment of the child's best interests also involves consideration of the particular role and emotional bonding the child enjoys with his or her primary caregiver. The importance of preserving the child's relationship with his or her psychological parent has long been recognized by this Court on number of occasions (Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), 1994 CanLII 83 (SCC), [1994] S.C.R. 165, at p. 202; Racine v. Woods, supra, at p. 188; King v. Low, 1985 CanLII 59 (SCC), [1985] S.C.R. 87, at p. 101). There is growing body of evidence that this relationship may well be the most determinative factor on the child's long-term welfare. As mentioned in Young, supra, at p. 66, the vital link between continuity in the emotional bonding of the child with his or her psychological parent and the best interest of the child finds ample support in the literature: Goldstein, Freud and Solnit's Beyond the Best Interests of the Child, supra, while perhaps lacking in empirical data, remains an influential analysis of the psychological needs of children following divorce. The authors emphasize, among other factors, the importance of continuity in the child's relationships and conclude that the major focus of custody decisions should be to preserve and protect the relationship between the child and his or her psychological parent. [32] Laskin J.A. in Young v. Young, 2003 CanLII 3320 (ON CA), [2003] O.J. No. 67 when considering the test on relocation application said the following at para. 17: The court must consider and balance all the benefits and detriments of the proposed relocation. What is required is “full an sensitive inquiry” into the best interests of the child. Laskin J.A. further at para. 18 held that this inquiry applied where the parents have joint custody. [33] He then commented on the application of Gordon v. Goertz (supra) on an existing parenting arrangement at para. [32] The application judge's misapprehension of the existing parenting arrangement has significant consequences for two of the other considerations listed in Gordon v. Goertz at p. 61 S.C.R., p. 342 D.L.R.: "the existing custody arrangement and the relationship between the child and the custodial parent" and "the desirability of maximizing contact between the child and both [page120] parents". The record discloses that Mr. Young is good father, and with the help of his parents, has admirably carried out his responsibilities as custodial parent. One effect of granting Ms. Young permission to move to Cornwall with the children is to remove Mr. Young as custodial parent, and thus to undermine the co-parenting arrangement reflected in the minutes of settlement. In practice, Mr. Young will become an access parent and the children will no longer benefit from his co-parenting. This consideration should have been factored into the assessment of whether the move to Cornwall was in the children's best interests. [34] There have been several recent decisions of this court involving the relocation of children. It is helpful to review the factual background in these decisions. In Rosenau v. Rosenau, 2004 SKQB 275 (CanLII) Wright, M-E J. of this court determined that the petitioner/mother should not relocate to Ontario with five year old because her family connections in Ontario were not frequent, she did not identify the community in Ontario she would be moving to and had made no inquiries as to employment or educational opportunities in Ontario. [35] Sandomirsky J. in H.S. v. C.S., 2004 SKQB 492 (CanLII) reviewed in detail the steps the petitioner/mother had taken in anticipation of relocation with her three children from Midale, Saskatchewan to Medicine Hat, Alberta for the purpose of enrolling in nursing program He determined that the petitioner’s research and knowledge of the nursing program was sketchy and vague, she did not provide evidence on daycare facilities nor potential arrangements for childcare. Sandomirsky J. determined that the court was concerned about the vagueness, uncertainty, and speculative nature of the proposed move to Medicine Hat. He refused the petitioner’s application to relocate the children from Midale, Saskatchewan to Medicine Hat, Alberta. [36] more recent decision of Smith, R.S. J. in Rask v. Rask, 2005 SKQB 159 (CanLII) dealt with an application by petitioner/father to stop the relocation of the two children ages and with their mother from Saskatoon to Calinte, Nevada. Calinte, Nevada is community of about 800 people some two hours from Las Vegas, Nevada. Smith, R.S. J. held that the children’s psychological parent and their psychological home was with the mother who wished to relocate. He held that the father was not involved in the day-to-day routine of the children. He further concluded that the mother had definite employment arrangement and had taken steps to familiarize herself with the town as well as potential home for herself and the children. He allowed the mother to relocate with the children. [37] The Saskatchewan Court of Appeal held in Delaire v. Delaire, 2002 SKCA 71 (CanLII) that parent’s reason for relocating is only relevant in the exceptional case where it impacts on that parent’s ability to meet the needs of the child. [38] The Children’s Law Act s.6(5) mandates that child should have as much contact with each parent as is consistent with the best interests of the child. The common theme in all three of these recent decisions of this court mandates an inquiry as to what arrangements would be in place for the child in the event relocation was allowed and also what is the psychological relationship between each of the parents and the child. [39] It is clear that Charlene has made, as what can best be described as cursory inquiries, at Grant MacEwan and basically received only informational material from the Northern Alberta Institute of Technology regarding taking of an accounting/business program in Edmonton. She has not made any inquiries as to daycare arrangements that might be available other than to say that at Grant MacEwan, “there is daycare on every corner”. Her plan however would be to go to NAIT. Her only involvement has been to review the printed materials that she has received. She has made no inquiries about daycare at NAIT or in the immediate vicinity. She has made no inquiries about available rental accommodations in the area of the NAIT campus. She has made some inquiries about working part-time with her current employer at the Bombay Store in Edmonton. She has not indicated as to how she would integrate attending school, working part-time, daycare, and how she would handle meaningful relationship with Keeler while involved in all of these activities. She, as well has dismissed out of hand taking business/accounting classes offered by SIAST Distance Learning Program which are available in Saskatoon. [40] On the matter of the psychological bond of Keeler to his parents, given the involvement of Harley with Keeler particularly this past winter, six out of seven days week, am satisfied that there is significant bond between Keeler and Harley which would be lost if Keeler was allowed to relocate. Keeler, as well would lose contact with his extended family in Saskatoon on Harley’s side. Keeler would have no extended family in Edmonton as Charlene’s parents live and work in White Court, Alberta which is approximately two hours from Edmonton. [41] Charlene’s plans for Keeler’s care in Edmonton, if she was allowed to relocate, are very vague, if she went to school and worked part time in Edmonton, Keeler would be in day care for extended periods of time. Keeler has had very stable arrangement in Saskatoon which provides significant and almost daily contact with both parents, relocation would cause Keeler to lose the bond he now has with Harley. Harley would become an access parent and Keeler would no longer benefit from Harley’s co-parenting. [42] Based on the loss of Harley as an active co-parent coupled with Charlene’s vague and uncertain plans for Keeler’s care in Edmonton I find it is not in the best interest of Keeler that he be allowed to relocate to Edmonton with Charlene. 2. If it is in the best interests of Keeler to move to Edmonton, what is an appropriate access schedule for Harley to be with Keeler? [43] It is not necessary for me to deal with this as have declined to allow the relocation of Keeler to Edmonton. Harley’s Current Access: [44] At the conclusion of the trial amended the interim order which required access by Harley with Keeler to be at his parents’ home. My reasons for so doing were was satisfied on the evidence that the risk of Harley having further grand mal seizure has been minimized by the medications he takes and his monthly blood analysis. The petitioner obviously has confidence in Harley’s health given the fact that Harley has been transporting Keeler in his car six days week over the last number of months without incident. Harley, as well, has not had further significant event since January of 2003, and he has roommate who also resides at that home. Therefore concluded that supervised access is no longer required. Child Support: [45] The parties have filed their respective income information and will make the requisite child support order based on that evidence. 1. There will be an order that Charlene Millar and Harley Jason Strouts shall have joint custody of the child, Harley Keeler Strouts-Millar, born May 27, 2002; 2. That Keeler shall remain in the Province of Saskatchewan unless the parties agree in writing to temporary absence from the Province of Saskatchewan or by order of the court; 3. That Keeler’s primary residence shall be with the petitioner, Charlene, so long as she remains in the City of Saskatoon, in the Province of Saskatchewan. If she chooses to relocate out of the City of Saskatoon, Keeler’s primary residence will be with Harley in the City of Saskatoon; 4. Harley shall have access to Keeler on Wednesdays and Fridays from 5:00 p.m. to 8:00 p.m. as well as every weekend from Saturday at 10:00 a.m. to Sunday at 7:00 p.m. and such other times as the parties may agree or the court may allow; 5. For the purpose of child support the respondent’s annual income is $24,000 per annum, he shall pay child support pursuant to s. of the Federal Child Support Guidelines, [Divorce Act Regulations, SOR/97-175] in the amount of $202, commencing on the 1st day of June, 2005, and continuing on the 1st day of each and every month thereafter until further order; 6. The petitioner’s income is $12,103, therefore the respondent’s proportional share of child care expenses shall be 66.5%. The respondent shall pay his share of childcare expenses within seven days of being provided with the receipt from the petitioner. Leave is granted to either party to return the matter of child care back to the court for further determination if necessary on the issue of tax deductibility of such payments. 7. Costs The matter of costs was not spoken to by either party. The matter of costs may be brought back before me on seven days notice.

The parties separated in October 2003. They have a child born May 27, 2002. The parties have agreed to an order of joint custody with the child residing primarily with the petitioner. The petitioner wishes to move from Saskatoon to Edmonton. HELD: Based on the loss of the respondent as an active co-parent and the petitioner's vague and uncertain plans for the child's care in Edmonton, it is not in the best interests of the child that he be allowed to relocate to Edmonton with the petitioner.

6_2005skqb211.txt

J. 2004 SKQB 228 Q.B. A.D. 2001 No. 124 J.C. M.J. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF MOOSE JAW BETWEEN: COWAN PROPERTIES and FORTUNE FARMS INC. carrying on business under the firm name and style of GLENROSE FARMS and APOLLO DISTRIBUTING CORPORATION and MEYER MFG. CORP. DEFENDANTS L.O. Phillips for the plaintiff C.R. Werry for Apollo Distributing Corporation No one else appearing. JUDGMENT KOVACH J. May 25, 2004 FACTS [1] The plaintiff, Glenrose Farms (“Glenrose”), purchased a new Meyer Manure Spreader, Model 5570 (the “Spreader’), from the defendant, Apollo Distributing Corporation (“Apollo”), on December 1, 1999. Purchase price for the Spreader was $37,000.00, the balance of which was paid in full, upon delivery. Delivery was made on or about April 1, 2000. The defendant, Meyer Mfg. Corp. (“Meyer”) manufactured the Spreader. They did not defend the action and were noted for default of defence on August 31, 2001. It was agreed that the present proceeding would determine issues between the plaintiff and the defendant Apollo only. [2] Prior to purchasing the Spreader, Mr. Calvin Cowan, president of Cowan Properties Inc., had permitted demonstration to take place at his farm using smaller model spreader, to determine if it would be suitable for his purposes. After he saw the equipment in use, he ordered the larger 5570 model. [3] There was no communication between the parties from the delivery date until sometime in late July or early August, 2000. According to Mr. Cowan, the Spreader sat idol until August. When used for the first time, the main chain snapped within five minutes of operation. This breakdown prompted series of telephone calls between the plaintiff and representatives of both defendants. The cause of the breakage was identified, by the manufacturer, as being closure of the rear door while operating the Spreader. The chain was repaired by the plaintiff, but it broke again shortly after the Spreader was returned to service. Following the second breakdown Mr. Cowan contacted the manufacturer by telephone. He described the subsequent events in his affidavit as follows: 6. was then informed by Larry Meyer that he would fly up in order to repair the machine, and if it didn’t work the Defendant, Meyer MFG Corp. would take the machine back and refund the purchase price. After that never heard from them again. 7. made numerous phone calls to Apollo Distributing Corporation and Meyer MFG Corp. but no satisfactory arrangement was made. In fact, since the machine was delivered have not seen anybody from either of the Defendants. 12. tried to use the said spreader in the fall of 2001 and hereto annexed to this my affidavit and marked as exhibit “D” is repair bill from Sagal Brothers Sales dated October 21, 2001 in the sum of $1,324.89. We again tried to spread the compost but the machine broke within 10 seconds. 13. Because the spreader did not work as it was intended the Plaintiff had to purchase new machine to spread the compost in October, 2000. [4] Following the second breakdown the plaintiff retained counsel. By correspondence dated November 2, 2000, directed to both defendants, the plaintiff rejected an offer to have the spreader returned to the factory for warranty repair. The correspondence states, in part: At one point, Meyer Mfg. Corp. suggested that they would transport the spreader back to Wisconsin in order to make modifications and then return the same to Mr. Cowan. This is not satisfactory to Mr. Cowan and he has no assurance that the machine will then work properly. We are hereby demanding the return of the purchase price of $37,000.00 and you may take delivery of the said spreader. [5] The purchase price was not refunded. Despite efforts by Apollo the Spreader was not returned to the manufacturer for examination and repair. major obstacle preventing return of the Spreader was the plaintiff’s insistence, as precondition, that he could reject the Spreader and receive full refund of the purchase price, if he was not satisfied. [6] In written argument the plaintiff identified the main point of contention as follows: 4. That the Plaintiff would have allowed the Defendants to take the spreader to Wisconsin in order to have the same repaired, but when the same was returned wanted warranty under The Agricultural Implements Act which the Defendants refused to give. The plaintiff was insistent that upon repair of the Spreader he retained the right to reject the same and obtain full refund of any moneys paid, pursuant to The Agricultural Implements Act, R.S.S. 1978, c. A-10. [7] This position was confirmed and clarified in subsequent correspondence dated January 4, 2001, directed to the defendants’ solicitor. The correspondence states, in part: My client is prepared to have Meyer Manufacturing Corporation return the model 5570 to the plant in Dorchester, Wisconsin in order to have the same repaired. However, he would like the same warranted when it is returned under the Agricultural Implements Act, which would mean that if the same did not perform well the work for which it is intended, Glen Rose Farms could give the Notices under Section 36 of the said Act and your clients would be bound by the same. [8] According to the plaintiff’s affidavit, paragraph 13, he had already purchased replacement spreader by October, 2000. Under this circumstance question whether his efforts to obtain warranty repair were sincere and suspect that his objective was to secure refund of the purchase price, whether or not the Spreader was repaired. [9] In defence of the claim Apollo filed the affidavit of its president, Paul Andre. Mr. Andre was produced for cross-examination. In his affidavit he states, inter alia: 5. THAT after the equipment was delivered, we heard nothing about the unit until sometime in July when apparently Mr. Cowan was experiencing some difficulties utilizing the equipment in his operations. We have no idea if he had been successfully using the equipment prior to that time. 8. THAT Mr. Cowan had been advised in July of 2000 that if he was having difficulties with the larger unit we were prepared to make smaller unit available for him at any time. It was after this offer had been made that Mr. Cowan indicated that he had been able to get his larger unit working and he was going to keep it. 11. THAT on more than one occasion, we, along with the manufacturer, offered to perform warrant work for Mr. Cowan directly at the factory. This entailed shipping the unit to the manufacturer in the United States. Our offer had included free shipping in order to ensure that we could satisfy this customer. 16. THAT it is of great concern to myself and the manufacturer that we were not given the opportunity to take corrective action with respect to this unit before the plaintiff choose to take legal action. When the customer experienced his first minor problem of the failure of the chain, his immediate response was to reject the machinery. He ultimately changed his mind after he spoke on the phone with Larry Meyer on the proper operation of the rear hydraulic gate. 18. THAT the defendants are both very concerned that the reason the plaintiff refuses to have he equipment shipped to the factory to be examined and repaired is that he is afraid of either of two possible results. First of all, it will be shown that the equipment is working properly or secondly, it will be shown that the user is spreading improper material, contrary to the original intended use of the spreader for material uncontaminated with earth materials. [10] The Agricultural Implements Act is code which governs the respective rights of vendors and purchasers of farm implements in Saskatchewan. Section 36 of the Act is applicable to this case. Although subsequently amended (S.S. 2003, c. 5, s. 22) at the relevant time s. 36 of the Act in part read: 36. contract for the sale of new implement shall be deemed to carry the following express joint and several warranties on the part of the dealer and the distributor for period of one year from the date of delivery, and where further period is hereinafter provided or is set forth in the sales contract, for that further period: 1. that the implement is well-made and of good materials; 2. that if the implement is properly used and operated it will perform well the work for which it is intended and in the case of engines that the warranted horse power can be developed under fit and suitable conditions; 3. and where: (a) within ten-day trial period, the implement does not perform well the work for which it is intended; (b) the purchaser gives, within the ten-day trial period, notice in writing to the dealer at the address given for the dealer in the sales contract, or to the distributor, that the implement does not work well; and (c) within period of seven days following receipt of the notice mentioned in clause (b), the dealer or the distributor does not make the implement perform well the work for which it is intended; the purchaser may, by giving written notice to the dealer or the distributor within the three days immediately following the seven-day period, reject the implement, in which case the sales contract shall be at an end and the purchaser shall be entitled to return of any moneys paid or notes given by him for the purchase of the implement and of the freight charges paid by him, and if trade-in implement has been taken by the dealer it shall be returned, or if trade-in cannot be returned in the same condition or has been sold to third party the dealer shall make payment to the purchaser in the amount stated in the sales contract; provided that the purchaser shall forfeit his right to reject the implement if he fails to give either of the notices within the time limit, unless the dealer or distributor either before or after the expiration of the time limit does any act, or so conducts himself, as to lead the purchaser to believe that the notices are not required to be, or to have been, given; 5. that the implement will be durable if used under fit and suitable conditions and kept with proper care and that parts proving defective will be replaced free of charge upon return of the defective parts to the dealer’s place of business or to the distributor; and that, where the purchaser returns the implement to the dealer’s place of business, the dealer will install the new parts without charge; and that all parts replaced within the warranty period are warranted to be durable for the duration of the original one-year warranty or for ninety days from the date of installation, whichever is longer; [11] In its claim the plaintiff asserts that the Spreader was “entirely unfit for spreading compost” and did not meet the warranties imposed by operation of the Act. The plaintiff claims judgment for the purchase price of the Spreader in the sum of $37,000.00 and damages for repairs to the Spreader in the sum of $2,344.00, pre-judgment interest and costs. [12] In Kolibab v. Tenneco Canada Inc. (1996), 1996 CanLII 6886 (SK QB), 147 Sask. R. 67 (Sask. Q.B.), Klebuc J. considered the burden of proof prescribed by s. 36 of the Act. He stated at para. [27] The Saskatchewan Court of Appeal in Hinton Enterprises Ltd. v. Tucker Investments Ltd. et al. (1987), 1987 CanLII 4838 (SK CA), 57 Sask. R. 47 rejected the proposition that s. 36 of the Act shifts the burden of proof from the purchasing farmer to the selling dealer and distributor to the extent that they must prove the purchasing farmer failed to operate the implement properly, failing which, breach of the s. 36(2) warranty is to be inferred. Speaking for the court, Gerwing, J.A., at p. 49, summarized the evidentiary obligations under s. 36 as follows: Section 36(2) imports into contract such as this one an express warranty. The onus of proof which usually falls upon an aggrieved party alleging breach of warranty has not been legislatively altered by this or any other section in the Act. The statute inserts the warranty, but does not purport to alter the normal burdens of proof for person seeking its protection. The learned trial judge thus correctly instructed himself that the onus of proving breach of warranty is upon the party asserting its breach. The subtle shifting back and forth of onus argued for by the appellant is not present in the statute. [13] The plaintiff has not established to my satisfaction, on a balance of probabilities, that the Spreader was not fit for the purpose of spreading compost nor manufactured in compliance with the warranties contained in the Act. [14] Other than the fact of a chain breakage, on two separate occasions, there was no evidence produced by the plaintiff, either in Mr. Cowan’s affidavit, or during his testimony, addressing the cause of breakage. [15] If deficiencies did exist in the Spreader, as claimed, the dealer or the distributor are expressly entitled to an opportunity to repair or correct the deficiencies, upon receipt of notice in writing. The defendants were deprived of the opportunity to inspect and repair by the unreasonable actions of the plaintiff, in his failure to allow return of the Spreader. [16] In order to reject the Spreader and obtain refund of any moneys paid, pursuant to the Act, the plaintiff must comply with s. 36.3. Subsection 36.3(b) requires the plaintiff to provide written notice to the dealer that the implement does not work well, within specified period. Pursuant to s. 36.3(c) the dealer must make the implement perform well within seven days following receipt of the written notice. If the purchaser has provided the required written notice and the dealer has not taken necessary steps to make the implement work well, the purchaser may, upon giving further written notice, reject the implement. [17] The plaintiff has not established on a balance of probabilities that written notice was provided to the defendants in the manner required by s. 36.3(b) of the Act. Further, based upon the evidence presented, I cannot find that “the dealer or distributor, either before or after the expiration of the time limit (did) any act or so conduct(s) himself, as to lead(s) the purchaser to believe that the notices are not required to be, or to have been given” as stipulated in s. 36.3. [18] Accordingly, the plaintiff’s claim as against the defendant Apollo is dismissed. Costs are awarded to the defendant.

The plaintiff bought a spreader from the defendant Apollo Distributing Corporation (Apollo). The defendant Meyer Mfg. Corp. (Meyer) manufactured the spreader and did not defend the action. The plaintiff claims that the spreader was entirely unfit for spreading compost and did not meet the warranties imposed by The Agricultural Implements Act. The plaintiff claimed judgment for the purchase price and damages for repairs to the spreader. HELD: The plaintiff's claim was dismissed. The plaintiff did not establish that the spreader was not fit for the purpose of spreading compost or that it was not manufactured in compliance with the warranties in the Act. 1) Other than the fact of a chain breakage on two separate occasions, there was no evidence produced by the plaintiff addressing the cause of breakage. 2) If deficiencies did exist in the spreader, the dealer or distributor are expressly entitled to an opportunity to repair or correct the deficiencies, upon receipt of notice in writing. The defendants were deprived of the opportunity to inspect and repair by the unreasonable actions of the plaintiff in his failure to allow the return of the spreader. 3) The plaintiff did not establish that written notice was provided to the defendants as required by s. 36.3(b) of the Act. The Court could not find that the dealer or distributor led the purchaser to believe that the notices were not required to be given pursuant to s. 36.3 of the Act.

5_2004skqb228.txt

J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 87 Date: 2006 02 23 Docket: Q.B.C.A. No. 247/2005 Judicial Centre: Yorkton BETWEEN: WESTFAIR FOODS LTD. and HER MAJESTY THE QUEEN Counsel: Daryl E. Labach for the appellant Randy P. Kachur for the respondent JUDGMENT BARCLAY J. February 23, 2006 [1] Westfair Foods Ltd. (“Westfair”) is a corporation that was charged in an information which stated the following:THAT Westfair Foods Ltd., doing business as Extra Foods, 290 Prince William Drive, Melville, SK., on or about the 25th day of August, A.D. 2003, at or near the City of Melville, in the Province of Saskatchewan, did unlawfully furnish a tobacco product, to wit: cigarettes, to a young person in a public place, contrary to section 8(1) of the Tobacco Act, S.C. 1997, chapter 13. [2] On June 20, 2005, Provincial Court Judge Andrychuk convicted Westfair on the summary conviction offence. $3,000.00 fine was imposed as sentence. GROUNDS OF APPEAL [3] Westfair has appealed this conviction pursuant to s. 813 of the Criminal Code. This section confers the rights of appeal from adjudications made in summary conviction proceedings. Westfair is requesting that the conviction be quashed, the sentence vacated and an acquittal entered. Westfair has appealed its conviction on the following grounds: The learned trial judge erred in law by applying an unreasonably high standard of due diligence to the facts of the case; The learned trial judge erred in law by failing to apply the doctrine of stare decisis; The verdict was unreasonable by being inconsistent with the acquittal of the appellant in the case of R. v. Westfair Foods Ltd. and Roy H. Friesen, Sask. P.C. Information No. 33262198, J.C. Regina, May 31, 2005, Smith P.C.J. [4] The facts, which are not in dispute, may be summarized as follows. On August 25, 2003, Westfair was operating grocery store in Melville, Saskatchewan under the trade name of Extra Foods. On that day, Kristy Schafer (“Kristy”), an employee of Westfair sold package of Players Light cigarettes to Josh Bray (“Josh”). Josh is 16-year-old test shopper employed by Health Canada. He was accompanied by DeLee Grant, Tobacco Enforcement Officer (“Ms. Grant”), during this compliance check. [5] At approximately 11:17 a.m., Josh entered the Extra Foods Store in Melville and went to the closest check out counter. Kristy was the 16-year-old sales clerk working that checkout counter. She had been hired on June 10, 2003 and had worked part‑time from that date until August 25, 2003. On the day in question, she was asked by Josh for package of Players Light cigarettes. Kristy got the package of cigarettes out of locked cabinet. She accepted Josh’s money for the cigarettes and then gave him his change, receipt, and the cigarettes. At no time did Kristy make any attempt to verify that Josh was at least 18 years of age nor was she shown any documentation verifying his age. [6] At approximately 11:20 a.m., Josh exited Extra Foods. He provided Ms. Grant, with the package of cigarettes, the change, and the receipt. These facts are not disputed by Westfair. Westfair relies on the statutory defence of due diligence. [7] The trial judge found Westfair guilty of violating s. of the Tobacco Act, S.C. 1997, c.13 (the “Act”). This section makes it an offence to furnish or sell tobacco to person under 18. The section states: 8.(1) No person shall furnish tobacco product to young person in public place or in place to which the public reasonably has access. (2) person shall not be found to have contravened subsection (1) if it is established that the person attempted to verify that the person was at least eighteen years of age by asking for and being shown documentation prescribed for the purposes of verifying age, and believed on reasonable grounds that the documentation was authentic. [8] Section 54 of the Act provides defence of due diligence for person that is charged with an offence under the Act. The section states: 54. In prosecution for an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused and that the accused exercised all due diligence to prevent its commission. [9] Section of the Act is strict liability offence. The definition of strict liability offence was discussed by Dickson J. of the Supreme Court of Canada in v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] S.C.R. 1299. He categorized strict liability offences at p. 1326: 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability…. [10] Dickson J. in Sault Ste. Marie, supra, went on to discuss the defence of due diligence which was available to person accused of strict liability offence. He stated at p. 1331: Where an employer is charged in respect of an act committed by an employee acting in the course of employment, the question will be whether the act took place without the accused’s direction or approval, thus negating wilful involvement of the accused, and whether the accused exercised all reasonable care by establishing proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system. The availability of the defence to corporation will depend on whether such due diligence was taken by those who are the directing mind and will of the corporation, whose acts are therefore in law the acts of the corporation itself.… [11] In R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (SCC), [1991] S.C.R. 154, the Supreme Court of Canada established that an accused who is charged with strict liability offence has the onus of establishing defence of due diligence which must be proved on balance of probabilities. [12] In R. v. Sobeys Inc. (2000), 2000 CanLII 1961 (NS SC), 181 N.S.R. (2d) 263; (2000), 45 W.C.B. (2d) 362; [2000] N.S.J. No. 32 (QL) heard in the Nova Scotia Supreme Court, Justice MacAdam dismissed an appeal from Sobeys Inc. who were convicted of selling tobacco to minor pursuant to the Tobacco Access Act, S.N.S. 1993, c. 14, s. 5(1). MacAdam J. discussed the defence of due diligence for this strict liability offence and stated at para.36: [36] Undisputed is that to establish the defence of due diligence, the accused must show, on balance of probabilities, that the conduct took place without its direction or approval, that it exercised all reasonable care by establishing proper system to prevent commission of the offence and, finally, that it took reasonable steps to ensure the effective operation of its system and supervised its operation.... SCOPE OF REVIEW [13] This summary conviction appeal was taken pursuant to s. 813 of the Criminal Code. The appeal procedure for summary conviction appeal can be found in Part XXVII of the Criminal Code (ss. 812‑839). Section 830(1) of the Criminal Code sets out the powers of the summary conviction appeal judge. An appeal can be heard from summary conviction court on the grounds that it is erroneous in point of law, it is excess of jurisdiction; or it constitutes refusal or failure to exercise jurisdiction. Section 830(2) states that the appeal of the summary conviction offence will be based on transcript of the proceedings or an agreed upon statement of facts. [14] This appeal was brought forward on three separate grounds. However, find that it is only necessary to address the first ground of appeal. [15] Westfair argues that the learned trial judge erred in law by applying an unreasonably high standard of due diligence to the facts of the case. In the case at bar, whether Westfair proved the defence of due diligence on balance of probabilities is question of fact for the trial judge to determine: see R. v. Harris (1997), 1997 CanLII 990 (NS CA), 121 C.C.C. (3d) 64 (N.S.C.A.). This finding of fact cannot be disturbed by summary conviction appeal judge. However, in R. v. Fibreco Pulp Inc., [1997] B.C.J. No. 846 (QL), (1997) 88 B.C.A.C. 258, (1997) 23 C.E.L.R. (N.S.) 122 the British Columbia Court of Appeal confirmed that it is an error of law for judge to apply standard of perfection rather than standard of reasonable care when determining if defence of due diligence has been established for strict liability offence. [16] In R. v. Westfair Foods Ltd. and Roy H. Friesen, supra, the Provincial Court Judge who considered an identical charge against the same corporation held that Westfair Foods Ltd. had complied with its obligations under the Act. The learned Provincial Court Judge in conclusion stated: am satisfied that the evidence shows that Westfair Foods has completely complied with its obligation and is actually model, in my respectful opinion, for other people selling cigarettes as to how to conduct their business and, accordingly, acquit them of the charges. The system implemented by Westfair Foods Ltd. in R. v. Westfair Foods Ltd. and Roy H. Friesen to prevent the sale of tobacco to minors was essentially the same as the procedure followed by Westfair in this case. [17] The evidence tendered at the trial suggests that prior to the incident on August 25, 2003, Westfair had an established system created to prevent the commission of the offence of selling tobacco products to minors. Although the trial judge did not discuss this evidence in detail, will briefly summarize the facts surrounding the established system that Westfair had in place at the time of the offence in order to prevent the sale of tobacco to minors. [18] Each employee of the Extra Foods in Melville received written Tobacco Sales Policy when they were hired. The policy generally states that tobacco cannot be sold to anyone under the age of 18. If person looks as though there are under 25 years of age or if there is any doubt about the customer’s age, then the customer should be required to provide identification to the cashier before they can purchase tobacco. If the customer refuses to provide identification, the sale should be refused or the manager or supervisor should be called. The policy also states that failure to comply with the policy may result in charges being laid against the employee or the customer which could result in fines. Each employee is required to read the policy. The policy is then reviewed with them by the person conducting the training. If the new employee understands the policy then they will sign it. [19] On the first day of training, each newly employed cashier was required to participate in role playing. Valdeen Mathies, the head cashier in charge of training, would act as test shopper, fill her cart with products, and proceed through the check‑out line in order to train the cashier on the store’s policies and procedures. During this role playing exercise, Ms. Mathies would purchase tobacco so that the cashier could get comfortable with the stores policy and procedures surrounding the sale of tobacco. [20] Each cash register at the Extra Foods Store in Melville had cash register software which prompted the cashier to enter the customer’s date of birth when tobacco product was sold. The cashiers were advised that if customer appeared to be under 25 then their birth date must be entered into the till. If the cashier is satisfied that the customer looks 25 years or older then the cashier can enter the numbers 1909‑09‑09 into the till and this will override the screen prompt. [21] Ms. Mathies gave cashiers recognition tests every two to three weeks. These tests reviewed the store’s policies in relation to several areas and they always included questions about tobacco. Ms. Mathies testified that one of the possible questions she asked was in relation to the store’s policy on selling tobacco to minors. [22] Ms. Mathies testified that she conducted quarterly reviews with the cashiers based on the company’s Tobacco Sale Policy and their computer software policy designed to assist in preventing the sale of tobacco to underage customers. Each employee was required to sign sheet acknowledging that they had read and understood the policies. [23] There was sign located at every till which stated that it was illegal to sell tobacco to someone who is under 18. These signs were also on the locked cabinet that held the tobacco. [24] Ms. Mathies testified that the cashiers were trained to call supervisor, manager or assistant manager if customer was upset about being asked for identification when purchasing tobacco. The cashiers were told that they did not have to deal with the situation themselves. [25] Westfair had auditors that tested each store once year or at minimum once every two years. These audits may have included testing in relation to identification for tobacco sales. If there were any problems during the audit the store would be made aware of the results. [26] Westfair had implemented mandatory punishments for employees that sold tobacco products to minors. Probationary employees were terminated and regular employee would be subject to two week suspension. If regular employee sold tobacco to minor for second time, they were also dismissed. [27] The trial judge concluded that the appellant did not establish the defence of due diligence. There is no dispute as to the facts of this case. Although the trial judge correctly set out the state of the law surrounding the defence of due diligence, I am of the view that the trial judge erred in applying an unreasonably high standard for this defence. The question before the trial judge was whether the appellant had taken all reasonable care in establishing proper system to prevent their cashiers from selling tobacco to minors and whether they had taken reasonable steps to ensure the effective operation of this system. [28] In order to resolve this issue, the trial judge was required to consider what reasonable person would have done in these circumstances to avoid this offence. reasonable person is not required to possess extraordinary or great diligence. They are not required to exercise the extreme care that person of unusual prudence would apply. Instead, in establishing the defence of due diligence for strict liability offence, an accused must show that he took all reasonable steps to avoid the offence. [29] An analysis of the trial judge’s decision reveals that he applied higher standard of due diligence to the facts of the case than is warranted by the law. The trial judge applied standard of due diligence which required Westfair to be able to prove that there were no other possible precautions or actions that could have been taken to prevent the company’s cashiers from selling cigarettes. This standard exceeds the requirements of reasonable person. For the trial judge to find that Westfair had proven due diligence on the balance of probabilities, he implied that Westfair must be able to prove that there was nothing else that could have been done by the company to prevent the sale of tobacco to minors. The trial judge suggested that this burden had not been satisfied because Westfair could have given the cashiers training on age evaluation, they could have used in‑house test shoppers, they could have had older cashiers exclusively sell cigarettes, and they could have made it difficult to override the cash register software which prompts the cashier to enter the customer’s date of birth when tobacco product is sold. This burden is consistent with standard of perfection and essentially implies zero tolerance. Provincial Court Judge Fitzpatrick in R. v. Courtaulds Fibres Canada (1992), 1992 CanLII 12826 (ON CJ), 76 C.C.C. (3d) 68 (Ont. Prov. Ct.) held at p. 77: Reasonable care and due diligence do not mean superhuman efforts. They mean high standard of awareness and decisive, prompt and continuing action. To demand more, would, in my view, move strict liability offence dangerously close to one of absolute liability. [30] The trial judge should have inquired whether Westfair “exercised all reasonable care by establishing proper system to prevent the commission of the offence and, finally, that it took reasonable steps to ensure the effective operation of its system and supervised its operation” (Sobeys Inc., supra, at para. 36). By applying a higher standard of due diligence, the trial judge erred in law. Had the appropriate standard of due diligence been applied to the facts of this case, Westfair would have succeeded in establishing the defence of due diligence as was decided in R. v. Wesfair Foods Ltd. and Roy H. Friesen, supra. CONCLUSION [31] In summary then, this appeal is allowed, the conviction quashed and a verdict of an acquittal shall be entered. J. R. L. Barclay

The appellant appeals its conviction of selling tobacco to a minor contrary to s. 8(1) of the Tobacco Act. The appellant argues that the learned trial judge erred in law by applying an unreasonably high standard of due diligence to the facts of the case. HELD: The appeal is allowed, the conviction is quashed and a verdict of acquittal is entered. 1) The court reviewed in detail the steps the appellant had in place. 2) The court was of the view that the trial judge erred in applying an unreasonably high standard for this defence. The trial judge applied a standard of due diligence that required the appellant to be able to prove that there were no other possible precautions or action that could have been taken to prevent the company's cashiers from selling cigarettes. This standard exceeds the requirements of a reasonable person. By applying a higher standard of due diligence, the trial judge erred in law. Had the appropriate standard of due diligence been applied to the facts of this case, the appellant would have succeeded.

c_2006skqb87.txt

M.D. ACTON QUEEN’S BENCH FOR SASKATCHEWAN Date: 201208 29 Citation: 2012 SKQB 350 Docket: Div. No. 538 of 2009 Judicial Centre: Saskatoon, Family Law Division BETWEEN: JOHN WILLIAM RANDELL and KRISTY LEE RANDELL Counsel: R. Steponchev for the petitioner V. Watson for the respondent FIAT WILKINSON J. August 29, 2012 1) The issue is the interpretation of consent judgment based on negotiated family property settlement. Present counsel for the husband is new to the file, and was not the lawyer involved in the settlement. 2) The wife seeks an order requiring the husband to pay the equalization payment under a consent judgment, or alternatively that the consent judgment be set aside and trial dates ordered. 3) The disputed portion of the consent judgment of November 6, 2011, (which is simply reflection of the agreement reached on the morning of trial) states this: (i) The Petitioner shall make an equalization payment of One Hundred and Five Thousand ($105,000.00) Dollars to the Respondent to be composed of cash and/or rollover of retirement funds. 4) The dispute arises because the wife says she is entitled to $105,000 net (in cash or cash equivalents) with at least $65,000 being the cash composition. She says this is what the husband said he could borrow. She says she was not aware the husband had significant RRSPs. 5) The husband wants to satisfy the judgment by paying the sum of $5,000 in cash and rolling over $100,000 in RRSPs, unreduced for tax, and says he was only informed of the wife’s position when he attempted to tender payment of the same, on December 16, 2011. He denies that he ever offered to pay $65,000 in cash. He does acknowledge that he made formal offer of settlement on October 18, 2011 in the amount of $65,000 cash, and that he was able to obtain financing from the Bank of Montreal at that time. This offer was rejected. Since then, he has borrowed in order to acquire more RRSPs and has no ability to come up with other financing. 6) The application initially came before Sandomirsky J. whose comments are recorded on the Court file on April 27, 2012. He stated: The relief being sought in the notice of motion is somewhat unusual. You have your judgment and there is mechanism to enforce it. The argument is that there is some ambiguity in the language and how to interpret the judgment. can’t change the language of the judgment. can’t grant you an order saying the judgment says what it says, so obey it. It is comfort order. It would be unfortunate if, and perhaps the time is beyond you to appeal but you could always seek leave to appeal, to say that the judgment is so ambiguous as not to be enforceable. There is decision that was written by Mr. Justice Popescul in Iverson v. Iverson (a 2007 [sic] decision) [2009 SKQB 246 (CanLII), 334 Sask. R. 299] and it is beautiful dissertation of the law as to whether two litigants have come to an agreement that is binding and enforceable by way of judgment. One of the tests to determine whether there has been meeting of the minds is that it is not what the parties thought the agreement meant, but what reasonably informed third party would conclude. It is what reasonable person viewing the same would conclude those words meant. That would undoubtedly be the test of law if you are before the Court of Appeal or this matter had to be re‑litigated as to whether an agreement is binding between the parties or not. have expressed my opinion, but may not be the reasonably informed person... would have read that to say the equalization payment was $105,000.00. You can pay it by cash or you can pay it by roll‑over of RSP’s or you can pay it as combination of both. At the end of the day, the net result is that she walks away with $105,000.00. If there is to be roll-over of RSP’s, we all know that when you cash in RSP, you have to pay income tax on that money. And so, $105,000.00 roll‑over, is not the net of $105,000.00. It will be less the effective rate of income tax is, probably in the neighbourhood of, would guess, they are not wealthy, 17‑25 percent would be the effective rate so she walks away with $105,000.00 less 17 percent. That’s not what reasonable person would have interpreted it to mean. She thought she would get $105,000.00 and take it to the bank or combination. If he doesn’t have that kind of money, he would roll‑over the money but he would gross it up so she could cash it in and still walk away with $105,000.00 as her equalization payment. At the end, each spouse walks away with an equal net worth of the family property. It would be tragedy if these people would have to litigate this further because they are paying lawyers large sums of money which would quickly eat up the tax payable on the roll‑over or not. Mr. Randell should accept the language and how it is interpreted. That is my interpretation of the judgment. 7) With the benefit of this blunt and unambiguous opinion from the bench, the parties were urged to try and resolve the matter themselves. They were unable to do so, and some four months later the application has been returned to chambers. Counsel for the husband says the comments of Sandomirsky J. were in no way dispositive or binding on the parties. 8) Evidence of positions taken at the pre-trial settlement conference, and formal offers of settlement made before trial, have been introduced into evidence without objection from either side. 9) Before proceeding to the information provided, it is useful to outline the governing principles that bear on the issue. 10) adopt the approach taken by Forgeron J. in Power v. Jackman, 2008 NSSC 389 (CanLII), 61 R.F.L. (6th) 144. There, the issue was the interpretation of previous Court order to determine which option the Court would approve to effect the equal division of the pension held in the husband’s name. At paras. 15 to 18 the Court stated: [15] consent Corollary Relief Judgment is an order sanctioning an agreement entered into by the parties. It is not declaration of rights imposed by the court: Canada Deposit Insurance Corp. v. Commonwealth Trust Co., 1997 CarswellBC 2175 (C.A.); and 155569 Canada Ltd. v. 248524 Alberta Ltd., 1992 CarswellAlta 357 (Q.B.). [16] The consent Corollary Relief Judgment is to be interpreted in the same manner as an agreement. Negotiations are not relevant. The factual background leading up to the resolution is relevant to ensure that the understanding of the parties as to the effect of the order can be ascertained: Toronto Dominion Bank v. Cariboo Trail Hotel Ltd., 1996 CarswellBC 2687 (S.C.) at para. 14 and as affirmed at 1998 CarswellBC 1422 (C.A.). [17] In Royal Bank v. 1542563 Ontario Inc., 2006 CarswellOnt 5761 (S.C.J.), at para. 4, Mossip J. summarized the principles to apply when court is asked to interpret the language of an order. These principles are as follows: a) broad and liberal interpretation is to be used to achieve the objective of the court in making the order; b) The language must be construed according to its ordinary meaning and not in some unnatural or obscure sense; c) certain flexibility must be available in recognition of the fact that life is not static; developments beyond the contemplation of the parties often arise; d) The court must examine the context in which the order was issued, evaluate the order in accordance with the circumstances of the case, and question whether the acts or omissions could reasonably have been contemplated to fall under the terms of the order; and e) party cannot hide behind restrictive and literal interpretation to circumvent the order and make mockery out of the administration of justice. [18] Similar principles of interpretation have been applied in family law cases: Tetarenko v. Tetarenko, 2005 CarswellAlta 588 (Q.B.) and Randall v. Randall, [2003] B.C.J. No. 1095 (C.A.). 11) The factual background leading up to the resolution is only relevant to determine the understanding of the parties as it would appear to the objective observer. What the parties had in their minds, or what they believed they were negotiating, is irrelevant to the analysis. As explained in Iverson v. Iverson, 2009 SKQB 246 (CanLII), 334 Sask. R. 299 (the case referred to by Sandomirsky J.) the law is concerned not with the parties’ intentions but with their manifested intentions. It is not what an individual party believed or understood was the meaning of what the other party said or did that is the criterion; it is what reasonable person in that situation would have believed and understood. Although the context was an agreement, as opposed to judgment, the same principles apply. 12) The assets of any significance consisted of the family home and RRSPs. The husband received the family home in the division, non‑taxable asset. 13) On August 13, 2010, in his reply to notice to disclose, the husband indicated he had the following RRSPs: BMO Mutual funds 36,603.46 Sun Life 75,013.54 $111,617.00 14) The wife disclosed she had Sun Life RRSP in the amount of $41,826. 84. 15) settlement pre-trial conference was held in May, 2011. Relying on these RSP values and discounting them by 25% for tax, the wife calculated her family property entitlement on the basis of an equal division. No issue was raised regarding unequal division, although the husband did want the wife to pay roughly $10,000 for half of the family debts the husband had serviced since separation. 16) The wife’s outline of the family property and debts provides the necessary context for an appreciation of the discussions that followed, and it is therefore necessary to outline the calculations in some detail. 17) The property and debts in her possession were her RRSP discounted by 25% for tax ($31,370.13), 2003 Pontiac ($7,000), $150 in miscellaneous items, and bank account of $624.18, for total of $39,144.31. Her Mastercard debt was $3,208.86. 18) The property and debts in the husband’s possession were the family home ($312,000), household goods ($20,000), trailer ($20,000) truck ($10,500), two quads ($4,500), sporting equipment ($10,000), bank accounts ($6,656.94), his RRSPs discounted for tax ($83,751.15) and funds from the sale of an investment property ($40,000), for total of $507,408.09. Family debt (mortgage on the home, line of credit, trailer loan and his Master Card) was $229,049.78. 19) Accordingly, on her calculations, the total combined assets were $546,552.40, the total combined debt was $232,258.64 and the net equity available for division was $314,293.76. Accordingly, each party was entitled to one‑half, or $157,146.88. 20) The husband offered no valuation particulars other than proposing an equal division of the family home (which should be transferred to him) and attributing value to the home of $299,000. As to the rest, he simply indicated there were vehicles, bank accounts and RRSPs to be divided, as well as family debts being the trailer debt, line of credit, the mortgage on the family home, credit cards, and 2008 RRSP loan. He provided no figures for anything except the family home. Not surprising in light of this meagre information, settlement was not achieved at the pre‑trial conference. 21) subsequent appraisal obtained by the wife for trial purposes indicated the family home had value of $335,000. This would have adjusted her calculations as follows: the husband’s assets would increase by $23,000, to $530,408.09. The total family assets would increase to $569,552.40. Deducting total debt of $232,258.64 would leave net equity of $337,293.76 for division. On an equal division, each party would receive $168,646.88. 22) Before trial, the husband made formal offer of settlement proposing the wife would get $65,000 as an equalization payment. Each would keep the property in their possession. The wife would be responsible for her Mastercard debt and he would be responsible for the remaining family debts. 23) His lawyer’s accompanying letter helpfully identifies the only items in dispute in the family property division from the husband’s perspective. These were $20,000 differential on the value of the family home (which he valued at $315,000, and she valued at $335,000), his sporting equipment (which he valued at $150, and she valued at $10,000) and 2008 RSP loan of $30,000 (he said it was family debt, she said it was not). Thus, they were at odds over $29,850 on the property side and $30,000 on the debt side. 24) If one adjusted the figures under discussion to incorporate all the husband’s values on the disputed items he would have assets of $500,558.09 and debts of $259,049.78. In the result, he would have net equity of $241,508.31, compared to $35,935.45 for the wife. Thus, on the husband’s best case scenario adopting all the values he proposed, and increasing his debt by $30,000 an equalization payment of $102,786.43 in cash to the wife would have been required. 25) The wife countered with formal offer of settlement proposing that each keep the property and debts in their possession and that the husband pay an equalization payment of $130,461.43. Although not broken down in any fashion, she did specifically acknowledge the disputed RRSP loan as family debt. 26) The parties settled on an equalization payment of $105,000 by cash and/or rollover of retirement funds, and this provision was incorporated in the judgment that is now the subject of dispute. 27) His proposal to pay the equalization payment by way of $5,000 cash and $100,000 in RSP rollover is, effectively, cash equivalent of $80,000 (applying 25% discount for tax). 28) In the context in which the judgment was issued, and applying broad, liberal, flexible interpretation to the language used, cannot conclude this is what the judgment reasonably contemplates. 29) judgment speaks from the time it is pronounced. At the time of the judgment, what was known to both sides was that the husband had RRSPs of $111,617 but discounted in value to $83,751.15 for purposes of family property division. This is the maximum RRSP component that was available to apply in satisfaction of the judgment. 30) The husband argues that the parties were represented by experienced legal counsel and, accordingly, if tax implications were controlling factor they should have been specifically addressed in the judgment. 31) As noted in Corbeil v. Corbeil, 2001 ABCA 220 (CanLII), 21 R.F.L. (5th) 1, it is common practice in family property distributions to discount RRSPs to their after‑tax value. The Alberta Court of Appeal explained the rationale for doing so at paras. 24 and 25: [24] Regarding the RRSPs, the husband argues that the trial judge erred in failing to discount the value of funds held as RRSPs to adjust for tax implications. In particular, the husband received more of his share of assets in the form of RRSP funds than did the wife. He argues that RRSP assets should be significantly discounted to reduced after‑tax cash value as at the date of division. This method of valuing RRSP funds at trial on their after tax value is not uncommon. [25] The valuation of an RRSP is difficult issue. For instance, if the holder of the fund is young, and there is no need, or plan, to cash the fund early, the ability to appreciate assets within an RRSP has its own value. That is because an RRSP can earn income for many years without attracting tax on that income. In such case, the taxable nature of the asset upon receipt may be outweighed by the benefit of deferring tax. On the other hand, where conversion of the fund is anticipated in the near future, discount for tax is important for valuation purposes. 32) Beaulac v. Beaulac, 2005 SKQB 20 (CanLII), 256 Sask. R. 243, offers typical illustration of the Court’s approach where family property equalization is to be satisfied by way of an RRSP rollover. There, McIntyre J. stated at para. 35: [35] In order to equalize family property Shirley is required to make an equalization payment to Louis of $4,994.11. The petitioner shall have judgment as against the respondent in this amount. Should Shirley choose to rollover RRSP monies to satisfy the equalization payment, the amount of RRSP funds to be transferred must be increased by factor of 1.3. This is to account for the taxable nature of RRSP funds. 33) These principles are engrained in family property law. The fact it was not specifically spelled out in the judgment is not fatal. Recognition of a discount for tax on RRSPs was explicit in the wife’s position in her pre‑trial calculations, and in all valuations of property discussed thereafter. The wife having laid out discounted values for the RRSPs, one would expect the husband to have demanded explicit language in the judgment if he wanted to use unreduced RRSP values to satisfy the equalization payment. To entertain the husband’s proposition would be to construe the judgment in an unnatural sense in all the circumstances. 34) I order that the respondent may satisfy the judgment by way of rollover to the petitioner of $111,617 in RRSPs, representing a discounted value of $83,751.15. The cash balance required to satisfy the judgment is therefore $21,248.85. direct this be done within 14 days. 35) The child support issues raised were not in serious dispute. It was acknowledged slight adjustment was in order. trust the parties can present an order to me on the appropriate terms. 36) In light of the mixed success, there will be no order as to costs. J. Y. Wilkinson

The applicant wife sought an order requiring the husband to pay the equalization payment under a consent judgment or alternatively that the consent judgment be set aside and trial dates ordered. The consent judgment provided that the husband should make an equalization payment of $105,000 to be composed of cash and/or a rollover of retirement funds. The husband wants to satisfy the judgment by paying the sum of $5,000 in cash and rolling over $100,000 in RRSPs, unreduced for tax. Applying a 25% discount for tax, the proposal is equivalent to $80,000. The husband argued that the consent order was not dispositive and that if the tax implications were a controlling factor they should have been specifically addressed in the judgment.HELD: The Court held that it is common practice in family property distributions to discount RRSPs to their after-tax value. The fact that that principle was not stated explicitly in the judgment was not fatal to the application. The evidence introduced at the hearing of the wife's position in pre-trial calculations clearly indicated that she expected the discount for tax on RRSPs. Therefore, the Court ordered that the judgment be satisfied by way of rollover of RRSPs in the amount of $111,600.

b_2012skqb350.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Fournier v. Green, 2005 NSSC 253 Date: 20050913 Docket: S.P.H. 225931 Registry: Sydney Between: Michelle Fournier v. Debra Green and Eric Craig Defendant Judge: The Honourable Justice Simon J. MacDonald Heard: June 10, 2005 in Port Hawkesbury, Nova Scotia Written Decision: September 13, 2005 Counsel: Gerald A. MacDonald, Q.C., for the Plaintiff Sandra Arab Clarke for the Defendants By the Court: [1] This is an application for an Order for summary judgement pursuant to Civil Procedure Rule 13 and an interim payment under Civil Procedure Rule 31.01. have read the affidavits on file as well as the briefs submitted by counsel. as well heard Counsel representing both sides in oral argument at the chambers hearing for this application. [2] Civil Procedural Rule 13.01 states as follows: 13.01. After the close of pleadings, any party may apply to the court for judgment on the ground that: (a) there is no arguable issue to be tried with respect to the claim or any part thereof; (b) there is no arguable issue to be tried with respect to the defence or any part thereof; or (c) the only arguable issue to be tried is as to the amount of any damages claimed. [3] The Plaintiff, in order to succeed in summary judgement application, first has the obligation to prove her claim and then the burden shifts to the Defendant to satisfy the court that he has bonafide defence or at least an arguable issue to be tried before the court. He must disclose the nature of the defence or the issue to be tried with clarity through sufficient facts to indicate that it is bonafide defence or issue to be tried. [4] comprehensive review of the law applicable in summary judgement matters can be found in the judgement of Justice Jamie Saunders in Webber et al v. Canadian Surety Company (4) (1992) 112 N.S.R. (2d) 284. [5] The court must also be aware of the comments made by MacKeigan C.J.N.S. in Lunenburg County Press Ltd. v. Deamond (1977) 18 N.S.R. (2d) 689 at para. 5: We are very conscious, however, as Judge should be in dealing with an application of this sort, that summary judgment is summary proceeding which should not be lightly granted so as to deprive litigant of his right to have any bona fide case disposed of after full trial. We must accordingly allow the appeal and set aside the order of His Honour Judge Burke dated June 14, 1976. We direct that the costs of this appeal and of the application before Judge Burke be costs in the cause of the action.” [6] In this particular application involving rear-end collision, there is heavier burden upon the Defendant. This authority can be found in the words of Freeman, J.A. in MacNeil v. Black [1998] N.S.J. No. 83 at paragraph where he said as follows: “A further burden of proof, and considerably heavier one, falls on the defendant in rear‑end collision cases. The driver of the rear car must rebut presumption that the collision occurred as result of his negligence. See the judgment of Roscoe J. in Wilson v. McInnis (1992), 1992 CanLII 4671 (NS SC), 111 N.S.R. (2d) 78. [7] This accident happened at the intersection of Kings Road and Alexander Street in Sydney, Nova Scotia, on the 4th of March, 2004. The Plaintiff was operating her motor vehicle and said in her affidavit she was struck from behind by the Defendant, Eric Craig. [8] In describing how the accident occurred the defendant, Eric Craig stated in his affidavit: “4. THAT the intersection of Kings Road and Alexander Street is governed by traffic lights. As approached the intersection, noticed that there were three or four vehicles ahead of mine, including Pontiac Montana van (“Montana”) being operated by an individual who was later identified to me as the plaintiff, Michelle Fournier, and which was the vehicle immediately ahead of mine. 5. THAT two or three of the vehicles referred to in paragraph above proceeded through the traffic light. As advanced toward the traffic light, my speed was approximately 10 to 15 km per hour. As the traffic light turned red, did not see brake lights on the Montana and the front of my vehicle struck the rear bumper of the Montana.” [9] In second affidavit filed by Michelle Fournier, she stated as follows in paragraphs and 5: 4. THAT attached hereto and marked Exhibit “A” by the person swearing this my Affidavit is photo of vehicle similar to the vehicle that was driving, which is Pontiac Montana, and the tail lights are quite high off the ground and would have been visible to any person paying the slightest attention to the vehicle in front of them. 5. THAT have checked with Pat LeBlanc, who repaired my vehicle after the accident and have checked with Shawn Aucoin, who was the insurance adjuster for my insurance, Co-Op Insurance, and both have declared to me that the tail lights were working when took the vehicle to be appraised and took it in for repair. [10] The defendant argues summary judgment ought not to be allowed because there is an arguable issue to be tried, namely, that even if one accepts the evidence of the Plaintiff, one has to consider the issue of contributory negligence. Mr. Craig said in his affidavit, he did not see any brake lights on the Montana. Thus the defendant says there is an issue as to whether or not they were on or working. Secondly, the defence argues there might possibly be contributory negligence issue in this case because the Plaintiff suddenly stopped. [11] adopt the position of Freeman, J.A. in MacNeil Black, [1998] N.S.J. No. 83 where he said: “The threshold for showing the existence of defence worthy of trial is not high one, but the defendant has not met it. The standard pleading that the plaintiff stopped abruptly, without more by way of supporting facts, lacks an air of reality. It does not meet, nor suggest how the defendant hoped to meet, the plaintiff's assertion that she had been stopped for 45 seconds. It was necessary for the defendant in his pleadings or by way of affidavit or other evidence to assert facts capable, if proven at trial, of rebutting the presumption that the collision resulted from his negligence. The bald statement in the pleadings does not disclose the existence of an actual or probable defence and cannot fend off an application for summary judgment.” [12] have listened to the argument of the defendant and have read her affidavits and material attached thereto. I am satisfied there has to be an “air of realty” to the defendant’s argument. If the brake lights did not work then the defendant drove straight into the rear of the plaintiff’s car. Secondly if the plaintiff stopped suddenly and as the defendant noted in his affidavit, the traffic light turned red then the plaintiff’s vehicle was supposed to stop as well. To strike the plaintiff’s vehicle from behind on these facts then the defendant was travelling too close or didn’t have enough care or control of his vehicle. Consequently the collision occurred. In any event, I am satisfied when you read the material there was no “air of reality” to the defendant’s arguments. [13] The defendant also argued the plaintiff ought not to be successful in her application for summary judgment because she has not been able to establish the motor vehicle accident resulted in her suffering injuries. The defendant referred to the case of Griffiths Martell [1999] N.S.J. No. 285. At paragraph Hamilton J.A. states as follows: “I considered if this Rule authorizes me to issue summary judgment limited only to liability for the accident itself and not causation, because of its use of the words "a part thereof", but on reading the whole of Civil Procedure Rule 13.01, am satisfied that it means that summary judgment is not to be granted when there is any issue other than the amount of damages still in issue between the parties, which interpret to only be the case after causation has been determined as part of the summary judgment application.” [14] am satisfied upon reading the reports of Doctor Steve Crosby and Doctor Douglas Watt attached as appendices and to the plaintiff’s affidavit, the causation of certain amount of her physical injuries resulted from the accident. [15] am not satisfied the defendant has met the required burden and allow the application. Judgement is entered against the respondent/defendant as to liability with damages to be assessed. [16] INTERIM PAYMENT The Plaintiff, now having obtained summary judgement, fulfills the condition precedent in an application for interim payment under Rule 33.01 (A)(1). It states: “Nothwithstanding the provision of rule 33.01, the court may order the defendant to make an interim payment of such amount as it thinks just, not exceeding reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set off, cross-claim or counter-claim on which the defendant may be entitled to relay, if the court is satisfied: (a) that the defendant against whom the order is sought had admitted liability for the plaintiff’s damages or (b) the plaintiff has obtained judgment against the defendant for damages to be assessed. [17] The general principles involving interim payments where summary judgment has been allowed was discussed in Bogaczewicz Faulkner, [1997] N.S.J. No. 237. See also Mahoney Almeco Leasing Limited [1999] N.S.J. No. 390 and MacDonald MacPherson [1999] N.S.J. No. 283 affirmed on Appeal 1999 N.S.J. No. 445. The case law may be summarized as follows: 1. It is not the function of the Court in determining the matter of an interim payment to make findings of credibility or even to dwell on them. This might ultimately be for Trial Judge at an assessment of damages. 2. An Order of an interim payment is not mandatory. It is discretionary Order of the Chambers Judge. 3. The Court must exercise caution in assessing likely recovery of plaintiff in the early stages of litigation particularly where there is lack of medical opinion in the discovery of experts where necessary. 4. An application under Rule 33.01(A) is not to be trial or mini trial where an estimate of the plaintiff’s ultimate recovery can be difficult and may amount to nothing more than haphazard guess. In such cases the Court should refrain from making an order of interim payment. 5. In cases where there is considerable uncertainty existing as to what is likely to be recovered by the Plaintiff, the proper approach is that where the Court is faced with such degree of uncertainly, it should conclude that it is unable to make determination of reaching an opinion as to what is likely to be recovered in those damage areas of uncertainty. [18] The evidence submitted by way of the Plaintiff’s affidavits causes the court difficulty. The plaintiff is making a significant claim yet when one listens to defendant’s counsel and reads the material attached to the defendant’s affidavit, one finds there are significant other factors affecting the health of the plaintiff. There is no doubt this would impact on any assessment of damages that might be made in this particular case. am looking at the evidence submitted in the affidavits without the benefit of any examination or cross examination before me in an attempt to decide what is likely to be recovered by the plaintiff. have however, read the discovery evidence of the plaintiff submitted as attached to the affidavit of Ms. Sandra Arab Clarke, the defendant’s counsel. [19] The plaintiff blames her neck injury, shoulder injuries, tingling in her hands and arms as well as other injuries on the accident. There is conflict in her evidence about her depression and other problems she is having with her health. In the report of Doctor Watt dated November 8, 2004, for example, the plaintiff interpreted comments from her own family doctor that her problems were not related to her motor vehicle accident. [20] Defence counsel has gone to great extent to show the Plaintiff’s prior conditions would all combine to contribute in significant way to her current health complaints. These range from an injury to her right shoulder and elbow prior to the motor vehicle accident, tennis elbow in the right arm, malaise and fatigue, pain in joints, as well as obstructive lung defect to name but few. Defence counsel states there is long medical history involved here and has argued strenuously there are credibility issues in relation to certain claims relating to her injuries. [21] It is not the function of this court in determining the matter of an interim payment to make findings of credibility or even to dwell on them. I am satisfied any amount of assessed damages which might be arrived at will depend largely upon credibility and the medical evidence at trial. The defendant argues there has yet to even be an independent medical examination of the plaintiff. [22] Serious issues exist between the parties as to whether or not the plaintiff’s injuries sustained in the motor vehicle accident have resulted in any ongoing inability of the plaintiff to work in any capacity. As well there are questions in her claim for loss of valuable service as to whether or not the amount claimed is appropriate when the plaintiff stated in discovery she was able to do some housework and in fact did so. [23] The plaintiff’s damage claim is further complicated in this particular matter as result of the recent amendments in 2003 to the Insurance Act, R.S.N.S. 1989, C-23, especially as it would relate to non-pecuniary general damages. On the information provided to the Court from both parties it is conceivable with the material before me, the plaintiff’s injuries could be described as minor. If, after trial, Court assessed that Ms. Fournier suffered minor injury, it would bring her under the new legislation. Her general damages could be capped at $2,500. [24] Thus, Court should be extremely cautious in approaching an award in this particular category in the absence of significant medical evidence which would clearly establish this injury classification could be overcome. It must be recalled that under the legislation the onus is on the plaintiff to prove any injuries she sustained are not minor in nature. [25] On a review of the material supplied for this application, I am not satisfied this is an appropriate case to order an interim payment at this point in time and I decline to do so. In my opinion, to assess any amount of interim payment on the facts presented would be most difficult task and would only be haphazard guess. This is not basis to fix an interim payment. [26] However, as I said before, I would order summary judgment be entered against the defendant with damages to be assessed. [27] Each party having been partially successful, would order no costs to either side. [28] Order accordingly.

The plaintiff in a rear end motor vehicle accident applied for summary judgment and an interim payment. The defendant argued that there was an arguable issue to be tried in that even if one accepted the plaintiff's evidence, there was the issue of contributory negligence to be considered. The defendant also argued that he did not see any brake lights on the plaintiff's vehicle and thus there was an issue as to whether or not they were working. Application for summary judgment granted as to liability with damages to be assessed; application for interim payment dismissed. There was no 'air of reality' to the defence; to strike the plaintiff's vehicle from behind on these facts meant that the defendant was travelling too close or didn't have proper care or control of his vehicle. However, the affidavit evidence showed that there were several other factors affecting the plaintiff's health besides the injuries sustained in the motor vehicle accident; serious issues existed between the parties at to whether or not the plaintiff's injuries sustained in the motor vehicle accident resulted in any ongoing inability to work in any capacity; any amount of assessed damages which might be arrived at would largely depend upon credibility and the medical evidence at trial.

4_2005nssc253.txt

nan Information 24157353 2004 SKPC 101 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT LA LOCHE, SASKATCHEWAN Between: HER MAJESTY THE QUEEN -and- Paddy Daniel Lemaigre William Campbell Counsel for the Crown George Thurlow Counsel for the Accused September 9, 2004 E. Kalenith, P.C.J. JUDGMENT INTRODUCTION [1] Paddy Lemaigre applies for relief pursuant to The Canadian Charter of Rights and Freedoms (“the Charter”) on the basis of post-charge delay denying him the right to have his trial in a reasonable time. I find that there was no Charter breach and I dismiss the application. My reasons follow. [2] The accused is charged that on or about July 3, 2003, at La Loche, Saskatchewan, he did: (a) commit an assault on [K.J.], contrary to section 266 of the Criminal Code; (b) in committing an assault on [K.J.] threaten to use weapon, to wit: knife, contrary to section 267(a) of the Criminal Code; and (c) commit mischief by wilfully destroying property to wit: lamp of value not exceeding five thousand dollars, the property of [K.J.], contrary to section 430(4) of the Criminal Code. HISTORY OF PROCEEDINGS [3] The following dates are relevant to this application: (a) July 4, 2003 the accused was arrested, released on an undertaking with conditions, and given Promise to Appear in court in La Loche on July 31, 2003; (b) July 14, 2003 the Information was sworn charging the accused; (c) July 31, 2003 the accused first appeared in court. The Information was adjourned at the request of the accused until October 6, 2003 due to the lack of Legal Aid resources to conduct an earlier interview; (d) October 6, 2003 adjourned at the request of the court until November 3, 2003 to see if the parties could come to resolution; (e) November 3, 2003 not guilty plea was entered and trial date was set for May 6, 2004; (f) May 6, 2004 the trial was adjourned on application by the Crown due to the non-attendance of the complainant and new trial date was set for October 7, 2004. [4] The relevant time periods are: (a) Date of release on the undertaking to the date of first appearance twenty-seven days; (b) From July 31, 2003 to October 6, 2003 sixty-seven days adjournment at the request of the accused; (c) From October 6, 2003 to November 3, 2003, twenty-nine days adjournment at the request of the court; (d) From November 3, 2003 to May 6, 2004 one hundred and eighty-five days time from plea to the earliest trial date; (e) From May 6, 2004 to October 7, 2004 five months time from first trial date to second trial date; (f) Date of release on undertaking to second trial date fifteen months, three days. [5] In deciding whether the right to trial within reasonable time, as guaranteed by section 11(b) of the Charter, has been infringed consider the factors outlined by the Supreme Court of Canada in R. v. Morin (1992) 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1(“Morin”): (a) Length of delay; (b) Waiver of time period; (c) Reasons for the delay, including: (i) inherent time requirements; (ii) actions of the accused; (iii) actions of the Crown; (iv) limitations on institutional resources; (v) other reasons for the delay; (d) Prejudice to the accused. [6] The onus is on the accused to prove the breach on balance of probabilities. Length of delay [7] In Morin, the Supreme Court of Canada proposed that as general guideline delay of eight to ten months in Provincial Court would be acceptable. find this to be consistent with the reality in La Loche, where trials are set within six months of entering plea. [8] The length of delay in this case from the date of release on an undertaking to the date of trial is approximately fifteen months. This is not a complicated case. The Crown anticipated calling three witnesses. The length of delay is sufficient to warrant an inquiry into the reasons for the delay. [9] The accused requested the adjournment from July 31, 2003 to October 6, 2003 to seek counsel. The total delay attributable to the accused is sixty-seven days or approximately two months. The remaining delay of thirteen months occurred for the reasons indicated below. Inherent time requirements [10] Arranging for the accused’s appearance in court, and some time between plea and trial, lead to some delay. deduct this seven month period from the delay being considered. Actions of the accused [11] The accused did not contribute to the remaining delay. He appeared on all court dates and was diligent about having the charge set for trial. Actions of the Crown [12] The remaining delay of six months is either attributable to the Crown or caused by factors outside the control of the accused. The delay of three months between the first and second trial dates consider as attributable to the Crown, it being necessary because of the non-attendance of the complainant who was under subpoena to attend. Limitations on institutional resources [13] There is no evidence that any lack of institutional resources caused any delays in this case. Other reasons for delay [14] delay of one month was caused as result of an adjournment by the Court to enable the parties to attempt to come to resolution. attribute this to factor outside the control of the accused. [15] As indicated in Morin, prejudice can be inferred from prolonged delay. [16] The accused argues that he suffered actual prejudice because the undertaking he was subject to prevents him from contacting the complainant and it is therefore argued that he was prevented from having access to his children in her care. The Crown argues, and I agree, that as there is no evidence of any efforts by the accused to overcome this I should find that this prejudice is something that the accused could overcome. also agree with the Crown’s argument that the possible difficulty in having access to the children is normal consequence of being charged with an offence of domestic violence. [17] The accused also argues that the restrictive condition in the undertaking which prohibits him from drinking alcohol has caused him actual prejudice because he has been charged with, pleaded guilty to, and is to be sentenced for, three intervening offences of breaching his undertaking which he attributes to the delay. These offences occurred on July 5, 2003, July 23, 2003, and January 29, 2004. These offences all occurred within what could be considered a reasonable time for the matter proceeding to trial, and there is no evidence about how this causes the accused an undue hardship which is different from that faced by other accused charged with similar offences. I find that in this case the accused has not suffered actual prejudice and that the conditions of release he is subject to are not so onerous as to result in any significant prejudice to him or to lead me to infer that he has suffered prejudice over and above that suffered by others charged with similar offences. [18] Given the finding of no actual or inferred prejudice, the question remains as to whether the prejudice to the accused in the delay is such as to outweigh the prejudice to society that would result if the accused was not to face trial for this charge. [19] This is a charge which involves an offence of domestic violence and is so serious that it carries the heightened public interest that exists in offences of violence (see R. v. Robillard [2000] S.J. No. 345). The six-month delay which includes that time attributable to the accused and that time caused by the court is not so long as to lead to an inference of prejudice to the accused nor does any potential prejudice caused by the delay outweigh the public interest in having the accused face trial on these charges. [20] The accused also argues that basis for finding charter breach in this case is founded on the likelihood that if this trial proceeds on the scheduled date then some of the other accused with trials set that date may not be able to have their trial heard and that this would result in breach of their right to be tried within reasonable time. find that other accused have no standing in this application and that it is only this accused’s rights which are appropriately considered in this application. [21] The application is therefore denied. E.Kalenith, P.C.J..

The accused applies for relief pursuant to the Charter of Rights on the basis of post-charge delay denying him the right to have his trial in a reasonable time. The accused was charged on July 3, 2003 with common assault contrary to s. 266 of the Criminal Code, threatening to use weapon contrary to s. 267(a) of the Code, and destroying property of value less than $5,000 contrary to s. 430(4) of the Code. On July 31, 2003, the accused first appeared in court. The information was adjourned until October 6, 2003 due to lack of Legal Aid resources. On November 3, 2003, not guilty plea was entered and trial was set for May 6, 2004. On May 6, 2004, the trial was adjourned on application by the Crown due to the non-attendance of the complainant and new trial date was set for October 7, 2004. HELD: There was no Charter breach and the application is dismissed. 1) The length of delay from the date of release to the date of trial is approximately 15 months. This is not a complicated case and the delay warrants an inquiry. 2) The Court did not accept the accused's submission that he suffered actual prejudice because the undertaking prevented him from accessing his children. There were no efforts by the accused to overcome this. 3) The restrictive condition in the undertakings prohibiting him from drinking alcohol has resulted in him being charged with and pleading guilty to offences of breaching his undertaking. As these offences all occurred within what could be considered a reasonable time for the matter to proceed to trial, there is no actual prejudice to the accused. 3) This is a charge that involves an offence of domestic violence and is so serious that it carries the heightened public interest that exists in offences of violence.

e_2004skpc101.txt

J. Dated: 19970912 Docket: 7276 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Gerwing, Sherstobitoff Lane JJ.A. HER MAJESTY THE QUEEN and LARRY LIONEL ST. GERMAINE COUNSEL: Mr. D. Rayner for the Crown Respondent was unrepresented DISPOSITION: On Appeal From: Provincial Court Appeal Heard: 12 September 1997 Appeal Allowed: 12 September 1997 (orally) Written Reasons: 16 September 1997 Reasons By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Sherstobitoff Lane J.A. (orally) [1] The Crown appeals the imposition of a six month conditional sentence with 45 months probation and a restitution order against the respondent for the offence of stealing money in excess of $5,000 contrary to s. 334(a). [2] Clearly the maximum allowable probation period is three years and therefore the sentence imposed below is unenforceable. [3] The appeal is therefore allowed and the following order is made: That a restitution order pursuant to section 738 in the amount of $8,518 be paid directly to Mr. Hal Schmidt, c/o Family Pizza, Bay #10, 318 - 105th Street, Saskatoon, Saskatchewan, S7N 1Z3. That the six month conditional sentence is affirmed with the conditions as originally ordered with an additional condition: He shall pay restitution to Mr. Hal Schmidt, c/o Family Pizza, Bay #10, 318 - 105th Street, Saskatoon, Saskatchewan, S7N 1Z3 at the rate of at least $200 per month commencing June 1, 1997. That the period of probation is decreased to three years following the expiration of the six month conditional sentence. The terms of the probation order are affirmed save and except condition which is amended to read: Pay Restitution in the amount of $8,518 directly to Mr. Hal Schmidt, c/o Family Pizza, Bay #10, 318 105th Street, Saskatoon, Saskatchewan, S7N 1Z3 at the rate of at least $200 per month commencing in December 1, 1997 until the full amount is paid.

The Crown appealed the six month conditional sentence with 45 months probation and a restitution order for the offence of stealing money in excess of $5,000 contrary to s334(a). HELD: The appeal was allowed and the following ordered: a restitution order payable directly to the employer in the amount of $8,528; the six month conditional sentence was affirmed with the conditions as originally ordered plus restitution was to be paid in full at a rate of $200 per month; the period of probation was decreased to three years following the expiration of the six month conditional sentence. The maximum allowable probation period is three years and the sentence imposed was therefore unenforceable.

3_1997canlii9782.txt

J. 2002 SKQB 250 Q.B. A.D. 2002 No. 1122 J.C.S. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF AN APPLICATION BY SASKATOON STAR PHOENIX GROUP INC. FOR ACCESS TO AN EXHIBIT FILED WITH THE PROVINCIAL COURT IN HER MAJESTY THE QUEEN v. GLEN IVOR JONES BETWEEN: SASKATOON STAR PHOENIX GROUP INC. and ATTORNEY GENERAL FOR SASKATCHEWAN RESPONDENT G.M. Currie for the applicant G. G. Mitchell, Q.C. for the respondent FIAT ROTHERY J. June 12, 2002 [1] Saskatoon’s daily newspaper applies for access to a CD-ROM entered in evidence at a sentencing hearing in the matter of R. v. Glen Ivor Jones on May 14, 2002. The CD-ROM contains the audio and text summaries of more than 200 intercepted conversations that had been obtained by warrant. [2] The applicant’s journalists had no prior opportunity to hear the contents of the CD-ROM, because Mr. Jones entered guilty plea. The CD-ROM, while filed by the Crown in his sentencing submissions, was not played for the sentencing judge. Now, the journalists wish to hear and view that evidence. The Registrar of the Provincial Court had advised the applicant that it must apply to the appropriate court with notice to the Crown for an order to obtain access to the CD-ROM. [3] Both counsel agree that this exhibit is now under the control of the Attorney General, and it is the appropriate respondent in this proceeding. Both counsel submit that the appropriate court to determine the issue of access to the CD-ROM is the Court of Queen’s Bench. The Attorney General does not oppose the application. It merely seeks the court order to release the CD-ROM to the applicant. [4] The applicant seeks an order for mandamus, or a declaration. The Court of Queen’s Bench is the appropriate court to obtain such relief. See: McIntyre v. Nova Scotia (Attorney General) 1982 CanLII 14 (SCC), [1982] S.C.R. 175. And see: Leader-Post v. Neuls, [1992] S.J. No. 686 (Q.B.). [5] The ratio in McIntyre, supra, and applied in Leader Post, supra, is that “the presumption is in favour of public access to court records, and the burden to the contrary proof lies upon the person who would deny the exercise of the right.” [6] This right is tempered somewhat by other factors. As stated in R. v. S.J.S., [2000] S.J. No. 49 (C.A.) at para. 8: The right of access to judicial records has never been considered absolute: ... The governing principle is that there is presumption in favour of public access but that access must be supervised by the Court to ensure the integrity of the exhibit is preserved and that no abuse or harm occurs to innocent parties. This comports with the hallmark of openness in our judicial system: ... [7] The applicant requests an order that it be entitled to make copy of the CD-ROM at its expense. Because the contents are extensive, it may take more than week to listen to all the conversations on the CD-ROM. It would like to do so at its own premises and own leisure. The Attorney General is agreeable to such copy being made. However, the court must be concerned that no harm befalls innocent parties. This CD-ROM will invariably hold conversations made by innocent parties. [8] Had the trial proceeded, the journalists would have heard the contents of the CD-ROM in open court and would have been able to report on what they heard. In granting access to the exhibit, the court should be mindful of possible harm to others. Requiring the journalists to attend at the offices of the Attorney General and playing the original CD-ROM balances those interests. [9] therefore declare that the applicant is granted access to the CD-ROM entered as an exhibit in the Jones sentencing. The respondent is ordered to make available to the applicant, during regular business hours, the said exhibit and the requisite recording devices to utilize the CD-ROM. The applicant is entitled to make its own notes on what it hears and sees. [10] Counsel are entitled to return the matter to me for further directions.

FIAT. Saskatoon's daily newspaper applied for access to a CD-ROM entered in evidence at a sentencing hearing in the matter of R. v. Glen Ivor Jones on May 14, 2002. The journalists had no prior opportunity to hear its contents because Jones entered a guilty plea. The application was not opposed. The applicant sought an order for mandamus or a declaration. HELD: The presumption is in favour of public access to court records and the burden to contrary proof lies with the person who would deny access. This right is tempered by other factors (see R. v. SJS). Requiring the journalists to attend at the offices of the Attorney General and playing the CD ROM and making their own notes balances the interests of innocent parties whose conversations were recorded.

b_2002skqb250.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 110 Date: June 29, 2011 Information: 32417426 Location: Saskatoon Between: Her Majesty the Queen and Graham Gunningham Appearing: Mr. B. Pashovitz For the Crown Mr. A. Fox, Q.C. For the Accused DECISION ON VOIR DIRE D.C. SCOTT, Introduction [1] Graham Gunningham is charged with operating a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code. The charge arose from motor vehicle accident which occurred on December 20, 2009 in Saskatoon. The accused was detained by police officer at the scene. Because the police vehicle was not equipped with an approved screening device (ASD), the officer requested that one be delivered. Upon receiving the ASD, demand was made for breath sample and “fail” reading was obtained. The accused was arrested, his rights were read to him and breathalyzer demand was made. At the police station, the accused attempted unsuccessfully to reach three different lawyers. He ultimately spoke with Legal Aid duty counsel. [2] The accused argues that the ASD demand was not made forthwith, contrary to s. 254(2)(b) of the Criminal Code and therefore the ASD results were unlawfully obtained and could not form part of the reasonable and probable grounds for making a demand under s. 254(3) of the Criminal Code. In the alternative, the accused submits his rights under ss. 8, 9 and 10(b) of the Charter of Rights and Freedoms were breached. The accused also argues that at the police station, he was not afforded his right to counsel of choice, contrary to s. 10(b) of the Charter. The accused seeks exclusion of the Certificate of Analyses. [3] Crown counsel argues that in the circumstances of this case, the ASD demand was made forthwith. Further, the Crown denies that the accused’s Charter rights were breached. [4] voir dire was held during the course of the trial. This is the Court’s decision on the voir dire. Was the ASD demand made forthwith, as required by s. 254(2) of the Criminal Code? If the ASD demand was not made forthwith, were the accused’s section 8, and 10(b) Charter rights breached? Should the Certificate of Analyses be excluded? [5] At approximately 2:58 a.m., on December 20, 2009, Cst. Dybvig and Cst. McAvoy were dispatched to the scene of an accident next to Jax Nightclub in Saskatoon. They arrived at 2:59 a.m. The accused’s truck had been driven into building on the northwest corner of 24th Street and Pacific Avenue in Saskatoon. Two passengers were with the accused at the time. [6] The accused approached Cst. McAvoy and identified himself as the driver of the truck. The officer testified he could detect the odour of alcohol emanating from the accused and the accused was slightly slurring his words. At 2:59 a.m., Cst. McAvoy patted down the accused and placed him in the patrol vehicle. The officer testified he did so, because it was cold outside and because he was embarking upon possible impaired driving investigation. [7] Cst. McAvoy had not signed out an ASD that evening and the patrol car was not equipped with one, so at 3:02 a.m. Cst. McAvoy radioed for an ASD to be brought to him. While waiting for the device to arrive, Cst. McAvoy obtained the accused’s identification, ran the usual checks on the accused and asked when he had consumed his last drink. The ASD was dropped off at 3:10 a.m. and the demand was read at that time. The accused was asked if he understood. The procedure was explained and at 3:12 a.m. the accused provided breath sample. “fail” reading was indicated. [8] At 3:16 a.m. Cst. McAvoy read to the accused his Charter rights and asked if he needed lawyer, to which the accused replied “yes”. The warning was read and the accused indicated he understood. At 3:17 a.m. breathalyzer demand was made. [9] The 25 year old accused testified on the voir dire. He recalled being dazed following the accident. He was patted down and placed in the police car, although he was not told why and was not informed of his right to counsel at that time. He acknowledged he was wearing light sweater and that it was cold outside. During that time, paramedics checked his hand, which had been injured in the accident. He waited awhile, but could not say for how long, before being asked to blow into an ASD. After he failed the ASD test, he acknowledges he was advised of his right to counsel and that he understood his rights. [10] The accused was detained in the police vehicle at 2:59 a.m.; delivery of the ASD was requested by Cst. McAvoy at 3:02 a.m. and demand was not made until the ASD arrived at 3:10 a.m., resulting in delay of 11 minutes from the time of detention to the making of the demand. Defence counsel argued that because no ASD demand was made on the accused at the time he was secured in the back of the police vehicle, the demand was not made forthwith in accordance with s. 254(2), rendering the test results inadmissible. [11] According to R. v. Rilling (1975), 1975 CanLII 159 (SCC), 24 C.C.C. (2d) 81 (S.C.C.), once breath samples are provided under s. 254(3) of the Criminal Code, the officer’s grounds for demanding the samples are irrelevant. The Certificate of Analyses which established that the accused’s blood alcohol level exceeded the legal limits are admissible notwithstanding the ground for making the breath demand was an illegally obtained fail result on an ASD (see also Hatzel, para. 10). Based upon Rilling, which has not been expressly overturned by the Supreme Court of Canada, would admit into evidence the Certificate of Analyses. [12] Alternatively, the Defence argued that because the accused was not advised of the reason for his detention, he was arbitrarily detained contrary to s. of the Charter. It was argued that because the ASD demand was not made forthwith, the accused ought to have been informed of his right to counsel and failure of the officer to do so, violated the accused’s s. 10(b) Charter right. It was further argued that because the ASD demand was not made forthwith and the accused was not advised of the reason for his detention, his s. Charter right to be secure against unreasonable search and seizure was infringed. The accused therefore seeks exclusion of the Certificate of Analyses under s. 24(2) of the Charter. [13] Section 254(2) of the Criminal Code gives authority to police officer to demand breath sample for analysis at the roadside, if certain conditions are met. The section requires that sample of breath must be provided by the accused forthwith after the demand is made, implying that the demand must also be made forthwith (R. v. Dewald (1994), 1994 CanLII 1139 (ON CA), 19 O.R. (3d) 704). fail reading as result of lawful ASD demand can form the reasonable grounds for breathalyzer demand under s. 254(3) of the Criminal Code. [14] number of cases have considered the significance of the requirement that the ASD demand be made “forthwith”. According to Arbour J. in Dewald at para. 5: …it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. This is the only interpretation which is consistent with the judicial acceptance of an infringement on the right to counsel provided for in s. 10(b) of the Charter. If the police had discretion to wait before making the demand, the suspect would be detained and therefore entitled to consult lawyer. The basis upon which the courts have held that Parliament may infringe on suspect’s right to counsel is that there is no opportunity for the police to accommodate that right if the breath sample must be taken “forthwith”. It follows, in my view, that for the section to maintain its constitutional integrity we must assume it also contemplates that there be no opportunity for the suspect to consult counsel before the demand is made. [15] Detention for roadside screening is reasonable limit on the rights of individuals, under s. of the Charter, so long as the demand complies with the requirements of s. 254(2) of the Criminal Code (R. v. Thomsen, [1988] S.C.R. 640). According to Fish J. in R. v. Woods, 2005 SCC 42 (CanLII), [2005] S.C.R. 205, the word “forthwith” addresses the issue of unreasonable search and seizure, arbitrary detention and infringement of right to counsel, notwithstanding ss. 8, and 10 of the Charter (para. 29). In this way, Parliament has struck balance between “the public interest in eradicating driver impairment and the need to safeguard individual Charter rights” (para. 29). [16] In R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] SCR 254 (S.C.C.), Sopinka J. for the majority, held that while the screening test should be administered as quickly as possible, broad interpretation should be given to the meaning of “forthwith” (para. 70) and flexible approach should be adopted (para. 73). Such an approach was found to be consistent with the reasonable limit on an accused’s right to counsel under s. 10(b) of the Charter. [17] In R. v. Billette (2001), 2001 SKQB 150 (CanLII), 205 Sask. R. 79 (Sask. Q.B.), the Court held that “forthwith” in this context means as quickly as possible in the circumstances. In that case, where the actual length of time was unknown, intervening events such as the officer’s warrantless search of the accused’s vehicle led the Court to conclude an unreasonable and unnecessary delay occurred in making the demand. In those circumstances, the Court concluded the demand was not made forthwith. [18] There is no rule with respect to the exact number of minutes which must elapse before the demand falls outside the “forthwith” requirement—each case is dependent upon its circumstances. [19] In this case, the delay of 11 minutes was largely due to the unavailability of the ASD. In R. v. Ritchie, [2004] SKCA 9, the Court held the delay was not unreasonable, where the time between the demand to provide breath sample into an ASD and the taking of the sample was 11 minutes because the machine was not available. The Court held that “forthwith” in the context of s. 254(2) means “as soon as possible and before there is any realistic possibility that the subject could successfully contact counsel and get legal advice” (para. 17). [20] In R. v. Janzen, [2006] SKCA 111, the Court held the demand was made and the test was administered forthwith, where officers first had to arrange for the delivery of screening device from the police station and then prepare the device for the test, resulting in delay of 10 minutes. The Court of Appeal interpreted “forthwith” to mean “without unreasonable or unjustified delay” (para. 4). In Janzen, the Court held that in determining whether roadside screening test had been administered forthwith, it is necessary to consider the circumstances of the case, including the length of the delay and the reason for it and to assess the matter having regard to the following factors (i) the balance between Parliament’s objective in combating the evils of drinking and driving, on the one hand, and the person’s constitutional right to be free of unreasonable search or seizure on the other; and (ii) the fact that person’s constitutional right to consult counsel is suspended upon demand to provide sample of breath (para. 4). [21] In this case, the demand was not made until the ASD arrived, whereas in Ritchie and Janzen, the delay occurred during the period between the making of the demand and the arrival of the ASD. [22] The Defence relies on the Saskatchewan Court of Appeal decision in R. v. Anderson, [2011] SKCA 13, where the Court held that demand made minutes after the accused was stopped and placed in the police vehicle was not made forthwith and therefore did not comply with the requirements of s. 254(2). In that case, the officers stopped the accused’s vehicle at 1:11 a.m. The accused was asked to exit his vehicle and to take seat in the police vehicle without being told why. Once in the police vehicle, the accused was asked his name and at 1:14 a.m. an ASD demand was made. The Court of Appeal held that for those minutes, the accused was arbitrarily detained contrary to s. of the Charter. [23] At first blush, it appears that the decisions of Anderson, Ritchie and Janzen cannot be reconciled. However, the issues are distinct and the principles set out in Ritchie and Janzen still apply. [24] In Anderson, the Court found that delay of minutes before making demand under s. 254(2), constituted an arbitrary detention under s. of the Charter. The cases of Ritchie and Janzen however, did not deal with the timeliness of the demand, but rather with delay of 11 minutes and 10 minutes respectively related to the delivery of the ASD once the demand had been made. In those circumstances, no Charter breach had been triggered. [25] Anderson simply confirms that once an investigating officer has reasonable suspicion of alcohol in the accused’s body, the demand must be made thereafter as soon as reasonably possible. The time line thereafter to effect completion of the ASD testing process as set out in Ritchie and Janzen remains unchanged. In the present case, the time line for completion is within the parameters set forth in Ritchie and Janzen, that being 11 minutes. Further, in Anderson, notwithstanding the arbitrary detention by reason of minute delay, the Certificate of Analyses was admitted into evidence. [26] find Cst. McAvoy formed reasonable suspicion that the accused had alcohol in his body when he detected the smell of alcohol on the accused’s breath, noticed slight slur in his speech and placed the accused in the police vehicle. There is nothing to indicate he could not have made the ASD demand at that point, even though the device itself was not yet present. Based on Anderson, I find the accused was arbitrarily detained for a period of 11 minutes until the demand was made at 3:10 a.m. contrary to s. 9 of the Charter. Further, because the ASD demand was not made forthwith, his right to be secure against unreasonable search and seizure contrary to s. of the Charter was infringed. [27] The Defence argued that because the accused was detained, he ought to have been given an opportunity to contact counsel. In Ritchie, the Court found that delay of 11 minutes would not have provided realistic opportunity for the accused to successfully contact counsel and obtain legal advice. Following the Ritchie analysis, I find that the accused’s s. 10(b) Charter rights were not infringed. [28] have found breach of the accused’s s. and Charter rights. must therefore further assess whether the Certificate of Analyses ought to be excluded under s. 24(2) of the Charter. [29] According to R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.R. 353, the test under s. 24(2) requires an analysis of three factors: (1) the seriousness of the Charter infringing state conduct; (2) the impact of the breach on the Charter protected interests of the accused; (3) society’s interest in the adjudication of the case on its merits. Seriousness of breaches [30] According to Grant, there is range of seriousness from “inadvertent or minor violations” to “wilful or reckless disregard” of Charter rights. Good faith on the part of the police can be mitigating factor, but “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith” (R. v. J.K., 2010 ONCJ 232 (CanLII), [2010] O.J. No. 2675 (Ont. C.J.)). [31] It is my view that the Charter breaches were moderately serious. The Charter infringing conduct giving rise to the breaches was the officer’s failure to make the demand 11 minutes earlier than he did. The accused was arbitrarily detained for that period of time and a sample of his breath was obtained. However, the officer appeared to have acted in good faith. The officer placed the accused in the police vehicle because he was investigating a possible drunk driving charge, but also because it was cold outside, the accused had no jacket on, he was injured and his vehicle was seriously damaged. Nonetheless, the officer ought to have informed the accused why he was placed in the vehicle and ought to have made the demand as soon as he formed the reasonable suspicion that the accused had alcohol in his body. Impact on accused [32] The Court in Grant held there is range in the potential impact upon an accused, from “fleeting and technical to profoundly invasive”. The more serious the effect of the breach on the accused’s Charter rights, the greater the risk that the admission of the evidence obtained as result of the breach would bring the administration of justice into disrepute (J.K.). [33] There is little in the accused’s testimony upon which to determine the impact of the detention upon him. He testified that he was unaware of how long he waited in the police vehicle as he did not have watch. During his time in the police vehicle, paramedics tended to injuries on his hand and he was kept warm. [34] The detention was of relatively short duration and there is no evidence that his bodily integrity or dignity were compromised. The taking of breath sample is generally considered to be relatively non-intrusive (Grant, para. 111). find the impact on the accused to have been minor. Society’s interest in adjudication on the merits [35] Under this stage of the inquiry, reliability of the evidence and seriousness of the offence are factors to be taken into account. The Court must consider whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion (R. v. Perry, [2009] O.J. 4919 (Ont. C.J.). The Certificate of Analyses is reliable evidence. The offence of driving while impaired is serious one, made more so by the accused’s egregious driving in this case. Weighing and balancing of the factors [36] The purpose of s. 24(2) is to maintain the good repute of the administration of the justice system as whole. In Grant, at para. 111, the Court stated: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [37] In this case, the breaches were moderately serious and the impact on the accused was relatively minor. The evidence sought to be excluded is highly reliable and the offence is serious. It is this Court’s view that on balance, the factors weigh in favour of admission of the evidence. [38] The arbitrary detention for 11 minutes can be attributed largely to waiting for the ASD to arrive. Officers who fail to equip their vehicles with an ASD risk the unlawful detention of individuals and the potential exclusion of evidence at trial (R. v. Hatzel, 2011 SKPC 59 (CanLII), [2011] S.J. No. 278 (P.C.), para. 24). Nonetheless, in this case, the delay was of relatively short duration compared to the 33 minutes in Hatzel. [39] Following Anderson, “the issue of impaired driving and the potentially serious consequences thereof, including endangering the lives of others, leads to inclusion of the evidence” (para. 29). I find the admission of the Certificate of Analyses would not bring the administration of justice into disrepute. Was the accused’s s. 10(b) Charter right to counsel breached at the police station? [40] Once at the station, the accused was taken to the phone room, set up with table and two small stools and equipped with phone directory and phone from which no calls can be made. Immediately outside the phone room is another phone mounted on the wall, connected to the phone inside the room. Typically, an accused provides the officer with phone number, which the officer will dial. Once the call is answered, the officer will identify himself and tell the accused to pick up the phone. The officer will then hang up. This was the procedure followed with this accused. [41] The accused wished to speak to his ex-girlfriend, “Coral”, who had worked for lawyer. Cst. McAvoy contacted Coral. She advised that the lawyer for whom she worked was not available and in any event did not do criminal law work. The accused began to look at the yellow pages of the phone directory. He advised he wanted to speak with Mr. Jay Watson and provided Cst. McAvoy with the phone number. Cst. McAvoy called that number and left message, as there was no response. He then asked the accused what he wished to do. The accused indicated he would like to try Mr. Chris Lavier and provided the number. Cst. McAvoy called that number and left voice mail message. Again he asked the accused what he wanted to do. Cst. McAvoy told the accused that he could look in the phone directory for another lawyer or he could contact Legal Aid duty counsel. The accused then asked Cst. McAvoy to call Legal Aid. The accused spoke with Legal Aid duty counsel for approximately minutes. He was asked by Cst. McAvoy if he was satisfied with his contact with counsel, to which he replied “yes”. He was asked if he wanted to speak with another lawyer, to which he replied “no”. The breathalyzer technician also asked if he had spoken with lawyer and whether he was satisfied with his call. Once again the accused said he was. [42] Cst. McAvoy testified there is usually list of frequently called lawyers’ names and their phone numbers posted on the wall near the phone used by the officers. He could not recall whether such list was posted that evening. Neither did he recall whether Mr. Watson’s number was on the list. [43] It was the accused who pointed out the number he wanted the officer to call. When the officer could not reach the lawyers selected by the accused, he did not suggest the accused look through the white pages. [44] The accused acknowledged that he was provided with phone directory. He looked through the yellow pages and had vague recollection of the name Jay Watson, so asked Cst. McAvoy to call. He had no previous dealings with Mr. Watson; his name just “popped into his head”. When Mr. Watson could not be reached, he suggested Mr. Lavier at the same firm. When neither Mr. Watson nor Mr. Lavier could be reached, he acknowledged Cst. McAvoy asked him if he wanted to call another lawyer. The accused indicated he wanted to speak to someone, so he told Cst. McAvoy to call Legal Aid. [45] The accused testified that no suggestion was made by Cst. McAvoy to check the white pages for Mr. Watson or Mr. Lavier. The officer opened the phone directory to the yellow pages and the accused acknowledged that he did not think to look in the white pages for an alternate phone number for Mr. Watson or Mr. Lavier. [46] The accused had very brief conversation with Legal Aid duty counsel and complains that counsel did not offer much help. Duty counsel did not ask whether the accused had been in an accident. Neither did he ask about whether roadside sample was taken or the timing of the demand. [47] Defence counsel argues the accused, while eventually given the opportunity to speak to Legal Aid, was not given an opportunity to speak with counsel of his choice. The accused expressed clear desire to speak with Mr. Watson or Mr. Lavier; the officers knowing the accused had not reached either of their office numbers, took no steps to provide the accused with their after-hours contact numbers or obtain their home numbers. Defence further argues the accused spoke with Legal Aid duty counsel because he had no other choice; the advice the accused received from Legal Aid duty counsel was minimal. [48] The Defence relies on R. v. MacLaren (H.K.) (2001), 2001 SKQB 493 (CanLII), 212 Sask. R. 204 (Q.B.), where the Court held that detained person has right to choose counsel and once that intention has been indicated police may not proceed as if it had been waived. The accused in MacLaren indicated he did not have lawyer, so the officer dialled the number for Legal Aid. The Court found that the accused was not given reasonable opportunity to exercise his right to counsel. That is not the circumstance in the present case. [49] In R. v. Willier, 2010 SCC 37 (CanLII), [2010] S.C.R. 429, the Supreme Court of Canada dealt with the issue of the right to speak with counsel of choice. The Court held that detainees who choose to exercise their s. 10(b) Charter right to contact counsel trigger the implementational duties of the police. Such duties require the police to facilitate reasonable opportunity for the detainee to contact counsel (para. 33). [50] The implementational obligations of officers are contingent upon detainee’s reasonable diligence in attempting to contact counsel. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend upon the context of the particular circumstances as whole (Willier, para. 33). [51] An accused has right to counsel of choice. However, if chosen counsel is not available within reasonable time, the accused should be expected to exercise the right to counsel by calling another lawyer. [52] In R. v. McCrimmon, 2010 SCC 36 (CanLII), [2010] S.C.R. 402, the Court held that where an accused expressed preference for speaking with particular lawyer, the police acted properly in inquiring whether he wanted to contact Legal Aid instead, when the preferred counsel was not available. [53] The principles in Willier and McCrimmon have been applied in two recent cases from our Court of Queen’s Bench. In R. v. Edgington, [2010] S.J. No. 599 (Q.B.), an accused advised the arresting officer that he did not have lawyer. In response, the officer informed the accused about the availability of Legal Aid, who the accused contacted. The accused argued he was given insufficient time to decide which lawyer to contact and that the officer gave him only one choice, that being Legal Aid. The accused argued he ought to have been given more options. The Court found that the accused’s s. 10(b) right to counsel had not been breached. It held that once the accused had decided to speak with someone from Legal Aid, it would not have been appropriate to do anything other than attempt to facilitate the accused’s communication with his lawyer of choice. The accused was advised of his rights, was given the opportunity to choose lawyer, he chose and consulted the lawyer he had chosen. There was no breach of his s. 10(b) right to counsel. [54] In R. v. Svennes 2011 SKQB 137 (CanLII), case upon which the Crown relied, an accused attempted to contact three lawyers unsuccessfully, before speaking with someone from Legal Aid. The accused had access to telephone directory and the officer dialled the numbers provided to him by the accused. The accused testified that she did not think of looking in the white pages of the phone directory for the lawyers’ residential phone numbers. The Court concluded that because the officer did what the accused would have done in the circumstances, in attempting to reach counsel, the officer fulfilled his implementational duty and there was no breach of s. 10(b). [55] In the present case, the accused expressed his desire to contact his friend’s employer. When that did not work, the officer provided the accused with phone book. The accused asked to contact two lawyers. Cst. McAvoy complied with each of the accused’s requests. After each unsuccessful attempt, the officer asked if he wanted to contact another lawyer or Legal Aid duty counsel. Eventually, the accused chose to speak with Legal Aid duty counsel. find that the officer in this case was not directive in suggesting Legal Aid duty counsel, but rather reminded the accused of that option, as he was required to do. In any event, following the accused’s conversation with duty counsel, the officer asked the accused if he wished to contact another lawyer—the accused declined. [56] Defence counsel argued that Cst. McAvoy had access to Mr. Watson’s and Mr. Lavier’s home phone numbers and ought to have provided them to the accused. However, there is no evidence that the officer had in his possession an after-hours phone number for either counsel. The accused was also required to exercise diligence in accessing counsel of choice. The accused had the telephone book available to him and could have referred to the white pages for alternate phone numbers for Mr. Watson and Mr. Lavier. Failure of Cst. McAvoy to suggest the accused look in the white pages does not amount to failure to facilitate the accused’s right to contact counsel. Cst. McAvoy complied with each request of the accused and was willing to continue attempting to contact counsel of choice, if the accused chose to do so. Cst. McAvoy did exactly what the accused would have done (Svennes). [57] Cst. McAvoy testified that there is usually typed list of approximately ten lawyer’s names and phone numbers, along with phone numbers for Legal Aid and Court workers, posted by the telephone outside the phone rooms at the police station. Cst. McAvoy could not recall whether the list was posted on the evening in question. An example of such list was presented into evidence on the voir dire. One of the lawyers listed is Mr. Watson. The number listed is Mr. Watson’s business phone number. There appears to be no reference to his residential phone number or after-hours phone number included on the list. Mr. Lavier’s name is not included on the list. [58] At trial the accused expressed concerns that his consultation with Legal Aid duty counsel was unsatisfactory. While the police were obliged to afford the accused a reasonable opportunity to contact counsel and to facilitate that contact, they were not required to monitor the quality of the legal advice once contact was made (Willier, para. 41). In fact, to do so would have been an intrusion into the confidential nature of the solicitor-client relationship. Unless the accused diligently and reasonably indicated that the advice he received was inadequate, the officers were entitled to assume he was satisfied with his exercised right to counsel (Willier, para. 42). This is so, particularly where the accused expressly stated that he was satisfied to Cst. McAvoy and the breathalyzer technician. [59] It is my view, Cst. McAvoy fulfilled his informational and implementational duties to facilitate this accused’s right to counsel of choice. He informed the accused of his right to contact counsel of choice, provided him with phone directory, complied with every request made by the accused and when he was unsuccessful in reaching counsel, the officer informed the accused of the availability of Legal Aid duty counsel. [60] In the circumstances, I find there was no breach of s. 10(b) of the Charter. [61] have found that the ASD demand was not made forthwith, giving rise to breach of the accused’s ss. and Charter rights. However, based upon Grant, have determined that the Certificate of Analyses ought to be admitted into evidence. have found no breach of the accused’s s. 10(b) right to counsel at roadside or at the police station. [62] For the foregoing reasons, the Certificate of Analyses will be admitted into evidence on the trial proper. D.C. Scott,

The accused was detained by a police officer at the scene following a motor vehicle accident. The police vehicle was not equipped with an approved screening device (ASD) and was requested at 3:02 a.m. Upon receiving the ASD, a demand was made for a breath sample at 3:10 a.m. and a 'fail' reading was obtained at 3:12 a.m. The accused unsuccessfully attempted to reach three different lawyers at the police station and ultimately spoke with Legal Aid duty counsel. The accused was charged with driving over .08. The defence argued that the ASD demand was not made forthwith and the ASD results were unlawfully obtained. The defence submitted the accused's rights under s. 8, s. 9, and s. 10(b) of the Charter were breached and sought exclusion of the Certificate of Analysis. HELD: 1) The accused's s. 10(b) Charter right was not infringed. While the police were obliged to afford the accused a reasonable opportunity to contact counsel and to facilitate that contact, they were not required to monitor the quality of the legal advice once contact was made. 2) Although the accused was arbitrarily detained for a period of 11 minutes from time of detention to making of the ASD demand contrary to s. 8 and s. 9 of the Charter, the officer acted in good faith by placing the accused in the police vehicle because it was cold outside, the accused had no jacket on, he was injured and his vehicle was seriously damaged. The detention was of relatively short duration and there was no evidence that the accused's bodily integrity or dignity were compromised. The admission of the Certificate of Analysis would not bring the administration of justice into disrepute.

d_2011skpc110.txt

2001 SKQB 148 Q.B. A.D. 1994 No. 2815 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN POPOWICH and THE GOVERNMENT OF SASKATCHEWAN, THE ATTORNEY GENERAL FOR SASKATCHEWAN, C. RICHARD QUINNEY, Q.C., LESLIE SULLIVAN, BRUCE BAUER, MARTENSVILLE BOARD OF POLICE COMMISSIONERS, CLAUDIA BRYDEN, WAYNE McGILLIVRAY, MICHAEL JOHNSTON, and RODNEY MOOR DEFENDANTS G.D. Dufour for the plaintiff (respondent) (applicant) D.A. McKillop, Q.C. for the defendants (applicants), The Government of Saskatchewan, The Attorney General for Saskatchewan, C. Richard Quinney, Q.C., Leslie Sullivan, Bruce Bauer R.B. Morris for the defendants (applicants), Wayne McGillivray and Michael Johnston and Martensville Board of Police Commissioners (respondent) H.R. Kloppenburg, Q.C. for the defendant (respondent), Rodney Moore B.A. Beresh for the defendant (respondent), Claudia Bryden FIAT GEREIN C.J.Q.B. March 26, 2001 [1] Three motions have been brought. In the one the defendants, the Government of Saskatchewan, the Attorney General for Saskatchewan, C. Richard Quinney, Q.C., Leslie Sullivan and Bruce Bauer, seek an order pursuant to Queen\'s Bench Rules 173(a) and 188 that the following parts of the plaintiff\'s claim stand dismissed:(i) the entirety of the claim against the Attorney General for Saskatchewan;(ii) the entirely of the claim against C. Richard Quinney, Q.C., Leslie Sullivan and Bruce Bauer; and(iii) the claim against the Government of Saskatchewan (except for that part of the claim based on the alleged breach of Charter rights). With the consent of the plaintiff, it was ordered that the claim against the Attorney General for Saskatchewan be dismissed. [2] In the second motion the defendants, Wayne McGillivray and Michael Johnston, also seek to have the plaintiff\'s claim dismissed. Likewise, their application is grounded in Queen\'s Bench Rules 173(a) and 188, but they also rely on Rule 173(e). [3] The third motion is brought by the plaintiff who seeks several orders of which two were granted summarily and one was adjourned sine die. What remains is an application for an order, if necessary, extending limitation period nunc pro tunc. [4] The two applications of the defendants, insofar as they are based on Rule 188, are dismissed. That rule provides for a determination of a point of law. Even though the applications are grounded in a limitation period, there still is a factual component and absent an agreed statement of facts there should not be an order granted under Rule 188. [5] As I see it, the remaining substantive issues which need to be determined can be summarized as follows. (1) Whether the plaintiff\'s claim is barred by a statutory limitation period. (2) Whether any limitation period should be extended nunc pro tunc. (3) Whether a portion of the plaintiff\'s claim fails to disclose a cause of action against Quinney, Sullivan, Bauer, McGillivray and Johnston because there is no allegation of malice. (4) Whether the plaintiff\'s claim in tort against the Government of Saskatchewan is barred by statute. [6] The relevant portions of Queen's Bench Rule 173 provide as follows: 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; (e) it is otherwise an abuse of the process of the Court; ... [7] For the purpose of Rule 173(a), assume that the facts as pleaded in the statement of claim are true. My authority for this approach is Balacko v. Eaton's of Canada Limited (1967), 1967 CanLII 369 (SK QB), 60 W.W.R. (N.S.) 22 (Sask. Q.B.) and Geenan v. Saskatchewan Piping Industry Pension Plan (Trustees) (1996), 1996 CanLII 6797 (SK QB), 150 Sask. R. 106 (Q.B.). [8] The facts, as obtained from the statement of claim, are these. The plaintiff is former police officer employed by the City of Saskatoon. The defendant, C. Richard Quinney, Q.C., is the Executive Director of Public Prosecutions for the Government of Saskatchewan. The defendants, Leslie Sullivan and Bruce Bauer, are employed by the Government of Saskatchewan as agents of the Attorney General for Saskatchewan. The defendants, Wayne McGillivray and Michael Johnston, were at relevant times employed as chiefs of police by the defendant, Martensville Board of Police Commissioners. [9] In about September, 1991, investigations were commenced and pursued by various police officers, including McGillivray and Johnston, in respect to alleged criminal activity. In the result, the plaintiff was charged in an information sworn on June 5, 1992, with serious criminal offences. He was arrested; detained in custody for four days; and suspended from his employment as police officer. The defendants, Sullivan and Bauer, were the persons designated to prosecute the alleged offences. [10] The trial of the plaintiff commenced in May, 1993. Each of the complainants failed to identify the plaintiff as the perpetrator of the alleged offences. The trial did not proceed to conclusion because the Crown entered stay of proceedings on June 8, 1993. [11] The plaintiff then commenced this action on September 9, 1994, which is fifteen months after the stay of proceedings was entered. The statement of claim speaks of malicious prosecution, negligence, breach of Charter rights and conspiracy. The plaintiff claims general damages, special damages, punitive damages, aggravated damages, interest and costs. [12] Since the action was commenced, and before these applications were brought, several parties were removed from the proceedings. Statements of defence were filed by all remaining parties. Statements as to documents have been served and number of examinations for discovery have been conducted. The case is to be heard by jury and is scheduled to commence in some ten months. Prior to that further examinations for discovery are planned. Against that background must decide the stated issues. THE STATUTORY LIMITATION [13] The applicants submit that with the exception of claims based on malice, the action should be struck because it was not commenced within the time prescribed by The Public Officers' Protection Act, R.S.S. 1978, c. P-40. Because it is very short, reproduce the Act in its entirety. Short Title This Act may be cited as The Public Officers' Protection Act. Limitation of actions 2(1) No action, prosecution or other proceedings shall lie or be instituted against any person for an act done in pursuance or execution or intended execution of statute, or of public duty or authority, or in respect of an alleged neglect or default in the execution of statute, public duty or authority, unless it is commenced: (a) within twelve months next after the act, neglect or default complained of or, in case of continuance of injury or damage, within twelve months after it ceases; or (b) within such further time as the court or judge may allow. (2) If, in the opinion of the court, the plaintiff has not given the defendant sufficient opportunity of tendering amends before the commencement of the proceeding, the court may award to the defendant costs to be taxed as between solicitor and client. (3) sheriff, acting under writ of execution or other process, shall be deemed to be person acting in the discharge of public duty or authority within the meaning of this Act. (4) This Act does not apply to an action against registrar of land titles under The Land Titles Act. [14] It will be remembered that the Crown entered stay of proceedings before the plaintiff 's trial was concluded. This was done on June 8, 1993. The defendants say that the limitation period set out in the quoted Act began to run on that date. contrary position is taken by the plaintiff who says that the limitation period began to run one year following the entry of the stay of proceedings which would have been June 8, 1994. This position has reference to s. 579(2) of the Criminal Code, R.S.C. 1985, c. 27 (1st Supp.) s. 117 which empowers the Crown to recommence the proceedings which were stayed. The section provides as follows: (1) The Attorney General or counsel instructed by him for that purpose may, at any time after any proceedings in relation to an accused or defendant were commenced and before judgment, direct the clerk or other proper officer of the Court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated. (2) Proceedings stayed in accordance with subsection (1) may be recommenced, without laying new information or preferring new indictment, as the case may be, by the Attorney General or counsel instructed by him for that purpose giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered, but where no such notice is given within one year after the entry of the stay of proceedings, or before the expiration of the time within which the proceedings could have been commenced, whichever is the earlier, the proceedings shall be deemed never to have been commenced. [15] The plaintiff submits that so long as the Crown had the right to recommence the proceedings he remained in jeopardy. Furthermore, it is contended that when the Crown entered the stay it had in mind the possibility that new evidence may be found inculpating the plaintiff in the criminal conduct. This being so, it is said that the Crown continued to act until the expiration of the year. [16] further position is advanced by the plaintiff. On February 11, 1994, the Crown held news conference in which there was some discussion of the plaintiff's situation. It is now contended that this conduct caused harm and injury to the plaintiff and therefore the limitation period did not commence to run until that date. [17] The statement of claim was issued on September 9, 1994. That was fifteen months after the stay of proceedings was filed on June 8, 1993. It was seven months after the news conference and three months after the one year period expired on June 8, 1994. If the news conference marks the beginning of the limitation period, then the action was commenced within the statutory period; otherwise it is beyond that period. [18] In my opinion, as general rule, the statutory limitation period created by s. 2(1)(a) of The Public Officers' Protection Act (supra) commences to run when stay of proceedings is entered pursuant to s. 579 of the Criminal Code, (supra). insert the qualification because it may happen that even though stay has been entered, actionable conduct on the part of public officer may continue. My position is based upon the judicial pronouncements found in the several decisions in Boudreault v. Barrett which were rendered between 1993 and 1999. [19] In the first decision of Boudreault v. Barrett (1993), 18 C.P.C. (3d) 227 (Alta. Q.B.), Master Waller addressed the issue of when the limitation period commences following the entry of stay of proceedings and concluded that it commenced upon the entering of the stay. At p. 232, para. 11-12, he said this. As the plaintiff's statement of claim in this matter was issued some two years and nine months after the entry of the stay the defendants' assertion is that the action is statute barred. The plaintiff on the other hand alleges that Section 579(2) of the Criminal Code should be construed to extend the limitation period to the expiry date of the directed stay. To put it another way the plaintiff says by reason of this provision of the Criminal Code the charges against him remain extant and cannot [be] regarded as having been favourably determined against him until the expiration of the stay. The Supreme Court in Canada in Casey v. Automobiles Renault Canada Ltd., 1965 CanLII 72 (SCC), [1965] S.C.R. 607 and 614, cites Salmond on Torts, 13th edition, p. 726, for the proposition that: If the prosecution has actually determined in any manner in favour of the plaintiff it matters nothing in what way this has taken place. ... What the plaintiff requires for his action is not judicial determination of his innocence but merely the absence of any judicial determination of his guilt. Thus it is enough if the prosecution has been discontinued, or if the accused has been acquitted by reason of some formal defect in the indictment, or if condition has been quashed, even if for some technical defect in the proceedings. He then concludes as follows at p. 235, para. 18: If the staying of the proceedings may be properly characterized as "temporary suspension the regular order of the proceedings in cause" can the plaintiff then argue that the limitation period should only run from the expiration of the stay? Section 579(2) of the Criminal Code allows the Crown on indictable matters to recommence prosecution on the original indictment within one year. However once the one year period has lapsed the Crown, if it wishes to proceed on an indictable matter, must do so on new indictment. The provisions of 567(2) do not in my view alter the substantive rights of the to Crown proceed with matter previously stayed but rather provide facilitated administrative machinery to reconstitute proceedings. Accordingly must conclude that for the purposes of this action the limitation period arose on November 6, 1989 when the stay was first entered. The particular indictment against the plaintiff clearly was alive during the stay period but that cannot be equated with finding that proceedings had not been terminated in favour of the plaintiff. am satisfied that the proceedings had been so terminated notwithstanding the crown's right to recommence proceedings on the indictment during the stay or upon further indictment after the stay. The question is purely question of law and there are no triable issues of fact to be resolved to determine the existence of defence to the limitation. Accordingly the plaintiff's claim is determined to be statute-barred upon Section 51 of the Limitation of Actions Act. However if am wrong in this must decide on the other grounds argued. He went on to further conclude that the action was doomed to fail and dismissed it on that secondary ground as well. [20] On appeal, reported at (1995), 39 C.P.C. (3d) 1, the Alberta Court of Appeal set aside the earlier decision. That court held that statutory limitation may afford defence, but the facts giving rise to the defence must be proved in evidence. As this had not been done, it was improper to dismiss the claim simply on the basis of the passage of time. In addition, there was no admissible evidence to establish the action was doomed to fail. [21] The matter again came before the Alberta Court of Queen's Bench when an application was brought for summary judgment dismissing the claim. The requested judgment was granted by Deyell, J. as reported at [1997] A.J. No. 403. The appeal from that decision was dismissed as reported at (1993), 1998 ABCA 232 (CanLII), 219 A.R. 67. In that decision, commencing at p. 72, para. 17, the Alberta Court of Appeal said this about commencement of limitation period following the entry of stay of proceedings. 17 This action was commenced August 19, 1992. The appellant was discharged at the conclusion of the Preliminary Inquiry on November 6, 1989 and stay of proceedings under s. 579(1) of the Code was entered on the same day. Section 579(2) permits the Crown to recommence proceedings that have been stayed within one year from the date the stay is entered without the necessity of laying new Information or preferring new indictment. 18 The appellant argues that the limitation period did not commence to run until after the expiration of the one-year period. He says the proceedings did not terminate in his favour until the period passed without the charges being resurrected. We do not agree that the limitation period was so extended. The proceedings were terminated in favour of the appellant when he was discharged and the stay was entered, that is, on November 6, 1989. Section 579(2) is merely procedural provision that permits the Crown to re-commence criminal prosecution during the period of one year following the entry of stay without the necessity of laying new Information or preferring new indictment, as the case may be. The Crown can commence fresh proceeding against an accused for the same offence after expiration of the one-year period and could have done so in this case by preferring an indictment. The appellant could have commenced this action immediately on his discharge and entry of the stay of proceedings by the Crown. The cause of action had fully accrued and the appellant had a prima facie case. He knew then as much about the surrounding circumstances as he did when he initiated this action over years later. agree with the quoted comments and conclude that stay of proceedings starts the clock. However, that does not end the matter. [22] The applicants seek relief pursuant to Queen's Bench Rule 173(a) which provides as follows: 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; ... They argue that should take as truthful the facts set out in the statement of claim and on the basis of those facts find that the action is statute barred. agree with the first proposition, but not with the second. [23] The statement of claim is not restricted to events prior to the entering of the stay of proceedings. More importantly, assertions have been made within the material filed which speak of subsequent conduct by at least some of the defendants. It is arguable that the limitation period was extended. To fairly determine whether that was so, there must be a hearing to determine the facts and that is best done at trial. It may be otherwise if there had been an agreed statement of facts. [24] This subject was addressed by the Saskatchewan Court of Appeal in Bloomfield v. Rosthern Union Hospital Ambulance Board et al. (1990), 1990 CanLII 7665 (SK CA), 82 Sask. R. 310. The decision of the court was given orally by Sherstobitoff J.A. and, as it was brief, reproduce it here in its entirety. This appeal is from an order made under R. 173 of the Queen's Bench Rules, which struck out statement of claim in defamation action as being barred by s. 3(1)(c) of The Limitation of Actions Act, R.S.S. 1978, c. L.-15 and therefore disclosing no cause of action. The order was made before any Statement of Defence was filed. The appeal must be allowed. The respondent concedes that the Statement of Claim, on its face, discloses cause of action. bar to proceeding with the action which arises from The Limitation of Actions Act must be raised by way of Statement of Defence. Such defence does not nullify cause of action, but is merely bar to proceeding with the action. The application of The Limitation of Acts Act may depend on disputed facts such as when the cause of action arose, or when the limitation period began to run. After the Act has been raised by the pleadings, its effect may be dealt with by an application for determination of point of law under Queen's Bench Rule 188, provided that the other requirements for such an application, such as agreement as to all relevant facts, have been met. This procedure has been followed in Saskatchewan as well as other jurisdictions: Bank of Montreal v. Mainland Crystal Glass Ltd. (1985), 1985 CanLII 2533 (SK CA), 46 Sask. R. 102 (C.A.); Townsend v. Worthington (1987), 1987 CanLII 4790 (SK QB), 57 Sask. R. 203 (Q.B.); Pollakis v. Corner et al. (1975), 1975 CanLII 597 (ON SC), O.R. (2d) 691 (H.C.); Ronex Properties Ltd. v. John Laing Construction Ltd. and others, [1982] All E.R. 961 (C.A.). The appeal is therefore allowed with costs under double Column V, and the (sic) other below is set aside. [25] While hold an opinion about when the time starts to run vis-a-vis limitation period following the entry of stay of proceedings, that opinion may not be valid in all situations. In the instant case, cannot be certain that the limitation period was not extended. This being so, should act as suggested by the Court of Appeal. Accordingly, the application to dismiss the plaintiff's claim as being statute barred should be dismissed. EXTENSION OF THE STATUTORY LIMITATION [26] As set out earlier, s. 2(1) of The Public Officers' Protection Act (supra) requires that an action be commenced within twelve months or "(b) within such further time as the court or judge may allow." The plaintiff now applies for an order granting such further time, the order to be retroactive to September 9, 1994. [27] The defendants oppose the application and argue that such an order is prohibited by law because second limitation period has expired. Here they refer to the two year and six year limitation period prescribed in s.s. 3(1)(d) and 3(1)(j) of The Limitation of Actions Act, R.S.S. 1978, c. L-15. In support of this position, have been referred to the cases of Holst v. Grenier et al. (1987), 1987 CanLII 4512 (SK QB), 65 Sask. R. 257 (Q.B.); Mitchell et al. v. Cabri Union Hospital Board et al. (1989), 1989 CanLII 4695 (SK QB), 79 Sask. R. 81 (Q.B.); Tokohopie and Lonechild v. Littlechief et al. (1992), 1992 CanLII 8157 (SK QB), 101 Sask. R. 127 (Q.B.); and First Choice Capital Fund Ltd. v. First Canadian Capital Corporation, 1998 CanLII 13531 (SK QB), [1998] W.W.R. 362, (Sask. Q.B.). [28] The cited cases require some review and comment. In Holst v. Grenier et al. (supra) the plaintiff commenced an action in Saskatchewan in respect to injuries sustained in motor vehicle accident on an Alberta highway. The driver of the other vehicle was Saskatchewan resident. The action was commenced within the statutory period. However, an application to strike out the claim was allowed because the plaintiff had not obtained leave to commence the action. [29] In that case, two statutory provisions were applicable. Section 88 of The Highway Traffic Act, R.S.S., 1978, c. H-3.1, imposed one year limitation period for bringing the action. Section 54 of The Queen's Bench Act, R.S.S., 1978, c. Q-1, provided as follows. Notwithstanding anything in s. 53, no action shall be brought in Saskatchewan for damages in respect of tort committed outside the province, except by special leave of the court or judge. When the application was brought to strike the claim, the plaintiff sought an order nunc pro tunc granting leave to bring the action. In refusing the requested order, Mr. Justice Halvorson said this at p. 259. [10] The fact of an intervening limitation period is an insurmountable obstacle in the way of making nunc pro tunc order. That was the position adopted by the court in Krueger and in G.B. Wood. These decisions are based on the principle that if the defendant will be prejudiced by late amendment, it will not be granted. In Tokohopie and Lonechild v. Littlechief et al. (supra) the facts were identical and resulted in the same disposition. [30] In Mitchell et al. v. Cabri Union Hospital Board et al. (supra) the plaintiff had commenced an action within the limitation period as provided in one statute. However, the action was not commenced within the limitation period as provided in two other statutes, including The Fatal Accidents Act, R.S.S., 1978, c. F-11. It was held that the action must be dismissed as the two limitation periods had expired. The fact that the action had been commenced within the one limitation period did not remove the necessity to comply with the other two limitation periods, particularly when the cause of action arose under The Fatal Accidents Act (supra). [31] The final case is First Choice Capital Fund Ltd. v. First Canadian Capital Corp. (supra). In that instance the plaintiffs brought an action which included torts committed outside Saskatchewan. No leave was obtained as required by s. 54 of The Queen's Bench Act (supra). The plaintiffs applied for such leave, nunc pro tunc, and such an order was granted despite an intervening limitation period. At p. 371, Mr. Justice Baynton said this. 25 am of the view that it is time to reconsider this "intervening limitation" fetter that has been placed on the discretion of the court. But too feel obligated to follow the previous decisions. Until the intervening limitation principle has been further considered by the Court of Appeal, it should be narrowly construed and confined to the facts of the cases that established it. Cases like Holst and Tokohopie involved personal injury torts incurred in automobile accidents. In each of those cases it was clear and undisputed that the one-year limitation period had expired before the application for leave was brought. Neither case involved multiple torts, multiple defendants, nor prior defective application for leave. Nor was any case cited to me which involved such factors. 26 The circumstances of the case before me however are quite different from those involved in Holst and Tokohopie. It involves multiple torts and defendants (and in particular multiple torts against Deloitte and Blewett as well as other causes of action such as beaches of contract). The alleged torts include professional negligence, breaches of duties, misrepresentation, and the like. The causes of action are alleged to have taken place between various dates in the years 1988 and 1994. It accordingly will not be established until trial when any particular limitation period expires. As well, even though limitation period may have expired respecting one alleged tort, those respecting other alleged torts may not have expired. At this point, an intervening limitation period is nothing more than possibility. [32] In this case before me, see the matter differently than counsel for the defendants and, in my opinion, the cases cited have no application. My reasoning is as follows. [33] Limitation periods are substantive in character as opposed to procedural. See Tolofson v. Jensen, 1994 CanLII 44 (SCC), [1994] S.C.R. 1022 and Stewart v. Stewart, 1996 CanLII 465 (BC SC), [1996] 10 W.W.R. 350 (B.C.S.C.). As such, they provide defences which should not be defeated by retroactive orders. That is what understand was decided in the cases of Holst and Tokohopie. What was said in the Mitchell case was, in sense, to the same effect; although the circumstances were much different. [34] However, we must not lose sight of the situation in this case. Here the governing legislation is s. of The Public Officers' Protection Act and it is there that one must address any limitation period. Contrary to the submission of counsel for the defendants, do not see The Limitation of Actions Act as superseding or replacing s. of The Public Officers' Protection Act after the expiration of one year following the actionable conduct. Section 3(2) of The Limitation of Actions Act reads: 3(2) Nothing in this section extends to an action where the time for bringing the action is by statute specially limited. On behalf of the defendants that section is given rather sweeping interpretation and can do no better than to repeat the submission as contained in the written brief. 25. However once the 12 months prescribed by The Public Officers' Protection Act has expired, the "time for bringing action" is no longer by "statute specially limited" within the meaning of subsection 3(2). The result is that after the time to bring an action as matter of right under The Public Officers' Protection Act has expired subsection 3(1) of The Limitation of Actions Act becomes applicable and once the appropriate time limits prescribed there have expired the court has no authority to allow the Plaintiff further time to commence his action. If that argument is correct and s. 3(1) of The Limitation of Actions Act becomes the governing legislation, then the within action may well have been commenced within that statutory period which is two years. With respect, do not believe that to be so. [35] In my opinion, the intent and purpose of s. 3(2) of The Limitation of Actions Act (supra) is to avoid conflict with other legislation and to remove the application of that Act from those situations specifically dealt with by other legislation. The general limitation must give way to the specific limitation. See Worsley v. Hamilton and Hamilton (1960), 1960 CanLII 224 (SK CA), 33 W.W.R. 23 (Sask. C.A.); Elliott v. Saskatoon (City), University Hospital Board and Ward (1986), 1985 CanLII 2905 (SK QB), 48 Sask. R. 142; and Saskatchewan Nowsco Well Service Ltd. et al. (1990), 1989 CanLII 4586 (SK QB), 75 Sask. R. 285 (Q.B.). [36] Accordingly, hold that the only limitation period which has application in this case is s. 2(1) of The Public Officers' Protection Act (supra). While that section creates statutory limitation period, it also creates the possibility to have the period extended. In other words, the limitation is not necessarily absolute. Therein lies the significant difference between this case and the cases of Holst, Tokohopie, Mitchell and First Choice Capital Fund Ltd. (supra). In all of those instances the limitation period was fixed and there was no provision for extending the time. In this case before me, there is statutory authority to do so. [37] Two questions remain. Should the limitation period be extended and, if so, should the extension be retroactive? have concluded that both questions should be answered in the affirmative. [38] The only case which deals specifically with an application to extend the time is In Re The Public Officers' Protection Act, Landru v. Seymour, 1924 CanLII 223 (SK QB), [1925] W.W.R. 29 (K.B.). As result, have sought guidance in decisions which dealt with extensions of the limitation period in s. 15 of The Hospital Standards Act, R.S.S. 1978, c. H-10. These include Konotopski v. Royal Canadian Mounted Police (2000), 2000 SKQB 22 (CanLII), 190 Sask. R. 103 (Q.B.); Peyson v. Vuksic (1994), 1994 CanLII 5002 (SK QB), 124 Sask. R. 251 (Q.B.); Bighead v. Holy Family Hospital Prince Albert et al. (1991), 1991 CanLII 7876 (SK QB), 98 Sask. R. 262 (Q.B.); and Desormeau v. Holy Family Hospital, Prince Albert (1989), 1989 CanLII 4724 (SK CA), 76 Sask R. 241 (C.A.). [39] Depending on when the limitation period expired following the filing of the stay of proceedings, the plaintiff commenced his action either eighteen months or three months beyond the permitted period. For the purpose of my deliberations, have taken the longer period as that renders the delay more serious. The main factors which must take into account are whether the plaintiff has demonstrated prima facie case; whether there is an adequate explanation for the delay; and whether the defendants will suffer prejudice. [40] In support of his application, the plaintiff has filed very lengthy affidavit setting out the facts of his claim as he sees it. He has demonstrated a prima facie cause of action and I need say no more about that. [41] Within that same affidavit he speaks about why he did not bring his action in timely way. He discloses how the trial and the events leading up to it had an adverse effect on him emotionally and mentally, even to the extent of major episodes of depression. Those events had negative impact on the whole of his life. All of that remained with him even after the stay of proceedings was entered. While in that state he was reluctant to commence an action for fear it would trigger recommencement of the criminal proceeding. cannot say that this fear was justified, but am satisfied that it was real. Even after the expiration of the waiting period, which was June 8, 1994, the plaintiff's emotional state appears to have been far from ideal and this affected his ability to act in his best interests. When I consider the condition and state of the plaintiff at the relevant time, together with all of the presenting circumstances, a reasonable explanation for the delay has been put forward. [42] Most importantly, I am satisfied that no prejudice will flow to the defendants. They have all actively participated in this litigation from the outset, some six years ago. Statements as to documents have been exchanged. Examinations for discovery have been conducted over several weeks. Throughout all of that no action was taken in respect to the limitation period. [43] When consider all the circumstances, am convinced that had the platiniff applied for an extension of time in September, 1994, that relief would have been granted to him. am equally convinced that it should be granted now. [44] When I reflect upon the time, effort and money expended in the pursuit of this action by all parties over the past six years, I am convinced that the only reasonable course is to grant a retroactive order. The alternative of requiring that the action be commenced anew simply is not appropriate. [45] There is authority for the proposition that orders of this court may be made retroactive. In R. v. Fenrich (1985), 1985 CanLII 2814 (SK QB), 42 Sask. R. 117 (Q.B.), Mr. Justice Armstrong said this at p. 126, para. 48, of the report. In the absence of some specific restriction on the power of the court, the court has inherently the right to make an order nunc pro tunc. This statement was adopted in Shannon v. Topp (1986), 1986 CanLII 2946 (SK QB), 44 Sask. R. 100 (Q.B.). The right was also recognized in Holst v. Grenier et al. (supra) and exercised in First Choice Capital Fund Ltd. v. First Canadian Capital Corp. (supra) and Martyn v. Connelly et al. (unreported decision, December 16, 1997; Q.B.G. 499/96 J.C. R.) and (1998), 1998 CanLII 13703 (SK QB), 171 Sask R. 70 (Q.B.). In my opinion, the power should be exercised in this case. [46] In the statement of claim, in paragraphs 41(A), 45, 46, 46A, 47 and 48, it is alleged that the defendants, Quinney, Sullivan, Bauer, McGillivray and Johnston, are liable in negligence. Those parties seek to have the particular pleadings struck on the ground that they enjoy an immunity absent an allegation of malice or bad faith. In the statement of claim it is stated that at all relevant times the first three were Crown Attorneys and the other two were police officers. For the purpose of this application those assertions are taken as true. [47] In response, the plaintiff submits that paragraph 45 contains what amounts to an allegation of something more than mere negligence. In fact, it contains an allegation of gross negligence and significant departure ".... from accepted standards of fairness and impartiality." [48] These allegations cannot save the impugned pleadings as to the Crown Attorneys. They do not raise the issue of moral turpitude which is implicit in malice, bad faith or improper purpose. Absent such an allegation the pleadings disclose no cause of action and should be struck as to the Crown Attorneys. See: Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] S.C.R. 170; Munro v. Canada (1992), 1992 CanLII 7423 (ON SC), 98 D.L.R. (4th) 662 (Ont. Gen. Div.); and Milgaard v. Kujawa et al. (1994), 1994 CanLII 4592 (SK CA), 123 Sask. R. 164 (C.A.). [49] As to the police officers it is otherwise. They rely upon s. 10 of The Police Act, 1990, S.S. 1990-91, c. P-15.01, and Hill v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238 (H.L.). I read the statutory provision as providing immunity to the Saskatchewan Police Commission and people engaged in its work. It does not extend protection to police officers in general. [50] As to the cited case, prefer to follow the decisions in Beckstead v. Ottawa (City) (1997), 1997 CanLII 1583 (ON CA), 155 D.L.R. (4th) 382 (Ont. C.A.) and Reynen v.Canada (1995), 184 N.R. 350 (Fed. C.A.). In the first case it was held that police officer could be held liable in negligence. In the second case the court held that claim in negligence against police officer and customs officer should not be struck on motion. adopt that same position and refuse to strike such pleadings in respect to the police officers. GOVERNMENT OF SASKATCHEWAN [51] At the outset it is noted that the Government excepts from its application the claim grounded in the Charter of Rights. At the same time, the plaintiff concedes that the Government enjoys an immunity in respect to the claim for malicious prosecution. [52] In determining the Government's immunity, one must have reference to The Proceedings Against The Crown Act, S.S. c. P-27, and particularly s. which, in part, provides as follows. 5(1) Subject to this Act, and notwithstanding section of The Interpretation Act, the Crown is subject to all those liabilities in tort in which, if it were person of full age and capacity, it would be subject: (a) in respect of tort committed by any of its officers or agents; (6) No proceedings lie against the Crown under this section in respect of anything done or omitted to be done by person while discharging or purporting to discharge; (a) responsibilities of judicial nature vested in him; or (b) responsibilities that he has in connection with the execution of judicial process. section identical to s. 5(6) is contained in the equivalent legislation in Ontario and was addressed by Mr. Justice McIntyre in Nelles v. Ontario (supra) commencing at p. 204. Any consideration of Crown liability must now be based upon the Act and do not find it necessary for the purposes of this case to consider the common law position respecting Crown immunity. The purpose of the Act, clearly discernible from its form and structure, was to remove Crown immunities and place the Crown upon the same footing as any other person before the courts, save for the exceptions which are set out in the Act. The effective sections for this purpose are ss. and 5. Section 2(2)(d) was relied upon by the Crown. It provides: (2) Nothing in this Act (d) subjects the Crown to proceedings under this Act in respect of anything done in the due enforcement of the criminal law or of the penal provisions of any Act of the Legislature; It may be argued that commencing and conducting proceedings with malice against the object of the proceedings could not be considered as the "due" enforcement of the criminal law. But any opening in the wall of immunity found by the Court of Appeal would be, in my view, effectively closed by s. 5(6) of the Act, which provides: (6) No proceedings lie against the Crown under this section in respect of anything done or omitted to be done by person while discharging or purporting to discharge responsibilities of judicial nature vested in him or responsibilities that he has in connection with the execution of judicial process. Section expresses the general rule which subjects the Crown to all liabilities in tort to which, if it were person of full age and capacity, it would be subject. Subsections (2) to (5) provide interpretative guides while subs. (6), excepts from the general rule Crown liability "in respect of anything done or omitted to be done by person, while discharging or purporting to discharge responsibilities of judicial nature vested in him or responsibilities that he has in connection with the execution of the judicial process." The claim asserted here depends upon the actions of the Crown Attorneys and the Attorney General, specifically the decision to prosecute the appellant for murder. The decision to prosecute is judicial decision and is obviously vested in the Attorney General and executed on his behalf by his agents, the Crown Attorneys: ... ... The Crown Attorneys and the Attorney General in deciding to prosecute the appellant would therefore come within s. 5(6) of the Act, and the Crown would have its statutory immunity despite any uncertainty which might arise because of an argument under s. 2(2)(d) of the Act, based on the concept of "due"enforcement of the criminal law. The Attorney General and his agents, whatever the motives underlying their conduct, were surely, in the words of s. 5(6), "discharging or purporting" to discharge responsibilities of judicial nature. In my view, the Crown is rendered immune by the express terms of s. 5(6) of the Act from liability to the appellant. In the majority decision, Mr. Justice Lamer (as he then was), at p. 177 of the report, agrees with the above conclusion. That conclusion was adopted by the Ontario Divisional Court in Hawley v. Bapoo (2000), 2000 CanLII 29050 (ON SCDC), 187 D.L.R. (4th) 533. [53] As I read the Act and the decisions, I do not conclude that the Crown enjoys an absolute immunity. Rather, it must bring itself within s. 5(6)(a) or (b). Whether that is achieved will depend on the particular facts. [54] As to the claim for malicious prosecution, immunity does exist. In the Nelles case the learned justice said that the decision to prosecute, "... whatever the motives ..." falls within s. 5(6) and immunity exists in respect to that. [55] As for the claims in negligence, conclude that immunity exists. Essentially, even if malice is present, the situation would not be different than the decision to prosecute. In respect to that decision, motives are not relevant. If the decision to prosecute is protected, then the conduct carrying out the decision should be afforded the same protection. In any event, having struck the claim for negligence as against the Crown Attorneys, it can hardly be maintained against their employer, the Government of Saskatchewan. [56] see it as being somewhat different as to the allegation of conspiracy. do not know the underlying facts. It may be that this alleged conduct would not fall within s. 5(6) and no immunity may exist. Therefore, this claim should be permitted to proceed along with the claim based on the Charter of Rights. [57] At the hearing, counsel for the plaintiff suggested that leave be granted to amend the pleadings. No advance notice, so far as I know, was given to the other parties. Absent such notice, I am not prepared to entertain the request. [58] Success has been mixed. However, see it as having been useful to have the various issues addressed in formal proceeding well in advance of the trial. In these circumstances, have decided that it is appropriate to award no costs. [59] In the result, it is ordered as follows: (1) that the applications by the several defendants to have this action dismissed as having been commenced beyond the statutory limitation period are dismissed; (2) that the application by the defendants, McGillivray and Johnston, to have the claim in negligence struck as against them is dismissed; (3) that the application by the defendants, Quinney, Sullivan and Bauer, to have the claim in negligence struck as against them is allowed and paragraphs 45, 46, 46A, 47 and 48 of the statement of claim are struck, but without prejudice to the plaintiff to apply to amend the pleadings; (4) that the application by the Government of Saskatchewan is granted in part such that the claim is dismissed against it except for the claims alleging conspiracy and breach of Charter rights; (5) that the application of the plaintiff is allowed and it is ordered that the time to bring the within action is extended to September 10, 1994, said order to be retroactive to September 8, 1994; and (6) that there will be no costs of these proceedings.

FIAT. The infant complainants, who alleged sexual assault and other offences, failed to identify the plaintiff, a former police officer, and a stay of proceedings was entered in 1993. The plaintiff commenced an action in 1994 for malicious prosecution, negligence, conspiracy and breach of Charter rights and claimed general, specific, punitive and aggravated damages, interest and costs. Two motions to dismiss the plaintiff's claim were brought under Queen's Bench Rules 173(a) and 188, plus Rule 173(e) in the motion brought by the two chiefs of police. The plaintiff sought several orders in a third motion, two of which were granted summarily; one was adjourned sine die. The applicants submitted the action should be struck, except for claims based on malice, because it was not commenced within the time prescribed by the Public Officers' Protection Act (POPA). Referring to the 2 year and 6 year limitation periods prescribed by s.3(1)(d) and (j) of the Limitations of Actions Act (LAA), the applicants argued a retroactive order for further time was prohibited because a second limitation period had expired. The substantive issues were whether the plaintiff's claim was barred by statutory limitation periods; whether any limitation period should be extended nunc pro tunc; whether a portion of the plaintiff's claim failed to disclose a cause of action against five of the defendants because there was no allegation of malice; whether the plaintiff's claim in tort against the Government of Saskatchewan was barred by statute. HELD: 1)The time to bring the action was extended to September 10, 1994, retroactive to September 8, 1994. The applications to have the action dismissed as having been commenced beyond the statutory limitation period were dismissed. Whether the limitation period was extended was best determined at trial. It was not certain the limitation period was not extended as the statement of claim alluded to subsequent conduct by some defendants. As a general rule, the statutory limitation period created by s.2(1)(a) of the POPA commences to run when a stay of proceedings is entered pursuant to s.579 of the Criminal Code. Although a stay has been entered, actionable conduct of a public officer may continue. The only limitation period applicable in this case is s.2(1) of the POPA. Limitation periods are substantive in character, as opposed to procedural. The LAA does not supersede or replace s.2 of the POPA. The intent and purpose of the LAA is to avoid conflict with other legislation by removing its application from situations specifically dealt with by other legislation. The limitation in the POPA is not necessarily absolute. 2)The application by the chiefs of police to strike the claim in negligence was dismissed. The position in Beckstead v. Ottawa and Reynen v. Canada was adopted. The immunity in s.10 of the Police Act does not extend protection to police officers in general. 3)The claim in negligence against the other defendants was struck without prejudice to amend pleadings. The pleadings as to the Crown Attorneys were struck. They could not be saved, absent an allegation of moral turpitude implicit in malice, bad faith or improper purpose. 4)The Government's application was granted in part, such that all the claims were dismissed except those alleging conspiracy and Charter breaches. The Crown does not enjoy absolute immunity and must bring itself within s.5(6)(a) or (b) of the Proceedings Against the Crown Act which will depend on the particular facts. Immunity does exist for malicious prosecution and negligence. If the decision to prosecute is protected, then the conduct in carrying out the decision should be afforded the same protection. A claim for negligence could not be maintained against the government as employer where it was struck against the Crown Attorneys. Leave to amend pleadings was not entertained as the plaintiff failed to give advance notice. 5)The two applications based on Rule 188 providing for a determination of a point of law were dismissed as there was a factual component. An order should not be granted under Rule 188 in the absence of an agreed statement of fact. 6)The plaintiff demonstrated a prima facie cause of action; provided a reasonable explanation for the delay given the circumstances and his emotional and mental state at the time; and no prejudice will flow to the defendants as they had all actively participated in the litigation from the outset. The only reasonable course was to grant a retroactive order given the time, effort and money already expended. It was not appropriate to require the action be commenced anew. 7)No costs.

2001skqb148.txt

J. IN THE MATTER OF AN APPLICATION MADE BY THE PLAINTIFFS IN ACTIONS STYLED AS Q.B. No. 95 of A.D. 1996 Q.B. No. 96 of A.D. 1996 Q.B. No. 97 of A.D. 1996 Q.B. No. 98 of A.D. 1996 Q.B. No. 99 of A.D. 1996 IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF ESTEVAN K.M. Rondeau R.M. Baumgartner for the applicants A.A. Fox for Herc P. Foley, Q.C. G.A. Zabos for Long Riders Rig Corporation E.C. Lothian for Rigel Oil Gas Poco Petroleums W.T. Stodalka for PetroCan R.M. Van Beselaere for Canadian Western Bank G.J. Moran for Department of Energy Mines (Saskatchewan) FIAT MacPHERSON C.J.Q.B. September 12, 1996 Briefly stated, the plaintiffs ("applicants") seek anorder preserving and detaining certain proceeds from certainoil production properties, those proceeds now being held by anescrow agent pursuant to an order of the bankruptcy court inAlberta, and a further order preserving and detaining allfuture proceeds from those properties. The applicants claim such orders are necessary to protect their claims under builders' liens which they have filed against those oil properties under the terms of The Builders' Lien Act, S.S. 1984‑85‑86, c. B‑7.1 ("BLA"). copy of the notice of motion is annexed as appendix "A". FACTS This is joint application by the applicants in each of the above actions. The respondents who appeared on this application are among the defendants named in each of the above applications. The full style of cause in each of the actions is attached hereto as appendix "B". The applicants claim to have provided goods and services to various oil wells and their associated facilities in the southeast Saskatchewan oil patch at the request of Williston Wildcatters Oil Corporation ("WWOC"). The applicants have filed, according to the affidavit of Mr. Baumgartner, counsel for the applicants, approximately 408 builders' liens (which presume includes liens registered in the Mineral Rights Branch of the Department of Energy and Mines (Saskatchewan) ("SEM") pursuant to ss. 51(1) of the BLA) against the various oil properties, the total amount of those liens being $3,846,420.00. Each of the respondents, with certain exceptions, has an interest in one or more of those oil wells and the production of oil therefrom. The exceptions constitute 20 defendants whose only interest in any of the properties arise from builders' liens which they have registered against one or more of the properties; none of these have commenced actions to enforce those liens against any of the other defendants. After failing in an application under the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C‑36, WWOC was petitioned in bankruptcy on October 13, 1995. The respondent, Herc Oil Corp. ("Herc"), was formed for the purpose of advancing proposal for the restructuring of the assets and liabilities of WWOC, and on October 31, 1995, Herc obtained an order from the Alberta Bankruptcy Court imposing stay of proceedings upon creditor's actions and protecting WWOC's assets pending the filing by Herc of creditors' sponsored Plan of Arrangement and Compromise (the "Plan") and this Plan was sanctioned and approved by the Alberta Bankruptcy Court on May 11, 1996. Details of the Plan and the events leading up to the present application are set out in the brief filed by Herc, and portion thereof is attached as appendix "C" to this fiat. Except for the names of the parties and the details of the claims of the various plaintiffs, the contents of the statements of claim in each of the five actions are identical. The notice of motion herein is supported by the affidavit of Greg Cousins, president of Greg Cousins Construction Ltd., which company is plaintiff in each of the five actions. Also filed in support of the notice of motion, in addition to Mr. Baumgartner's affidavit, are the affidavits of Ray Frehlick, president of the plaintiff, Prairie Mud Chemical Service Ltd., Gary W. Hyer, former chief of petroleum engineering of WWOC, and the affidavits of two geologists, Robert W. Shirkie and Donald Williams, the last two stating that the oil properties involved in this application have declining rate of production resulting in the value of the properties continually declining unless there is "further development or recovery efforts to maintain or increase production". Paragraph 17 of the Cousins affidavit reads: 17. believe that unless the production proceeds from the Lands are paid into court pending the resolution of the builders' liens on the Lands, Cousins and the other Plaintiffs in the Actions may suffer irreparable harm as full recovery of the amount of the builders' liens on the Lands may not be possible. On June 14, 1996, Allbright J. granted to the applicants an ex parte order that the lien property revenue already paid to the escrow agent shall remain in the possession of the escrow agent until the hearing of this notice of motion, and on June 25, Dawson J. ordered that continuing lien property revenue received by Herc shall be retained by Herc until further order of the court. By hearing full argument on paragraph of the notice of motion, it was implicit that had granted the order requested in paragraph thereof. To remove any doubt, hereby confirm my order that pursuant to ss. 91(2) of the BLA that permission was granted for the applicants to proceed with the interlocutory motion. Also, at the outset of the hearing before me, heard the application by counsel for the SEM to intervene herein and to be added as party defendant pursuant to Queen's Bench Rule 39. granted that application. The following affidavits were filed by the respondents: For Herc the affidavit of Nathan Hollick, President and Chief Executive Officer of Herc, and two supplementary affidavits. For Long Riders Rig Corporation ("Long Riders") the affidavit of Gerald N. Diamond, Secretary of Long Riders. For Poco Petroleums Ltd. ("Poco") the affidavit of John de la Mare, manager of accounting operations for Poco. For Rigel Oil Gas Ltd. ("Rigel") the affidavit of Donald R. Gardner, Vice‑President of Finance of Rigel. For Petro Canada ("PetroCan") and Prairie Leaseholds Ltd. ("Prairie") the affidavit of Dennis Chase, land consultant to PetroCan and Prairie. The affidavit of Bruce Wilson, Executive Director of the Petroleum and Natural Gas Division of SEM. Briefs were filed by: the applicants Rigel Long Riders SEM All counsel appearing were in agreement that the principles to be applied in considering paragraph of the notice of motion are those that apply to an application for injunctive relief. ANALYSIS In Bean on Injunctions, 2nd Ed., (London: Oyez Longman Publishing, 1982) at p. 3, we find the following: An injunction is an order of court requiring party either to do specific act or acts (a mandatory or positive injunction) or to refrain from doing specific act or acts (a prohibitory or negative injunction). In Sharpe, Injunctions and Specific Performance, 2nd ed. (Aurora: Canada Law Book, 1993, updated 1995, Release No. 3) at p. 1‑1, para. 1.10: mandatory injunction is one which requires the defendant to act positively. mandatory injunctions look to the future and require the defendant to carry out some unperformed duty to act. Applying the forgoing to our factual situation, it is apparent that the plaintiffs are seeking mandatory injunction. In Cupar School Division No. 28 v. Trustees of Dysart School District consisting of Peter Kolody, Paula Bradshaw, Janet Bradshaw, Gerry Zatylny, Dale Czemeres, Lori Shindle and Mary Goff, Sask. C.A. No. 2525, September 4, 1996, unreported, the Court of Appeal at p. summarized the test for the granting of mandatory injunction found in Bean, supra, at p. 17 as follows: Bean, supra, provides useful summary of the criteria for mandatory perpetual injunction. These being potentially more significant than interim ones, are to be granted rarely. The tests are: 1. mandatory injunction can only be granted where the plaintiff shows very strong probability upon the facts that grave damage will accrue to him in the future. 2. The plaintiff must also show that damages will not be sufficient or adequate remedy if such damage does happen. 3. Unlike the case where negative injunction is granted to prevent the continuance or recurrence of wrongful act the question of the cost to the defendant to do works to prevent or lessen the likelihood of future apprehended wrong must be an element to be taken into account. 4. If in the exercise of its discretion the court decides that it is proper case to grant mandatory injunction, then the court must be careful to see that the defendant knows exactly what he has to do, and this means not as matter of law but as matter of fact. Turning again to Sharpe, supra, in paras. 2.640 and 2.650 at p. 2‑38 dealing with interlocutory mandatory injunctions, we 2.640 As the defendant would be required on an interlocutory basis to take positive action, the potential inconvenience is usually substantial. It is rare case, indeed, where the risk of harm to the defendant will be less significant than the risk to the plaintiff resulting from the court staying its hand until trial. 2.650 However, it is also clear that interlocutory mandatory orders can be made in appropriate cases. Where the risk of harm to the plaintiff is substantial and can only be alleviated by requiring positive steps at the interlocutory stage, such an order is appropriate. [Emphasis added] In setting for the following test, recognize that they really state, in different forms, the generally recognized test of prima facie case, irreparable harm and balance of convenience, but with more stringent requirements for the mandatory injunction. To begin, wish to comment on the sufficiency of the evidence put before this Court by the applicants. As mentioned earlier, the applicants submitted the affidavit of Greg Cousins, president of Greg Cousins Construction. Annexed to this affidavit were copies of the claims of lien which were registered by Greg Cousins Construction. At paragraph of his affidavit, Mr. Cousins claims that these liens are in "substantially the same form" as the liens registered by the other applicants. The applicant did not, however, file any of those other liens with this Court. It is difficult to consider the relative strength of the applicants case (that being their entitlement to compensation based upon the liens registered by them) when those liens are not before the court. Even if can travel past the disturbing fact that only one lienholder filed an affidavit upon which am supposed to grant an order for all the applicants, and the fact that no invoices or other information were filed substantiating the amount claimed in any of the liens, must note that there also exists many other vacancies of information within the material filed. For example, the Greg Cousins liens, to my mind, raise question as to compliance with ss. 50(2)(b) of the BLA which requires that the claim of lien shall set out, inter alia, "a short description of the services or materials that have been provided" added]. Each and every lien filed by Greg Cousins Construction, as filed herein, contains the same description: All labour, equipment and material supplied in connection with transporting oil or water, oilfield equipment, machinery and materials; constructing, servicing and repairing oilfield facilities; snow clearing; tank truck services; or earth moving, lease preparation/restoration in connection with the oilfield facility located on The word "or" indicates that either the services or materials provided were those before "or" after that word not both. From reading the above description, person purportedly subject to the lien does not know: whether oil or water was transported whether the services or materials provided are those before the last semicolon or those after that semicolon. I do not suggest that Cousins loses his lien securityas a consequence of this confusion, but I do point out that ifthese liens are substantially the same as those of all theclaimants, then whatever prima facie case they might otherwisehave is certainly weakened by this confusion, particularly inthe absence of any invoices. Despite any misgivings as to whether the material filed by the applicants is sufficient to support prima facie case, will go on to discuss the four tests which were enunciated in Cupar, supra, and set out above. The First Test 1.A mandatory injunction can only be granted where the plaintiff shows very strong probability upon the facts that grave damage will accrue to him in the future. This test goes much further than the "prima facie", or strong prima facie, case that must be proven in negative injunction application. In the case before me the applicants must prove "very strong probability" that grave damage will accrue. In my view, the plaintiffs have not established "avery strong probability upon the facts that grave damage willaccrue to him in the future". In the prayer for relief at page of the statement of claim the plaintiff claims firstly declaration as to their entitlement to builders' liens on the properties owned by the various defendants and, secondly, in default of payment of the builders' liens, the interests of the defendants in the properties "may be sold and the proceeds applied in and towards payment of the plaintiffs claims. ." Thirdly, the plaintiffs seek mandatory injunction in respect of the proceeds of those properties. The plaintiffs have submitted no evidence that in the event they choose to go to trials in their actions, and if they succeed, any of the defendants will not be in position to pay whatever amounts the court finds as being owing under the liens. On the other hand, if the preservation and detention order should issue, the affidavits of the respondents, and particularly the affidavits of Mr. Hollick, make it clear that Herc would then have no funds, or insufficient funds to perform the necessary functions as outlined in paragraph 10 of his first affidavit which could or would mean that oil production would be drastically reduced or even halted, and thus the properties become worthless. Both geologists' affidavits filed by the applicants state that the oil properties will continually decline "without further development or recovery efforts to maintain or increase production" and Herc obviously must have funds to perform these functions. This is not denied by the applicants. The result of this comparison is obvious ‑ asstated in Sharpe, supra, the risk to the respondents if theorder should be granted is far greater than the risk to theapplicants if the order is not granted. Furthermore, there is distinct possibility that should the preservation order issue, SEM will exercise its extensive powers under The Oil and Gas Conservation Act, R.S.S. 1978, c. O‑2 and The Oil and Gas Conservation Regulations, R.R.S. 1985, O‑2, Reg. 1. If necessary, those powers extend to the shutting down of Herc's operations should Herc fail to meet any of the environmental obligations. See ss. 17(1)(g), 18(j) and (t) of The Oil and Gas Conservation Act. While s. 33 of the BLA provides that the lien is charge on the holdback on any trust funds held by the contractor, it does not give the lienholder charge against any other moneys. builders' lien cannot be looked on as "proof" that the amount claimed as owing in the lien is, in fact, what is actually owed to the lienholder. If the owner against whom builders' lien is filed chooses not to pay the amount of the lien because the owner questions its validity or for any other reason, the only remedy open to the lienholder is to "enforce" its "claim of lien" under the provisions of Part VIII of the BLA. There is no other means under the BLA by which lienholder can enforce its claim. Section 28(3) of the BLA reads: 28(3) Subject to Part IV, in determining the amount of lien under subsection (1) or (2), there may be taken into account the amount that is, as between payer and the person he is liable to pay, equal to the balance in the payer's favour of all outstanding debts, claims or damages, that are related to the improvement. The words "all outstanding debts, claims or damages" would bring into play the claims of those lienholders against the properties in question who have been joined as defendants but who have no other interest in the properties. These claims could significantly reduce the amounts the plaintiffs could recover should their action go to trial. Another difficulty faced by the plaintiffs arises because nowhere in the statement of claim or in their supporting affidavits is it set forth with any specificity the dates or times when any of the applicants performed the services for which they claim. The statement of claim says nothing about these dates or times. On the material filed we do not and cannot know if any of the respondents are "intervening parties" within ss. 49(5)(a) of the BLA. Paragraph of Mr. Baumgartner's affidavit simply says the services were supplied "in or about 1994" and states as well that most of the applicants' liens were filed in May and June of 1995. rough survey of the certified copies of titles to the property as filed by the applicants indicates that about five or six builders' liens were registered in December, 1994, about seven from January to April, 1995, 480 in May and June of 1995, 74 from July to December, 1995, and about 63 in 1996. The total of these registered liens (about 630) considerably exceeds the 480 liens in paragraph 13 of the Baumgartner affidavit, which indicates there are substantial number of lienholders who have not joined the applicants in the four actions. This apparent late‑filing of builders' liens by the applicants could bring into play positions taken by several opposing counsel during the hearing, and set forth with some particularity in the brief filed by PetroCan. It is acknowledged that ss. 22(2) of the BLA expands the lien rights contained in ss. 22(1). have reservations as to the validity of that argument, but see no need to pursue it because feel there are other strong grounds for rejecting the applicants' application under the first test. The Second Test 2.The plaintiff must also show that damages will not be sufficient or adequate remedy if such damage does happen. Here again the applicants fail in meeting this test for much the same reason as they fail in the first test. emphasize again that the applicants have not shown that if they pursue their builders' liens actions in the court under Part VIII of the BLA, and prove their lien claims as they must do, that the judgments thus obtained will not be sufficient remedy for them. Each of the applicants has claim for money as set out in each of the liens. If they pursue their lien actions under Part VIII of the BLA and obtain judgments against the various respondents, there is nothing in the material to suggest that the respondents will not pay those judgments with the result that the applicants will recover whatever amounts the courts hold that they are entitled to recover under their liens. See RJR MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] S.C.R. 311 at p. 341: "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 [Emphasis added] The applicants suggest also that they will suffer irreparable harm if the order sought is not granted because the fruits of any successful litigation will be no longer available at the time the litigation comes to an end, and they suggest the liened lands will not have enough value in them to satisfy judgment. The question is not whether the properties are declining in value. Such conclusion is inevitable by virtue of the very nature of the property. Oil is non‑ renewable resource with limited lifespan. The real issue is whether this decline in value will occur at such rapid rate as to rob the applicants of the fruits of potentially successful litigation, and therefor cause them irreparable harm. The geologists do not state that this decline in value is imminent. They simply state that the value will decline without further development or recovery efforts to maintain or increase production. The order sought will hasten, if not create, the very irreparable harm that the applicants assert. The order will surely guarantee the harm predicted by freezingthe capital necessary to hinder the inevitable decline invalue. In this way, the applicants' assertion of irreparableharm will become a self‑fulfilling prophecy. The Third Test 3.Unlike the case where negative injunction is granted to prevent the continuance or recurrence of wrongful act the question of the cost to the defendant to do works to prevent or lessen the likelihood of future apprehended wrong must be an element to be taken into account. This, in effect, is the balance of convenience test. Above, have already dealt to some extent with the considerably greater inconvenience to the respondents should the desired order be granted, than would be the inconvenience to the applicant should it not be granted. In addition, should point out the submissions made and affidavit filed by SEM. The affidavit of Bruce Wilson sets forth in paragraph the environmental problems in respect of the Herc properties, it explains the reserve fund which has been established by Herc and Herc's undertaking in that respect. This affidavit points out in paragraph 14 that it is unacceptable to SEM that lien creditors should receive the income from the properties in question without being responsible for the environmental costs associated with those properties. Furthermore, at paragraphs 11, 12 and 13 of his affidavit, Mr. Wilson clearly indicates the Crown's willingness to wield its statutory powers under The Oil and Gas Conservation Act and Regulations to ensure that these environmental obligations are met. In fact, this result would arguably cause harm not only to the respondents, but also to the applicants themselves. This test, of course, refers specifically to negative injunction rather than positive or mandatory injunction, which is the situation before me. However, note that this test refers to the "continuance or recurrence of wrongful act" by the respondents and think it is worth pointing out that the respondents, in the context of the matter before me, have not been guilty of any wrongful acts. The respondents have been caught up in the problems created by the bankruptcy of WWOC just as the applicants have been caught up in those problems. The Fourth Test 4.If in the exercise of its discretion the court decides that it is proper case to grant mandatory injunction, then the court must be careful to see that the defendant knows exactly what he has to do, and this means not as matter of law but as matter of fact. In view of my previous findings, there is really no need to deal with this test. However, it is worth mentioning that if were to issue the order applied for would have grave difficulty in determining the appropriate amount of the lien property revenue that should be paid to an escrow agent, or in some other manner preserving and detaining that revenue. For example, paragraph 3.6(a) of the Plan provides that the "net revenues" from the properties shall be paid to the trustee. There is no definition of "net revenues" the section does not state what should be deducted in order to arrive at the net revenue. Paragraph 3.6(b) uses the phrase "Lien Property Revenue" but seems to adopt the words of 3.6(a) so that "Lien Property Revenue" means "net revenues". In Royal Bank v. Rice (1921), 60 D.L.R. 169 at 171, the Manitoba Court of Appeal defined "net" as meaning "with all deductions (such as charges, expenses, discounts, commissions, taxes, etc.)". So far as Herc is concerned, would such deductions include the environmental reserve, royalties, operating maintenance of the wells, capital expenditures as set out in paragraph 10 of Mr. Hollick's first affidavit on behalf of Herc, and/or necessary injections of further capital, etc.? There is no material before me that would have been of any assistance in making this determination. In the course of argument, Mr. Baumgartner indicated that the applicants would be agreeable to lessors' royalties, Crown production taxes, and normal operating expenses being deducted but would not agree to gross royalties or environmental reserve costs being deducted. The respondents did not agree to this proposal and, in particular, were of the view that if such an order were to be made, gross royalties and environmental reserve costs should be included in the deductions. As final note, though perhaps unnecessary given my decision to deny this application, the applicants would be required, under Rule 390 of the Queen's Bench rules, to pay full compensation before the order sought was issued. It has not done so. CONCLUSION For the reasons stated above, and my findings thatthe applicants have not met the first and second tests, andtaking into account the factors to be considered in the thirdtest, I hold and order:(a)that the plaintiffs' application under paragraph 2 of itsnotice of motion must be, and is hereby dismissed;(b)that the escrow agent, being the firm of McLellan, Cundall,Bridges and Baumgartner, as set forth in the Plan shallforthwith;(i)in accordance with paragraph 3.6(c) of the Plan,remit to Herc the lien property revenues which the escrowagent has received, and interest earned thereon;(ii)remit to Herc the lien property revenues(including interest earned thereon), if any, paid to theescrow agent by Herc,after deduction of the escrow agent's appropriate costs inacting as such escrow agent. (c)with the exception of the SEM, the other parties appearing through counsel on this application will have their costs against the applicants. C.J.Q.B. APPENDIX "A" NOTICE OF MOTION TAKE NOTICE that an application will be made to the presiding judge in chambers at the Court House, 101 Fourth Street, Estevan, Saskatchewan, on Tuesday the 25th day of June, 1996 at 1:00 o'clock in the afternoon or so soon thereafter as counsel can be heard on behalf of the Applicants for the following relief, namely: 1. An order pursuant to section 91(2) of The Builders' Lien Act, S.S. 1984‑85‑86, c. B‑7.1 permitting the within interlocutory application. 2. An order pursuant to rules 387, 387A and 390 of The Queen's Bench Rules: (a)preserving and detaining, on such terms as may be ordered by this Honourable Court that Lien Property Revenue paid to McLellan, Cundall, Bridges Baumgartner as Escrow Agent pursuant to Section 3.6(c) of an Amended Plan of Arrangement and Compromise dated February 13, 1996 as approved and ordered on March 11, 1996 by the Honourable Mr. Justice M.E. Lomas of the Alberta Court of Queen's Bench on such terms as may be ordered by this Honourable Court; and (b)preserving and detaining, all future production proceeds of oil recovered on certain lands upon which the Applicants have registered builders' liens on such terms as may be ordered by this Honourable Court. AND TAKE FURTHER NOTICE that the Applicants claim to be entitled to the relief requested on the following grounds: 1.The property sought to be preserved is precisely ascertainable and identifiable. 2.The Applicants are lien claimants who have provided services or material preparatory to or in connection with the recovery of the said oil pursuant to subsections 22(2)(a) and 22(2)(b) of The Builders' Lien Act. 3.The Applicants have strong prima facie case entitling them to lien upon the said funds as specified in the Statements of Claim upon which this application is based. 4.The said production proceeds are the subject matter of the said liens, and failure to preserve these production proceeds would result in irreparable harm to the Applicants by seriously jeopardizing or depriving the Applicants of the remedy provided to each of them by subsection 22(2)(e) of The Builders' Lien Act. AND TAKE FURTHER NOTICE that in support of this application shall be read: 1. This Notice of Motion with proofs of service thereof; 2.The Affidavit of Greg Cousins; 3.The Affidavit of Donald Williams; 4.The Affidavit of Robert Shirkie; 5.Certain certified copies of titles against which claims of lien have been registered as specified in the Statements of Claim; 6.Certain searches of leases provided by the Department of Energy and Mines, Province of Saskatchewan, against which claims of lien have been registered as specified in the Statements of Claim; and, 7. The pleadings and proceedings had and taken herein. DATED at the City of Estevan, in the Province of Saskatchewan, this 19th day of June, 1996. APPENDIX "B" Q.B. No. 95 of A.D. 1996 IN THE QUEEN'S BENCH JUDICIAL CENTRE OF ESTEVAN BETWEEN: CARSON WELDING MAINTENANCE LTD., CHAMPION TECHNOLOGIES, INC., COULTER and McGILLICKY SALES AND SERVICE LTD., DOSCO SUPPLY, division of Westburne Industrial Enterprises Ltd., FOSTER'S ELECTRIC LTD., GREG COUSINS CONSTRUCTION LTD., HANK'S MAINTENANCE AND SERVICE CO. LTD., LONGHORN ANCHOR SERVICE LTD., MAHER'S ELECTRIC HARDWARE LTD., PRAIRIE MUD CHEMICAL SERVICE LTD., QUINN'S OILFIELD SUPPLY LTD., RAINBOW WELL SERVICING LTD., ROCKET SALES RENTAL CO. LTD., TECHNICAL SALES MAINTENANCE LTD., THREE STAR TRUCKING LTD. and VIKING SURPLUS OIL FIELD EQUIPMENT LTD. and HERC OIL CORP., CANADIAN WESTERN BANK, TRANSWEST ENERGY INC., T. BIRD OIL LTD., CANADIAN FRACMASTER LTD., DeGEER EXCAVATING LTD., DIAMOND OILFIELD SALES RENTAL INC., RICHARD McNAIR DEFENDANTS Q.B. NO. 96 of A.D. 1996 BETWEEN: GERALD BIG EAGLE, carrying on business under the firm name and style of BIG EAGLE TRUCKING, CARSON WELDING MAINTENANCE LTD., CHAMPION TECHNOLOGIES, INC., DOSCO SUPPLY, division of Westburne Industrial Enterprises Ltd., FAST TRUCKING SERVICE LTD., FOSTER'S ELECTRIC LTD., GREG COUSINS CONSTRUCTION LTD., LONGHORN ANCHOR SERVICE LTD., MAHER'S ELECTRIC HARDWARE LTD., PRAIRIE MUD CHEMICAL SERVICE LTD., QUINN'S OILFIELD SUPPLY LTD., RAINBOW WELL SERVICING LTD., ROBERT POTT, carrying on business under the firm name and style of SPRUCE GROVE TRUCKING, TPZ SERVICES LTD., TECHNICAL SALES MAINTENANCE LTD., THREE STAR TRUCKING LTD., TORNAC OILFIELD SERVICES LTD., VENTURE WELL SERVICING LTD. and WATERFLOOD SERVICE SALES LTD. and HERC OIL CORP., THE LONG RIDERS RIG CORPORATION, TRIP RESOURCES LTD., TRIASSIC RESOURCES LTD., MODUS RESOURCES LTD., TARRAGON OIL AND GAS LIMITED, CANADIAN WESTERN BANK, PARAFFIN SERVICES LTD. and RICHARD McNAIR DEFENDANTS Q.B. No. 97 of A.D. 1996 BETWEEN: BECKER OIL TOOLS LTD., GERALD BIG EAGLE carrying on business under the firm name and style of BIG EAGLE TRUCKING, CARSON WELDING MAINTENANCE LTD., CHAMPION TECHNOLOGIES, INC., CLIFFORD L. KIRBY, COULTER AND McGILLICKY SALES AND SERVICE LTD., DAY CONSTRUCTION LTD., DOSCO SUPPLY, division of Westburne Industrial Enterprises Ltd., EAGLE ENERGY LTD., FOSTER'S ELECTRIC LTD., GREG COUSIN'S CONSTRUCTION LTD., HOMCO, division of Weatherford Oil Tool Co. (1983) Ltd., JOHNSTONE TANK TRUCKING LTD., LAFRENTZ CHRISTENSON TRUCKING LTD., LONGHORN ANCHOR SERVICE LTD., MAHER'S ELECTRIC HARDWARE LTD., PENDEMAK INDUSTRIES LTD., PRAIRIE MUD CHEMICAL SERVICES LTD., QUINN'S OILFIELD SUPPLY LTD., RAINBOW WELL SERVICING LTD., SEBCO CORING TONGS LTD., ROBERT POTT, carrying on business under the firm name and style of SPRUCE GROVE TRUCKING, TPZ SERVICES LTD., TECHNICAL SALES MAINTENANCE LTD., THREE STAR TRUCKING LTD., TORNAC OILFIELD SERVICES LTD., VENTURE WELL SERVICING LTD., VIKING SURPLUS OIL FIELD EQUIPMENT LTD., and WATERFLOOD SERVICE SALES LTD. and HERC OIL CORP., CANADIAN FINA OIL LIMITED, DANFORTH OIL GAS LTD., THE LONG RIDERS RIG CORPORATION, MIDALE PETROLEUMS LTD., MODUS RESOURCES LTD., PETRO CANADA, PRAIRIE LEASEHOLDS LTD., REID‑BICKNELL LAND LTD., RICHLAND PETROLEUM CORPORATION, T.D.L. PETROLEUMS INC., TRIASSIC RESOURCES LTD., TRIP RESOURCES, VISTA INTERNATIONAL PETROLEUMS LTD., WALKING STICK OIL GAS CORP., CANADIAN WESTERN BANK, TAMMY BONOKOSKI, CANADIAN FRACMASTER LTD., RICHARD McNAIR, OILFIELD ELECTRONICS ESTEVAN LTD., PARAFFIN SERVICES LTD. and TAC WELL SERVICES DEFENDANTS Q.B. No. 98 of A.D. 1996 BETWEEN: BECKER OIL TOOLS LTD., BERT BAXTER TRANSPORT LTD., GERALD BIG EAGLE, carrying on business under the firm name and style of BIG EAGLE TRUCKING., BLACK MAX DOWNHOLE TOOL LTD., CARSON WELDING MAINTENANCE LTD., CAMERON COLLINS, carrying on business under the firm name and style of COLLINS CONSTRUCTION, CHAMPION TECHNOLOGIES, INC., COULTER AND McGILLICKY SALES AND SERVICE LTD., DOSCO SUPPLY, division of Westburne Industrial Enterprises Ltd., FOSTER'S ELECTRIC LTD., GREG COUSINS CONSTRUCTION LTD., HANK'S MAINTENANCE AND SERVICE CO. LTD., HOMCO, Division of Weatherford Oil Tool Co. (1983) Ltd., JOHNSTONE TANK TRUCKING LTD., WAYNE KING, carrying on business under the firm name and style of King's Water Hauling, LAFRANTZ CHRISTENSON TRUCKING LTD., LONGHORN ANCHOR SERVICE LTD., MAHER'S ELECTRIC HARDWARE LTD., NORJET GEOTCHNOLOGIES INC., PENDEMAK INDUSTRIES LTD., PRAIRIE MUD CHEMICAL SERVICE LTD., QUINN'S OILFIELD SUPPLY LTD., RAINBOW WELL SERVICING LTD., RED HAWK WELL SERVICING LTD., ROCKET SALES RENTAL CO LTD., SEBCO CORING TONGS LTD., TPZ SERVICES LTD., TECHNICAL SALES MAINTENANCE LTD., TANNER TRUCKING LTD., THREE STAR TRUCKING LTD., TORNAC OILFIELD SERVICES LTD. and VENTURE WELL SERVICING LTD. and HERC OIL CORP., POCO PETROLEUMS LTD., THE LONG RIDERS RIG CORPORATION, VOYAGER ENERGY INC., CANADIAN WESTERN BANK, ARCOLA CO‑OPERATIVE ASSOCIATION LIMITED, TAMMY BONOKOSKI, BRENT'S TRUCKING LTD., CANADIAN FRACMASTER LTD., CANADIAN TOOLMASTER LTD., ELDON COTE and GERALD COTE, TERRENCE GREEN, GRIMES SALES SERVICE CO. LTD., LOW TRAILER RENTALS INC., RICHARD McNAIR, SCHLUMBERGER CANADA LIMITED, SCIENTIFIC DRILLING INTERNATIONAL (CANADA) INC. DEFENDANTS Q.B. No. 99 of A.D. 1996 BETWEEN: BECKER OIL TOOLS LTD., BERT BAXTER TRANSPORT LTD., GERALD BIG EAGLE, carrying on business under the firm name and style of BIG EAGLE TRUCKING, BLACK MAX DOWNHOLE TOOL LTD., CARSON WELDING MAINTENANCE LTD., CHAMPION TECHNOLOGIES, INC, CAMERON COLLINS, carrying on business under the firm name and style of COLLINS CONSTRUCTION, COULTER AND McGILLICKY SALES AND SERVICE LTD., DAY CONSTRUCTION LTD., DOSCO SUPPLY, division of Westburne Industrial Enterprises Ltd., EAGLE ENERGY LTD., FAST TRUCKING SERVICE LTD., FOSTER'S ELECTRIC LTD., GREG COUSINS CONSTRUCTION LTD., GUARDIAN OILFIELD SERVICES, division of Shaw Industries Ltd., HANK'S MAINTENANCE AND SERVICE CO. LTD., HOMCO, division of Weatherford Oil Tool Co. (1983) Ltd., JOHNSTONE TANK TRUCKING LTD., LAFRENTZ CHRISTENSON TRUCKING LTD., LONGHORN ANCHOR SERVICE LTD., PENDEMAK INDUSTRIES LTD., PIONEER EXPLORATION INC, POLAR OILFIELD SERVICES, division of Enserv Corporation, PRAIRIE MUD CHEMICAL SERVICE LTD., PRAIRIE PETRO‑CHEM LTD., QUINN'S OILFIELD SUPPLY LTD., RAINBOW WELL SERVICING LTD., ROCKET SALES RENTAL CO. LTD., SEBCO CORING TONGS LTD., ROBERT POTT, carrying on business under the firm name and style of Spruce Grove Trucking, TPZ SERVICES LTD., TECHNICAL SALES MAINTENANCE LTD., THREE STAR TRUCKING LTD., TORNAC OILFIELD SERVICES LTD., VENTURE WELL SERVICING LTD., VIKING SURPLUS OIL FIELD EQUIPMENT LTD. and WATERFLOOD SERVICE and HERC OIL CORP., RIGEL OIL GAS LTD., CANADIAN WESTERN BANK, TAMMY BONOKOSKI, CANADIAN FRACMASTER LTD., CANADIAN TOOLMASTER LTD., DOUG COLLINS, HARRIS OILFIELD CONSTRUCTION LTD., BRENT HAYWARD, LOW TRAILER RENTALS INC., RICHARD McNAIR, SCHLUMBERGER CANADA LIMITED DEFENDANTS APPENDIX "C" PORTION OF BRIEF OF LAW FILED ON BEHALF OF HERC 5. Herc was formed for the purpose of advancing proposal for the restructuring of the assets and liabilities of Williston Wildcatters. On October 31, 1995 Herc obtained an Order from the Alberta Court of Queen's Bench imposing stay of proceedings upon creditor's actions and protecting Williston Wildcatters' assets pending the filing by Herc of creditor's sponsored Plan of Arrangement. 6. On December 20, 1995, Herc filed Plan of Arrangement and Compromise (the "Plan") which was sanctioned and approved by Mr. Justice M.E. Lomas of the Alberta Court of Queen's Bench on May 11, 1996. 7. Relevant provisions of the Plan which can be referred to as Exhibit "YY" to the affidavit of Greg Cousins filed on behalf of the applicants, provides as follows: 2.2 Claims Not Compromised by Plan This Plan does not compromise the following Claims and rights that arise in the following capacities: (b)Claims of the Lienholders to the extent of their rights to enforce their respective Liens against the specific Lien Properties subject thereto; 3.3 Sale of assets to Herc On the Implementation Date, the Trustee shall sell and transfer to Herc effective as of the Effective Date and subject to the CWB Security and the Liens. 3.5 CWB Security and Liens The CWB Security shall continue to attach to the Assets transferred to Herc and/or its Nominee, pursuant to this Plan. With respect to the Liens: (a)each Lien which validly attaches to Lien Property as of the Implementation Date shall continue to attach to such Lien Property after the transfer thereof pursuant to this Plan; (b)the recourse of each Lienholder shall be restricted to those Lien Properties which are attached to its Lien; and (c)Herc and its Nominee shall not assume, and shall have no obligation or responsibility to the Lienholders in respect of, any indebtedness, liability or obligation of WWOC to the Lienholders; and the Lienholders shall have no claim against or recourse to Herc, its Nominee or to any Assets transferred to Herc or its Nominee (other than to those Lien Properties to which their respective Liens attach). Nothing in this Plan of the implementation thereof shall affect the relative priority of the CWB Security and the Liens. 3.6(c) Lien Property Revenue All Lien Property Revenues received by the Trustee or Herc prior to the 60th day following the Stay Termination Date shall be paid to the Escrow Agent. The Escrow Agent shall hold such funds pursuant to escrow arrangements which shall include the requirements that: (i)except as provided for in Sections (ii) and (iii) immediately below, the Lien Property Revenues shall be invested in an interest bearing trust account until the 60th day of following the Stay Termination Date; (ii)unless otherwise ordered by court of competent jurisdiction in the Province of Saskatchewan, all funds held by the Escrow Agent pursuant to such arrangements (including all interest accrued thereon) shall be paid by the Escrow Agent to Herc (and/or its Nominee) on the 60th day following the Stay Termination Date; and (iii)The Escrow Agent may apply to Court for advice or direction with respect to the Lien Property Revenue or the rights of any Person thereto. 3.8 Status of Liens and Rights of Set Off; No assumption by Herc or its Nominee Nothing in this Plan shall directly or indirectly constitute: (a)a determination or admission or other finding whatsoever by the Court, WWOC, the Trustee, Herc, its Nominee or any other Person with respect to the validity, enforceability of priority of any Lien or right of set off, or any indebtedness, liability or obligation of WWOC secured or affected thereby; (c)any increase in any rights or remedies of any Lienholder, or any Unsecured Creditor entitled to any right of set off, beyond the rights and remedies of the holders thereof but for the Plan. 8. The Plan further provided that the stay granted by the Alberta Court of Queen's Bench on October 31, 1995 was to expire on April 18, 1996 the "Stay Termination Date"). The 60th day following the Stay Termination Date was June 17, 9. Pursuant to Article 3.6(c) of the Plan, the net revenue from liened properties received by the trustee or Herc prior to the 60th day following the Stay Termination Date was to be paid to McLellan, Cundall, Bridges Baumgartner (the "Escrow Agent"). The Escrow Agent has received the sum of $144,001.06. These funds will have accrued interest as they were to be invested in an interest bearing trust account. 10. Herc has made diligent efforts to attempt to settle with the various lien claimants which number some 600 in 11. On May 24, 1996 Herc provided proposal regarding settlement which was subsequently rejected by Mr. Baumgartner's clients on June 3, 1996. 12. Five statements of claim were issued on June 12, 1996 by Mr. Baumgartner's clients. On June 13, 1996 the plaintiffs brought an ex parte motion and supporting material requesting leave to commence interlocutory proceedings by way of notice of motion and that the Lien Property Revenue paid to McLellan, Cundall, Bridges Baumgartner, the Escrow Agent pursuant to Article 3.6(c) of the Plan remain in the possession of the Escrow Agent until the hearing of this motion returnable in

FIAT. The plaintiffs sought an order preserving and detaining certain proceeds from oil production properties which were being held by an escrow agent pursuant to an order of the bankruptcy court in Alberta and a further order preserving and detaining all future proceeds from those properties. The applicants claimed such orders were necessary to protect their claims under the approximately 408 builders' liens filed against those oil properties. The contents of the statements of claim in each of the five actions were identical. HELD: The application was dismissed. The escrow agent was ordered to remit to Herc the lien property revenues with any interest earned less the agent's appropriate costs. With the exception of SEM the parties appearing through counsel were awarded their costs against the applicants. 1)The tests set out in Bean on Injunctions for granting a mandatory injunction were summarized in Cupar School Division. The tests really state in different forms the generally recognized test for prima facie case, irreparable harm and balance of convenience but with more stringent requirements. 2)Only one lien holder filed an affidavit, no invoices or other information were filed substantiating the amount claimed in any of the liens. The word 'or' used in one of the liens indicated that the person subject to the lien did not know whether the water or oil was transported. Whatever prima facie case the lien holders might have was weakened. 3)The applicants had not established a very strong probability that grave danger will accrue. The risk to the respondents if the order should be granted was far greater than the risk to the applicants if the order were not granted. The oil properties would continue to decline without further development or recovery efforts to maintain or increase production. If a preservation order issued SEM would likely exercise its extensive powers under the Oil and Gas Conservation Act. 4)While s33 of the Builders' Lien Act provides for a lien on the holdback of any trust funds held by the contractor, it does not give the lienholder a charge against any other moneys. A builder's lien cannot be looked on as 'proof' that the amount claimed is what is actually owing. The only remedy open to the lienholder is to enforce its claim under Part VIII of the Builders' Lien Act. The statement of claim said nothing about dates and times. On the material filed it was impossible to know whether any of the respondents were intervening parties within s49(5)(a). 5)The second and third tests were not met. The order would guarantee irreparable harm by freezing the capital necessary to hinder the decline in value. It would be unacceptable to SEM that lien holders should receive the income from the properties without being responsible for the environmental costs. 6)The fourth test required that the defendant know exactly what he has to do. If the order were to issue it would be difficult to determine the proper amount of lien property revenue that should be paid to an escrow agent. There was no definition of net revenues in the Plan. The applicants would have been required pursuant to Rule 390 to pay full compensation before the order was issued.

b_1996canlii6726.txt

C.A. No. 113602 NOVA SCOTIA COURT OF APPEAL Hallett, Bateman and Flinn, JJ.A. BETWEEN: L. MARTIN (1984) INC. and SHUBENACADIE BAND and THE CANADIAN IMPERIAL BANK OF COMMERCE and THE ESKASONI BAND and EASTLAND INDUSTRIES LIMITED and PAUL KENNETH FRANCIS Respondent Dennis F. Ashworth for the Appellant Sean P. O'Boyle for the Respondent The Eskasoni Band Gregory H. Cooper for the Respondent Eastland Industries Limited Theresa M. O'Leary for the Respondent Paul Kenneth Francis Appeal Heard: June 6, 1995 Judgment Delivered: August 16, 1995 THE COURT: Appeal allowed per reasons for judgment of Hallett, J.A.; Bateman and Flinn, JJ.A. concurring. HALLETT, J.A.: This is an appeal from a decision of Mr. Justice Edwards arising out of an interpleader application by the Shubenacadie Band Council to determine which of several parties was entitled to be paid a sum of money owing by the Shubenacadie Band under a construction contract entered into by the Shubenacadie Band with the respondent Paul Kenneth Francis for the construction of residential homes on the Shubenacadie Reserve. The application proceeded on an Agreed Statement of Facts. Mr. Francis is an Indian, a member of the Eskasoni Band, and resides on the Eskasoni Reserve in Cape Breton. Mr. Francis had made number of assignments of book debts, some general and some specified to the various claimants. The learned trial judge held that s. 89(1) of the Indian Act, R.S.C. 1985, c. I‑6 was applicable and governed the issue he was required to consider. Section 89(1) states:"89. (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band." The learned trial judge concluded that the sum of $101,636.33 owing by the Shubenacadie Band to Mr. Francis and held at the Council office in the form of a bank draft payable to the Band in trust was the property of an Indian on a reserve. He further held, applying a liberal interpretation of the Indian Act that assignments of book debts, both general and specific, were included within the wording of s. 89(1) of the Act. He concluded that by reason of s. 89(1) the only claimant "not barred" by the section was the Eskasoni Band being the only Indian entity of the several claimants. The learned trial judge ordered that the $101,636.33 be paid to the Eskasoni Band. On the appeal L. Martin (1984) Inc. asserts that Justice Edwards misinterpreted s. 89(1) of the Act and that it is entitled to $70,000 of this fund by reason of a letter of direction from Francis to his solicitor instructing his solicitor to pay to Martin funds which were due to Mr. Francis from the Shubenacadie Band to the maximum amount of $70,000. The letter was dated November 7th, 1991, and according to the Agreed Statement of Facts was sent to the solicitor for the Shubenacadie Band on the same date. Martin asserts that it has priority over the other claimants as it had specified assignment of debt growing due under the contract between the Shubenacadie Band and Mr. Francis and was first (along with the respondent Eastland) to give notice to the Shubenacadie Band of the fact that it held an assignment from Mr. Francis. Eastland Industries Limited claims under letter of direction from the solicitor for Mr. Francis which, according to the Agreed Statement of Facts, is specific absolute assignment made by Francis to Eastland under the terms of which all amounts payable by the Shubenacadie Band Council to Francis are to become payable to Eastland. The Agreed Statement of Facts further states that payment was directed by Francis to be made to his lawyer in trust for the benefit of Eastland. The narrative of the Agreed Statement of Facts also makes reference to letter from Mr. Francis's solicitor to the solicitor for the Shubenacadie Band dated November 7th, 1991, as being written notice of the so‑called assignment from Mr. Francis to Eastland. There are problems with the Agreed Statement of Facts with respect to the claims of Martin and Eastland as the actual documentation does not appear to support what the parties agreed were the facts. However, in view of the conclusion have reached these apparent errors are irrelevant. The Eskasoni Band Council claims under general assignment of book debts made by Mr. Francis on July 26th, 1990, and registered at the Registry at Sydney in the County of Cape Breton on August 8th, 1990, pursuant to the Assignment of Book Debts Act, R.S.N.S. 1989, c. 24. This was the first of many assignments of book debts made by Mr. Francis to suppliers and to the Canadian Imperial Bank of Commerce. It was also the first to be registered under the Act. Before Mr. Justice Edwards the Canadian Imperial Bank of Commerce (CIBC) had claimed under several general assignments of book debts made subsequent to the assignment to the Eskasoni Band Council and under certain irrevocable letters of direction made by Mr. Francis to his solicitor to forward all funds due from the Shubenacadie Band directly to the CIBC in Sydney. CIBC did not make any representations on the appeal to this Court from Mr. Justice Edwards' decision. As Justice Edwards concluded that all the assignments made by Mr. Francis to entities other than the Indian Band were invalid by reasons of s. 89(1) of the Indian Act, it was not necessary for him to determine the priorities between the respective claimants. am of the opinion the learned Chambers judge erred in his interpretation of s. 89(1) of the Indian Act. Mr. Francis is member of the Eskasoni Band but most significantly he was in the construction business. The words of LaForest J., writing for the majority (6 of 7) of the Supreme Court of Canada, in Mitchell v. Peguis Indian Band et al, 1990 CanLII 117 (SCC), [1990] W.W.R. 97; [1990] S.C.R. 85 are determinative of this issue. In interpreting ss. 87, 89 and 90 of the Indian Act, which LaForest J. referred to as "legislative package", he stated at p. 132: ".. the purpose of the legislation is not to remedy the economically disadvantaged position of Indians by ensuring that Indians may acquire, hold and deal with property in the commercial mainstream on different terms than their fellow citizens. An examination of the decisions bearing on these sections confirms that Indians who acquire and deal in property outside lands reserved for their use deal with it on the same basis as all other Canadians." And at p. 134 LaForest J. stated that the protection afforded by s. 89(1) of the Act is limited: "I draw attention to these decisions by way of emphasizing once again that one must guard against ascribing an overly broad purpose to ss. 87 and 89. These provisions are not intended to confer privileges on Indians in respect of any property they may acquire and possess, wherever situated. Rather, their purpose is simply to insulate the property interests of Indians in their reserve lands from the intrusions and interference of the larger society so as to ensure that Indians are not dispossessed of their entitlement." In my opinion s. 89(1) was not intended to prevent an Indian from entering into normal financing agreements in conjunction with the operation of commercial business. The section applies to prevent an Indian from pledging his personal assets on the reserve such as his home, furniture, appliances and household goods. When an Indian is in business he or she holds and deals with his or her business property in the commercial mainstream on terms no different than those applicable to all other Canadians. In my opinion such an interpretation is advantageous to the Indian in business. The accounts receivable of Mr. Francis' construction business were not property of an Indian situate on reserve of the nature that was intended by Parliament to be protected by s. 89(1) of the Act. Mr. Francis could deal with his accounts receivable as any other Canadian businessperson. Section 89(1) did not prevent him from assigning his book debts nor protect him from having done so. The Eskasoni Band is not entitled to the funds held by the Shubenacadie Band on the ground found by the learned Chambers judge. I am, however, of the opinion that the Eskasoni Band is entitled to the fund by reason of having obtained the first general assignment of book debts from Francis and having registered it prior to Francis making further assignments notwithstanding that the holders of the subsequent assignments or directions to pay (which the parties agreed were assignments in the Agreed Statement of Facts) gave notice of the assignments they held to the debtor, the Shubenacadie Band, prior to the Eskasoni Band giving notice to the Shubenacadie Band of its prior registered general assignment of book debts. will set forth my reasons for coming to this conclusion. The sections of the Assignment of Book Debts Act that are relevant to consideration of the issues that arise on this appeal are as follows: "Section 4. (1) Save as herein provided, every assignment of book debts made by any person engaged in trade or business shall be absolutely void as against the creditors of the assignor and as against subsequent purchasers unless the assignment is (a) in writing; (b) accompanied by an affidavit of an attesting witness or affidavits of attesting witnesses, of the execution thereof by the assignor, or by the assignors respectively, identifying the assignment and stating the date of execution by the assignor, or the respective dates of execution by the assignors, as the case may be, and further affidavit of the assignee or one of the several assignees, his or their agent stating that the assignment was executed in good faith and for valuable consideration and not for the mere purpose of protecting the book debts therein mentioned against the creditors of the assignor or for the purpose of preventing such creditors from recovering any claims which they have against the assignor; (c) registered, as hereinafter provided, together with the affidavits within thirty days of the execution of the assignment. (2) If there are two or more assignors, the date of execution of the assignment shall be deemed to be the date of the execution by the assignor who last executes it. (3) Every assignment which is required to be in writing and to be registered under this Act shall, as against creditors and subsequent purchasers, take effect only from the time of the registration of the assignment." "2 (I) In this Act [the term] "subsequent purchasers" includes any person who in good faith for valuable consideration and without notice obtains by assignment, an interest in book debts which have already been assigned." "3 This Act shall not apply to (a) an assignment of book debts, whether specific or by way of floating charge, made by corporation, and contained (i) in trust deed or other instrument to secure bonds, debentures or debenture stock of the corporation or of any other corporation, or (ii) in any bonds, debentures or debenture stock of the corporation as well as in the trust deed or other instrument securing the same, or in trust deed or other instrument securing bonds, debentures or debenture stock of any other corporation, or (iii) in any bonds, debentures or debenture stock or any series of bonds or debentures of the corporation not secured by separate instrument; (b) an assignment of book debts due at the date of the assignment from specified debtors; ©) an assignment of debts growing due under specified contracts; (d) an assignment of book debts included in transfer of business made bona fide and for value; (e) an assignment of book debts, included in any authorized assignment under the Bankruptcy Act (Canada)." Because of the conflicting case law on the effect of registration statutes in general (of which the Assignment of Book Debts Act is one), will review the cases decided under several of these statutes. will also trace the history of the law of priorities as between holders of assignments of book debts from the same person. On the latter point shall begin with the leading case of Dearle v. Hall decided in England in 1823 reported in Russ 1, 38 E.R. 475. The High Court of Chancery held that the assignee of chose in action who first notified the party legally obliged to pay the assignor of the assignment had priority to payment over the assignee whose assignment pre‑dated that of the notifying assignee but who failed to give notice to the debtor before the subsequent assignee gave notice. On the facts of that case the decision was fair and equitable given that there was no statutory registration system in place at the time. In fact at this time assignments were not formally recognized at common law. Without registration system as provided for by the Assignment of Book Debts Acts of the various provinces, persons intending to lend money or extend credit on the assignment of book debts had no ability other than through inquiries made to the assignor or the debtor to ascertain if there has been prior assignment. In Dearle v. Hall the court concluded that the equities favoured the assignee who gave notice on the ground that the prior assignee was negligent in failing to take reasonable steps at that time he took the assignment to protect his own interest by notifying the trustees of the fact that the fund had been assigned to him. It is fundamental logic and law that if person effectively transfers all of his or her interest in property to another there is nothing left to subsequently transfer to third party. Therefore, subsequent transfer would be of no effect. However, the law has long recognized that where personal property is transferred absolutely or by way of mortgage to another but the transferor is allowed to retain possession of the property, which fact thus facilitates fraudulent subsequent transfers, equity alters the logic to protect innocent third parties without notice of the true state of the title to the property who may be persuaded to acquire such property for valuable consideration or lend money on the security of the same. The theory being that mortgagee of personal property, by allowing the owner to retain possession, has facilitated the commission of fraud by the owner and should therefore bear the risk rather than the innocent third party that acquires the property for valuable consideration and without notice of the prior mortgage. Similarly, if person sells personal property and transfers possession of the property to the purchaser but retains title the common law recognized that innocent purchasers for value from the purchaser in possession without notice of the retention of title by the original vendor were protected. Dearle v. Hall held that when an equitable assignment of chose in action is made, notice to the debtor of the assignment was necessary and that prior assignee who did not give notice could not call on court of equity to interpose and take the property from the assignee who had used due diligence to ascertain if the assignor was in position to make the assignment and had given notice of the assignment to the debtor. Not only would it be unfair to the second assignee in time who took the regular precautions to ascertain if there had been prior assignment, it would also be unfair to the trustees as the assignee who had the prior assignment could under such circumstances require that the trustees pay the prior assignee notwithstanding that he had already paid the second assignee who had given notice. The essence of the decision in Dearle v. Hall is that equity would not assist the first assignee whose problem arose out of the fact that he was negligent in failing to give notice of the assignment to the trustees. As between the parties the court felt he ought to bear the loss when the same chose in action was assigned more than once. The decision in Dearle v. Hall was applied in the leading Canadian cases that first considered the effect of the passage of the Assignment of Book Debts Acts on the equitable position that the assignee who first gave notice to the debtor had priority over prior assignees who did not give notice. The Act provides that general assignments of book debts by persons engaged in trade or business are void against creditors and subsequent purchasers as defined in the Act unless registered as provided in the Act (s. 4). One of the most oft quoted judgments as to the effect of registration under the Act is that of Orde J.A. of the Ontario Court of Appeal in Snyder's Limited v. Furniture Finance Corp., 1930 CanLII 426 (ON CA), [1931] D.L.R. 398. He stated that the law as to priorities between competing assignees was the same as it was prior to the passage of the Assignment of Book Debts Act. And that the only purpose of that Act was to require an assignment of general book debts to be registered in the manner provided by the Act or else it was void as against creditors, and subsequent purchasers for value without notice. It was his opinion that the Act was never intended by the Legislature to do more as there was an absence of any provision in the Act that gave priority to competing assignees based on the respective dates of registration. What Orde J.A. had to say is as follows: "This assignment was duly registered as required by the Assignment of Book Debts Act, and some stress was laid upon this registration as if it in some way placed the plaintiff in position superior to that of the defendant. This is, of course, not the effect of the Act. The Act does not either expressly or impliedly confer any greater right upon an assignee of chose in action that he had before. All it does is to make general assignment of book debts void, as against creditors and subsequent purchasers or mortgagees in good faith and for value, unless registered. By registration the plaintiff here has preserved whatever rights it acquired by virtue of the assignment and no more In other words its rights are to be determined exactly as if the Act had never been passed. What are those rights? The assignment as such transferred to the plaintiff no rights in the choses in action which were recognised at common law. Its efficacy was and still is based solely upon principles of equity, with the additional statutory right given to the assignee to bring action in his own name, instead of that of the assignor, against the debtor, upon giving notice to the latter: Conveyancing and Law of Property Act, R.S.O. 1927, c. 137, s. 49. The assignee takes subject to all the equities. He cannot acquire higher rights against the debtor than those of the assignor himself, and his rights may be defeated or impaired by the intervention of some other assignee who, by giving notice to the debtor of his assignment, or for some other reason, acquires superior equitable title." {My Emphasis] would note that in Snyder the judgments of the Court of Appeal really turned on the fact that the conditional sales financing arrangements and the assignment of those contracts to the defendant finance company were known to Snyder (a furniture manufacturer) when it took the general assignment of book debts from its customer, Fagel, who operated retail furniture store and who sold to his customers by way of conditional sales agreements. The Appeal Court refused Snyder's claim to priority over the monies payable to the finance company pursuant to the assignments of the conditional sales contracts. The judgment of Latchford C.J. was short and to the point. He stated at p. 404: "I agree in the conclusion arrived at by the learned trial Judge that the action fails. The appeal should, think, be dismissed with costs, if only on the simple ground that it was never in the contemplation of the parties to the August assignment that the conditional sales agreements covered, as the parties knew, by the previous contract between Fagel and the defendant [the finance company], should be affected by the subsequent assignment of Fagel's book debts." Even Orde J.A.'s judgment, which is so often quoted for the proposition that the rights as between assignees is determined exactly as if the Assignment of Book Debts Act had never been passed, when read in the context of the facts of that case does not have the punch it appears to have as the conditional sales agreements and their subsequent assignment to the finance company meant that there was nothing owing to Fagel at the time the book debts were assigned to Snyder. Therefore, Fagel could not effectively transfer an interest in the amount owing to Fagel from his customers as there was nothing left upon which the assignment to Snyder's could operate. The line of reasoning expressed by Orde J.A. in Snyder decision that registration under the Assignment of Book Debts Act did nothing more than prevent the assignment from being void had also been expressed in Nova Scotia by Mellish J. nine years earlier in Commercial Credit Co. of Canada Ltd. v. Fulton Bros. (1922) 1922 CanLII 501 (NS CA), 55 N.S.R. 208 at p. 240‑243, 65 D.L.R. 699 at p. 719‑722 when considering similar registration provisions of the Bills of Sale Act and the effect of registration under that Act on the operation and effectiveness of s. 27(2) of the Sale of Goods Act. Section 27(2) is now s. 28(3) of the present Sale of Goods Act and provides as follows: (3) Where person having bought or agreed to buy goods obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person or by mercantile agent acting for him of the goods or documents of title, under any sale, pledge or other disposition thereof, to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were mercantile agent in possession of the goods or documents of title with the consent of the owner." In that case Mellish J. stated at p. 242: The provisions contained in the above section [s. of the Factors Act which was identical to s. 27(2) the Sale of Goods Act] and in subsection 27 (2) of our Sale of Goods Act are not in my opinion inconsistent with the provisions of the Bills of Sale Act. It may well be that under the provisions of the latter Act an agreement which is not evidenced by writing and filed in compliance with section is void even against party having notice (See Edwards v. Edwards (1876) Ch. 291) and that under the Sale of Goods Act the innocent purchaser is protected provided he had no notice, whether the agreement complies with the Bills of Sale Act or not. do not think that the filing in the Registry of Deeds under the latter Act furnishes the 'notice' contemplated by the subsection in question. And certainly do not think that the Bills of Sale Act is to be construed as impliedly enacting that one who purchases goods exposed for sale with the concurrence of the owner by dealer in the regular and ordinary course of business is bound before buying, in order to protect himself from such owner, to search the Registry of Deeds." Justice Mellish went on to state at p. 243: "And the Bills of Sale Act, think, like the Ontario Conditional Sales Act which for present purposes may be said to be embodied in section of our Bills of Sale Act, "does not enlarge the common law rights of those who allow their goods out of their hands, but it prevents all who have not complied with its conditions from asserting common law rights." (Falconbridge on the Sale of Goods, p. 60 and cases there cited.) As impressively stated by Mr. Justice Orde in one of these cases, speaking of this Conditional Sales Act: The Act is designed for the protection of persons dealing with one to whom the possession but not the ownership of chattel has been given, and requires the owner to comply with certain provisions of the Act if he desires to preserve his ownership. But, having complied with those provisions, he stands in no higher or better position than if the Act had not been passed. Commercial Finance Corporation Ltd. v. Shatford; 47 O.L.R. 392 at p. 396." Justice Mellish concluded that s. 27(2) of the Sale of Goods Act governed the case but whether or not it did the plaintiffs could not succeed by reason of estoppel. It was noted by Hall J.A. in Kozak v. Ford Motor Credit Co. of Canada Ltd. et al. (1971), 1971 CanLII 785 (SK CA), 18 D.L.R. (3d) 735 at p. 747 that the decision of the Court in Commercial Credit Co. of Canada Ltd. v. Fulton Bros., supra, turned on the fact that there was fraudulent scheme in place and that Mellish J.'s comments that the filing of bill of sale was not the "notice" contemplated by s. 27(2) of the Sale of Goods Act was not necessary to the decision. In 1951 the Ontario High Court in Pettit and Johnston v. Foster Wheeler Ltd., 1950 CanLII 100 (ON SC), [1950] D.L.R. 42 applied the reasoning of Orde J.A. as expressed in Snyder. The Headnote states: "A made general assignment of book debts to bank which was registered on April 27, 1944. Subsequently became entitled to certain money under contract with X. Being also indebted to B, assigned to in writing his claim against X, and was notified of the assignment by letter of October 13, 1944. On December 27, 1944 purported to assign to the bank his claim against X. The latter, on being notified by the bank of the assignment, paid the bank. Held, was liable to pay again to who first gave notice to of the assignment by A. Section 52 of the Conveyancing and Law of Property Act, R.S.O. 1937, c. 152, did not afford any protection to X, since it related to procedure only. The registration of the assignment of book debts did not in itself give the bank any priority against the assignment to who had first given notice to X." It would appear that s. 52(1) of the Conveyancing and Law of Property Act referred to in the decision above was the same as what is now s. 43(5) of the Judicature Act of this Province which provides: "43 (5) Any absolute assignment by writing under the hand of the assignor, not purporting to be by way of charge only, of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be and be deemed to have been effectual in law, subject to all equities which would have been entitled to priority over the right of the assignee if this subsection had not been enacted, to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same and the power to give good discharge for the same, without the concurrence of the assignor." Section 52(2) of that Act provided for an interpleader proceeding which debtor fixed with notice of conflicting claims by assignees could resort. similar provision to s. 52(2) of the Ontario Act is found in s. 43(6) of the present Nova Scotia Judicature Act which provides: "43(6) In case of an assignment of debt or other chose in action, if the debtor, trustee, or other person liable in respect of such debt or chose in action, has had notice that such assignment is disputed by the assignor, or any one claiming under hint, or of any other opposing or conflicting claims to such debt or chose in action, he may if he thinks fit call upon the several persons making claim thereto to interplead concerning the same, or he may if he thinks fit pay the same into the Supreme Court, upon obtaining an order therefor, to abide the determination of the Supreme Court in respect thereof." The foundation of the decision in the Pettit case was the rule established by the decision in Dearle v. Hall. The learned trial judge impliedly approved the statements made by Orde J.A. in the Snyder decision. In 1958 Professor G.V. LaForest, Faculty of Law, University of New Brunswick (now of the Supreme Court of Canada) authored an article entitled "Filing Under the Conditional Sales Act: Is it Notice to Subsequent Purchasers?". It appears in 36 Canadian Bar Review 87. In that article he started with the premise that most lawyers consider that registration under the Conditional Sales Act protects the conditional seller against claim by subsequent purchaser for value and without actual notice. He then goes on to demonstrate in very persuasive and logical way that this view, based on precedent, was not the law of most common law provinces. In 1995 would go so far as to say that most lawyers in commercial practice in the provinces where those Acts have not been repealed by the comprehensive personal property security Acts, consider registration under either the Conditional Sales Act, The Bills of Sale Act and the Corporations Securities Registration Act and the Assignment of Book Debts Act constitute constructive notice to creditors, subsequent purchasers and lenders of the existence of the security document registered under those respective Acts. will review some of the cases decided under these other Acts that provide for registration of documents relating to personal property transactions as the language of these statutes as to the effect of registration is very similar to that in the Assignment of Book Debts Act. The language of each of these Acts (registration statutes) generally provide that the interest in property that is created or reserved by chattel mortgages, conditional sales agreements, assignments of book debts and corporate debentures are void against creditors and subsequent purchasers or mortgagees for valuable consideration and without notice unless the document is registered under the relevant Act. None of the Nova Scotia registration statutes contain any express words that establish priority based on date of registration of documents registered under the respective Acts. Professor LaForest expressed the opinion that registration of conditional sales agreement is not constructive notice to subsequent purchasers and why, in his opinion, it should not be. He stated at p. 388: "But nowhere in the Act will one find provision setting forth the effect of ordinary registration. It may, of course, be argued that since the Act declares that conditions reserving title in unregistered agreements are void against subsequent purchasers for value and without notice, then by implication it provides that such conditions in registered agreements are valid against innocent purchasers. But reading into statutes provisions that are not there is at best dangerous, and this is particularly so where it would take away the rights of innocent persons as it would here. Further, it is suggested that implying such condition would fly in the face of the whole purpose and object of the Act as it appears from its provisions. The purpose of the Act is to limit the rights of conditional sellers, not to add to them. Thus the section already cited makes conditions reserving title in the seller void unless the agreement is registered or the Act is otherwise complied with, and later section seriously curtails the seller's right of sale on repossession. It is submitted, therefore, that the legislature intended to make conditions reserving title void unless the agreement was registered, and not to interfere with them if registered, but rather to allow them whatever operation they had before. This, suggest, is fair inference to draw if one reads the Act without preconceived notions." He analyzes the provisions of the Sale of Goods Act, to which have already referred, and the decision of Mellish J. in the Commercial Credit case in which Mellish J. held that the filing of conditional sales agreement under the Conditional Sales Act did not constitute notice within what is now s. 28(2) of the Nova Scotia Sale of Goods Act. It was Professor LaForest's view that the Conditional Sales Act was not designed to compel buyers to search the Registry but was rather aimed at preventing fraudulent or preferential agreements by making such agreements void unless made public by registration. He suggests this is probably what Orde J.A. had in mind when he stated that the rights of sellers were not increased by passage of the Conditional Sales Acts in Canada. would note that in Nova Scotia the Conditional Sales Act was passed in 1882 and the Sale of Goods Act in 1895. This leads to an inference by some that the Legislature did not intend that the purpose of the Conditional Sales Act was to give notice to creditors, subsequent purchasers as otherwise why would it have enacted what is now s. 28(2) of the Sale of Goods Act. This interpretation would be consistent with the interpretation reached by Mellish J. in the Commercial Credit case. Professor LaForest at p. 396 stated: "The Conditional Sales Acts still serve the purpose for which they were originally enacted. They continue to make unregistered agreements reserving title in seller void against subsequent purchasers, mortgagees and certain creditors. It is true that the rights of the seller would not prevail against subsequent buyer by virtue of the sections in the Factors and Sale of Goods Acts, but these sections, it should be observed, are not applicable to creditors so that filing does serve most useful purpose. What is more it provides seller with public method of giving notice which will bind subsequent purchasers who find the agreement in the registry." He concludes his article by asking the question "Should registration under Conditional Sales Act be notice?" At p. 400 he states: "It may be urged that the Conditional Sales Act should be amended to make it clear that filing is notice. But it is submitted that we should pause long before taking that step unless, at least, certain other changes are made in the Act. For there is much to be said for the principle that when one of two innocent persons must suffer through the wrong of third party, it is the person who has put the third party in position where he can harm others who should bear the loss. Here it is the seller who has trusted the buyer and thereby made it possible for him to set himself up as the owner, and it was to make the seller bear the loss that section of the Factors Act and section 25(2) of the Sale of Goods Act were passed. Searching the registry may, it is true, give the subsequent purchaser notice but not always. Except for the provinces and territories where there is central registry, it may well happen that conditional sale agreement is filed in one registration district but the sale to the subsequent purchaser takes place in another district. Again, conditional seller is given certain period under all the Acts to register his agreement, but fraudulent buyer may sell the goods during that period before the agreement is filed. Another matter should be considered. The vast majority of conditional sellers (or their assignees) are organizations that provide for losses under these agreements, either in their prices, interest or other charges. Such losses are part and parcel of the ordinary business risks that in competent concern are taken into account. So much is this so that many finance companies register only fraction of the conditional sales agreements assigned to them. But the subsequent purchaser is not in this happy position. To him the loss will usually be completely unexpected financial blow for which he has not provided." If one applies Professor LaForest's very sound reasoning as to the limited purpose of the Conditional Sales Act to the interpretation of the Assignment of Book Debts Act, then one would have to agree that the registration of general assignment of book debts would not be constructive notice to "subsequent purchasers" as defined in the Act as the limited purpose of such registration legislation, in Professor LaForest's view in 1958, based on decided cases at that time, was only to cause the assignment to be void for lack of registration. In other words, registration statutes were not intended to provide means for potential purchasers or lenders to ascertain if the personal property in question was subject to conditional sales agreement. In view of the difference in nature between chattels (tangible personal property) and choses in action, the same considerations that led to the passage of s. 28(2) of the Sale of Goods Act do not necessarily apply to transfers of book debts as there is no visible possession of the latter. Applying Professor LaForest's reasoning to the assignment of book debts when there are competing assignees, in the absence of actual notice of the prior assignment, the assignee of book debts who first notifies the debtor of an assignment would have priority. In short, based on the cases decided up until that time, the law respecting priorities remained as it was prior to the registration systems created by the enactment of the Assignment of Book Debts Act. In 1972 the Saskatchewan Court of Appeal took new tack with respect to registration statutes. Kozak v. Ford Motor Credit Co. of Canada Ltd. et al. (1971), 1971 CanLII 785 (SK CA), 18 D.L.R. (3d) 735 distinguished the English cases in holding that registration of conditional sale agreement under the Conditional Sales Act constituted notice of its existence sufficient to deprive subsequent purchaser from the buyer of the protection otherwise available to him under s. 26(2) of the Saskatchewan Sale of Goods Act even though the Conditional Sales Act did not contain an express provision to this effect. Section 26(2) of the Saskatchewan Act corresponded to s. 25(2) in the English Sale of Goods Act, 1893; that Act was adopted in 1893 with minor variations by all the common law provinces in Canada. The section in question is presently s. 28(3) of the Nova Scotia Conditional Sales Act. In Kozak the court stated at p. 748‑749: "I am well aware of the position taken against the extension of the doctrine of constructive notice to commercial transactions, as expressed by Cotton, L.J., and Lindley, L.J., in Joseph v. Lyons, supra, and amplified by Lindley, L.J., in Manchester Trust v. Furness, [1895] Q.B. 539. definition of constructive notice in equity is found in Hanbury's Modern Equity, 9th ed. (1969), at p. 23: Constructive notice exists where knowledge of the equitable interest would have come to him if he had made all such inquiries as prudent purchaser would have made. It appears from this definition, and from reading the cases above quoted, that the term "constructive notice" is applied only with respect to equitable interests and not to legal interest, which the respondent Ford Motor Credit Co. Ltd. has here. It is, therefore, not necessary to decide whether, in Saskatchewan today, with central registry for conditional sales and bills of sale, and where it is widely known that almost all automobiles are sold under conditional sale agreements, the extension of the doctrine of constructive notice to commercial transactions would be desirable. Under present conditions, it would seem that if registration were not held to be notice, in the words of Lindley, L.J., "we should be doing further mischief and paralyzing the trade of the country". In my opinion, what is here involved is something distinct from the equitable concept of constructive notice. In my opinion, where the Legislature enacted the registration provisions of the Conditional Sales Act, it intended that registration would constitute notice to all persons. The Legislature did not intend that registration would be necessary to preserve rights against subsequent creditors and purchasers if the said rights could be defeated by the creditor or subsequent purchaser omitting or refusing to search. It did not intend to provide method by which third persons could readily discover the existence of conditional sale agreement and ascertain the amount thereunder owing unless it also intended that they would proceed at their own peril if they did not search. This was the view of the legislation adopted by the trial Judge and is the interpretation of it which has been universally accepted and followed in this Province by the Courts, the practitioners and the commercial community since the legislation was first enacted. cannot find that this interpretation is wrong. It is certainly the most convenient and logical one to adopt." In 1978 the New Brunswick Court of Appeal in General Motors Acceptance Corp. of Canada Ltd. v. Hubbard (1978), 1978 CanLII 2201 (NB CA), 87 D.L.R. (3d) 39; 21 N.B.R. (2d) 49 embraced the arguments made by Professor LaForest in his 1958 article and re‑affirmed the earlier view that registration under the Conditional Sales Act does not constitute notice unless the Act imposing the requirement so provides. There was no such provision in the New Brunswick Act nor is there such provision in the Nova Scotia Conditional Sales Act. In 1984 the Ontario Court of Appeal in Acmetrack Ltd. v. Bank Canadian National et al. (1984), 1984 CanLII 2063 (ON CA), 12 D.L.R. (4th) 428 reversed the previously well‑established Ontario general position developed by Orde J.A. in the cases referred to that registration is not notice. The Court of Appeal held that registration of floating charge and assignment of book debts under the Corporation Securities Registration Act was notice to the bank that held subsequently executed chattel mortgage registered under the Ontario Personal Property Security Act. The Court in Acmetrack accepted the reasoning in Kozak that registration of the instrument creating the charge was notice to the bank although it had no actual notice of Acmetrack's security. Zuber J.A. stated at p. 55: "The question that arises then is whether registration pursuant to the C.S.R.A. by Acmetrack constitutes notice to creditors, including the Bank. Unlike the P.P.S.A. (s. 53), the C.S.R.A. is silent as to the effect of registration. recognize that there is body of case‑law expressed largely in older cases which holds that mere registration pursuant to statute (where the statute is silent as to the effect of registration) does not constitute notice to the world: see Berger v. Myles, 1963 CanLII 163 (ON SC), [1963] O.R. 525, 38 D.L.R. (2d) 16; McAllister et al. v. Forsyth et al. (1884), 1885 CanLII 67 (SCC), 12 S.C.R. 1; Nourse v. Canadian Canners Ltd., 1935 CanLII 108 (ON CA), [1935] O.R. 361, [1935] D.L.R. 168. In my opinion, however, this view of the effect of registration no longer reflects the purpose of modern registration statutes." In Acmetrack, after quoting from the passage have previously set out from the reasons of Hall, J.A. in the Kozak decision, Mr. Justice Zuber made reference to several Ontario decisions and quoted from decision of Blair J.A. in MacKay Hughes (1973) Ltd. v. Martin Potatoes Inc.; Dominion Stores Ltd., Garnishee, 1984 CanLII 1918 (ON CA), 46 O.R. (2d) 304, D.L.R. (4th) 439, 51 C.B.R. (N.S.) where Blair J.A. stated: "It seems to me that the provision for registration of debentures under the Corporation Securities Registration Act achieves the dual purpose of protecting the public and also relieving debenture holders of the impossible task of locating all creditors and customers of the debtor in order to make the floating charge effective. The creditors, whose interest is primarily at stake, are by virtue of the registration made aware of the existence of the floating charge and the ever present possibility that it may be crystallized and attach specifically to the property of the debtor." Zuber J.A. in Acmetrack then stated: "I agree with the foregoing statements which reflect change in the case‑law to make it consistent with contemporary business practice and current understanding of the effect of registration. conclude, therefore, that registration of the Acmetrack security constituted notice to the Bank." Therefore, we are faced with conflicting views as to the effect of registration of security documents under several registration statutes. The legislation that has been in effect in all the Canadian provinces (prior to the passage of comprehensive personal property security statutes in most provinces), including the Conditional Sales Act, the Bills of Sale Act, the Assignment of Book Debts Act, and the Corporation Securities Registration Act were or are similar to that in force in Nova Scotia. Each of these registration statutes basically provides that unless the instrument in question is registered as provided in the respective Acts, it will be void against creditors and subsequent purchasers and mortgagees for valuable consideration and without notice (See s. Conditional Sales Act, R.S.N.S. 1989, c. 84; s. Bills of Sales Act, R.S.N.S. 1989, c. 39; s. Corporation Securities Registration Act, R.S.N.S. 1989, c. 102; and, s. of the Assignment of Book Debts Act, R.S.N.S. 1989, c. 24.) have previously set out the wording of s. and s. of the Assignment of Book Debts Act. The provisions of s. of that Act which provide that the Act does not apply to certain assignments poses problem that is not present in interpreting the other registration statutes of this Province. will not repeat the actual wording of the five specific types of assignments to which the Act does not apply. In summary, the Act does not apply to assignment of book debts by way of floating charge in trust deed or in bonds; the document in which such an assignment is included would be registered under the Corporation Securities Registration Act. Under Section 3(b) the Act does not apply to book debts due at the date of an assignment from specified debtors. Obviously this provision allows such an assignment to be effective without registration. Likewise, s. 3©) "an assignment of debts growing due under specified contracts" does not have to be registered to be effective. Under s. 3(d) it is obvious that an assignment of book debts that is part of transfer of business made bona fide and for value would not have to be registered under the Act as the assignor has not retained an apparent interest in the book debts. Nor, of course, would an assignment of book debts included in an assignment under the Bankruptcy Act have to be registered as there is federal legislation governing such an assignment and there is complete divestiture of the property by the assignor with the trustee in bankruptcy going into possession. In reading ss. and of the Act it is clear that the intention of the Legislature was that only general assignments of book debts were required to be registered. However, in my opinion, this does not detract from the effect of the registration of such general assignments. In Acmetrack, the Ontario Court of Appeal concluded that the registration under the Corporation Securities Registration Act was notice to subsequent purchasers and for the very practical reason that it is registration system that provides means for person dealing with the owner or apparent owner of assets (the corporation) to ascertain whether or not the assets are encumbered. In practice searches are conducted by lenders or prospective purchasers as there is means to ascertain the state of title to personal property and business assets just as is done with respect to real property under the Registry Act, R.S.N.S.1989, c. 392. However, would note that s. 18 of the Registry Act in effect provides for priority by date of registration of instruments affecting title. Section 18 states: "18 Every instrument shall, as against any person claiming for valuable consideration and without notice under any subsequent instrument affecting the title to the same land, be ineffective unless the instrument is registered in the manner provided by this Act before the registering of such subsequent instrument." The decisions in Kozak and Acmetrack accord with prudent commercial practice which dictates that before buying personal property (other than from mercantile agent in the ordinary course of his business) or lending money on the security of personal property search at the appropriate registry office is undertaken to determine the state of title to the property. Similar searches are done in registries where corporate security documents are registered. In 1985 Professor Jacob S. Ziegel, Faculty of Law, University of Toronto, in an article entitled "Registration Statutes and the Doctrine of Constructive Notice" published in 63 Canadian Bar Review, 629 reviewed the decisions in Kozak; General Motors Acceptance Corp. of Canada Ltd. v. Hubbard; and Acmetrack as well as the older line of cases including Dearle v. Hall, supra, Joseph v. Lyons (1884‑85), 15 Q.B.D. 280 (C.A.) and Snyder's Ltd. v. Furniture Finance Corp. Ltd., supra. Professor Ziegel stated at p. 637: "Over more than century, however, the reason for imposing the registration requirements has not changed. It is designed to give notice of the security interest where the debtor is allowed to remain in possession or control of the collateral, and where it is not practical or desirable for the secured party to obtain or retain possession of the collateral himself. It is thus seen as an accommodation between the interests of secured party who relies on the collateral as security for the debtor's performance of his obligations, and the interests of the debtor's creditors and subsequent purchasers and mortgagees who might be misled by the debtor's continued possession of the collateral, or who cannot readily ascertain the title position in the absence of registration requirement. The legislation makes it possible for these persons to proceed on an informed basis. If they choose not to search (and leaving aside some important exceptions) they act at their own risk. In the light of this history, it must be obvious that to impute constructive notice of the existence of the security interest to those parties for whose benefit the registration requirement is imposed is totally consistent with the purposes of the legislation and does not introduce gratuitous complications into commercial transactions." Professor Ziegel took broader view of the purpose of registration statutes than did Professor LaForest. Professor Ziegel concluded that the decisions in Kozak and Acmetrack made "eminently good sense" and that the courts in these two cases correctly interpreted the legislative design of the registration statutes in question without imposing unreasonable burdens on third parties. Apparently after the article was written but before it was published the Ontario Court of Appeal in National Bank of Canada v. Harding Carpets Limited (1985), P.P.S.A.C. 29 reversed decision of Trainor J., the judge of the first instance, who had applied the reasoning in Acmetrack in holding that prior general assignment of book debts took precedence over subsequent assignment of debt growing due under specified contract despite the fact that the latter assignee gave the first notice of assignment to the debtor. Trainor J. considered the older line of Ontario authorities, such as Snyder, to have been overruled by Acmetrack. In short oral decision reversing the trial judge the Ontario Court of Appeal stated: "We think this appeal must succeed.... We have reached this conclusion as it is our opinion that because of s. 2©) of the Assignment of Book Debts Act, R.S.O. 1970, c. 33, that Act has no application to this specific assignment held by the appellant of which it had given notice. In the result then, the appeal is allowed with costs here and above." Professor Ziegel commented on this decision at p. 644: "The court's reasoning was that 'because of s. 2©) of the Assignment of Book Debts Act, the Act has no application to this specific assignment held by the appellant of which it had given notice". What this seems to mean is that because Harding was not required to register its assignment under the Assignment of Book Debts Act it was not subject to the doctrine of constructive notice. This basis of distinguishing Acmetrack is, with respect, unpersuasive. The decision in Acmetrack was not based on the two competing security interests being governed by the same perfection requirements since obviously they were not. Rather counsel for the bank in that case invoked the equitable doctrine of purchaser for value without notice, just as in the present case Harding relied on another equitable rule (the rule in Dearle v. Hall) premised on the non‑applicability of the doctrine of constructive notice. Since the defence failed in Acmetrack why should it have prevailed here? Perhaps what the Court of Appeal meant to say was that, having regard to the general purpose of the Assignment of Book Debts Act and its overall structure, the legislature did not mean to deprive specific assignee of the benefit of the rule in Dearle v. Hall where he did not have actual knowledge of the prior assignment. If that was the basis of the court's decision it is unfortunate that we are not given the benefit of the court's analysis of the Act. For it seems to me that the available indicia in the Act, coupled with the historical reasons for its introduction, point in the opposite direction." In my opinion the Ontario Court of Appeal in National Bank of Canada v. Harding Carpets must have meant that in the Court's opinion the legislature, when it enacted s. of the Act, did not intend the doctrine of constructive notice would apply to those types of assignments of book debts described in s. 3(a) to (e) inclusive. This would not be inconsistent with the decision in Acmetrack; it simply means that the doctrine of constructive notice by reason of s. does not apply to the holders of these types of assignments. By not expressly rejecting the reasoning in Acmetrack the Court may have implicitly acknowledged that the Act should be interpreted as conveying constructive notice to creditors and subsequent purchasers (other than those who would fall within ss. 3(b) and 3©)) of prior general assignment of book debts. would also infer that the decision endorsed the older line of cases in that if the Assignment of Book Debts Act does not apply to an assignment of specified debts or debts growing due under specified contract, then under the equitable law such an assignee who, not having notice of the prior assignment, gives the first notice of an assignment to the debtor has priority. If have correctly speculated as to what the Ontario Court of Appeal decided, find myself in disagreement with that Court. In my opinion the Legislature of this Province must have intended to provide notice registry as otherwise there would not have been any need to include in the Act the detailed provisions as to where to register general assignments (s. 5(1))and how the assignments are to be registered. (s. 5(2)). The latter is of most significance. Registration is effected by filing the assignment document in public registry. The general assignments are indexed chronologically and alphabetically in the name of the assignor so that search can easily be made to ascertain if business has made general assignment. Had the Legislature intended that registration not be notice there would have been no need whatsoever to provide for chronological and alphabetical filing and retention of the assignment documents in the public registry for inspection. If the only purpose of registration was so that the general assignment would not be void, the Act would only have provided that the general assignment be presented at the Registry office, stamped and returned to the assignee. There would be no need to maintain any sort of indexes or retention of the documents for viewing by any member of the public. The interpretation of s. of the Act in National Bank of Canada v. Harding Carpets would lead to some strange results. For example, trustee in bankruptcy of business that had made prior general assignment of book debts to bank would have priority over the bank if the trustee, in the absence of actual notice of the prior assignment, gave notice to the debtors of the assignment in bankruptcy prior to the bank giving notice of the general assignment. Such result does not accord with good sense or commercial expectations as it would make the assignment in favour of the bank, which was given for the purpose of extending credit to the business, worthless. Furthermore, the equities of the situation that exists in 1995 as opposed to that which existed in England in 1823 when Dearle v. Hall was decided or even in 1895 when the English court in Manchester v. Furness decided that the doctrine of constructive notice should not be extended to commercial transactions dictates that the courts move away from the old line of cases and recognize the reality that the registration statutes provide means to determine the state of title to assets that are being sold or charged. As general rule it is prudent to turn to the registration systems as provided in these statutes to determine if the property in question is owned or has been encumbered by the purported owner unless there is no need to so as, for instance, when purchaser buys motor vehicle from car dealer and is therefore protected by the provisions of the Sale of Goods Act. In 1989 the British Columbia Court of Appeal in Lloyds Bank of Canada v. Lumberton Mills Ltd. (1988), 1988 CanLII 3187 (BC CA), 71 C.B.R. (N.S.) 1, [1989] W.W.R. 360, 32 B.C.L.R. (2d) 67, 12 A.C.W.S. (3d) 229 was dealing with the effect of registration under the Corporation Securities Registration Act. In that case Lumberton purchased certain mining equipment located in the Queen Charlotte Islands which it intended to dismantle and ship to Vancouver for resale. To finance the undertaking it borrowed from the plaintiff bank and executed demand debenture for $2.5 million. The debenture was registered in the offices of the Registrar of Companies two days after execution in July, 1986. As part of the debenture, Lumberton Co. agreed not to incur salvage expenses exceeding $200,000 per month and not to allow the creation of any liens having priority over the debenture. Lumberton Co. employed the defendant to transport the equipment from the Queen Charlotte Islands to Vancouver. By January, 1987, the defendant had made four trips but had not been paid, and Lumberton Co. agreed in "transportation agreement" that the defendant should have general lien on the equipment to secure the past and future indebtedness of Lumberton Co. The defendant made one further trip in March, 1987, and several days later Lumberton Co. went into receivership under the debenture. The defendant claimed lien on the equipment, for an amount primarily related to the fifth trip. On summary trial application brought by the plaintiff, it was held that the plaintiff's debenture took priority over any lien right of the defendant. The defendant appealed. In dismissing the appeal Lambert J.A. said, at pp. 5‑6: "The system for registration of debentures under the Company Act of British Columbia is system that contemplates the filing and registration of the entire debenture document. It is not system for the filing and registration of mere notice or particulars of the debenture. Accordingly, in my opinion, the registration of the entire debenture document constitutes constructive notice to those with an interest in the company's encumbrances, for whatever effect constructive notice may have, of all of the provisions of the debenture document: see Gower, Modern Company Law (1954), at p. 485, and Wilson v. Kelland, [1910] Ch. 306 at 313. Anyone who has an interest in the encumbrances on the company's property will fail to search the registry at his or her peril. Constructive notice arising from system of recording or registering documents or events under statutory scheme is not the same as constructive notice arising as an inference of fact. The latter kind of constructive notice is not likely to be found to be effective in commercial transaction: see Manchester Trust v. Furness, [1895] Q.B. 539, 64 L.J.Q.B. 766 (sub nom. Manchester Trust Ltd. v. Turner, Withy Co.) (C.A.), per Lindley L.J. at p. 770. But the former kind of constructive notice is the very essence of the statutory scheme, and the courts should allow the scheme to operate in accordance with the legislative intention. (Emphasis Added)" In 1991 the British Columbia Court of Appeal in Royal Bank of Canada v. Lions Gate Fisheries Ltd. (1991), 1991 CanLII 977 (BC CA), 76 D.L.R. (4th) 289 had another opportunity to consider the effect of statutory registration schemes; in that case it was the Bank Act. The headnote sets out the bare bones of the facts, the issues and the decision as follows: "In 1985 the respondent bank registered, in accordance with the Bank Act, R.S.C. 1985, c. B‑1, notice of intention with respect to security under s. 178 for money owing to the bank by customer. The customer subsequently gave the bank general assignment of debts. In July, 1987, the appellant, which had no actual notice of the bank's interest, entered into transaction with the bank's customer whereby the customer owed the appellant the sum of $22,000, due on August 10th. On August 14, 1987, the appellant purchased goods from the customer for price of $30,000, due on August 29th. Subsequently, the bank enforced its security and demanded payment of $30,000 from the appellant. The appellant sought to set‑off the earlier debt of $22,000. At trial the bank succeeded. On appeal to the British Columbia Court of Appeal, held, dismissing the appeal, the history and purpose of s. 178 showed that registration of notice was to be treated as notice to the world. Accordingly, registration under the Act was constructive notice to the appellant of the bank's interest, and the appellant was not entitled to set‑off. There were several ways in which the appellant could have protected itself effectively, but it had failed to do so." Cumming J.A., writing for the Court, set out the provisions of s. 178(4)(a) of the Bank Act which are in the usual language of registration statutes that the banks rights in respect of property covered by the security are "void as against creditors of the person giving the security and as against subsequent purchasers or mortgagees" unless the notice of intention signed by the person giving this security was registered. Cumming J.A. reviewed the older cases, including the decision of the Supreme Court of Canada in McAllister v. Forsyth (1885), 1885 CanLII 67 (SCC), 12 S.C.R. 1. In that case the Supreme Court of Canada held that an assignee of property did not have notice of chattel mortgage notwithstanding that it was properly registered under the Bills of Sale Act of Nova Scotia prior to the assignment. This decision turned on the fact that the property in question was "after acquired property". He also made reference to the fact that number of provincial courts of appeal had held that mere registration of security is not notice of the security. Cumming J.A. went on to review the decisions in Snyder, Kozak, and Acmetrack as well as the views of Professor Ziegel in the article to which have already referred. After quoting from the Professor's endorsement of the results in Kozak and Acmetrack, Cumming J.A. stated at p. 306: "This approach comports, it seems to me, with what was said by Lambert J.A. in Lumberton, supra." Justice Cumming concluded at p. 318 with the following statement: "Registration of notice of intention to give security under the authority of s. 178 of the Bank Act must be taken to be notice to the world, and so to the appellant herein in particular, of the bank's interest." And at p. 319: "In the present case the bank did all that was required of it under the Act. It was open to the appellant, as the trial judge pointed out, to take steps to protect itself but it simply failed to do so." Clearly there is trend in the Canadian case law of several other provinces that registration under statute that provides for detailed registration system constitutes constructive notice to creditors and subsequent purchasers for valuable consideration without actual notice. This trend is also evident in Nova Scotia. will briefly review comments made by judges to this effect when considering the several registration statutes. The Corporation Securities Registration Act Under the above‑noted Act in Royal Bank of Canada v. Maple Ford Sales Limited (1983), 60 N.S.R. (2d) 150 Glube C.J., after quoting from Halsbury's Laws of England, 4th edition, volume 7, paragraph 826, on the effect of registration of floating charge under English statute law, made the following statement respecting registration of floating charge debenture pursuant to the Corporation Securities Registration Act: "I would suggest that registration under the Corporations Securities Registration Act or in the Registry of Deeds must, by that reference and the note, provide actual notice of the contents. To suggest that there would have to be additional proof of actual notice, over and above registration, does not seem to me to agree with that statement. It is my view, on that basis, that the cases of Bank of Canada v. Madill (1981), 1981 CanLII 2995 (NS CA), 37 C.B.R. 80; 43 N.S.R. (2d) 574; 81 A.P.R. 574; 120 D.L.R. (3d) 17, and Union Bank of Halifax v. Indian and General Investment Trust (1908), 1908 CanLII 35 (SCC), 40 S.C.R. 510, do not apply to the case in question. Madill deals with after‑acquired property and search of the Registry of Deeds would not have revealed the Bank debenture as it could contain no reference to the land in question. In the case at bar it has been agreed that the Royal Bank's debenture was filed under the Corporations Securities Registration Act. can only take from that that anyone perusing that filing should have actual notice of the contents." (para. 13) In Re Crichton Enterprises Ltd. (1979), 1979 CanLII 2548 (NS SC), 38 N.S.R. (2d) 348 stated at p. 358: "Surely the purpose of the Act is to give notice to creditors of documents secured against property of the debtor. On the facts of this case, it is clear that had any creditor cared to search at the office of the Registrar of Joint Stock Companies, he would have found the Demand Debenture and be as knowledgeable as if the manner of effecting registration had been in accordance with the requirements of section 3(2) of the Corporations Securities Registration Act." Irrespective of the difficulties created by the legislation, the words of section 3(2) and section 2(1) of the Corporations Securities Registration Act are plain and on the facts the Demand Debenture was not "duly registered" in that it was not registered in accordance with the requirements of the Act and, accordingly, is void against the creditors." In Crichton Enterprises the affidavit required by the statute was not present and, therefore, based on established authority, the debenture was not "duly registered". Conditional Sales Act In Nova Scotia, Province of, and Touche Ross Limited v. Weymouth Sea Products Limited and Commercial Credit Corporation Limited (1983), 61 N.S.R. (2d) 410 Hart, J.A., writing for the Appeal Division, expressed the prevailing view of the registration provisions of the Conditional Sales Act that they are "designed to give notice of the encumbrance against goods in the possession of person within the province." In Matsushita Electric of Canada Ltd. v. Central Trust Co. and Coopers Lybrand Ltd. (1986), 73 N.S.R. (2d) 250 Glube C.J. recognized the relevancy of registration under the Conditional Sales Act of documents that reserve title to the seller. She stated at paragraph 41: "I find that it would be totally inequitable to allow the privity rule in this case to lead to the conclusion that there is no obligation to comply with the Conditional Sales Act and register the appropriate document. This would allow someone in the position of Datacom to make conditional sales agreements to the detriment of bona fide conditional sale holder who has registered and who was not aware and could never become aware of the unregistered document. To hold this position would also lead to the conclusion that debenture holder could not rely on any inventory at all because at any time an unregistered conditional sales contract would have priority. This would be untenable in the business world." In Canadian Cooperative Agricultural Services v. Beaton (1990), 1990 CanLII 4224 (NS SC), 97 N.S.R. (2d) 266 Grant J. commented on the purpose of the registration requirement of the Conditional Sales Act as follows: "It [the Conditional Sales Act] contains provisions which require registration of agreements with description of the goods sold under them. These provisions exist to protect people who might try to purchase or encumber the goods while they are in the possession of the purchaser under the conditional sale agreement, but while legal title still remains in the original vendor. Section 3(1) of the Act calls them: "(a) subsequent purchasers or mortgages claiming from or under the buyer in good faith for valuable consideration and without notice; and (b) creditors of the buyer who at the time of becoming creditors have no notice of the provision;" Section of the Act operates such that if conditional seller wishes to protect his/her title against third parties claiming from the buyer in good faith, then he/she must register the conditional sale agreement according to the provisions set out in the Act. This protects innocent third parties from losing their interest because of an invisible security arrangement like the conditional sale." By implication potential purchaser, to be protected, should search the records. Bills of Sale Act Clarkson Company Limited v. Muir et al. (1982), 41 C.B.R. 309; 53 N.S.R. (2d) 609 Justice Rogers, in considering the registration provisions of the Bills of Sale Act, stated: "I believe this section is intended to void chattel mortgage against other than the parties to it unless there has been some notice to others, whether they be creditors or subsequent purchasers and/or mortgagees. And method of notice is provided in the Act, that is due registration at the Registry of Deeds. If notice of the Chattel Mortgage is given through due registration, that is constructive notice, the Chattel Mortgage is valid." In Wood Motors Ltd. v. Sullivan (1983), 57 N.S.R. (2d) 71 Anderson J., after quoting the above passage by Justice Rogers stated at paragraph 8: "I believe this to be the law in Nova Scotia and so, as the Chattel Mortgage here was duly registered, the defendant here had notice of said mortgage." In Whitford v. Toronto‑Dominion Bank (1986), 71 N.S.R. (2d) 408 Burchell J. stated at p. 412: "...it is my view that due registration in the Registry of Deeds under the Bills of Sale Act gives notice to the public at large of its existence. Constructive notice in other words flows from the fact of registration itself as long as the security is otherwise valid." On appeal of the decision of Rogers J. in Clarkson Co. v. Muir et al. (1982), 53 N.S.R. (2d) 609 Hart J.A. apparently considered that registration under the Bills of Sale Act is form of notice. He stated at paragraph 11: "In my opinion it is the creditors themselves who are entitled to the notice provided by registration of encumbrances against the goods of the owners, and that protection is afforded to them at all times before valid registration occurs. And at paragraph 12 stated: "Assuming that there was no valid chattel mortgage recorded prior to the assignment of bankruptcy would reach the conclusion that the actual creditors had no notice in fact of the encumbrance against the goods of the owners and would not be bound by it." By implication Hart J.A. decided that registration is notice. In Pozdnekoff v. Royal Bank of Canada (1979), 34 N.S.R. (2d) 435 held that registration constituted constructive notice to subsequent purchaser and mortgagee. considered the decisions of the Supreme Court of Canada in Rose v. Peterkin (1885), 1885 CanLII 16 (SCC), 13 S.C.R. 677 as to what constitutes constructive notice. On the basis of this decision concluded in Pozdnekoff that if one is appraised of facts which should put him on his inquiry the court binds him with constructive notice of the knowledge he could have ascertained by reasonable inquiry. Assignment of Book Debts Act The effect of registration of general assignment of book debts made under this Act does not appear to have been considered by the courts of the Province since the passage of the first uniform Assignment of Book Debts Act, S.N.S. 1931, chapter 5; proclaimed in force on September 1st, 1932. Nor have the courts had occasion to interpret s. of the Act. Both issues are relevant on this appeal. The Appellant's position Counsel for both Eastland and Martin rely on: (I) the decision of the Ontario Court of Appeal in National Bank of Canada v. Harding Carpets; (ii) the rule established in Dearle v. Hall; and (iii) the line of Canadian cases to which have already referred that applied that rule respecting assignments of book debts. review of the most recent decisions relied upon by these parties in which the rule in Dearle v. Hall was applied are: Re: Royal Bank of Canada and Revelstoke Companies Limited (1979), 1979 CanLII 1014 (AB QB), 94 D.L.R. (3d) 692; Harding Carpets Limited v. Royal Bank of Canada, 1980 CanLII 3037 (MB QB), [1980] W.W.R. 149 (Man. Q.B.) The courts in those decisions simply applied the rule and did not analyze the reasoning behind the decision in Dearle v. Hall. That is not meant as criticism but simply as statement of fact. Other cases which applied the rule in Dearle v. Hall are Toronto Dominion Bank v. Mercury Express Ltd. (1978), 1978 CanLII 283 (BC SC), B.C.L.R. 78 and Re Mutual Life Assurance Co. of Canada and Boban Construction Ltd. et at (1984), 1984 CanLII 673 (BC SC), D.L.R. (4th) 746. The first mentioned case is more or less on all fours with the fact situation before us. Munroe J. found in favour of the subsequent assignee who had given notice first notwithstanding the prior assignment was general assignment that had been registered. Munroe J. also held that the registration of the general assignment did not fix the subsequent assignee with constructive notice of the existence of the general assignment. In the Mutual Life case Macdonell J. followed Toronto Dominion Bank v. Mercury Express Ltd.. He stated that priority is established by the first notice given to the debtor. (See also Bank of Nova Scotia v. Newfoundland Rebar Company et al. (1987), 1987 CanLII 5168 (NL SC), 65 Nfld. P.E.I.R. 165) On the other hand Goodridge J. of the Newfoundland Supreme Court stated in Re Newtown Construction Limited (1983), 45 Nfld. P.E.I.R. 239 at p. 242: "A debtor is not bound by an assignment unless he has been given actual notice of it. Registration operates as notice to creditors and subsequent purchasers. Without registration, the assignment is void against such persons." Goodridge J. also made the following general observations about assignments of book debts which are worth keeping in mind. In Newtown Construction Goodridge J. had before him an interpleader proceeding where judgment creditor was vying with an assignee of book debts for priority. He stated at paragraph 14: "In the usual case, it is purely question of time. Barring statutory provision to the contrary, first in time is first in law. The assignee's time is marked by registration of his instrument if registration is required under the Assignment of Book Debts Act (the "Act"); if registration is not required, it is marked by the date of the instrument." And at paragraphs 20 and 21: "An assignment of book debts is absolute. It passes title to the accounts to the assignee. This position is not changed by virtue of the fact that the assignee may elect to allow the assignor to collect the accounts and disburse the same as it sees fit until such time, if ever, as it elects to insist upon its rights. Canadian cases on this are numerous. Counsel for the Bank referred to two Imperial Bank v. Georges Son; Georges Son v. Kidd (1909), 12 W.L.R. 386, and Clarkson and Home Bank v. Lancaster (1926), 38 B.C.R. 217." The latter point is significant in that it must always be borne in mind that an assignment of book debts actually passes title to the book debts even though the assignee allows the book debts to be collected by the assignor until such time as the assignee may elect to exercise its right to those book debts. These comments of Goodridge J. are consistent with those of the British Columbia Court of Appeal in Evans, Coleman Evans Ltd. v. R.A. Nelson Construction Ltd. (1958), 1958 CanLII 226 (BC CA), 16 D.L.R. (2d) 123. The position of Martin and Eastland is articulated in Eastland's factum as follows: "The Assignment of Book Debts Act R.S.N.S., 1989 is not applicable to the Assignment as it is specific assignment of single debt, not general assignment of accounts. The sole test for determining the priority between an assignment (be it general assignment of book debts or an assignment of specific debt) and an unregistered assignment of specific debt is the time at which notice was given to the debtor." This proposition goes far beyond what Dearle v. Hall decided. In that case the subsequent assignee had made diligent inquiries of the trustee as to whether or not there had been prior assignment and was not advised that there had been. On the facts as agreed to by the parties, we do not know if Martin or Eastland made any attempt to ascertain if there had been prior assignment and one would be led to infer that they did not. Nor did they apparently make search at the Registry of Deeds for the County of Cape Breton to determine if general assignment had been registered. Nor do we know if they may have had actual notice of the prior assignments to Eskasoni. The Rule in Dearle v. Hall Although the decision in Dearle v. Hall was, in my opinion, fair and equitable given there was nothing like registration system in place to which prospective assignee could turn to ascertain whether the chose in action had been previously assigned and the subsequent assignee in that case made what inquiries he could, the decision has not escaped critical analysis. In Ward v. Duncombe, [1893] A.C. 369 the House of Lords gave thorough consideration to the underlying rationale of the rule that if subsequent assignee of chose in action gives notice to the trustees of the fund assigned and prior assignee has failed to give notice, the subsequent assignee has priority to payment from the trustees. In Ward v. Duncombe the House of Lords confirmed the decision of the Court of Appeal finding that the prior assignee in that case was entitled to payment. The case seemed to turn on the fact that one of the trustees of the fund was actually aware of the prior assignment. In his written opinion Lord Herschell did thorough review of the decisions in Dearle v. Hall; Loveridge v. Cooper, Russ 1; Ryall v. Rowles, Ves 348; and Foster v. Cockerell, Cl. F. 456. He stated at p. 381: "Where at the time the second advance is made one of the trustees has notice of prior incumbrance, see no reason why notice of the second incumbrance should give it priority over the earlier assignment. The fund was not at the time of the second advance left in the apparent possession of the cestui que trust. The person asked to make the second advance could have protected himself had he chosen to make that inquiry of all the trustees which prudence enjoined. Where, however, notice is given to one trustee only, who is no longer trustee at the time the second encumbrancer advances his money, condition of things has arisen precisely similar to that which led to the rule laid down in Dearle v. Hall. The fund is again in the apparent possession of the cestui que trust. No inquiry of the trustees will avail to protect any one who is asked to make an advance upon the security, or take an assignment of the cestui que trust's interest in the fund. In those circumstances the reasons which led the Court to hold, in the case referred to, that the title of the second encumbrancer or assignee who had given notice must prevail over that of the assignee or encumbrancer earlier in date, are equally applicable. But they do not, in my opinion, at all warrant the conclusion that where at the time of the second advance and notice the trustees, through one of theft number, were in possession of notice of prior assignment, the later assignment, although it is not, at the time when notice of it is received by the trustees, entitled to priority over the earlier assignment, becomes entitled to such priority when the trustee who had notice of that assignment dies or ceased to act. see no sound ground for holding that the priority shifts by reason of circumstance wholly independent of the encumbrancers, and which does not touch or affect any action on their part. Why should an accident of this description entitle the second encumbrancer to priority to which he had no title at the time when he made the advance, and gave notice of it to the trustees? The property was not then in the apparent ownership of the cestui que trust. Due inquiry would presumably have revealed the existence of the earlier assignment. If am right in the view which have taken of the basis on which the equitable rule as to notices rests, it disposes of the contention of the appellants." {Emphasis mine} In Ward v. Duncombe Lord Macnaghten also considered the opinions given in Dearle v. Hall and the subsequent opinion in Foster v. Cockerell. He concluded that the doctrine established by Dearle v. Hall had its origin in that case as he found no trace of the doctrine in earlier cases in the Court of Chancery. He concluded that the doctrine established in that case did not rest upon "any very satisfactory principle" (p. 391). He went on to state at p. 393: "I am inclined to think that the rule in Dearle v. Hall has on the whole produced at least as much injustice as it has prevented. It was argued in Dearle v. Hall that notice to the trustees necessarily prevents fraud on the part of the assignor. "The trustees," said Mr. Sugden, "are converted into register, and by applying to them every one who proposes to negotiate for the purchase of the fund, except in the very improbable event of the trustees incurring personal responsibility by lending themselves to the vendor's dishonest purposes, is enabled to ascertain whether any prior incumbrances exist which will prevail over the title that is to be conveyed to him." .... If the rule in Dearle v. Hall had never been invented it still would have been necessary for an equitable assignee, for his own protection, to give notice to the legal holders of the fund the subject of the assignment. solicitor employed in such transaction would still have incurred serious liability if he neglected so obvious precaution. And rather doubt whether the existence of the rule has led to notice being given in any case in which it would not have been given if the rule had been unknown. My Lords, have made these observations, not for the purpose of impugning the authority of the rule in Dearle v. Hall. The rule is settled law. But it seems to me that when your Lordships are asked to extend the rule to case not already covered by authority, it is proper to inquire into the principles upon which the rule is said to be founded. For the reasons which have already given, do not think that those principles are so clear or so convincing that the rule ought to be extended to new case." The quote from Lord Macnaghten's judgment is of interest in that he states that solicitor acting for an assignee who failed to give trustee notice of the assignment by the cestui que trust would be liable for failure to take such fundamental precaution. Likewise, today, lawyer might be negligent if, in advising client proposing to lend money on the security of an assignment of book debts, be it general or specific, he failed to advise the client that search should be made at the appropriate registry to ascertain if there had not already been general assignment and to make specific inquiries of the debtors (if it was an assignment of specific debt) whether the debtor had notice of prior specific assignment. Disposition of the Appeal The registration statutes with respect to personal property provide system which most lawyers and judges recognize as means to ascertain the state of tide to personal property. The registration system, as contained in the Assignment of Book Debts Act provides means whereby lender or supplier intending to extend credit on the security of book debts can ascertain whether the debts have been previously assigned by general assignment so as to put them beyond the ability of the assignor to make further assignment. failure to make search at the appropriate registry is failure to take the prudent steps that one would expect of prudent lender or purchaser. In Dearle v. Hall the subsequent assignee took the precautions expected of him by inquiring from the trustees of the estate who held the legal title to the beneficial interest being assigned whether the interest had been previously assigned or was incumbered. The second assignee, having been advised that there had not been such an assignment (the trustees were not aware that the beneficiary had previously assigned the interest) took the assignment and advised the trustee that they had done so. The court held that the subsequent assignee had done all he prudently could to ascertain if the assignor had the ability to assign the interest and that the second assignee, having given notice to the trustees, should prevail over the prior assignee who, by his lack of prudence in failing to notify the trustees of the assignment, had allowed the beneficiary to make the subsequent assignment. The court held the equities favoured the second assignee. The enactment of the Assignment of Book Debts Act has significantly changed the situation from that which existed prior to its passage. Considering the detailed provisions in the Act as to how general assignments are to be registered and indexed so that the public can determine if business has made general assignment, am of the opinion the Legislature intended that registration would be notice to creditors and subsequent purchasers as defined in the Act of the prior assignment. However, there is still the problem created by the wording of s. 3. It would have been clearer if the Legislature had simply stated that persons holding the types of assignments referred to in s. did not have to register under the Act. However, reading of the Act as whole and considering its essential feature to provide detailed system of registration, it is my opinion the Legislature in using the words in s. that the Act did not apply to assignment of specific debts, etc., must have meant only that such assignments need not be registered. To interpret the Act otherwise would be to defeat one of the two essential purposes of the Act. Even if the Legislature did not intend to provide system that would enable persons to ascertain if general assignment had been made, the effect of the Act is to provide such system. Therefore, prudence dictates that persons proposing to take an assignment of book debts, general or specific, should search just as was implicitly required of the second assignee in Dearle v. Hall to have made inquiries of the trustees whether there had been prior assignment. If the Legislature intended that registration would be constructive notice to creditors and subsequent purchasers but not constructive notice to those assignees falling within s. by reason of the wording of that section, there is nevertheless system of registration which has become recognized as means to ascertain if there had been prior general assignment. Based on the reason in Dearle v. Hall person proposing to take specific assignment should search the registry to see if there has been prior general assignment and if he fails to do so equity should not intervene to assist him in the event there is prior registered assignment which he could have discovered had he searched. With the Act providing system for the registration of general assignment of book debts the equities now favour the holder of general assignment of book debts who has registered the assignment as required by the Act over all subsequent assignees, be they holders of specific or general assignments, as the subsequent assignees by exercising prudence can search at the appropriate registry office to ascertain if the debt had previously been assigned. In such circumstances it no longer makes sense to apply the equitable rule developed in Dearle v. Hall that the assignee (without actual notice of prior assignment) who first gives notice of the assignment of book debts to the debtor has priority over prior assignment. The following comments are not necessary to this decision; they are made to test the validity of my interpretation of the Act in various factual situations. An assignment of the type covered by the provisions of ss. 3(b) and ©) of the Act which was obtained prior to the execution and registration of general assignment of book debts of which the assignee gave notice to the debtor prior to registration of general assignment of book debts by subsequent assignee, would have priority over the general assignment with respect to the specific debt even though the specific assignment was not registered. This would be so because the assignments referred to in ss. 3(b) and ©) do not have to be registered to be valid and were first in time. If the assignee holding the prior specific assignment failed to give notice to the debtor prior to the general assignment being registered and prior to the assignee of the general book debts giving notice to the debtor, the holder of the specific assignment, based on the equitable rule developed in Dearle v. Hall, could not be heard to complain if the debtor paid the holder of the general assignment. In such circumstances equity should not intervene to require the debtor to pay second time as the holder of the assignment of the specific debt did not exercise prudence, having failed to advise the debtor of the assignment. An assignment falling within the provisions of ss. 3(b) and ©) taken subsequent to the registration of general assignment should not have priority over the prior assignment even if such assignee was first to give notice of the assignment to the debtor as such assignee could and should have, in the exercise of reasonable prudence, ascertained by search at the appropriate registry whether or not there had been prior general assignment of book debts. general assignment of book debts that is not registered, irrespective of its priority in time, is void against creditors and subsequent purchasers and mortgagees for valuable consideration and without notice. As between competing assignees of assignments that come within either s. 3(b) or s. 3©) of the Act the subsequent assignee, if the first to give notice to the debtor, and in the absence of actual knowledge of prior assignment and provided the subsequent assignee made prudent inquiries whether there had been prior assignment, and none was disclosed would, under the rule in Dearle v. Hall, be entitled to be paid the debt in the absence of notice to the debtor of the prior assignment. Under such circumstances it would be appropriate to apply that rule in Dearle v. Hall. debtor who paid an assignee of debt of the nature covered by ss. 3(b) or (c) of the Act, having been given notice by such assignee, and in the absence of actual notice of prior registered general assignment would be protected under the rule in Dearle v. Hall from being required to pay the holder of the prior registered general assignment as in my opinion debtor is not required to make search of the Registry to determine if there is general assignment registered. However, where debtor has actual notice of more than one assignment prudence may dictate that the debtor not rely on the rule in Dearle v. Hall but should retain the funds to pay the debt until the competing claims have been resolved. To do otherwise might not be prudent in that there is provision in s. 43(6) of the Judicature Act whereby debtor may (it is not mandatory) pay money into court and call upon the several persons making the claim to bring interpleader proceedings to determine who is entitled to the fund. The registration under the Assignment of Book Debts Act of general assignment of book debts in the proper registry office gives party dealing with the assignor the ability to determine if book debts due at present or in the future have been the subject of previous general assignment. party who intends to provide credit to business on the security of general assignment of book debts or an assignment of accounts of specified debtors or of monies accruing due on specified contract can do search to determine if the business has already made general assignment of its accounts. The search is made at the Registry Office for the district where the assignor has his place of business (s. 5(1)(d)). The assignee who has given valuable consideration for the general assignment of book debts and properly registers that assignment should not be defeated by subsequent assignment of the type designated in ss. 3(b) or 3©) of the Act simply because the latter assignee gave notice of the assignment to the debtor prior to the holder of the prior general assignment of book debts giving such notice. The equities no longer favour the subsequent assignee of debt growing due under specified contract because, before advancing credit or lending money on the strength of such an assignment, the assignee could have searched the proper registry office to ascertain if there was in existence general assignment of book debts to another. As recognized by Professor Ziegel, this is not burdensome task to impose on person proposing to purchase or lend on the security of receivables. Such person, if truly concerned about securing the credit or loan could undertake such search just as it is prudent to search the conditional sales registry and the bills of sale registry when: (I) purchasing personal property from person other than mercantile agent who has sold the property in the ordinary course of business; or (ii) if lending money on the security of personal property. The creation of registration system for the general assignment of book debts has altered the equities between the person holding assignments of book debts, be they general or specific, from that which existed prior to the enactment of the Assignment of Book Debts Act. The views of the courts, as expressed in the older cases, that the registration statutes did not change the law have given way to more realistic view as expressed in Kozak, Acmetrack and Lions Gate. In my opinion this is view that is perfectly rational and that accords with the purpose of those statutes as they have been interpreted and applied by the legal profession and the business community in the latter part of the 20th century. reading of the Assignment of Book Debts Act clearly shows that it provides registration system for general assignments of book debts to which the public has access to obtain relevant information. Read with this purpose in mind, s. 3, which provides that the Act shall not apply to the types of assignment that fall within the terms of (a) to (e) of that section, simply means that those types of assignment do not have to be registered under the Act; nothing more. The fact that the Act does not apply to those types of assignments does not mean that assignees of debts due from specified (named) debtors or debts growing due under specified contracts are not fixed with the knowledge that there is means to ascertain if potential assignor has made previous general assignment of book debts. endorse the results of the decision in Acmetrack and Lions Gate that registration under the statutes considered in those cases (the Corporations Securities Registration Act and the Bank Act) is constructive notice to subsequent purchasers and mortgagees and in some cases creditors. There is no reason not to come to similar conclusion when interpreting the effect of s. of the Assignment of Book Debts Act of this Province. It is not necessary to determine in this case whether the registration of general assignment of book debts is notice to the debtor. However, am inclined to the view that it is not constructive notice as the debtor is not his brother's keeper so to speak. The Courts should not lightly impose on the debtor duties to other possible assignees in the absence of actual knowledge of other assignments. would reiterate that, in my opinion, given the detailed system established by the Assignment of Book Debts Act for registration which facilitates the public's ability to ascertain if there has been general assignment of book debts by businessperson am of the opinion that the Legislature intended that subsequent assignees of the type designated in s. 3(a) to (e) of the Act would have constructive notice of the registration of general assignment despite the words used in s. 3. But even if have incorrectly interpreted the intent of the legislation and in particular s. of the Act the equities no longer favour the position taken by Martin and Eastland for the reasons previously set forth. There are few other points that require comment. In Royal Bank of Canada v. G.M.A.C. (1985), 67 N.S.R. (2d) 306 MacKeigan C.J. stated in paragraphs and that from its execution general assignment of book debts is specific charge on all existing and future book debts which specific charge attaches to future debt as soon as that debt comes into existence; the charge is fully effective immediately upon execution but not enforceable against the debtor until notice is given. The learned Chief Justice was considering an assignment of book debts as contained in debenture. Such an assignment is not subject to the provisions of the Act. However, s. 4(3) of the Act provides that general assignment of book debts, standing on its own so to speak, is only effective from the date of registration. Therefore, anyone dealing with business and considering taking an assignment of book debts can ascertain by search whether its receivables are still owned by the business or have been previously assigned by way of general assignment. In the hiatus period between execution of the assignment and registration, if the assignor made further assignment that comes within ss. 3(b) or (c) of the Act and that subsequent assignee gave notice to the debtor, the subsequent assignee, in the absence of actual notice of the prior assignment, would have priority over the general assignment as there would not be any means to ascertain if the assignor had previously executed general assignment; the general assignment is not effective against creditors and "subsequent purchasers" as defined in the Act until registered. Although the subsequent assignee would have been required to inquire of the assignor if there had been prior assignment, he would not necessarily get truthful answer. In the absence of actual notice of the general assignment, and assuming prudent inquiries were made of the debtor, the subsequent assignee would have priority. In my opinion this would be consistent both with respect to the reasoning in Dearle v. Hall and Ward v. Duncombe and the Act as have interpreted it. In the appeal we have under consideration, any one of the lenders or businesses that extended money or credit to Mr. Francis on the strength of assignments, (be they specific or general, which were all made subsequent to the registration of the general assignment of book debts to the Eskasoni Band) could have ascertained by search in the Registry for Cape Breton County where Mr. Francis had his place of business that he had already made general assignment of his present and future book debts to the Eskasoni Band. Under the circumstances there is no equity in following the old rule that the assignee who first notified the debtor of the assignment has priority. In my opinion, the older cases decided subsequent to the enactment of the registration legislation should no longer be applied as it is now recognized that this type of Act provides for register to which the public has access and can ascertain the state of title to the personal property in question. The equities no longer favour the party who, with the means to ascertain if there has been previous general assignment of book debts proposed to be assigned, fails to take the reasonable precautions of search. With respect to book debts, the enactment of the Assignment of Book Debts Act reversed the equities that existed at the time Dearle v. Hall was decided. And with respect, disagree with the interpretation of s. of the Assignment of Book Debts Act by the Ontario Court of Appeal in National Bank of Canada v. Harding Carpets, supra. In my opinion, s. means only that the types of assignment mentioned in that section do not have to be registered under the Act. In this case the Shubenacadie Band did not pay the assignee who gave the first notice but retained the money in trust and applied to the Supreme Court for determination of who should be paid. Had the Shubenacadie Band in good faith without actual notice of the other assignments paid the assignee who first gave notice to the Shubenacadie Band of the assignment equity would dictate that it not be required to also pay the Eskasoni Band even though it was the first to register its general assignment. In my opinion, under such circumstances the Eskasoni Band could bring proceedings to recover the funds paid in error to the subsequent assignee who had given the first notice as the subsequent assignee could have ascertained by search that there had been prior general assignment and would not have had right to the fund. As practical matter, holder of general assignment of book debts is not in the position to give notice to the debtors of the assignor because those debtors change from time to time. The rights of an assignee under general assignment of book debts should not be defeated by subsequent assignee who can fit within clauses 3(b) or 3(c) of the Act simply because that assignee first gave notice of his assignment to the debtor. There is no reason not to apply the general rule that the first assignment in time would have priority as there is nothing left to assign after the assignment has been executed; provided, of course, the general assignment had been registered as required by the Act. Some time was spent in argument respecting the provisions of s. 43(5) of the Judicature Act, R.S.N.S. 1989, c. 240. Section 43(5) of the Judicature Act was enacted to eliminate the need of an assignee to join as plaintiff the assignor in suit against the debtor whose debt had been assigned by way of absolute assignment. It also enables the assignee to give good discharge of the debt without the concurrence of the assignor. The section preserved any equities that others may have had to the debt which would have entitled them to priority over the right of the assignee. The provisions of s. 43(5) of the Judicature Act while they preserve the existing equitable rights of others do not assist the other claimants in this case as in my opinion the equities no longer favour the subsequent assignees who gave the first notice of assignment to the debtor. Were it not for the fact that am of the opinion that the Eskasoni Band Council is entitled to the funds, we would not have been able to decide the issues before us because of the omission of key pieces of evidence from the Agreed Statement of Facts. For instance, there is nothing in the Agreed Statement of Facts as to whether or not Martin or Eastland had actual notice of the prior general assignment to Eskasoni; that is critical fact in assessing the equities even applying the rule in Dearle v. Hall. It is often overlooked that very relevant fact in that case was the lack of knowledge by the subsequent assignee of the prior assignment despite having made prudent inquiries of the trustees. We do not know what inquiries, if any, were made by Eastland or Martin to determine whether or not there had been prior assignment. As mentioned previously, the Agreed Statement of Facts does not seem to accord with the documents giving rise to the claims of Martin and Eastland. Without going into details both Martin and Eastland's assignments were described as absolute assignments; the actual documents upon which they rely do not appear to warrant this interpretation. However, in view of the conclusion reached, these problems have become irrelevant. Conclusion Martin's appeal was successful on the issue raised under the Indian Act but it failed on the priorities issue. Eastland also failed on this key issue. The Notice of Contention filed on behalf of the Eskasoni Band that the decision of Justice Edwards be upheld on the ground that the Eskasoni Band held security which ranked in priority to the security held by the various other claimants ought to be sustained. would therefore order that the Shubenacadie Band pay to the Eskasoni Band the sum of $101,636.33. The Order of Justice Edwards was silent as to costs. In view of the divided success on the appeal would order that the parties bear their own costs. Hallett, J.A. Concurred in: Bateman, J.A. Flinn, J.A. 1994 "S" SN No. 100133 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: SHUBENACADIE BAND, as represented by the Shubenacadie Band Council and THE CANADIAN IMPERIAL BANK OF COMMERCE, body Corporate and THE ESKASONI BAND, as represented by the Eskasoni Band Council and L. MARTIN (1984) INC., body corporate and EASTLAND INDUSTRIES LIMITED, body corporate and PAUL KENNETH FRANCIS, carrying on business under the firm name and style of Mi'k Maq Building Supplies and P.K. Francis Construction BEFORE: The Honourable Justice Frank C. Edwards, Sydney, Nova Scotia DECISION: November 24, 1994 (Written) COUNSEL: David F. English, Esq., for the Shubenacadie Band Council Frank Elman, Q.C., for the Canadian Imperial Bank of Commerce E.N. Colborne, Q.C., for the Eskasoni Band Council Jack A. Innes, Q.C.,, for L. Martin (1984) Inc. Gregory H. Cooper, Esq., for Eastland Industries Limited Theresa O'Leary for Paul Kenneth Francis C.A. No. 113602 NOVA SCOTIA COURT OF APPEAL BETWEEN: L. MARTIN (1984) INC. and SHUBENACADIE BAND and THE CANADIAN IMPERIAL BANK OF COMMERCE and THE ESKASONI BAND ‑and- EASTLAND INDUSTRIES LIMITED and PAUL KENNETH FRANCIS Respondent REASONS FOR JUDGMENT BY: HALLETT, J.A.

This was an appeal from a Supreme Court decision on an interpleader application by the respondent Shubenacadie Band to determine which of several parties was entitled to be paid a sum of money owed by the Band to the respondent Francis, an Indian residing on the Eskasoni Reserve in Cape Breton, for the construction of residential homes on the Shubenacadie Reserve. Francis had made a number of assignments of book debts, some general and some specific, to the various claimants. The trial judge concluded that he was bound by s.89(1) of the Indian Act, which holds that the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour of or at the instance of any person other than an Indian or a band. He concluded that the money owed Francis by the Shubenacadie band was the property of an Indian on a reserve, and that assignment of book debts, both general and specific, were included within the meaning of s.89(1). He found that the respondent Eskasoni Band was the only Indian entity among the several claimants and ordered the money paid to them. The appellants appealed. Allowing the appeal on the issue of the Indian Act, that s.89(1) does not prevent an Indian from assigning book debts of his construction business to secure business loans. When Indians are in business they hold and deal with their business property in the commercial mainstream on terms no different than those applicable to all Canadians. Nevertheless, the Eskasoni Band is still entitled to the money owed to Francis by reason of having obtained the first general assignment of book debts from him and having registered it prior to Francis making further assignments. The registration of a general assignment of book debts is constructive notice of the assignment to subsequent assignees falling within the provisions of s.3 of the Assignment of Book Debts Act.

d_1995canlii4259.txt

Dated: 20000403 2000 SKCA 39 Docket: 2096 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Tallis, Vancise Lane JJ.A. DONALD BROWN AND EDNA BROWN and THE WAWANESA MUTUAL INSURANCE COMPANY COUNSEL: Mr. Bill Selnes for the Appellants Mr. Greg Thompson for the Respondent DISPOSITION: On Appeal From: Q.B. 787/94, J.C. of Prince Albert Application Heard: 03 April 2000 Application Allowed: 03 April 2000 (Orally) Written Reasons: 05 April 2000 Reasons By: The Honourable Mr. Justice Tallis In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Lane TALLIS J.A. (Orally) [1] We have before us a motion by the appellants to admit fresh evidence, which if allowed, mandates a new trial. [2] At the outset we observe that although this application is in the context of civil action, it does have significant criminal overtones in that the respondent alleges arson in paragraph four of its statement of defence which reads: 4. The Defendant says that the fire was not accidental in origin but was deliberately set by person insured under the policy. [3] We are all of the opinion that the "fresh" evidence of Mr. T.V. Jones should be admitted and a new trial ordered. In this case the strictness of the due diligence requirement should be relaxed in light of the allegation of arson. Although the expert evidence of Mr. Jones was available, counsel at trial failed to competently present this evidence on behalf of the appellants: see for example Canadian Imperial Bank of Commerce v. George Leslie Wilson Freeman, unreported, Sask. C.A., March 14, 1996. [4] We also find that the proffered fresh evidence could reasonably have affected the result at trial, particularly with respect to the "cause of the fire". [5] The appellants shall pay the respondent's costs of the trial, to be taxed on party and party basis, on or before July 15, 2000. The appellants shall also pay the respondent's costs of all proceedings in this Court including this motion and preparation for the appeal, with the same to be taxed on double Column and paid on or before July 15, 2000. In default of payment of these costs, the appellant shall be liable, on application to this Court, to have their claim struck out and the action dismissed.

The appellants sought to admit fresh evidence. HELD: 1)A new trial was ordered. The due diligence requirement was relaxed in light of the allegation of arson in the respondent's statement of defence. Although the expert evidence was available at trial, counsel failed to competently present the evidence. The fresh evidence could reasonably have affected the trial result respecting the cause of the fire. 2)The appellants were to pay party and party costs plus the respondent's cost of all proceedings in the Court of Appeal including preparation for the appeal taxed on double column V on or before July 15, 2000. In default of payment the appellant's claim may be struck.

c_2000skca39.txt

J. Q.B.G. A.D. 1998 No. 2295 J.C.S. IN THE QUEEN`S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: MAWSON HOTELS LTD. and SASKATCHEWAN LIQUOR AND GAMING AUTHORITY AND SASKATCHEWAN LIQUOR AND GAMING LICENSING COMMISSION RESPONDENTS Richard W. Danyliuk for the applicant Rodger W. Linka for the respondent FIAT LAING J. November 16, 1998 [1] The applicant seeks an order staying the hearingscheduled by the respondent Commission for November 19, 1998to review a decision of the respondent Authority to suspendthe applicant`s "tavern permit" for a period of three days,until criminal charges arising out of the same facts aredisposed of. [2] The applicant is the owner of the Sutherland Hotel in Saskatoon, in which it operates beverage room. It is criminally charged with five breaches of s. 112(1) of The Alcohol and Gaming Regulation Act, S.S. 1988-89, c. A-18.01 of failing to demand proof of age from minors on three days in February in 1998. trial took place in Provincial Court on one of the charges, and the applicant was convicted. The remaining charges are being held in abeyance pending an appeal on the one conviction. The hearing of such appeals is several months away. [3] On June 4, 1998, the respondent Authority pursuant to s. 18(1) of The Alcohol and Gaming Regulation Act, supra, imposed three-day suspension of the appellant`s liquor permit for the period June 25-27, 1998 as result of the allegations outlined in the previous paragraph. The applicant has exercised its right to have the decision reviewed by the respondent Commission which is the hearing scheduled for November 19, 1998. [4] The applicant requests the stay on the basis: (1) It alleges that for the Commission hearing to proceed would prejudice its defence on the criminal charges because it will be necessary for it to call similar defence evidence with respect to each proceeding; (2) It states "it would be manifestly unfair to have decision for potential penalty imposed (sic) by the Commission which may be contradictory to finding of fact and determination of guilt on the same facts and information before the Provincial Court." [5] The second ground raises a substantive issue asopposed to a procedural one, and in any event is effectivelydisposed of by R. v. Wigglesworth, 1987 CanLII 41 (SCC), 1988] W.W.R. 193 (S.C.C.). As noted by Wilson J. in this case at p. 210, the word "offences" as used in s. 11 of the Charter: is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within limited private sphere of activity: There is also fundamental distinction between proceedings undertaken to promote public order and welfare within public sphere of activity and proceedings undertaken to determine fitness to obtain or maintain licence. Where disqualifications are imposed as part of scheme for regulating an activity in order to protect the public, disqualification proceedings are not the sort of "offence" proceedings to which s. 11 is applicable. Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of statute are also not the sort of "offence" proceedings to which s. 11 is applicable. [6] In this case the respondent Authority and Commission have statutory jurisdiction to administer The Alcohol and Gaming Regulation Act, supra, and the powers of the Commission are restricted to dealing with licenses or permits, to the exclusion of any other type of penalty. There is nothinginconsistent with the respondent Commissionconsidering a form of disqualification of theapplicant`s license or permit, while the stateexercises its criminal law power with respect to thesame set of facts. [7] With respect to the issue of procedural fairness, this Court has the jurisdiction to exercise discretion to stay civil or administrative proceedings pending the conclusion of criminal proceedings when it would be fair to do so, or in the negative, when it would be unfair not to do so. As noted in Leier v. Shumiatcher, (1962) 39 W.W.R. 446 (Sask. C.A.) at p. 447: the right to exercise discretion should not be curtailed by any inflexible rule of law, but should be guided in each instance by the merits of the matter under review. The exercise of the discretion must not, of course, be capricious or arbitrary, but must have as its foundation admissible evidence of record from which the judge may reasonably draw conclusions. [8] It follows from the foregoing, and as noted by Miller, C.J.M. in Rowe v. Brandon Packers Ltd. et al., (1961) 1961 CanLII 340 (MB CA), 35 W.W.R. 625 (Man. C.A.), at p. 629, quoted with approval by Zuber J. in Stickney v. Trusz (1973), 1973 CanLII 423 (ON SC), 45 D.L.R. (3d) 275 (Ont. H.C.), at p. 279: am unable to subscribe to any principle which would indicate that the mere fact there are criminal proceedings pending at the same time as civil proceedings is ground for either stay or an adjournment of the civil proceedings. [9] When an application such as this is brought, the onus is on the applicant to show degree of prejudice if the civil proceedings are not stayed. (Vide: Kendall and Dolphin Ventures Ltd. v. Hunt et al., 1978 CanLII 2686 (BC SC), [1978] W.W.R. 295 at p. 297 per Kirke Smith J. quoted with approval by Maher J. in Jocelyn and Atamenenko v. Machula (1982), 1982 CanLII 2541 (SK QB), 16 Sask. R. 439 (Q.B.), at p. 441.) The prejudice must exist after taking into account that evidence to be given by the party in the civil proceeding has available the protection offered by the Canada Evidence Act, R.S.C. 1985, c. C-5 (s. 5(2)) and The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16, s. 37(2) (Vide: Jocelyn v. Atamenenko, supra.). It is suggested that when prejudice will normally be found is where the evidence to be given by party in civil examination for discovery or trial could result in adverse information being made available to the Crown that it does not or would not otherwise have, thereby conscripting such party against himself or [10] In this matter there is no obvious prejudice to the applicant in allowing the Commission`s hearing to proceed, and certainly none is attested to. Thedisclosure of any defence in the Commission hearing,even if it should become known to the Crown, is notgoing to result in any new facts that are notalready known to it. Because the Commission is not relying on conviction, it will have the onus of adducing evidence related to the alleged breaches of s. 112(1) of The Alcohol and Gaming Regulation Act, and presumably the defence will consist of denying one or more of the elements implicit in the allegations. The applicant has failed to show anyprejudice to its criminal defence if the Commissionhearing is allowed to take place as scheduled. [11] The application is dismissed with costs.

FIAT. The applicant hotel was charged with five breaches of s.112(1)of the Alcohol and Gaming Act for failing to demand proof of age from minors. The hotel was convicted on one charge and the remaining charges were held in abeyance pending its appeal. The hotel sought an order staying the hearing scheduled by the Commission to review a decision of the Authority suspending the applicant's tavern permit for three days, pending disposal of the criminal charges. Grounds for a stay were that the Commission's hearing would prejudice its defence on the criminal charges because it will be necessary to call similar defence evidence with respect to each proceeding; secondly, it would be manifestly unfair to have a decision for a potential penalty imposed by the Commission which may be contradictory to a finding of fact and a determination of guilt on the same facts and information before the Provicial Court. HELD: The application was dismissed with costs. 1)The second ground raised a substantive issue and in any event was effectively disposed of by R. v. Wigglesworth. There was nothing inconsistent with the Commission considering a form of disqualification of the applicant's license or permit, while the state exercises its criminal law power with respect to the same set of facts. 2)The applicant failed to show any prejudice to its criminal defence. The disclosure of any defence in the Commission hearing will not result in any new facts that were not already known to the Crown.

1998canlii13707.txt

J. 2003 SKQB 459 Q.B.C.N.J. A.D. 2003 No. J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and ELAINE LAUREL SOURA D.G. Curliss for the Crown T.E. Forsyth for the accused JUDGMENT HRABINSKY J. October 31, 2003 [1] The Crown proceeded against the accused on the following five counts in the indictment:1. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, did unlawfully have in her possession a controlled substance, to wit, cannabis marihuana in an amount exceeding three kilograms, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act. 2. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, did in committing an assault on Constable Darcy Wilson use weapon to wit Buick car bearing Saskatchewan Licence Plate 640 CGC, contrary to Section 267(a) of the Criminal Code. 3. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, operating motor vehicle on highway to wit, Highway and Highway 21 in manner dangerous to the public contrary to Section 249(1)(a) of the Criminal Code. 4. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, while operating motor vehicle being pursued by police, did in order to evade the peace officer fail without lawful excuse to stop her vehicle as soon as was reasonable in the circumstances contrary to Section 249.1(1) of the Criminal Code. 5. On or about the 24th day of February, A.D. 2002, at or near Kindersley District, in the Province of Saskatchewan, did being at large on her undertaking entered in before Justice and being bound to comply with condition thereof, to wit, keep the peace and be of good behaviour did fail without lawful excuse to comply with that condition contrary to Section 145(3) of the Criminal Code. [2] At the outset of the trial counsel for the accused took the position that the accused’s rights pursuant to ss. 8, 9 and 10 of Canadian Charter of Rights and Freedoms were infringed and that all evidence obtained after the initial stop should be excluded pursuant to s. 24(2) of the Charter. These sections read as follows: 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; (b) to retain and instruct counsel without delay and to be informed of that right; and (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), court concludes that evidence was obtained in manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [3] The trial commenced by way of voire dire. [4] Constable Darcy Wilson graduated as an Royal Canadian Mounted Police officer on July 10, 2000. He had taken four-hour course on narcotics which included the smell of burning cannabis marihuana and the smell of raw cannabis. According to him there is drug problem in the Kindersley area where he was stationed and accordingly he had handled some 20 to 30 possession cases and some 10 to 15 trafficking cases. [5] At approximately 4:30 a.m. on February 24, 2002, near Kindersley, Saskatchewan, Constable Wilson stopped the accused’s vehicle because it had cracked rear tail light on the passenger side. The cracked tail light emitted white light approximately two inches by two inches square. No issue is taken with Constable Wilson’s authority to stop the accused’s vehicle since such stop is authorized pursuant to s. 40(8) of The Highway Traffic Act, 1996, S.S. 1996, c. H-3.2. See also R. v. Duncanson (1991), 1991 CanLII 2760 (SK CA), 93 Sask. R. 193 (C.A.) (appeal dismissed), [1992] S.C.R. 836. [6] After Constable Wilson pulled the accused’s vehicle over to the shoulder of the highway he exited his patrol car and approached the accused’s vehicle. The driver’s window on the accused’s vehicle was down or at least partially down and Constable Wilson noticed that the rear of this vehicle was cluttered with blankets and there was red bag which extended about three-quarters of the way up the back seat of the vehicle. Duct tape sealed the lip of the bag and Constable Wilson stated that duct tape is commonly used to seal bags with contraband and narcotics. The cluttered interior of the vehicle gave Constable Wilson some cause for concern that there could possibly be hidden weapon. On cross-examination he acknowledged that the red bag which was actually dog food bag with duct tape could have had dog food in it. [7] When Constable Wilson stopped the accused on the highway she immediately confronted him with the question, “Why are you stopping me?” Constable Wilson said he advised her about the cracked tail light and asked her where she was coming from and where she was going. Constable Wilson said that she was extremely nervous and agitated. [8] Constable Wilson testified that he approached the accused’s vehicle and requested her driver’s licence and vehicle registration. As the accused reached for her purse and put it on her lap to retrieve these documents, Constable Wilson shone his flashlight into the car and into the accused’s purse. At this time the interior light of the accused’s vehicle was illuminated as she was searching for these documents. Constable Wilson testified that as she was reaching into her purse he observed some pill bottles, Zigzag rolling papers and what appeared to be green leafy substance which was loose on the bottom of her purse. He also observed some cash. Constable Wilson could smell very strong odour of raw cannabis coming from the interior of the vehicle and as the accused provided her driver’s licence he noticed dark green stain on it which he said looked like cannabis resin. At this point in time Constable Wilson said he formed the opinion that there was cannabis marihuana in the vehicle and he advised the accused that he could smell cannabis marihuana in the vehicle and that it appeared that there was hash oil on her driver’s licence. She denied this and stated, “If give it to you, will you let me go?” [9] Constable Wilson said that at this point in time the accused was hysterical and he advised her that she was under arrest for possession of marihuana. As he did so, she grabbed the driver’s licence and Constable Wilson reached into her car to prevent her from driving away. In his words, he “wanted to maintain control”. The accused put the car into drive and pulled away. As the car moved forward the door handle brushed Constable Wilson’s side. He said that this was very minor and that red mark appeared few days later. Constable Wilson did not notice any other person or persons in the vehicle. Constable Wilson observed that the licence plate on the accused’s vehicle was 640 CGC. [10] The accused sped east on highway no. going toward Kindersley, Saskatchewan. Constable Wilson was in hot pursuit travelling up to 190 kilometres per hour in an effort to catch up to the accused’s vehicle. After catching up to her vehicle the speed was approximately 170 kilometres per hour. Constable Jason Michael Pshyk, member of the RCMP, followed Constable Wilson in the pursuit of the accused. [11] Constable Jennifer Barnes, another member of the RCMP then stationed at Kindersley, Saskatchewan, blocked the intersection of highways no. and 21 by putting her vehicle diagonally across that intersection which is the first major intersection in that area. [12] All three RCMP vehicles had activated all of the emergency equipment on their vehicles. [13] As the accused approached Kindersley where there is 70 kilometre per hour speed zone, she applied her brakes and turned south on highway no. 21. As she turned south she accelerated and Constable Wilson observed that she reached speeds of 160 kilometres per hour and at this point he noticed some movement in the back seat of the accused’s vehicle. As Constable Wilson pursued the accused’s vehicle he said that large red bag was thrown from the accused’s vehicle and this bag struck the right corner of his vehicle. The accused continued at speed of approximately 150 kilometres per hour for about five kilometres and gradually slowed to 140 kilometres per hour then to 120 kilometres per hour. Approximately 13 kilometres south of Kindersley the accused pulled her vehicle over to the side and Constable Wilson pulled his vehicle up beside her vehicle on the driving lane. Constable Wilson testified that the accused had her hand out of the window and was screaming hysterically. Constable Wilson exited his vehicle as did Constable Pshyk. Both officers had drawn their firearms. [14] Constable Wilson handcuffed the accused and advised her that she was under arrest for dangerous driving, assaulting police officer, possession of cannabis marihuana and flight. The arrest was made at 5:06 a.m. Constable Wilson testified that he read the police warning to the accused and gave her her Charter rights to counsel. According to him, as he did so, the accused stated, “I’m not fucking listening to you. Do fucking what you fucking want.” Constable Wilson asked her if she wished to contact counsel and she replied, “Yes”. Constable Wilson stated that he again read her the police warning from his Charter card and she replied, “I’m fucking scared of you guys.” [15] Constable Barnes conducted pat search on the accused. [16] When the accused was arrested Constable Wilson noticed that there was small girl approximately 10 years of age, wearing only panties, covered with blanket in the back seat of the accused’s vehicle. She was screaming and crying. [17] On the way back to the RCMP detachment the accused was in the back seat of the patrol vehicle. She was screaming and her little girl was crying. While they were travelling northbound toward Kindersley they came across Constable Barnes approximately one kilometre south of the railway track and observed that she was retrieving the red bag that had been tossed out of the accused’s vehicle. [18] The evidence establishes that the weight of marihuana seized was 3.0575 kilograms which at the gram level would be valued at $45,862.50. At the one-eighth ounce level, it would be valued at $34,942.80. At the one-quarter ounce level, it would be valued at $34,942.86. At the one ounce level, it would be valued at $27,300.00. At the one-quarter pound level, it would be valued at $24,570.00, and at the pound level it would be valued at $18,844.00. [19] Detective Constable Vincent Ashmeade, drug investigator with the Saskatoon Integrated Drug Unit, expressed the opinion that the marihuana seized in this investigation was for the purpose of trafficking and not for personal usage. According to him the user usually buys his/her supply in small amounts such as grams, one-eighth ounce lots or one-quarter ounce lots and then rolls joints as required. The marihuana seized in this investigation could not be consumed by an individual before it deteriorated to worthless value. user would not transport large quantities of marihuana around in his/her vehicle. Users would carry their daily supply of marihuana on their person and keep the remaining marihuana in safe location. [20] In this case the accused was in possession of 2,446-day supply or 6.7-year supply. Since the shelf life of cannabis marihuana is six months, under ideal conditions this amount far exceeds what could normally be considered “personal usage”. [21] They arrived back at the detachment office at 6:01 a.m. and at 6:05 a.m. Constable Wilson asked the accused if she wished to contact lawyer. Her response was, “No, just fucking shoot me. am dead already. They’re going to kill me.” [22] Constable Wilson searched the accused’s purse and found one gram of cannabis marihuana, Zigzag rolling papers, $250 Canadian in cash, piece of paper with some writing on it. [23] Social Services was contacted. [24] The accused told Constable Wilson that her common law husband lived in Melfort and so he contacted him for her. [25] Defence counsel admits that the contents of the ziplock bags and the dog food bag is cannabis marihuana with total weight of 3.0575 kilograms. Constable Wilson testified that the most common packaging for cannabis marihuana is to place the cannabis marihuana in ziplock bag and then to place that bag in another ziplock bag and then those two bags with the cannabis marihuana are normally put in vacuum bag. These had not been put in vacuum bag. [26] In the trunk of the accused’s vehicle, Constable Wilson found receipt for recent purchase of dog food. [27] During the initial stop of the accused’s vehicle and after Constable Wilson found the spot on the driver’s licence which he believed to be hash oil, he asked the accused how long she had been in B.C. and noted that she had no luggage. [28] On cross-examination Constable Wilson was asked whether he noticed the smell of cannabis marihuana after the conversation with respect to the luggage and how long the accused was in British Columbia. He answered, “No” “Incorrect”. He was then referred to question 310 on p. 72 of the transcript of the preliminary inquiry and he replied that that answer was incorrect. [29] On cross-examination, Constable Wilson admitted that when the accused drove off she did not manoeuvre her vehicle in such manner as to hit him. He also acknowledged that there was nothing to indicate that she was not in control of the vehicle. [30] The continuity of all exhibits was admitted by defence counsel. [31] Constable Jason Pshyk, an RCMP officer, testified that on February 24, 2002, at approximately 4:35 a.m. he was on the north side of highway no. 7, approximately 10 kilometres west of Kindersley. Constable Wilson was next to him. After he, Constable Pshyk had pulled over vehicle and when he was through with that vehicle he then parked behind Constable Wilson’s vehicle at the place where Constable Wilson had pulled over the accused’s vehicle. Constable Pshyk said that Constable Wilson was on the driver’s side of the accused’s vehicle and he noted that the accused was quite emotional and was crying. He also noticed smaller child in the back seat covered with blanket. He shone his flashlight into the accused’s vehicle and walked ahead beside the driver’s mirror which put him approximately one foot away from Constable Wilson. He said the accused’s driver’s window was down and Constable Wilson was dealing with the accused. He said that Constable Wilson had the accused’s driver’s licence in his hand and he heard Constable Wilson say to the accused that there was hash oil on her driver’s licence. Constable Pshyk said that the accused was crying and saying that it was not hash oil at which time the accused put her vehicle into drive and accelerated. [32] Constable Pshyk substantially corroborated Constable Wilson’s testimony with respect to the pursuit of the accused. [33] On cross-examination Constable Pshyk testified that he was looking for violations under The Highway Traffic Act and that he was on general duty. On further cross-examination Constable Pshyk stated that when he was near the mirror of the accused’s vehicle standing approximately one foot to Constable Wilson’s left, Constable Wilson was in bent position talking to the accused. He could not recall if Constable Wilson’s body was touching the accused’s vehicle but he did note that Constable Wilson had the accused’s driver’s licence in his hand. He heard Constable Wilson ask the accused if that was hash oil on her driver’s licence but he did not recall if there was mention of cannabis marihuana odour in the vehicle. He heard Constable Wilson arrest the accused but stated that he never heard the accused say, “If give it to you, will you let me go?” [34] On further cross-examination Constable Pshyk said that his notes do not indicate that Constable Wilson asked the accused about the odour of cannabis marihuana in her vehicle. He stated, “It may have been asked. just didn’t put it in my notes.” He did not see Constable Wilson being struck by the accused’s vehicle. [35] It is admitted by both counsel that Constable Pshyk did not smell cannabis marihuana when Constable Wilson first stopped the accused. [36] At the commencement of argument, defence counsel admitted that the Charter arguments refer only to count in the indictment. [37] Counsel for the accused submits that Constable Wilson did not see green material in the accused’s purse as he shone his flashlight into it and he submits further that Constable Wilson did not smell the odour of raw cannabis marihuana emanating from the accused’s vehicle. do not accept either of these submissions. The submission that should not believe Constable Wilson when he stated that he saw green material in the accused’s purse because he did not enter that in any one of the four documents which he prepared in connection with this investigation is without merit. [38] Defence counsel’s submission that this Court should not believe Constable Wilson’s testimony that he was able to smell strong odour of raw cannabis marihuana emanating from the accused’s vehicle because Constable Pshyk said he did not smell any such odour and because Constable Pshyk was not able to say that he heard Constable Wilson ask the accused about the smell of odour of raw cannabis marihuana is also without merit. [39] find that Constable Wilson was candid and straightforward in his testimony. Section Search or Seizure [40] Section of the Charter provides that, “Everyone has the right to be secure against unreasonable search or seizure.” [41] Section 495 of the Criminal Code of Canada provides: 495.(1) peace officer may arrest without warrant (a) person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence, (b) person whom he finds committing criminal offence, or [42] find that Constable Wilson observed what he reasonably believed to be marihuana leaves in the bottom of the accused’s purse. He also observed what he believed could have been hash oil stain on the accused’s driver’s licence. find that Constable Wilson smelled strong odour of raw marihuana in the accused’s vehicle. The strong odour of raw marihuana emanating from the interior of the accused’s vehicle would in itself amount to reasonable grounds not only for lawful detention but also for arrest. [43] In The Queen v. Storrey (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316 (S.C.C.), at 324, the court stated that although grounds for arrest must be reasonable from both an objective and subjective point of view: 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. [44] In The Queen v. Debot (1986), 1986 CanLII 113 (ON CA), 30 C.C.C. (3d) 207 (Ont. C.A.), at 219, affirmed 1989 CanLII 78 (SCC), [1989] S.C.R. 225, the court stated: The standard of “reasonable grounds to believe” is not to be equated with proof beyond reasonable doubt or prima facie case. The standard to be met is one of reasonable probability. [45] In The Queen v. Sewell, 2003 SKCA 52 (CanLII), (2003) 175 C.C.C. (3d) 242, the Saskatchewan Court of Appeal recognized that the smell of raw marihuana alone can amount to reasonable grounds. At para. 39, there is the following: [39] As for the second basis, namely, that the officer, upon smelling the marijuana, then had reasonable and probable grounds to conduct warrantless search, echo and rely on the comments of Tallis J.A. in R. v. Ladouceur, 2002 SKCA 73 (CanLII), [2002] W.W.R. 209, 165 C.C.C. (3d) 321 (Sask. C.A), and his later reference at para. 141 to R. v. (D.)I.D. (1987), 1987 CanLII 206 (SK CA), 60 Sask. R. 72; [1988] W.W.R. 673, 38 C.C.C. (3d) 289 (C.A.), approved by the Supreme Court of Canada in R. v. Grant, 1993 CanLII 68 (SCC), [1993] S.C.R. 223, 84 C.C.C. (3d) 173. In paras. 125-128 he said: [125] Before turning to the s. question–whether the warrantless search of the vehicle was based on reasonable and probable grounds–I observe that Mellenthin and R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] S.C.R. 341 (S.C.C.) recognized that police officers need not ignore other legitimate aspects of their general duties and powers when manning checkpoint. In the circumstances of the case before us, either officer had every right to open the car door and speak to the passenger: See Belnavis, supra, p. 358, para. 28. When so engaged, officers do not leave their perceptory senses–whether visual, olfactory or auditory–at some other location. Stolen property or illegal firearms are but two examples [Note 20: See for example Part III of the Criminal Code: Firearms and Other Weapons and regulations thereunder.] [126] Although there is an expectation of privacy in automobile travel, it is markedly decreased relative to one’s home or office: See for example R. v. Wise, 1992 CanLII 125 (SCC), [1992] S.C.R. 527 (S.C.C.). Even the sanctity of the home does not preclude warrantless visual surveillance of its exterior. In such circumstances “the eye cannot by the law of England be guilty of trespass”: Entick v. Carrington (1765), 95 E.R. 807, 19 State Tr. 1029 (Eng. K.B.). [127] The same can be said with respect to auditory and olfactory senses. Aromas that are generated in private home, “distillation” plant, laboratory or opium den enter the public domain if and when they leave the building. Indeed the ordinary use of senses might enable member or passing member of the public to pick up the aroma emanating from home, particularly if it is vented. In my opinion the doctrine of “plain smell” is doctrine of common sense–similar to the “plain view” doctrine: See for example R. v. Smith (1998), 1998 ABCA 418 (CanLII), 126 C.C.C. (3d) 62, 161 D.L.R. (4th) 331 (Alta. C.A.). [128] Given the lessened expectation of privacy in an automobile, police officers are entitled and expected to utilize their senses during the course of their duties. If the aroma of liquor or drug is evident, the question then becomes one of the proper test to determine whether reasonable and probable grounds exist for search. Police officers cannot reasonably be expected to avert their eyes from evidence of activity, whether criminal or otherwise, that could be observed by any vigilant member of the public. So too, police officers do not have to avert their senses from detecting emissions or aromas in the public domain such as traces of smoke and suspicious odours. Such sensing of emissions, aromas or odours and drawing sensible conclusions from their detection is entirely reasonable when considering whether reasonable and probable grounds exist for search. [46] find that the strong odour of raw cannabis marihuana smelled by Constable Wilson combined with the other indicators observed by him provide more than sufficient basis for reasonable grounds either for search or for arrest or for both. [47] The s. Charter argument fails. Detention or Imprisonment [48] Section of the Charter provides that, “Everyone has the right not to be arbitrarily detained or imprisoned.” [49] The authorities are clear that during the course of highway traffic stop the police are authorized to make certain inquiries and need not turn blind eye to matters which legitimately raise their suspicions. [50] In The Queen v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615, at 623-24, there is the following: There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with the aid of flashlight and it is necessarily incidental to check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops. There have been more than enough incidents of violence to police officers when vehicles have been stopped. Nor can place any particular significance upon the fact stressed by the appellant that the police only made use of flashlight after the request had been made of the appellant to produce the necessary papers and not when the constable first approached the car. Although the safety of the police might make it preferable to use the flashlight at the earliest opportunity, it certainly can be utilized at any time as necessary incident to the check stop routine. However, the subsequent questions pertaining to the gym bag were improper. At the moment the questions were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the possession of the appellant. The appellant’s words, actions and manner of driving did not demonstrate any symptoms of impairment. Check stop programs result in the arbitrary detention of motorists. The programs are justified as means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into means of conducting either an unfounded general inquisition or an unreasonable search. [51] In later decision, The Queen v. Belnavis, 1997 CanLII 320 (SCC), [1997] S.C.R. 341, La Forest J. (dissenting on another issue), at p. 371, stated: the police, since Ladouceur, supra, have the power to stop cars at their whim for purposes of traffic regulations and the like and to make enquiries relevant thereto from the occupants. also agree that the police in performing that duty need not turn blind eye to things in plain view that evidence, or raise suspicions of illegality, and that he or she may also ask questions about this, subject, of course, to the occupants’ right to silence. [52] In The Queen v. Sewell, supra, the Saskatchewan Court of Appeal recognized that police have legitimate general duties and powers when dealing with stopped motorists including looking, smelling and listening. Paragraphs 38 to 41 of that decision read as follows: [38] Even if were to find that the officer’s presence at the back of the vehicle was unlawful for the reasons contended by the appellant, would be hard pressed to find that the officer lacked authority to arrest the appellant for an offence he found him committing. By way of analogy, offer this set of circumstances. police officer unlawfully enters dwelling house. That unlawfulness is rooted in breach of one of the occupant’s Charter rights. He finds the occupant pointing gun at another person who is strapped to chair in distraught state. Is the officer precluded from arresting that occupant for committing the offence of forcible confinement on the ground that he, the officer, unlawfully entered the dwelling house? would find it very odd, indeed, if breach of the occupant’s Charter right brought about such result. [40] Tallis J.A. wrote in dissent, but the majority found it unnecessary to deal with the issues reflected in these comments. find that in the present case, the officer, after experiencing “a very strong smell of marihuana, raw marihuana, in the back of the vehicle” (trial transcript, p. 26, lines 23-24), had reasonable and probable grounds to continue the search in question, that the evidence satisfies the D.(I.D.) test and that the search was not unlawful. [41] In the result, I find no breach of the appellant’s s. 8 Charter rights. [53] In The Queen v. Brown, 2001 SKQB 382 (CanLII), (2001) 210 Sask. R. 295 (Q.B.) (appeal dismissed without reasons), Saskatchewan Court of Appeal file 362, the court held that police may ask questions of detained motorist concerning observation or involvement in possible break and enter. [54] In the case before me I find that Constable Wilson was not in breach of the accused’s Charter rights by asking her where she had been and how long she had been there. [55] I find that the accused was not arbitrarily detained and there was no breach of her s. 9 Charter rights. Arrest or Detention [56] Section 10 of the Charter provides in part: 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; [57] In the case before me, I find that on the arrest or detention of the accused she was promptly informed of the reasons therefor and she was informed of her right to retain and instruct counsel without delay. There was no breach of the accused’s s. 10 Charter rights. [58] In summary I find that there has been no breach of the appellant’s ss. 8, 9 or 10 Charter rights. However, even if had concluded that evidence was obtained against the accused in manner that infringed or denied any of her rights or freedoms as guaranteed by the Charter, would not find that, having regard to all the circumstances, the admission of such evidence would bring the administration of justice into disrepute. [59] The test for the exclusion or non-exclusion of evidence was first articulated in The Queen v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265. This was later clarified in The Queen v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607. [60] The factors to be considered in an analysis of s. 24(2) of the Charter were recently stated by Arbour J. in R. v. Buhay (2003), 2003 SCC 30 (CanLII), 174 C.C.C. (3d) 97 (S.C.C.). At p. 116, Arbour J. stated: D. Should the Evidence be Excluded Under Section 24(2) of the Charter? [41] Since this Court’s landmark decision in Collins, supra, the various factors to be considered in making this determination have been organized under three-step inquiry which has been generally adopted and applied in subsequent decisions of this Court. In the recent decision of Law [2002 SCC 10 (CanLII), [2002] S.C.R. 227], the Court summarized at para. 33 the process for determining whether the admission of evidence would bring the administration of justice into disrepute: In Collins, supra, this Court grouped the circumstances to be considered under s. 24(2) into three categories: (1) the effect of admitting the evidence on the fairness of the subsequent trial, (2) the seriousness of the police’s conduct, and (3) the effects of excluding the evidence on the administration of justice. Trial judges are under an obligation to consider these three factors. (1) Trial Fairness [50] The evidence obtained in violation of the Charter which does not emanate from the accused but rather existed independently of the violation is classified as non-conscriptive evidence. Its admission will not affect adjudicative fairness, but the second and third sets of factors may militate towards its exclusion: Stillman, supra; R. v. Evans, 1996 CanLII 248 (SCC), [1996] S.C.R. 8, 104 C.C.C. (3d) 23, 131 D.L.R. (4th) 654. [61] find that the cannabis marihuana discovered at the side of the road near the railway crossing after being thrown from the accused’s vehicle was non-conscriptive evidence. [62] At pp. 119-20 under the heading “Seriousness of the Breach”, there is the following: [52] The second set of factors relates to the seriousness of the Charter violation. The seriousness of the police’s conduct depends on “whether it was committed in good faith, or was inadvertent or of merely technical nature, or whether it was deliberate, wilful or flagrant” Therens [1985 CanLII 29 (SCC), [1985] S.C.R. 613], at p. 652. It is also relevant to consider whether the violation was motivated by situation of urgency or necessity: Therens, at p. 652; R. v. Silveira, 1995 CanLII 89 (SCC), [1995] S.C.R. 297 at p. 367, 97 C.C.C. (3d) 450, 124 D.L.R. (4th) 193; Law, supra, at para. 37. Also pertinent is whether the police officer could have obtained the evidence by other means, thus rendering her or his disregard for the Charter gratuitous and blatant: Collins, supra, at p. 285; Law, supra, at para. 37. The court may also look at some or all of the following factors: the obtrusiveness of the search, the individual’s expectation of privacy in the area searched and the existence of reasonable and probable grounds (R. v. Caslake, 1998 CanLII 838 (SCC), [1998] S.C.R. 51, 121 C.C.C. (3d) 97, 155 D.L.R. (4th) 19, at para. 34). As we have seen, the trial judge is entitled to considerable deference on this point: Law, supra, at para. [63] In the case before me, Constable Wilson conducted legal vehicle stop after observing the broken tail light on the accused’s vehicle. find that Constable Wilson’s conduct was committed in good faith. It was not deliberate, wilful or flagrant. It is apparent that at 4:30 in the morning on dark night on highway there was some urgency or necessity to deal with this matter. Further, in the end result the police officers were able to obtain the evidence of the cannabis marihuana in the accused’s vehicle when it was thrown out of that vehicle. Thus, if there had been any disregard for the Charter rights, such disregard would be rendered gratuitous and blatant. [64] Counsel for the accused submits that the search if any began when Constable Wilson inquired of the accused where she had been and how long she had been there and the statement of fact that she had no luggage. Counsel for the accused also submits that when Constable Wilson shone his flashlight into the accused’s purse, this was search. In the case before me find that the search was not obtrusive. The accused’s expectation of privacy in her vehicle would be minimal and most important of all find that there was an existence of reasonable and probable grounds. [65] At p. 125 in R. v. Buhay, supra, Arbour J., under the heading “The Effect of Exclusion on the Reputation of the Administration of Justice”, states: [67] The third question from Collins is whether excluding the evidence would have more serious impact on the repute of the administration of justice than admitting it. This factor is generally related to the seriousness of the offence and the importance of the evidence to the case for the Crown. In Law, supra, at para. 39, the Court summarized this inquiry as follows: “In general, this turns on whether the unconstitutionally obtained evidence forms crucial part of the Crown’s case and, where trial fairness is not affected, the seriousness of the underlying charge.” [66] In the case before me, the admissibility of the evidence is essential to the Crown’s case in count in the indictment. [67] Count in the indictment is serious offence. [68] At pp. 126-27, Arbour J. stated: [71] Admittedly, there are various precedents where non-conscriptive evidence such as drugs was admitted on the basis that exclusion would bring the administration of justice into further disrepute than admission would, especially where the evidence was essential to the Crown (see, e.g., Mercer [(1992), 1992 CanLII 7729 (ON CA), 70 C.C.C. (3d) 180 (Ont. C.A.)]; Kokesch [1990 CanLII 55 (SCC), [1990] S.C.R. 3]; Evans, supra). Section 24(2) is not an automatic exclusionary rule (see, inter alia, Dyment, supra); in my view, neither should it become an automatic inclusionary rule when the evidence is non-conscriptive and essential to the Crown’s case. [72] The question under s. 24(2) is whether the system’s repute will be better served by the admission or the exclusion of the evidence, and it is thus necessary to consider any disrepute that may result from the exclusion of the evidence: Collins, supra, at pp. 285-86. At the end of the day, though, the constitutional question is whether the admission of the evidence would bring the administration of justice into dispute (Collins, supra, at p. 281). [emphasis in original text] [73] The decision to exclude evidence always represents balance between the interests of truth on one side and the integrity of the judicial system on the other: R. v. Simmons, 1988 CanLII 12 (SCC), [1988] S.C.R. 495 at p. 534, 45 C.C.C. (3d) 296, 55 D.L.R. (4th) 673. This was well put by Doherty J.A. in recent decision of the Court of Appeal for Ontario, R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 161 O.A.C. 169, 166 C.C.C. (3d) 14, at para. 47: “The last stage of the R. v. Collins, supra, inquiry asks whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great toll on the truth seeking goal of the criminal trial.” [69] Although have found that there has been no breach of the accused’s Charter rights, had found that there was breach on the facts before me, would find that having regard to all the circumstances the exclusion of the evidence in these proceedings would bring the administration of justice into disrepute.

The accused was charged with possession of marijuana for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act and four other charges related to her attempts to evade arrest. At the onset of her trial, the accused took the position that her s. 8, s. 9 and s. 10 Canadian Charter of Rights and Freedoms were infringed and that all the evidence obtained after the stop should be excluded. HELD: The accused's Charter rights were not breached. 1) The strong odour of raw cannabis marijuana emanating from the interior of the accused's vehicle in itself amounted to reasonable grounds not only for lawful detention but also for arrest. 2) The officer was not in breach of the accused's Charter rights by asking her where she had been and how long she had been there. 3) On the arrest or detention of the accused, she was promptly informed of the reasons therefore and she was informed of her right to retain and instruct counsel without delay.

9_2003skqb459.txt

1993 S.H. 93‑4201 IN THE SUPREME COURT OF NOVA SCOTIA IN THE MATTER OF: An Application by JOSEPH GLENN JESSOME for an order to Quash thee Order of His Honour Judge Ross B. Archibald on July 5, 1993; BETWEEN: JOSEPH GLENN JESSOME and THE ATTORNEY GENERAL FOR THE PROVINCE OF NOVA SCOTIA FOR HER MAJESTY THE QUEEN. BEING NOTIFIED PURSUANT TO THE REQUIREMENT OF RULE 58.03 OF THE CIVIL PROCEDURE RULES (N.S.) Respondent HEARD: At Halifax, Nova Scotia before The Honourable Justice Edward Scanlan, in Chambers, November 17, 1993 DECISION: November 17, 1993 WRITTEN RELEASE OF ORAL DECISION: COUNSEL: Daniel Graham, Esq., and Cathy Benton, for the Applicant Donald Presse, Esq., for the Respondent Scanlan, J. (Orally) First of all, would like to thank counsel for the assistance they have rendered to the court by way of briefs and submissions and the case law that has been provided to me. It has been of great assistance. The applicant here is requesting an order of prohibition and certiorari directing that Judge Archibald and any other provincial court judge cannot hear the trial The Queen v. Joseph Glenn Jessome. The affidavit of Mr. Graham sets out the history of the case leading up to July 5, 1993, when the adjournment complained of was granted. For the record, refer to paragraphs to 10 of that affidavit: 4. On March 2. 1993, the Applicant elected to be tried in Provincial Court. He plead not guilty and trial date was set for July 6, 1992. 5. In late April of 1993 contacted Darrell Martin of the Crown Attorney's office and informed him that potential defence witness would not be available to appear for the originally set date of July 6, 1993 because she was living in New Brunswick. 6. On May 3, 1993, Mr. Martin and appeared before Judge Sherar and agreed upon an earlier trial date of May 21, 1993. 7. On or about May 14, 1993, Mr. Martin advised me that he would not be able to procure the attendance of the alleged victim, Mr. Herbert, for May 21, 1993, as he was living in New Brunswick. 8. On May 21, 1993, the matter was set over to May 25, 1993. 9. On May 25, 1993, the parties again appeared before Judge Sherar and agreed on new trial date of July 5, 1993. 10. On July 5, 1993, the parties appeared before His Honour Judge Ross Archibald for trial. The Crown was represented by Don Presse. Mr. Presse sought an adjournment of the trial because it had been unable to procure the attendence of Mr. Herbert from New Brunswick. No affidavit was filed the court on behalf of the Crown. The affidavit of Mr. Graham sets out the history as have just indicated. It is important as well that review the facts as presented to the trial judge. refer now to page of the transcript and read in part: ...on May 3rd, at Defense request, the matter was brought into Court and they moved the trial ahead to May 21st. However, after in the meantime the victim had moved to New Brunswick and he was not able to make arrangements to be down here in short of time. ...the matter was put over to May 25th this date was set. Now understand from the police officer that shortly after this date was set, he had made request in the Court office for an out-of-town subpoeona for the victim. It goes on: ...the order was taken out but the order was only taken out on June 28th of 1993. It was only signed by Mr. Justice Goodfellow for the out-of-town subpoena. The subpoena was then couriered up to New Brunswick, Chatham Police. They attempted to serve Mr. Herbert, the victim in this case, on Thursday and Friday. They contacted me on Friday and said they couldn’t get him because he had gone camping in Fredericton and there was no his family indicated they had no phone number and did not know where he was. It turned out that Mr. Herbert actually learned of the trial on the Sunday afternoon and he was not able to attend. Mr. Graham, in his submissions, has referred me to the case of The Queen v. Casey 80 N.S.R. (2d) 249. The Casey case refers to Darville v. The Queen (1956), 1956 CanLII 463 (SCC), 116 C.C.C. 113, which sets out three‑part test to be met before an adjournment can be granted. refer to those tests at set out at page 249 of the Casey case: (a) that the absent witnesses are material witnesses in the case; (b) that the party applying has been guilty of no laches or neglect in omitting to endeavour to procure the attendance of these witnesses; (c) that there is reasonable expectation that the witnesses can be procured at the future time to which it is sought to put off the trial. In essence, the applicant here indicates that it is really only on the second ground that they challenge the adjournment. The learned trial judge indicated that he was familiar with the Casey case, and he mentioned that in his decision. The trial judge indicated, in his words, ...the Crown has attempted to co‑operate with the Defence in setting dates and co‑operated to the extent that they apparently fumbled on one of the subpoenas. The trial judge granted the adjournment. The preliminary issue raised by the Crown is as to whether or not the extraordinary remedies of prerogative writ, in this case certiorari and an order of prohibition, is in fact and appropriate remedy. refer to Section 669.1, subsection (2) of the Criminal Code: Any court, judge or provincial court judge having jurisdiction to try an accused or defendant, or any clerk or any other proper officer of the court, or in the case of an offence punishable on summary conviction, any justice, may, at any time before or after the plea of the accused or defendant is taken, adjourn the proceedings. The Crown has also referred me to Section 571 of the Code. Clearly, it is within the jurisdiction or power of the trial judge to deal with the issue of adjournments in accordance with the relevant sections of the Code. The applicant’s position is that if there is an error in law in exercising that discretion and if the error is so substantial that it results in denial of natural justice, then it gives rise to the right to seek the assistance of the prerogative writ. refer to the case of The Queen v. Gray 1991 CanLII 7130 (ON SC), 68 C.C.C. (3d) 193, decision of the Ontario Court (General Division), Justice Watt, 1991, at page 204, It is as well to recall at the outset that it is the burden of the applicant to establish jurisdictional error by the learned Provincial Court judge in the conduct of the s.16(3) inquiry. Absent its adequate demonstration, the applicant is disentitled to the extraordinary remedy which here he seeks. The judge goes on to say, and emphasize, Jurisdictional error is not to be equated with error of law. By jurisdiction is meant the authority to decide case, to determine an issue. Its essence is the authority to determine the issue, not the nature or correctness, actual or perceived, of the determination made... also refer to the additional comments by Justice Watt, also at page 204. It has often and rightly been said that, in matter within its jurisdiction, court of limited jurisdiction may misconstrue statute (other than an enabling statute) or otherwise mis‑decide the law as freely and with as high an immunity from correction, except on appeal, as any other judge or court. refer also to the case of Re Skogman and The Queen 1984 CanLII 22 (SCC), 13 C.C.C.(3d), 161, and specifically the comments of Justice Estey at page 167: It need only be added by way of emphasis that such certiorari review does not authorize superior court to reach inside the functioning of the statutory tribunal for the purpose of challenging decision reached by that tribunal within its assigned jurisdiction on the ground that the tribunal committed an error of law in reaching that decision, or reached conclusion different from that which the reviewing tribunal might have reached. I hold that the decision as to whether or not to grant an adjournment was within the jurisdiction of the judge and that any decision in that regard was an exercise of his discretion within that authority. He had the right to exercise the discretion and the right to be wrong. If there is any remedy, it is by way of appeal, not by way of prerogative writ. would go on to say that even if am wrong in that holding, that note again that the trial judge indicated that he was familiar with the principles as enunciated in the Casey decision. am not satisfied that he erred at law or that there was any denial of natural justice resulting from his decision to grant the adjournment. The sequence of events leading up to the adjournment provided an adequate basis upon which the judge could exercise his discretion in favour of granting the adjournment. There was sufficient material before the court upon which the court could satisfy itself that the second test as set out in Darville was met. Again I note that the applicant concedes that the second test of neglect or laches is the main basis of his application. One final matter that would note is the suggestion that the decision had to be based on affidavit evidence, and do not accept that premise as put forth by the applicant. There have been numerous cases before the court wherein the court has made discretionary decision based on submissions of counsel. Both counsel made submissions and there was no controversy as to the events leading up to the witness not being available at the date of the trial. I would dismiss the application.

The applicant sought an order for certiorari quashing a decision of the trial judge granting an adjournment and a prohibition from hearing the trial. In earlier hearings, the Crown and applicant had each sought new trial dates to ensure procurement of witnesses for trial. The Crown sought to subpoena the victim to testify. Due to the delay in obtaining authority to serve an out of town subpoena in New Brunswick, the Crown was unable to serve the victim until three days before trial. The victim did not learn of the trial date until the day before and was unable to attend. An adjournment was granted. The applicant contended the trial judge had exceeded his jurisdiction. Dismissing the application. It is within the jurisdiction of the trial judge to deal with the issue of adjournments in accordance with the provisions of the Criminal Code. Jurisdictional error is not to be equated with error of law. Any decision to grant an adjournment is therefore within the court's proper discretion. If a remedy exists, it is by way of an appeal and not a prerogative writ. In any event, the sequence of events was sufficient to justify the granting of an adjournment. There was neither neglect nor laches on the part of the Crown.

1993canlii3448.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: McLellan v. Shea Malik, 2004 NSSC 255 Date: 20041018 Docket: SN 111374 Registry: Sydney Between: Kenneth A. McLellan and Sadie McLellan and Marian McLellan v. Tina Louise Shea and Dr. H. G. Malik Respondent Judge: The Honourable Justice F.B. William Kelly Heard: October 13, 2004, in Sydney, Nova Scotia Written Decision: December 6, 2004 Counsel: Harvey M. MacPhee, for the plaintiffs Brian W. Downie, for Dr. H.G. Malik Robert M. Purdy, Q.C. for Tina L. Shea By the Court (Orally): [1] The applicant, Mr. Kenneth McLellan, was injured in single motor vehicle accident shortly after midnight on November 26, 1998, while riding in vehicle operated by one defendant, Ms. Tina Louise Shea. The accident is substantially based on injuries he received in the accident and, more specifically, on the treatment provided to him by the other respondent, Doctor H.G. Malik, at the Cape Breton Regional Hospital in Sydney, Nova Scotia. [2] Doctor Malik now applies, pursuant to s. 34 (a)(ii) of the Judicature Act R.S.N.S. 1989, c. 240, to set aside the Jury Notice filed by the applicants. The application was heard at Sydney on October 13, 2004. The other Applicants in the action are Mr. McLellan’s wife, Sadie McLellan, and his mother, Marion McLellan, who died after the commencement of the action. Counsel for the Applicants advises that he had not been made aware of the death of Marion McLellan until the hearing of this application. He indicated he needs to further consider the effect of her death on the action before taking any steps in response to this information. do not consider this uncertainty will affect the outcome of this application such that should not proceed to decision on this time. [3] The claim against the other defendant, Ms. Shea, was dismissed by Court Order dated March 21, 2001. However, she is still party by virtue of her cross-claim against Doctor Malik and his cross-claim against her. Her counsel has advised the Court in writing he would not appear at this hearing to make submissions but that his client desires the matter to be heard by jury. [4] In Marshall v. Curry (No. 2), 1933 CanLII 346 (NS CA), [1933] D.L.R. 198 (N.S.S.C.), Chisholm C.J. concluded that “[i]f the trial requires scientific investigation, think it must be conceded that the investigation cannot conveniently be made with jury” (p. 200). This decision was subsequently affirmed (see pp. 200-201). Since that time the education and experience of the average juror has improved considerably and it has been acknowledged by our courts that some level of complex and scientific evidence could comfortably be left with the jury. In the modern era, an established authority in this province with respect to striking jury has been the decision of Hallet, J., as he then was, in Leadbetter v. Brand (1980), 37 N.S.R. (2d) 660 (T.D.), where he stated that: “the degree of complexity is the key issue in an application to strike on that ground” (para. 8; emphasis in original). He concluded that the judge hearing the matter must review the relevant facts to assess whether or not the party who served the notice should be deprived of his or her prima facie right to jury trial (at para. 8). [5] Further, in MacIntyre Nova Scotia Power Corp.(1995), 1995 CanLII 4399 (NS SC), 145 N.S.R. (2d) 209 (S.C.) Tidman J. expanded this obligation at paragraph 14: The “degree of complexity” ... relates not only to the expert evidence per se, but also encompasses the extent and type of other evidence to be offered and the complexity in relating and applying all of the evidence to the issues before the court. [6] It is not disputed that the right of party to civil jury pursuant to the Judicature Act is right of substance, not to be easily set aside by the Court. This principle is well expressed in Neelands and Neelands v. Haig (1957), 1957 CanLII 357 (ON CA), D.L.R. (2d) 165 (Ont. C.A.), at p. 167: The right of party to trial with jury is substantive one. The defendant in this case gave notice of trial by jury, and he is not lightly to be deprived of his right to have the trial proceed in that way. trial Judge has wide, and indeed one might say an absolute, discretion as to the mode of trial, but his power to decide whether case should be tried with jury or without jury is one that cannot be exercised arbitrarily or capriciously. It must be exercised in judicial manner and there must be sufficient reason to deprive party of the substantive right to trial in the manner chosen by him.... In Leadbetter, supra, Hallett J. cited the Alberta decision in Wenger v. Marien (1977), 1977 CanLII 584 (AB QB), 78 D.L.R. (3d) 201 (Alta. S.C.T.D.), where Milvain C.J.T.D. discussed the problems that can arise in medical malpractice cases. Hallett J. said, at paragraph 7: In Alberta party has right to jury trial as in Nova Scotia.... [Milvain C.J.T.D.] considered number of cases dealing with the question of scientific investigation. He came to certain “definite conclusions” which he stated as follows [at p. 205]: (1) Section 32(2) [of the Alberta Jury Act] confers discretionary power that must be exercised judicially and which should not be cabined and confined within rigid rules. (2) The situations envisaged in the subsection require wide rather than restricted interpretation. (3) jury is suitable tool for determining common sense matters but not those of more complex nature. (4) Cases involving negligence of professional people bring into play determination beyond that of the reasonably prudent man in his actions, to that of the properly trained and careful professional. (5) In general, consideration of evidence where professional negligence is in issue falls into two important aspects. One aspect is as to what all of the relevant facts are and in the second place as to what are the requirements which must be met by the professional and what departure amounts to negligence. (6) That it is certain the search for evidence in any action involving the professional conduct of doctor does involve complicated and difficult scientific investigation, both from the point of view of determining and understanding the relevant facts as to what happened and from the point of view of determining whether there has been departure from professional skill, knowledge and care. [7] would also refer to Vaninetti Victoria General Hospital and Huestis (1994), 1994 CanLII 4260 (NS SC), 135 N.S.R. (2d) 385 (S.C.), where Gruchy J. said, at para. ... am sure that (to use the words of MacDonald J. in Young et al. v. St. Rita Hospital and Critchley (1985), 68 N.S.R. (2d) 293 (T.D.), ... ...a jury's discernment of the issues will improve when the jargon of the medical experts is reduced to terminology more easily understood". Grant, J. made much the same point in Heartz v. Halifax Infirmary and Attia (1990), 1990 CanLII 4149 (NS SC), 99 N.S.R. (2d) 317 ... when he said that, "Much of the terminology used is of Latin or Greek derivation; however, the terms can be readily translated into lay term." tried the latter case and my observation was that the jury appeared to experience no difficulty. had similar experience with the case of Upham v. You (1990), 1990 CanLII 4147 (NS SC), 101 N.S.R. (2d) 376.... [8] It remains fore me to review the submissions of the parties and the materials presented at the hearing, most significantly the affidavits of counsel with attached medical and actuarial evidence, to determine if this material is of such complexity and of such technical nature that it could not be fully assessed by properly informed jury. [9] In the particular context of this application, follow number of authorities in citing with approval the words of Rogers J. in Myra v. Langille (1987), 80 N.S.R. (2d) 135 at paragraphs 13 to 17: 13. Not all malpractice suits, perhaps not even the majority, involve that kind of complexity, although with technical expert testimony, that jury cannot come to grips with the evidence with which they have been presented, particularly with the help of counsel and the court directing their attention to the relevant evidence and law, and particularly if they have the necessary time to deliberate. 14. In my view, reasonably educated and informed jury is just as capable, perhaps even more so, because there are seven of them, of assessing expert medical testimony, as single judge. This is so, particularly if that evidence is presented to it, as it should be, in way that reasonably educated and informed group of lay people can understand it. No more is done when single judge hears the case. The judge is not an expert in medicine when he hears medical malpractice suit and must assess what are often conflicting medical opinions without medical expert's background. He is faced with the same difficulties jury is faced with when medical evidence is introduced. He and they must assess the evidence, the weight of it, the conflicts in it, and make findings with respect to it. 15. Complicated medical evidence is often presented in criminal jury trials, yet the trials go forward and the juries deal with the issues raised by that evidence. 16. The knowledge of no profession which deals with the public should be clothed in so much mysterious complexity that it cannot be explained in understandable terms to reasonably intelligent jury of fellow citizens. 17. In applications to strike out jury notice otherwise properly made judge must weigh the complexity of the evidence that will be adduced at trial against the longstanding, traditional and substantive right of applicant in Nova Scotia to jury trial. There must be cogent reasons to remove case from jury. [Emphasis in original.] [10] would suggest that many medical malpractice suits, almost all of which involve expert medical reports with associated records and comprehensive actuarial reports, should not be beyond the capacity of civil jury. In most cases, as here, they will be handled by competent and experienced counsel who are skilled at presenting such evidence to judge or jury. If, at trial, the judge considers the case is becoming too complex, she or he may sever part of the case or, if necessary, may refuse to leave the case to the jury. [11] Most of the facts relating to causation in this matter appear to be agreed upon or not in significant dispute. The principal dispute relates to the medical condition of Mr. McLellan in the period before his treatment by Dr. Malik, the doctor’s medical involvement with the patient and the patient’s medical condition after Dr. Malik’s treatment. ACCIDENT AND MEDICAL SUMMARY [12] will give an overview of the facts relating to causation. Mr. McLellan was injured in motor vehicle accident at approximately 12:30 a.m. on November 26, 1998 when the vehicle in which he was passenger (driven by Ms. Shea) apparently hit an ice patch and went off the road near Ingonish Beach, Nova Scotia. It was reported that he was able to “walk away with assistance” from the accident scene and he, along with Ms. Shea, was driven by passerby to residence where he spent an uncomfortable night. Around 8:05 the next morning he attended at the Buchanan Memorial Hospital, where it was reported that he walked into the emergency room and had the use of all four extremities. Because he complained of severe cervical pain and other symptoms, cervical x-ray was taken which revealed C-6 subluxation on C-7, and spinous process fracture; in effect, broken neck. The physician placed him in cervical collar and arranged transport to the Cape Breton Healthcare Complex in Sydney later that day. [13] During transport Mr. McLellan was observed to be capable of limited movement of his limbs. In Sydney he came under the care of Dr. Malik, who instituted cervical traction to reduce the spinous dislocation, process that appears to have brought the spine into reasonable alignment. Subsequently, at about 3:00 p.m. on November 26, it was reported that he had some sensations in all of his limbs, but some muscle reflex was diminished, as was pin prick perception in both hands. Dr. Malik observed the injured area at about 8:00 p.m. using an x-ray device which apparently, in this case, produced no record. He determined from this observation that he should operate, and did so the following day, November 27. understand that the purpose of the operation was to stabilize the injured site by the application of internal fixators or clamps. When Mr. McLellan was in the recovery unit after this surgery nurse noted that he was not moving his legs and Doctor Malik was called again. myelogram indicated complete blockage in the upper thoracic area, apparently indicating complete C6 quadriplegia. [14] The next day Mr. McLellan was flown to the Queen Elizabeth II Health Science Centre in Halifax, where an M.R.I. imaging sequence revealed C6/7 acute disk herniation which caused displacement of the spinal cord. Another operation resulted in the removal of the clamps inserted by Dr. Malik. Other procedures were performed, including internal fixation by lens plate and screws. Despite this intervention, Mr. McLellan was discharged many weeks later from the Q. E. II Rehabilitation Centre with the same diagnosis as the admission diagnosis: “traumatic C6-7 facet dislocation (C6 fracture) with C6 quadriplegia.” CONSIDERATION [15] The burden of proof in an application to strike jury is on the applicant to show that there are cogent reasons to do so: Atkinson v. Flynn et al. (1998), 1998 CanLII 6303 (NS CA), 170 N.S.R. (2d) 385 (C.A.) at para. 5. Counsel for the applicant submits that the action will involve complex medical questions and notes that the medical charts exceed 1,500 pages, but it appears that the more relevant hospital records are less than 100 pages. Volume is relevant in assessing complexity but, as Grant J. said in Corkum v. Sawatsky et al. (1992), 1992 CanLII 4653 (NS SC), 113 N.S.R. (2d) 406 (S.C.T.D.) at paragraph 34: “The volume of the material in itself is not the determining factor. Here, however, much of it is contradictory and all of it is complex.” Grant J. concluded that the expert evidence was of such complexity that it should be assessed by judge and not jury. He considered splitting the two elements of the trial between the judge and the jury, noting that there may be circumstances where it would be equitable to split, but said he had “not been asked to do so” (para. 37). [16] In Corkum, supra, damages included ten disputed appraisals of property along with several reviews of these appraisals, one by consulting economist, all lengthy. This expert evidence was in addition to the assessment of damages to an applicant totally disabled from employment as well as the usual medical evidence. In these somewhat unusual circumstances Grant J. struck the jury in part because he was not the trial judge. As in the present proceeding, the trial judge was not yet appointed. Grant J. commented that the trial judge should normally deal with an application to strike (para. 35). [17] Counsel in the present matter agree that the length of the trial will be approximately three weeks. They appear to agree that the essence of the liability issue will be limited in time (since the medical interventions occurred within two to three days), in the most relevant anatomical area (the thoracic vertebrae region of the spinal column) and in the number of medical personnel involved in the relevant interventions. [18] The medical experts will mainly focus on the interventions of physicians and neurosurgeons at the medical centres at Neil’s Harbour, Sydney and Halifax. The principal subject matter will be the interventions of Doctor Malik and of the personnel at the Q.E.II Health Sciences Centre, particularly the neurological surgeon, Doctor R.O. Holness. [19] Counsel for the respondent proposed that the causation issue could be set out as follows (I paraphrase): was Mr. McLellan’s dramatic result caused by or contributed to by Doctor Malik’s operation to insert pressure clamps in the presence of an undetected disk hernia? The respondent’s expert reported in an opinion letter that he believed the spinal cord injury was exacerbated during the surgery, resulting in quadriplegia. The medical report of the defendant’s expert (dated June 14, 2004) indicated that he believed “there were three major contributing factors that combine to precipitate it. 1. congenitally narrow spinal canal. 2. C6/7 herniation and, 3. Insertion of the clamp fixating devices.” presume his reference to the fixating devices are those inserted by Doctor Malik. [20] understand that the position of the respondent/applicant is that Doctor Malik, when presented with the x-ray evidence of C6 dislocation on the C7 and the C6 spinous process fracture, should have used further radiological investigation to determine if there was disk herniation or other impingement into the spinal canal. The submission is that he should have used more appropriate imaging device before operating or, failing access to such device, transport Mr. McLellan to Halifax where such imaging devices were available. [21] The position of the applicant/defendant is that, because Mr. McLellan presented with very unstable dislocation and was at high risk for neurological injury, it would have been dangerous to transport him to Halifax in that condition, and that his medical intervention demonstrated an acceptable standard of care given the imaging resources available to him. [22] In my opinion much of the factual material relating to these issues is not substantially contested, but the opinions of the opposing medical experts will be a major area of contention at trial. [23] It is my opinion these issues are no more complex than most causation issues presented in medical malpractice cases. The three opinion letters provided by the respective medical experts consists of total of nine pages and appear to agree on most of the facts upon which their contradictory opinions rely. am satisfied that jury will be capable of dealing with the medical evidence. [24] The other major matter to be considered in this application is the potential evidence relating to damages. The applicant/defendant submits that this evidence will be so technical and complex that, combined with the evidence relating to causation, it will be of such complexity and volume that it should be taken from the jury. Mr. McLellan has advanced substantial claim, including pain and suffering, past and future cost of care, loss of income and amenities and interest on those claims, as well as costs. [25] substantial part of these claims will be based on the report of Linda Stanley, M.S.W., R.S.W., consultant in rehabilitation and cost of future care. This is 17-page report, including 15 pages of analysis of Mr. McLellan’s pre-injury personal profile (including his medical history), summary of the accident, diagnosis and treatment as well as post-injury complications. It also gives the reporter’s assessment of his present functional abilities and his present daily living activities. Finally the report deals with his current management and care, including medications. Each category concludes with her recommendation of methods to assist him in coping with his limitations in the future. Attached to the report is breakdown and explanation of cost projections and summary of the costs of these recommendations, extending to ten pages. further five-page appendix deals with information about spinal cord injury, which assume is the technical medical information that the reporter used for reference. [26] In my opinion, none of this material appears to be unusually complex. It is the usual type of analysis expected with most claims, particularly those involving significantly disabling injuries. [27] do not doubt counsel for Doctor Malik when he claims that many of the reporter’s assumptions will be challenged. The applicant’s expert reports differ somewhat in their conclusions, but this is not unexpected, as Mr. McLellan’s income was not regular, consistent one. They agree, however, that the source of his income was fishing, employment insurance benefits and the operation of camp ground, as well as whale-watching tour operation. In any event one could also expect that the assumptions of report by Brian A. Burnell of Burnell Actuarial Consulting Inc. would be challenged in the same way. The report provides an opinion of the value of Mr. McLellan’s past and future losses. As have stated above, reports such as these are not unusual nor unexpected in such cases and are helpful to the trier of fact in considering variations from the amounts claimed, after hearing directions by the trial judge as to relevant evidence and law and after receiving argument by counsel. have reviewed these reports in detail. [28] Counsel for Dr. Malik advises that an expert report from an economist will be presented at trial in support of his client’s position. This will add to the complexity but have no basis to determine that this report will add substantially to the complexity of the evidence. [29] After considering the issues involved in this case and the nature of the medical and actuarial evidence that will likely be adduced, am satisfied that jury would be capable of understanding the issues. I conclude that the evidence will not be so complex and scientific that the applicant’s substantive right to a trial by jury should be denied. To do justice to all of the parties, including those other than Mr. McLellan and Dr. Malik, find that there are not sufficiently cogent reasons to set aside the jury in this case. [30] Consequently, the application of the defendant, Dr. Malik, to set aside the jury notice is dismissed with costs of $2,500 and disbursements relating directly to the application.

The defendant doctor in a personal injury case applied to set aside the Jury Notice filed by the plaintiff. Application dismissed; the evidence would not be so complex and scientific that the plaintiff's substantive right to a jury trial should be denied. Although the medical charts exceeded 1500 pages, the more relevant hospital records were less than 100 pages; the essence of the liability issue would be limited in time, in the most relevant anatomical area and in the number of medical personnel involved in the relevant interventions; the factual material did not appear to be in dispute; and the issues were no more complex than most causation issues presented in medical malpractice cases.

b_2004nssc255.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 019 Date: January 27, 2011 Information: 44025627 Location: Prince Albert Between: Her Majesty the Queen and Tyler James Hansen Appearing: C. Scott For the Crown K. Hodgson-Smith For the Accused JUDGMENT S. D. LOEWEN, I. INTRODUCTION [1] The accused, Tyler James Hansen, is facing number of charges outlined in single information. [2] The charges against the accused allege that, on or about June 20, 2010, at or near Prince Albert, Saskatchewan, he did:Count #1 – wound, maim, disfigure, or endanger the life of Chris Hujber, thereby committing an aggravated assault, contrary to section 268(1) of the Criminal Code. Count #2 – unlawfully assault Cst. Chris Hujber, a peace officer engaged in the lawful execution of his duty contrary to section 270(1) (a) of the Criminal Code. Count #3 commit an assault on Pamela Hujber, contrary to section 266 of the Criminal Code. Count #4 being at large on his undertaking entered into before justice or judge and being bound to comply with condition thereof, to wit, shall keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition contrary to section 145(3) of the Criminal Code. Count #5 being at large on his undertaking entered into before justice or judge and being bound to comply with condition thereof, to wit, shall abide by curfew at your residence and be in that residence between the hours of 11:00 p.m. and 7:00 a.m. daily and present yourself in person to any peace officer checking your curfew, except as required for work purpose, fail without lawful excuse to comply with that condition contrary to section 145(3) of the Criminal Code. Count #6 being at large on his undertaking entered into before justice or judge and being bound to comply with condition thereof, to wit, shall abstain completely from the possession and consumption of beverage alcohol within the meaning of The Alcohol And Gaming Regulations Act of Saskatchewan, not be in any premise the primary purpose of which is the sale and consumption of beverage alcohol, not be in any private residence where beverage alcohol is consumed and not attend any community event at which beverage alcohol is served, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code. [3] Prior to trial the accused pled guilty to counts and in the information, being curfew breach and an alcohol abstention breach on his undertaking. At the argument stage of this trial, the Crown indicated they were not seeking conviction on the count related to the alleged assault on Pam Hubjer, and that is appropriate, given the evidence heard. [4] That leaves for consideration counts 1, and 4. [5] On the date in question there was gathering at 126 21st Street East, Prince Albert, Saskatchewan hosted by Gerry Tolentino and Claudette Natomagan, long term common law spouses. They had karaoke night and about 15 people had gathered for that purpose. There was alcohol served at the party and both Gerry and Claudette were, to some extent, under the influence, so to speak. [6] Some time after 1:00 a.m. the accused attended at the party with his girlfriend. Apparently he came to get keys from his brother Blaine, who was guest in the home, and the purpose of obtaining the keys was so that the accused could go back to Blaine’s home as he was staying there overnight. [7] There was evidently significant argument between the accused and his girlfriend, and their stay at this party was cut short and they were asked to leave and both of them left, together with Blaine. The exact reason for them leaving, or the circumstances under which they left was unclear, however, it was apparent they were told to leave. While they were leaving the residence it is evident that they were unhappy and the argument that was going on when they arrived continued out onto the street. [8] The argument between the two was something that attracted the attention of Mr. Tolentino who was in the back yard of his home having cigarette, and also attracted the attention of their neighbours who lived across the street. The neighbours were the complainants in this matter, Chris Hujber, and his wife, Pam Hujber. Coincidentally they had just returned from pub night and were walking up beside their house when they heard the argument. Chris Hujber was an off duty R.C.M.P. officer, not in uniform. When the argument was heard, they both noticed it, however, they entered their own home when they first arrived. [9] The argument continued until the three people entered the vehicle in question. Hujber and his wife were inside their house and then witnessed what was described as “stunt”. The stunt was quite significant in that it involved what is referred to as “brake torque”. This occurs when an engine is placed into gear, revved at high rate with the brakes on, which keeps the vehicle in its place, yet allows the drive wheels to turn, thus creating loud squealing noise and significant amounts of smoke from the squealing tires. [10] At this point Chris Hujber indicated that he left his home to go outside and tell the driver to, in his words, “grab brain”. It is evident from him saying that that he was obviously upset and wanted to intervene to prevent this obvious breach of the peace. He also suspected alcohol use by the driver of the vehicle in question. [11] He went to the front passenger window of the van which was in front of his house facing from his left to his right. He indicated that he pounded once on the window but got no response from the occupants. He felt it was unsafe to go either past the front of the vehicle in question or the back, because of the way the stunting. [12] He pounded on the window second time and after that occurred apparently the brake torque stopped. The passenger, being the accused in this case, then opened the passenger door saying words to the effect “so you think you’re tough”, and came, in Chris Hujber’s words, flying at him swinging his arms and fists, attempting to hit him in the face. [13] The complainant handled the Defendant quite well at first and was holding him off by his shoulders. The accused was swinging wildly at him, something that Hujber indicated shocked him, however no significant blows were landed. At some point during this initial altercation, Hujber fell and indicated that he could not get up. At that point the accused got on top of Hujber and started pummeling him with his fists. [14] Hujber indicated that he was struck approximately ten times, at least five times on his face, as result of which he received, among other injuries, broken nose. [15] What resulted from the fall as he was trying to control Hansen was apparently that his ankle broke. Both the ankle injury and the broken nose were subject to comment of medical report that was filed as Exhibit P1 by consent. [16] Towards the end of this assault, Claudette Natomagan attended the scene, pulled Hansen off of Hujber, and Hansen departed the scene. Shortly thereafter the police arrived and police tracking dog followed scent and found the accused hiding in yard around the corner within block or so of the location of the incident. [17] What occurred obviously constituted an assault, however, I was left with determining the issue in count #1 whether or not a defence of self defence was available to the accused, and on count #2 whether or not Hujber was properly identified and therefore properly acting as a police officer in the line of duty at the time that this incident occurred. [18] On the issue of Hujber being properly identified or acting as peace officer there were three people that testified on the issue of the communication of his status to the accused. The fact that he was police officer employed by the RCM Police at the time, was off duty, was not in uniform, and did not present his badge when he attended the scene was not in dispute. [19] Claudette Natomagan testified that when she arrived, it was at the point where the brake torque had stopped, the complainant was on his back on the boulevard beside the van and was being assaulted by the accused. In her words she yelled at the accused “stop hitting him, you are assaulting police officer”. The accused did not stop his assault immediately and it was necessary for Claudette to physically remove him from the officer. She described herself, and obviously appeared as, rather large woman, and did not have any difficulty in getting the accused off the police officer. [20] Second, Chris Hujber himself testified. He saw the argument, saw the brake torque and went to intervene. He strongly (and rightly) suspected that alcohol was involved and if required he was prepared to effect an arrest of driver of motor vehicle impaired by alcohol. When he went to the window of the vehicle, it is also evident that the accused himself was doing nothing unlawful but was just in vehicle that was causing this significant disturbance. He did not recall whether or not at that instance he identified himself as police officer. He acknowledged that he had no badge and certainly was not dressed in uniform. On the issue of communication of his status to the accused, he said that when he was on the ground, and while the accused was assaulting him, his wife said to the accused that he was police officer. Chris Hujber himself indicated that he told the accused the same thing at the same time period. [21] Pam Hujber indicated that in her recollection her husband indicated that when he attended at the window of the vehicle in question he properly identified himself as police officer, saying words to the effect, “I’m police officer, you have to stop”. She also indicated that she was quite upset, and was trying to call in the assault to the City Police, saying words to the effect of, “there is an officer down. [22] She also indicated that after Chris Hujber fell she told the accused that Chris was police officer in words to the effect that “he’s cop”, and also testified that Claudette used similar words to that effect at the same time. A. Does the defence of self defence apply to the accused in relation to the aggravated assault charge? B. Can the accused be convicted of an assault on peace officer in the circumstances of this case? A. Does the defence of self defence apply to the accused in relation to the aggravated assault charge? [23] The issue as to whether or not the accused can be convicted of an aggravated assault in these particular circumstances can be resolved easily, in my view, by review of the facts of the case. [24] On the issue of wounding it is clearly the Crown’s onus to prove beyond reasonable doubt not only that an assault occurred but that on the evidence, as whole, self defence, is not available as defence in the circumstances. [25] It is clear, as had mentioned earlier that the accused assaulted Cst. Hujber. It is also clear that that assault ended in two injuries which would constitute wounding. [26] First the broken nose is breaking of the skin as it was demonstrated through viva voce evidence and the photographs that Cst. Hujber’s nose, and face, was significantly injured. Second, the injury to Cst. Hubjer’s ankle is wound. [27] It is settled law that an intent to wound is not the requisite mens rea in for an aggravated assault convision. It only needs to be shown that there is “an objective foresight of bodily harm”, that results from the actions of an accused. (See: R. v. Godin,[1] referred to under Tab 11, in the Defendant’s Brief of Law). [28] In the present case the accused,when confronted by the officer, came out with an aggressive attitude, indicating to Cst. Hujber, “so you think you’re tough?”, or words to that effect. The accused exited the vehicle and literally flew at the complainant, flailing his arms and fists and as result of Hujber defending himself from that assault he fell and the assault resulted in his ankle being broken. This is, when viewed objectively, clearly foreseeable result. The test of objective foreseeability put in layman’s terms would be met if reasonable person witnessing the incident would conclude that the injuries could result from the assault. To test the present case on that criterion, it would have to be clear to bystander witnessing the event that the assault could cause such fall and broken ankle could result. In my view the answer to that question is yes. [29] In any event, even if am wrong in that conclusion regarding the injury to Hubjer’s ankle, there was further wounding in that the accused punched the officer in the face. This punching amounted to approximately five blows to the face while the officer was on the ground, again attempting to defend himself from the accused. Again, should one who punches another in the nose be surprised that, upon impact the nose is broken? This again was reasonably foreseeable injury. [30] The accused claims however that he was justified in using force and that the victim in this case should be viewed as the aggressor. Clearly Cst. Hujber was larger than the accused, he approached the accused in an aggressive manner, and the accused therefore argues that the evidence ought to lead to the inference that he felt threatened and the defence of self defence should be available to him. [31] This is, it is said, augmented by the actions of the officer when he pounded on the window of the vehicle in question. Up to this point in time Hansen was not breaking any laws, rather, it was the person operating the vehicle that was. [32] On the facts before me however the accused immediately became aggressive. He asked no questions of the complainant but simply commenced his aggression to him immediately upon exiting the vehicle. He did not appear at all inhibited by the size difference. If indeed he was concerned Cst. Hujber was going to assault him or that Cst. Hubjer was larger than him, and intimidating to him he needed only to have remained in the vehicle with the window up and the door locked. The difference that separated them could easily have continued had he simply done nothing. [33] Section 268 of the Criminal Code, as applied to this particular case, reads as follows: 268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [34] In this instance, on my findings as outlined above, the accused is clearly guilty of the assault in question. Even if the original actions of the accused might be viewed as originally defensive in nature, he clearly used more force than was necessary to defend himself, which takes him out of the protection afforded to him by Section 34 (1) of the Criminal Code. This is evident in that, even after Hansen had controlled the situation, he continued his assault against the victim while the victim was on the ground, and had to be physically restrained from continuing the assault. The officer at this time was clearly in defensive posture, and could not be said, by any reasonable standard, to be posing any threat to the Accused. [35] Section 30 of the Criminal Code provides as follows, namely: 30. Every one who witnesses breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace. [36] Therefore, whether or not Cst. Hujber was acting the course of his duties as a police officer, he had a lawful right to intervene, to prevent the continuation of the breach of the peace he witnessed. It was quite reasonable for him to go to the passenger window where Hansen was seated as the way the vehicle was being operated was clearly danger to anyone in its vicinity, and while he didn’t have right to arrest the accused, by the time the accused placed himself in the position that he did, the breach of the peace had ceased, and the accused was involved in his assaultive behaviour. B. Can the accused be convicted of an assault on peace officer in the circumstances of this case? [37] On the issue of whether or not Constable Hujber was acting in the execution of his duty, again, he did not need to be police officer to engage in the activities that he did, namely, preventing the breach of the peace. However it is constituent element of the mens rea of the offence of assaulting police officer that person know that the person he is assaulting is indeed peace officer. [38] Clearly Cst. Hujber was peace officer. Equally clearly he was, in my view, in the lawful execution of his duty, or at least, not exceeding any authority he had, however, do not have to decide that point. [39] More to the point the issue of whether he was acting in the lawful execution of his duty as far as the accused is concerned, can be decided again by fairly brief reference to the facts. [40] have found on the facts that Charlotte Natomagan, Chris Hujber, and Pam Hujber all testified as to the proper identification of Chris Hujber as police officer. [41] However, none of the three versions of what occurred were consistent with the other and given the heat of the moment and the immediate assault by Hansen on Hujber, am left with some doubt as to whether the mens rea of the offence, namely that the accused knew that the officer in question was in fact police officer has been proven. [42] As an example, Hujber himself did not recall identifying himself as peace officer when he attended at the vehicle that the accused was in and pounded on the window. He was not, as said earlier, dressed as peace officer, nor did he present any identification as such. Contrary to that, Pam Hujber testified that Chris Hujber did in fact identify himself as peace officer. Its difficult to know whether or not this is actually the case, and even if it was the case, the facts surrounding this particular effort to prove identification of the officer in question appropriately is left in some doubt. The window in the vehicle remained closed, there was loud noise coming from the vehicle itself, from the vehicle’s tires, and possibly from the radio inside the vehicle in question. [43] The other way that the message could have gotten through to the accused that Hujber was police officer was testified to by Hujber, Natomagan and Pam Hujber. When he was on the ground being pummeled by the accused, each of the three witnesses indicated that at different times during that final bit of the altercation, they told the accused in different words that Hujber was peace officer. The exact timing and the words used by Hujber were not clearly made out, and also have some doubt as to whether the requisite communication of this fact occurred on that occasion. In any event the assault stopped almost immediately upon Natomagan arriving on the scene which is pretty much the same time that all three of these witnesses testified that the last communication occurred. [44] This issue is essentially, in my view, how the concept of reasonable doubt is tested. Where there are contradictory reports within the Crown’s evidence of matter that is essential to the Crown’s case, and have some doubt about such evidence, must acquit. Even if one of the versions of the particulars of the communication issue is correct, in the heat of the moment, there is some doubt in my mind as to whether or not the accused heard that communication. He certainly did not change his actions towards the officer if he did hear it. V. CONCLUSION [45] Therefore am left, having considered the totality of the evidence without any reasonable doubt as to the accused’s guilt on count #1. No evidence was offered by the Accused to contradict any Crown evidence and the evidence considered by me left me convinced beyond a reasonable doubt and he is therefore guilty of Count #1, the aggravated assault on Chris Hujber. [46] The accused, based on my finding as to the issue of communication of the complainant’s status as a police officer, on count #2, is in some doubt, and therefore the accused is entitled to be acquitted on that charge. [47] On count #3, the Crown has invited me to dismiss that charge, and do so. [48] On count #4, the accused in this case has obviously committed breach of the peace, and he will be convicted, on his prior admission of the undertaking in question, of count #4 as well. [49] Counts #5 and #6 have already been spoken to by way of Guilty Plea. [50] thank counsel for the accused for the extensive brief that she filed which found helpful in analyzing the law. As well, the arguments and cases filed by the Crown were helpful in me making my conclusions today. [51] Dated at the City of Prince Albert, in the Province of Saskatchewan this 27th day of January, A.D. 2011. S.D. Loewen, [1] R. v. Godin, 1994 CanLII 97 (SCC), [1994] S.C.J. No. 55, [1994] S.CR. 484, 31 C.R. (4th) 33.

The accused was a passenger in a van where the driver was stunting on the complainant's street. The complainant was an off duty police officer who left his home and knocked on the passenger window. The accused exited the van and assaulted the complainant resulting in the complainant receiving a broken nose and ankle. The accused was charged with aggravated assault and assaulting a police officer. The accused asserted a defence of self-defence to the charge of assault and questioned whether the complainant was properly identified and acting as a police officer in the line of duty at the time of the incident. HELD: The accused was convicted of aggravated assault and acquitted of the charge of assaulting a peace officer. 1) Regardless of whether the complainant was acting in the course of his duties as a police officer, he had a lawful right to intervene to prevent the continuation of the breach of the peace he witnessed. Even if the original actions of the accused might be viewed as originally defensive in nature, he clearly used more force than was necessary to defend himself. 2) Although three of the Crown's witnesses identified that the complainant identified himself as a police officer, none of the versions of what occurred were consistent with the other. The Court was left with doubt as to whether the mens rea of assaulting police officer was proven, namely that the accused knew that the officer in question was in fact a police officer.

b_2011skpc19.txt

J. 2003 SKQB 61 Q.B.G. A.D. 2002 No. 2305 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON RE APPLICATION PURSUANT TO THE ADULT GUARDIANSHIP AND CO-DECISION-MAKING ACT, S.S. 2000, c. A-5.3, AS AMENDED. D.J. Kendall for the applicants, Joanne Marie Schappert and Thomas Mitchell Sotnikow L.J. Chomyn for the respondent, the Public Trustee FIAT LAING J. February 6, 2003 [1] This application by two siblings to act as personal decision-maker and property guardian for their 68-year old mother is opposed by the Public Trustee insofar as they request they be appointed property guardians without the necessity of filing a bond. This is one of number of similarly contested cases by the Public Trustee since the new Adult Guardianship and Co-decision-making Act, S.S. 2000, c. A-5.3, was proclaimed on July 15, 2001 (hereinafter referred to as the “Act”). [2] Under the previous legislation, The Dependent Adults Act, S.S. 1989-90, c. D-25.1, s. 27, stated in part: 27(1) Unless otherwise ordered by the court, the property guardian shall give security in any amount that the court may direct and with those sureties that the judge may approve, for: (a) duly accounting once in every year, or more often if required by the court; and (b) filing the inventory required pursuant to section 26. (2) The property guardian shall: (a) cause the security required by subsection (1) to be taken by bond in the name of the dependent adult; and (b) file the security mentioned in clause (a) in the office of the local registrar. (3) On the application by the property guardian or any person having, in the opinion of the court, sufficient interest, the court may reduce or increase the amount of security to be given by the property guardian. Under the foregoing legislation the public trustee was not served with notices of application for property guardianship and did not intervene in such applications. The practice under the foregoing legislation for when bond was required was very much ad hoc. If the applicant was from out of the Province, or was not beneficiary under the dependent adult’s will, or if there was opposition within the family to the appointment, bonds were usually required. However, in the writer’s experience, where all of the potential beneficiaries under the will consented to the appointment without bond, the practice was not to require bond. [3] The provision with respect to the requirement of bond under the new Act is contained in s. 55 which states as follows: 55(1) person, other than the public trustee, who is appointed property co-decision-maker or property guardian shall file bond, in the prescribed form, with the local registrar of the court, undertaking to properly act as property co-decision-maker or property guardian for the adult, with any sureties that the court may require. (2) Unless the court directs otherwise, the bond required by this section is to be in an amount that is equal to or greater than the sworn value of the adult’s estate. (3) The court may direct that more than one bond be given in order to limit the liability of surety to an amount that the court considers reasonable. (4) The court may dispense with the filing of bond pursuant to subsection (1): (a) where the value of the estate does not exceed prescribed amount; (b) where the nearest relatives and public trustee consent in writing; or (c) in any other situation the court considers appropriate. From the foregoing section, it will be observed: (1) Unlike the previous legislation, the requirement for bond is mandatory as indicated by the use of the word “shall”, unless an applicant can qualify for dispensation of the necessity of bond under s. 55(4). (2) Under s. 55(4) the prescribed amount by regulation in s. 55(4)(a) is $10,000.00. (3) Under s. 55(4)(b), it is no longer adequate for the nearest relatives to consent to the appointment of property guardian. Unless the public trustee also consents this is not basis for dispensing with bond. (4) The only discretion provided to the court is in s. 55(4)(c) where the court may dispense with bond “in any other situation the court considers appropriate”. [4] Reading the section as whole, and bearing in mind both its purpose, its context, and its historical evolution, the word “appropriate” means suitable or appropriate for the end in view, which is to ensure the adult’s estate remains intact during the guardianship, or can be restored in the event it does not. [5] The arguments advanced by applicants generally and these applicants in opposition to the requirement for bond are three-fold: (1) commercial bond is expensive. The court has heard submissions that some bonding companies are requiring five-year premium payable in advance on the basis the risk is too great for one-year premium. (2) In many cases the proposed applicants do not have adequate assets which equal or exceed the value of the estate to be administered. In addition, privacy concerns are raised about the necessity of having to file financial statement on public record in support of the suretyship. further point is made that the majority of applicants are siblings, who are mostly married, and own whatever property they own jointly with their spouse. In most cases the most significant asset is the residence or the home quarter section, which is exempt under The Exemptions Act, R.S.S. 1978, c. E-14, of the Province, and normally would not be accepted as security for bond. (3) The court has the power under s. 47(1)(a) to place any limitations or conditions on the guardianship that it considers appropriate, and may also require the property guardian to have the appointment reviewed within specified period of time. In addition, pursuant to s. 54 there is requirement that the guardian provide an annual accounting to the court and to the public trustee, which the public trustee may investigate to ensure the accuracy of the same. The position is that the court should impose more strict conditions where the applicant is seeking to be appointed without the necessity of bond. [6] The position of the Public Trustee is that its role is to protect the estate of the subject adult, and to ensure that the money in the estate is always available for the adult’s ongoing care. The Public Trustee states there have been enough defalcations by previously appointed property guardians, which is why it was given larger role to play in the new legislation (powers of the public trustee contained in s. 37) and why the discretion of the court to appoint property guardian without the necessity of bond was very much restricted in the new legislation. [7] One answer to the foregoing arguments advanced by applicants, is to request the public trustee to become the property guardian pursuant to s. 30(b). The fees charged by the public trustee are set out in Regulation to The Public Guardian and Trustee Act, R.S.S. 1978, c. P-36.3, in s. 16. While there is cost associated with involving the public trustee as property guardian, it should be pointed out that it is not uncommon pursuant to s. 51 of the Act for the court to be requested to set fee for service to be paid from time to time to the property guardian out of the estate of the adult. [8] What is apparent to me based on the arguments advanced in this matter and other recent files, is that the public trustee should be consulted in advance of the court application being served and filed as to whether there is any common ground on the type of surety that would be acceptable, including the financial disclosure required to support the same, or to determine if in the public trustee’s opinion it is appropriate to dispense with bond in the circumstances with the result the public trustee is prepared to consent to the application. Consulting with the public trustee in advance will certainly eliminate significant costs for the applicants in having to litigate every application with the public trustee. If the public trustee is not able to accommodate the proposal of the applicants, then the court application may be brought. Whether prior consultation with the public trustee takes place or not, the onus is on person making an application for property guardianship without the necessity of bond to persuade the court that it is appropriate, bearing in mind the object of the legislation which is to ensure that the adult’s estate will not be dissipated during the guardianship, or if it is, that it may be restored. [9] With respect to the present application, the two applicants are two of six siblings of the adult, Mrs. Sotnikow, who is 68-years old and who suffers from what one doctor describes as severe Alzheimer’s disease. The other doctor states her “decision making ability has deteriorated to the point where she can no longer follow simple instructions”, and her “decision making ability will never improve”. Mrs. Sotnikow is resident in private special care home in Saskatoon. The application does not indicate the cost of the monthly care. Mrs. Sotnikow’s monthly income is $1,115.17 made up of an Old Age Security payment of $740.65 and Canada Pension Plan payment of $374.52. There is no estimate of life expectancy included in the application. The sworn value of Mrs. Sotnikow’s estate is $124,684.41 made up of approximately of $36,500.00 in liquid assets, and her house which is valued at $85,000.00. No doubt it would be reasonable to sell the house at some point in time. [10] One of the applicants, Ms. Schappert, has been administering the affairs of her mother under power of attorney dated February 27, 1998. Mrs. Sotnikow’s will divides her estate equally amongst her six children, and the four children who are not applicants consent to the application without a necessity of a bond. [11] On the foregoing facts, am not able to conclude this is an appropriate case to dispense with bond. This conclusion is not reflection on the integrity of the applicants which have no reason to doubt. The fact is this is a routine application by siblings, who are most usually the applicants, and to consider this an appropriate case to dispense with a bond would be to largely negate the mandatory requirement for the filing of a bond contained in s. 55(1). Almost every application would so qualify, because in most cases the nearest relatives always consent. [12] The application to be appointed personal decision-makers is in order, and an order may issue with the authorities identified in the draft order submitted. [13] With respect to the application for property guardianship no order is made. Leave is granted to the applicants to supplement the existing material should they see fit to do so.

FIAT. An application by two siblings to act as personal decision makers and property guardians for their 68 year old mother, who suffers from Alzheimer's. Although their four siblings consented, the Public Trustee opposed their appointment as property guardians without a bond. This is one of a number of cases similarly contested by the Public Trustee since the Adult Guardianship and Co-Decision-Making Act was proclaimed July 15, 2001. Under the previous Dependent Adults Act, the Public Trustee was not served with notices of and did not intervene in applications for property guardianship and the practice for when a bond was required was ad hoc. The prescribed amount by regulation is $10,000. Arguments advanced by applicants generally is that a bond is expensive; in many cases the proposed applicants do not have adequate assets, which equal or exceed the value of the estate; the court has the power under the Adult Guardianship and Co-Decision-Making Act s.47(1)(a) to place any limitations or conditions on the guardianship it considers appropriate. HELD: The application to be appointed personal decision makers was granted. No order was made with respect to the application for property guardianship. The requirement for a bond is mandatory under the new Act as indicated by the use of the word 'shall' unless an applicant can qualify for dispensation under s.55(4). Under s.55(4)(b), it is no longer adequate for the nearest relatives to consent to the appointment. The only discretion is in s.55(4)(c) where the court may dispense with a bond in any other situation the court considers appropriate. Reading the section as a whole and bearing in mind both its purpose, context and historical evolution, the word 'appropriate' means suitable or appropriate for the end in view, which is to ensure the adult's estate remains intact during the guardianship, or can be restored in the event it does not. To consider this an appropriate case to dispense with a bond would be to largely negate the mandatory requirement for the filing of a bond contained in s.55(1).

6_2003skqb61.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 094 Date: July 11, 2013 File: 2013 Location: Melfort (Carrot River) Between: IN THE MATTER of hearing under THE CHILD AND FAMILY SERVICES ACT AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 37 OF THAT ACT RESPECTING N.N., born [...], 2005 K.N., born[...], 2008 K.N., born [...], 2009 Appearing: Mr. Jonathan Bodvarson For the Nechapanuk Child and Family Services Inc. No one For the parents The children are identified by initials for the purposes of protecting their identity. JUDGMENT B.G. MORGAN, INTRODUCTION [1] Nechapanuk Child and Family Services Inc. (the agency) initially applied for a long term order under s. 37(3) of The Child and Family Services Act (the Act) but has amended its application to now apply for an order that the current foster parents be declared as persons having a sufficient interest in all three children under s. 23 of the Act, and an order under s. 37(1)(b) of the Act granting them custody. Should the amended application be granted? [2] Pursuant to s. 31 of the Act, an Agreed Statement of Allegations and Admissions was filed at the protection hearing. That document states, among other things, that the mother of the children has passed away, and the father has acknowledged that he is unable to properly meet the needs of the children at this time and further acknowledges that he will not be able to do so in the future. That latter statement may not always be true, but it certainly indicates the father’s present view. subsequent affidavit of Ms. Melita McKay, family worker involved with these families, confirms that each of N.N., K.N. (a male), and K.N. (a female), have been with the proposed persons of sufficient interest since January 14, 2013, November 10, 2012 and October 25, 2009 respectively. The affidavit of the foster parents confirms that, and states as well that they intend to continue to allow the father parenting time with the children. [3] In the Agreed Statement of Allegations and Admissions, the history of the children’s lives supports the conclusion that each child is in need of protection pursuant to s. 11(b) of the Act, in that there is no adult person who is able and willing to provide for the children’s needs. The children’s father has consented to draft order under s. 37 of the Act agreeing that the children should be placed in the custody of the Minister pursuant to s. 37(3) of the Act, and has agreed that he shall have reasonable access on reasonable notice to each of his children. [4] The father has otherwise not participated in these proceedings. [5] The argument of Mr. Bodvarson, on behalf of the agency, is that if the father has consented to long term order, he has by implication consented to the order being sought at this time by the agency. [6] In the recent case of Re: J.P.N.C.-M., 2013 SKQB (CanLII), 2013 SKQB 09, [2013] S.J. No. 19, Mr. Justice Smith of the Family Law Division reviewed the applicable law governing protection hearings. He applied the reasoning and analysis set out by Madam Justice Wilkinson in Re: V.J.C., 2009 SKQB 395 (CanLII), [2009] S.J. No. 592, at para. of his decision. That paragraph sets out as well the legislative provisions at play, and the reasoning to be used. summarize the comments of Madam Justice Wilkinson as follows: 1. The Court is required to review the options set out in s. 37, looking firstly at whether or not the children can be returned to the parent, placed with person of sufficient interest, or placed with the Minister for temporary period. 2. If none of those orders are appropriate, then the Court shall make an order permanently committing the child to the Minister. The use of the word “shall”, note, makes this step mandatory in such case. 3. Section 37(3) provides an exception to s. 37(2), in which the Court can place child or children in the custody of the Minister until the child attains the age of 18 years, if the Court believes an adoption plan is unlikely due to the age of the child or other circumstances. The use of the word “can”, note, makes this step discretionary in such case. 4. The procedure to be followed by the Court in assessing matter is outlined in Re: E.K.S. (1996), 1996 CanLII 7131 (SK QB), 146 Sask. R. 46 (Q.B.) No. 5. In considering the best interest of the child, as set out in s. 37(4)(a) of the Act, the Court is to use an individualistic approach in order to best provide for the healthy growth, development and education for the child, all with view to ensuring the child is, upon reaching adulthood, in the best position to deal with life. [7] Mr. Justice Smith went on to state in Re: J.P.N.C.-M., supra, that the question of whether or not child is in need of protection is to be assessed on balance of probabilities (see paragraphs 164-170). [8] The material filed confirms that all individuals involved in this matter, including the proposed persons of sufficient interest, are members of the R[...] Nation. Nechapanuk Child and Family Services Inc. is an aboriginal agency that represents that First Nation in the administration of the Act at R[...] [9] The affidavit of Ms. McKay goes on to state that the intention of the agency is for the children to remain in the care of the present foster parents as long as the person of sufficient interest Order, if granted, remains in place. The joint affidavit of the foster parents, the proposed persons of sufficient interest, states that they are willing to care for the children until each reaches age 18, or until the order is terminated, whichever event occurs first. [10] In my view, it is important that the children continue to have sense of security in their placement, and continuity in their lives, both of which they will have if they remain in their current placement. Further, it would be beneficial for each of the children to remain together as family unit to the extent possible. [11] Although the evidence is somewhat sparse on the factors enumerated in s. of the Act, suspect that is because this is essentially consent order, at least as far as the father is concerned: that is, he is clear that he is unable to care for the children. On the evidence before me, I find that each child is in need of protection pursuant to s. 11(b) of the Act. [12] As the first option set out in s. 37, that of returning the children to their parent, is unavailable, the question is whether or not a placement with the proposed persons of sufficient interest would be preferable to a temporary order in favour of the Minister. I see no advantage in pursuing the latter option, as each child would, in all likelihood, remain where they are on a temporary basis; better that they have the added stability of the order being sought. I am satisfied that the revised plan being proposed by the agency is appropriate in these circumstances. [13] As to the argument that the father, having agreed to long term order, has by implication agreed to lesser order, find there is some merit to that argument in this case. am satisfied that the father does wish to have continuing relationship with the children, and that he clearly recognizes that he is not in position, due to his circumstances, to offer stable and nurturing environment, certainly not at this time. As all individuals involved are members of and live on the same First Nation, continuing contact between the father and his children is more easily accommodated. [14] As well, s. 39 allows for variation of an order placing the children with persons of sufficient interest, in the event circumstances change in the future. Rather than delay the proceedings further and leave the children’s future in state of uncertainty, am prepared in this case to make the orders requested. [15] Accordingly, pursuant to s. 23(1), I designate each of the foster parents as a person of sufficient interest. Pursuant to s. 23(3), order that personal service of this decision be provided to each of those individuals within fifteen days of receipt of it. [16] I find each child in need of protection, pursuant to s. 11(b). Pursuant to s. 37(1)(b), I make an order that each child be placed in the custody of the person of sufficient interest, which effectively means they will remain in their present placement. [17] Pursuant to s. 37(5), order that the father shall have reasonable access on reasonable notice to each of the children. To avoid any possibility of the father, who was not present at the hearing, being unaware of what occurred there, also order that the agency ensure that copy of this written decision be personally served upon him within fifteen days of receipt of it. Dated at Saskatoon, Saskatchewan, this 11th day of July, 2013. B.G. Morgan,

A Child and Family Services agency applied for an order: 1) declaring that the foster parents of three children have sufficient interest pursuant to s. 23 of The Child and Family Services Act; and 2) granting the foster parents custody pursuant to s. 37(1)(b). The children's mother was deceased and their father indicated that he was unable to meet his children's needs. The foster parents intended to continue to allow the father parenting time with the children. They also indicated that they would care for the children until each is 18 or until the order was terminated. The father consented to a draft order agreeing the children should be in the custody of the Minister and that he have reasonable access. The agency amended their application for the custody order to be made in favour of the foster parents rather than the Minister. HELD: The children were in need of protection pursuant to s. 11(b). The Court found that the agency's amended application was appropriate and preferred to a temporary order in favour of the Minister. Also, the Court noted that s. 39 allows for amendments of orders if circumstances change. The Court, therefore, ordered that the foster parents have custody even though the father only indicated his consent to the order in favour of the Minister. The agency was required to ensure that a copy of the written decision was personally served on the father.

c_2013skpc94.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 251 Date: 2006 05 26 Docket: F.L.D. No. 45/2004 Judicial Centre: Moose Jaw, Family Law Division BETWEEN: GREGORY MATHEW KUNTZ and CATHERINE LEE HOGAN and JEAN MARIE OSBORNE RESPONDENTS Counsel: Brock R. Craik for Gregory Mathew Kuntz Lyle O. Phillips for Catherine Lee Hogan Lynda D. Bordessa for Jean Marie Osborne JUDGMENT SANDOMIRSKY J. May 26, 2006 [1] Hayley is seven years old. In this action each of her father, mother and maternal grandmother compete for some form of custody over Hayley. The father petitions for sole custody of his daughter, while each of the mother and maternal grandmother independently seek joint custody with the father. Hayley’s mother seeks to be designated as her daughter’s primary caregiver. She resides in different city than Hayley’s father. Hayley’s maternal grandmother seeks to co-parent along with the father. The case becomes complicated inasmuch as, since the commencement of these proceedings, each of the parties and their extended families have chosen to relocate from the City of Moose Jaw. [2] For the purposes of this judgment shall refer to the petitioning father as “G. K.,” to the respondent mother as “C. H.,” and to the maternal grandmother as “J. O.” ABOUT THE PETITIONER [3] G. K. is 26 years old. He works as carpenter in house framing business which his father established in January 2006 at the City of Calgary. Both G. K.’s father and G. K. advise the Court that they will relocate their respective families to the City of Calgary. G. K. and his father testified that the business opportunities for them are unlimited in Calgary, whereas the same cannot be said about the opportunity to earn their livelihoods in Moose Jaw. This opportunity is borne out by the fact that G. K. estimates his annual income in 2006 will increase fivefold to about $60,000.00. He has previously earned $12,000.00 per annum or less. [4] G. K. has worked in Calgary since January 2006. He works three weeks straight and then returns to Moose Jaw for one week. He proposes to find home to rent in Calgary and thereafter relocate his family during the summer. G. K. spent four years of his own childhood residing in the Wildwood neighbourhood of south Calgary. It is here that he hopes to find home which he could afford to rent. G. K. testified that an average home would cost about $350,000.00 which is beyond his present financial ability. The Court has no other facts before it relating to the physical aspect of where Hayley might reside or go to school if she moves with her father to the City of Calgary. [5] G. K. met C. H. when he was 19 and she was 16 years of age. Hayley was conceived after they began to cohabit with one another and the birth was one year into their relationship (April 2, 1999). G. K. and C. H. lived together for approximately four and one-half years. During the latter stages of their cohabitation they argued with one another. After particular altercation in which each became physically combative with the other, C. H. left Moose Jaw and went with Hayley to reside in Nova Scotia. C. H.’s mother, J. O. resided in the Dartmouth region. One month after her move, C. H. telephoned G. K. to advise that she and Hayley would be remaining in Nova Scotia. [6] Thereafter, G. K. fathered second child. Little evidence was provided to the Court about this child. Only under cross-examination did this child’s existence become known to the Court. G. K. is under an order to pay $250.00 per month in child support. He has been habitually in default of payment. G. K. admitted to having paid some small amounts toward this obligation. In the months of April and May of this year the Maintenance Enforcement Office has effected collection. [7] G. K. testified that he married his present wife, Patricia, one and one-half years ago. They have child, Mathew, who was born March 9, 2005. G. K. and his wife are expecting second child on or about July of this year. It is their intention to have the baby born in Moose Jaw and to allow Hayley to complete school before effecting move to Calgary. When this child is born, the petitioner will have four children for whom is financially responsible. [8] G. K. advised the Court that one month after Hayley and her mother moved to Nova Scotia he was accustomed to receiving two telephone calls week. The frequency of those telephone calls soon diminished to once per week and then he lost contact with C. H. There was no evidence given that G. K. travelled to Nova Scotia at any time to see his daughter. [9] At Christmas of 2003, G. K. testified that he received telephone call from C. H. He also testified that his own mother had been advised by J. O. that she was contemplating move from Nova Scotia to Moose Jaw and further, that she had been raising Hayley for some time. [10] In March 2004, J. O. and Hayley came to reside in Moose Jaw. This move contravened provision of consent order granted to J. O. and her husband, Ken, by the Supreme Court of Nova Scotia (Family Division) on November 27, 2002. The order prohibited the removal of Hayley from the Province of Nova Scotia without the written consent of C. H. or an order of court of competent jurisdiction. Following the March move no evidence was given that C. H. sought the assistance of the Nova Scotia courts. [11] G. K. testified that J. O. and Hayley initially stayed in his parents’ home. He further testified that he believed that J. O. would stay on in Moose Jaw to allow Hayley to adjust and eventually settle in with him. He believed that J. O. and her spouse would then move on and pursue their respective vocations as long-distance truck drivers. Three weeks after her arrival in Moose Jaw, J. O. obtained her own apartment. By then Hayley was being cared for by J. O. during the daytime when G. K. was working. In the evenings and at night, Hayley was in her father’s care. G. K. said that he received no contact nor word from C. H. during this time period. This arrangement for Hayley’s care worked for short while and then one day in June of 2004, G. K. received telephone call from Ken in which he advised “Don’t come and pick up Hayley.” [12] G. K.’s response was to first telephone the Moose Jaw Police Service. They advised that they could do nothing without court order. G. K. then approached the Department of Community Resources and Employment (“DCRE”) who in turn advised him to “go to court.” Despite this advice, G. K. and his father went to the apartment of J. O. to retrieve Hayley. The police and the DCRE official were soon summonsed to the premises. Hayley was turned over to G. K.’s care. These proceedings were commenced by G. K. at J. O.’s behest. J. O. believed that C. H. might come to Moose Jaw and take Hayley back. J. O. further believed that C. H. was involved with drugs, theft and was then living in slum area of Halifax. [13] This action was commenced July 5, 2004. G. K. testified that things have not been good since. [14] This Court granted an interim order on July 12, 2004, which provided for the “status quo in regard to Hayley which involves the child residing with G. K. and with J. O. having access to the child on Tuesday at 8:00 a.m. to Wednesday at 5:00 p.m. of each week, plus telephone access each Friday and Sunday at 6:00 p.m.” [15] second order issued from this Court on December 7, 2004, providing to J. O., access to Hayley at Christmas (December 26, 2004 to January 1, 2005). This permitted Hayley to be taken to Edmonton to see C. H. From this order it became apparent that C. H. had relocated from Nova Scotia to the City of Edmonton. [16] third order issued from this Court on February 14, 2005, with the consent of all parties. This order again continued the “status quo with Hayley residing with G. K. until further order of the Court.” The Court ordered that custody/access report be prepared and that the proceedings would be adjourned sine die returnable upon 14 days’ notice. [17] fourth order issued from this Court on August 8, 2005, with the consent of all parties. It permitted J. O. to again take Hayley to Edmonton or Cold Lake, Alberta between August and August 29, 2005 for the specified purpose of Hayley visiting with C. H. [18] The need for these orders is indicative of G. K.’s characterization of his relationship with J. O. and the virtually non-existent relationship he had with C. H. Indeed, the evidence at trial spoke of complaints made to DCRE and to the police. Upon preliminary investigation, each of those complaints was found to be baseless. Hayley found herself in the middle of the family’s conflicts and was told far too much about the Court proceedings and judges deciding her future. For example, J. O. advised Hayley that in so many weeks or days “you will be going to live with your mom.” In the month preceding this trial, Hayley’s anxiety and stress increased to the point where she would vomit and act out at school. Her ability to concentrate at school and interact with classmates was compromised. The Court observed the family members who testified exhibited varying degrees of understanding as to how aware and intuitive seven-year-old can be. There was little appreciation of the psychological burden that child like Hayley would bear when adults behave indiscriminately. [19] G. K. testified that the night before the trial Hayley called him “Greg” for the first time. When he protested to Hayley, she responded by saying, “I am going to go and live with mom anyhow.” [20] G. K. presented in Court as soft-spoken. He maintained mild manner and composure throughout his testimony. find G. K. has his limitations and has not yet fully matured. However, G. K. was quite emphatic that J. O. was demanding authority in Hayley’s upbringing and as such she was major problem for himself and indirectly for Hayley. G. K. testified that Hayley was disruptive and often disobedient after her weekend visits with J. O. He testified that Hayley told him that grandma smokes her “special medicine” and that he believes J. O. uses marihuana on regular basis. In her own testimony J. O. did not deny using marihuana daily, but only after Hayley was asleep and never in sight. G. K. says he has no effective communications with either of the respondents, J. O. or C. H., and information is generally passed through his wife Patricia or through his own mother and on to himself. G. K. stated that he cannot think of any reason why J. O. and C. H. would not communicate with him directly. [21] G. K. testified that he and his wife have agreed that she would be the homemaker for the foreseeable future. It is his hope to have his family move to Calgary this summer such that Hayley could commence school in the same locale as he attended. G. K. repeatedly stated that C. H. can exercise access on weekends and take Hayley to Edmonton. He stated that he has never objected to Hayley visiting her mother and court orders to that effect bear out his consent. [22] G. K. emphasized to the Court that he has had Hayley under his care since March of 2004, now period in excess of two years. [23] G. K. is presently residing in an apartment with his father in the City of Calgary. His own mother lives in Moose Jaw and is presently taking upgrading classes at SIAST. G. K. has two brothers and one sister living at home with their mother and attending school. He has another brother who is age 24. This makes G. K. the eldest of the five children at age 26. G. K.’s mother and father each testified on behalf of their son. Their intentions are to relocate the entire family to Calgary next year when the children have finished highschool. In the meantime, G. K.’s father will seek out the prospects of new family home in that city. [24] G. K. described Hayley as healthy seven-year-old with no learning disabilities. He believes they share good relationship. Hayley plays well with her friends. He further believes that he is the more stable of Hayley’s parents and that his wife Patricia has similar stable qualities. For these reasons G. K. believes that his daughter should be in his custody. [25] It is clear that since January 2006, the principal responsibility for parenting Hayley has been met by G. K. and his wife Patricia. G. K. is only home one of every four weeks. If one allows two days for travel, in reality he is with Hayley about five of each 28 days. Next to Patricia, J. O. is the most constant adult in Hayley’s life. Hayley resides two days of each week with J. O. being Tuesday and Wednesday when J. O. is not working. If G. K. succeeds in relocating his young family to Calgary, the major responsibility for the three children will be Patricia’s. [26] G. K. proposes that, if he is successful in being awarded custody, J. O. should exercise access in conjunction with the times that Hayley would be with her own mother, C. H. He opposes the Court awarding J. O. independent access. At present, C. H. is residing in Cold Lake, Alberta, with her own father—an Air Force mechanic. Inasmuch as J. O. and her husband Ken propose to move to Edmonton next month (June 2006), G. K. says that both J. O. and C. H. are sufficiently proximate, one to the other, that they can share Hayley’s time when they are together. G. K. is adamant that J. O. assume more traditional and secondary role in Hayley’s life. [27] G. K. described to the Court an incident where, after purchasing new bicycle for his daughter, she disobeyed his rules and ventured to local gas station. He therefore punished or grounded Hayley by sending her to her room. He also took away some of her toys during this period. Hayley may have exaggerated or perhaps misled J. O. when she described this incident to her grandmother. Her report alarmed J. O. leading her to withhold Hayley’s return. G. K. testified that he and J. O. have had mutual dislike for each other ever since that event occurred in June of 2004. [28] James Kuntz, G. K.’s father, testified that J. O. called Moose Jaw in the spring of 2004 and advised he and his wife that she, J. O., was struggling financially with Hayley in her full-time care. The Kuntz’s supported the prospect of Hayley and J. O. moving to Moose Jaw. When this move occurred, Mr. Kuntz says that Hayley went to G. K.’s home immediately. He recalls J. O.’s plan was to go trucking with her husband Ken. He further testified that J. O. smoked marihuana in his garage and that he disapproved of that fact. [29] Mr. Kuntz further described his granddaughter as wonderful, normal seven-year-old who seems happy. He said Patricia was careful not to confuse Hayley as to her role as stepmother. However, he stated that Patricia acts very much like mother to Hayley. [30] Mr. Kuntz further recalls that in June of 2004, when J. O. withheld Hayley from his son, that J. O. advised that they would see Hayley when it suited her purposes and that if they did not like that, that was tough. Consequently, Mr. Kuntz and his son attended J. O.’s apartment to take Hayley back by force. He described change in the attitude of J. O. from that point on as though she became “two different people.” Mr. Kuntz said that J. O. told him she was facing custody battle in Nova Scotia with her daughter C. H. and therefore thought that it was wiser to get out of the province to avoid those proceedings. Mr. Kuntz was also candid in advising the Court that he observed Hayley to share real love with her grandmother, J. O. [31] Patricia Kuntz testified on G. K.’s behalf. She described their apartment as being two and one-half blocks from Hayley’s school. Hayley now attends Grade 1. Patricia testified that Hayley is rambunctious and talkative child. Hayley has normal appetite and does well in school with reading level of two. She stated that there is room for Hayley to improve upon her social skills. [32] Patricia has sister in Moose Jaw but no family in Alberta. She confirmed that Hayley does not listen after spending weekends with J. O. and that it is hard for Hayley to listen. She described to the Court Hayley’s episodes of vomiting in the last couple of weeks. Patricia states that Hayley will now call her “Mom” on an on and off basis. She advised that last summer Hayley was told by both C. H. and J. O. that she was not to refer to nor call Patricia, “Mom.” Patricia says that Hayley misses her father when he is away working and becomes excited when she knows that he is returning home. [33] Patricia advised the Court that Hayley talks about these court proceedings. Patricia tries to avoid such discussions but says that after each weekend when Hayley is with J. O., she is reminded of the fact of these proceedings and that it “bugs her.” Hayley quotes J. O. telling her of talks that she has with the lawyer. [34] Patricia further testified that Hayley plays well with Mathew and is patient with him. She stated that the Kuntz family are very helpful and supportive. [35] Patricia Kuntz is 23 years old and highschool graduate. After working at Sears for four years she then applied for student loan and hoped to return to school. However, her pregnancy with Mathew put her academic plans on hold. [36] Under cross-examination Patricia acknowledged that in the five years that she has known G. K. they did separate for period of 10 months to one year. In that time frame Patricia acknowledges that the petitioner, G. K., fathered another child. Patricia also acknowledged that the school asked G. K. and herself to remove Hayley from their lunch program as Hayley was not listening to the teachers who supervised. They felt Hayley lived close enough to the school that she could take her lunches at home. [37] observed Patricia as mild-mannered person and somewhat submissive in her present role. This may be an asset given the responsibility placed upon her and with the birth of child pending. Patricia advised the Court that she and J. O. try to be “overly polite” to one another and that they are able to converse reasonably well. [38] Geraldine Kuntz, the petitioner’s mother, testified that she intends to move to Calgary next year once her own daughter graduates from highschool. Mrs. Kuntz describes Hayley as sweetheart but “a little mixed-up lately.” She attributes this to unnecessary information being given to the child about this court case. She quotes Hayley as saying that J. O. tells her she does not have to listen to Patricia and that her dad is liar. In the past two years Mrs. Kuntz observed that Hayley has become more manipulative and definitely is having some social problems. She says Hayley thinks her dad disciplines her too much. [39] Mrs. Kuntz opined that neither of Hayley’s parents have had chance to parent Hayley without interference from J. O. She also feels that Hayley has been hard on Patricia. She believes Patricia “doesn’t have wicked bone in her body” and that Patricia “does not like conflict.” Therefore, Mrs. Kuntz is of the opinion that all of this has been tough on Patricia. [40] Under cross-examination Mrs. Kuntz expressed the opinion that C. H. is “loving mom—though little mixed-up at times.” She further opined that for young kids her son and C. H. did fine parenting. She still considers C. H. as daughter. ABOUT HAYLEY’S MOTHER [41] C. H. is 24 years old. She resides with her father at Cold Lake, Alberta. Her father is employed with the Canadian Forces as an aircraft mechanic. C. H. advised that her father may be posted to the Air Force Base at Moose Jaw, Saskatchewan or be reassigned to Cold Lake, Alberta. This posting may occur at any time. C. H. says that her father has multiple health problems which require her to live with him. Therefore, C. H. is uncertain where she and her father may be residing in the immediate future. No evidence was provided by C. H. as to how she would care for Hayley if she is to be the custodial parent other than the fact that she and her father reside in four-bedroom duplex located about one mile from the nearest school. [42] C. H. is bartender at local steak house in Cold Lake and her hours of work are from 2:00 p.m. until 10:00 p.m. as certainty. She may work later until the establishment closes. No evidence was provided to the Court about daycare, babysitting, her father’s hours of work, or how C. H. proposes to provide for Hayley’s care around her own work schedule. [43] C. H. told the Court that she met G. K. about October or November of 1997. She would have been 15 years old at that time. She testified that she and G. K. were couple for four and one-half years. They had their first separation in the summer of 2000. C. H. stated that G. K. was seeing someone and this brought about that separation. Therefore, C. H. went to Halifax with Hayley when the child was one year old. C. H. and G. K. did reconcile for 11 months before their final separation in late 2001. Again, C. H. blames G. K.’s infidelity as the cause of this final separation. She told the Court that she sold her household goods and once again took her child to Halifax where she could reside with her mother. She found employment at sandwich shop. [44] C. H. advised the Court that she and her mother have always had complicated relationship, especially when her mother cohabited with Ken, her present stepfather. By April of 2002, C. H. found herself in dire straights. She testified that she had been working at service station, had significant financial problems, became depressed and fell into the company of “bad crowd.” These circumstances culminated in C. H. being charged with possession for the purpose of trafficking and fraud. Realizing that she had bottomed out, C. H. turned to her mother in April of 2002 and asked her to take care of Hayley. “I wasn’t going to take Hayley for rough ride” are C. H.’s words. J. O. accepted Hayley in the circumstances. J. O. and her husband Ken formalized their status as Hayley’s custodians by receiving an order of the Nova Scotia Court on November 27, 2002. [45] C. H. received conditional sentence which expired uneventfully last year. She found better employment and income. She moved to better area of the City of Halifax. Then she consulted counsel in her quest to have Hayley returned to her own care and custody. By this point in time Hayley had been in J. O.’s care for the better part of two years. C. H. then testified that on or about March 2004, she telephoned her mother to advise that she was pregnant with second child. In this telephone call she was to find out that J. O. and Hayley had recently left Halifax despite the existing court order which prohibited Hayley’s removal from that province without consent or court order. C. H. did not know the whereabouts of Hayley until June 2004. She spoke with her daughter in the following month of July and for the first time with J. O. in September. [46] C. H. was advised that the baby she was carrying had congenital heart problems. In order to receive specialized treatment for the baby, C. H. was required to move to Edmonton, Alberta. This move occurred October 16, 2004. C. H. told the Court that at this point in time her relationship with J. O. was becoming more civil. On November 8, 2004, C. H. delivered daughter, Sarah. Tragically, this infant was to spend her short lifetime in hospital and experienced surgery and stroke before succumbing in January 2006. C. H. remained with her baby throughout the child’s 14‑month life. J. O. and Hayley were to visit C. H. and the baby at the Edmonton hospital with the consent of G. K. C. H. also saw Hayley at Easter of 2005, at the time of the pre-trial conference in these proceedings and for period of three to four weeks in the summer of 2005. [47] C. H. testified that she moved to Cold Lake, Alberta, in February 2006 where she and her father share four-bedroom duplex located on the Air Force Base. C. H. filed financial statement with the Court during the trial in which she disclosed her expectation of earning $10,000.00 plus gratuities in this current year. C. H. presently works seven days week. [48] C. H. described Hayley as bright but mixed-up child. She notices big differences in her daughter and opined that Hayley’s social development is slower. She says that Hayley rushes through her homework and therefore experiences problems. She stated that Hayley may not pass her school this year and that her behaviour has become disruptive in the classroom. She further testified, candidly thought, that the conflict between the parties of this past two years is major causal factor of Hayley’s problems. She further opined that Hayley was “thrust into G. K.’s house after an absence from him of four years.” She also feels that Hayley, being shuttled between G. K. and J. O.’s homes together with information overload about the Court and her future, has impacted negatively upon Hayley. Hayley hears conflicting stories about her future and C. H. feels that this creates stress for her daughter and makes her sick to her stomach. C. H. opined that the blame must be shared by all the parties to this action and concluded this opinion by saying to the Court “maybe we tried to do the best for her but it’s not working.” C. H. sees Hayley as acting out and stressed. She feels that Hayley is bit of hypochondriac, which may just be her way of getting attention. C. H. feels that Hayley is having more bad moments than better. However, the Court is cognizant that C. H. has had very limited opportunity to observe Hayley in the past two years and therefore finds that some of C. H.’s opinions are speculation. [49] C. H. admitted to her dope problem when she resided in Nova Scotia. She advised the Court that she never did hard drugs, just dope, and sold dope. She described that period of her life as “having two different lives, one with Hayley and the other with bad people.” C. H. completed her 18-month conditional sentence with drug screens. She has been clean since her arrest in 2003. [50] If awarded custody, C. H. would permit J. O. and G. K. regular access in Calgary or Edmonton. She stated at this point in her evidence that she too might move to Calgary or Edmonton. The Court must assume, given that her father has five years to his retirement and with C. H.’s testimony that she will live and watch over her father, that any plans for C. H. to move to Calgary or Edmonton are long-term and of no consequence to these proceedings. [51] C. H. admitted in cross-examination that based upon comments which Hayley made to her about G. K.’s discipline, that it was she who made three complaints to DCRE alleging concerns of possible child abuse. These were found to be baseless as have mentioned earlier. ABOUT THE MATERNAL GRANDMOTHER, J. O. [52] J. O. filed counter-petition in which she seeks joint custody consistent with the plan she formulated in March 2004 contemplating her return to Saskatchewan with Hayley. J. O. seeks to co-parent Hayley given the fact that she has been custodial caregiver of the child between April 2002 and April 2004. Further, she has had Hayley in her care for two days week from April 2004 to the present. However, during her testimony and upon hearing J. O.’s counsel in argument/summation, it is now J. O.’s position that she does not seek joint custody standing. J. O. now seeks an order of this Court granting her specified access. She seeks this relief to ensure continuity in her relationship as grandparent to Hayley in these unique circumstances. J. O. is not content to have access determined at the whim or caprice of her daughter or G. K. [53] J. O. is 45 years old and has been married to Ken for 15 years. Ken has just changed vocations. He was long-distance truck driver until earlier this year. However, he has now taken safety course to work on the oil rigs. He is employed at such rig near Medicine Hat. [54] J. O. is licenced to drive semi-tractor and trailer unit. However, since her residency in Moose Jaw, her most recent employment has been as bartender at private club. She is presently unemployed and advised the Court that she and Ken plan to move to Edmonton at the end of June 2006. [55] J. O. described the events of 2001 in which Hayley moved to Nova Scotia and eventually came into her care. She described in some detail the difficulties that she had with C. H. as child and more particularly in the year 2001. She testified that she felt compelled to order C. H. out of her home in September of 2001. She delivered her daughter and granddaughter to homeless shelter in Halifax. J. O. continued to care for Hayley after her work was completed each day. She described to the Court that in April 2002, C. H. presented J. O. with an ultimatum—take Hayley or have the child placed in foster care. She opted for the former and quit her job to become Hayley’s full‑time caregiver. Daycare was too expensive an option for J. O. at that time. It is clear that J. O. became Hayley’s surrogate mother and that C. H. had marginal involvement in the child’s life as she succumbed to her dark period, 2002-2003. J. O. had no contact with G. K. though she testified she may have called Mr. and Mrs. Kuntz from time to time. J. O. is insistent that neither G. K. nor his parents provided any form of assistance for Hayley during that two-year period. Thus it came to November 2003 when the Osbornes found themselves in serious financial difficulties. J. O. decided to telephone Mr. and Mrs. Kuntz to express her concern that she could not shoulder the financial burden of Hayley on her own. She proposed that it was time for G. K. to assume some responsibility for the care of Hayley. To that end, she advised she would consider moving to Moose Jaw with Hayley to integrate the child into her father’s life and to accommodate the process. J. O. says she consulted with the Department of Social Services in Nova Scotia in January 2004 with respect to her move. They recommended court application to approve Hayley’s relocation. J. O. opted to move without notice to C. H. though she claims that she did advise the local police that she would be moving. The move was effected in March 2004 with the understanding that J. O. and G. K. would co-parent Hayley for approximately one year. Following this integration G. K. would assume full responsibility for Hayley. At that point J. O. and her husband planned to go trucking together on full-time basis. To help Hayley familiarize herself with G. K., J. O. played videotape which was prepared by G. K. and his parents. She played the tape on numerous occasions prior to her move. She then said that after few days in Moose Jaw, Hayley began spending increasing amounts of time with G. K.—particularly when he was not at work. J. O. would care for Hayley while her father was at work. This arrangement persisted until on or about June 15 of 2004. On that date J. O. says that Hayley reported to her that G. K. had thrown her onto bed after he got mad at her. She took Hayley to doctor and then to social services. She refused to return Hayley to G. K. until the matter was investigated. However, that evening J. O. described that G. K. and his father came to her apartment. She stated they hollered “call the cops” and asked Hayley “who do you want to live with?” The scene intensified with the attendance of the police and social services worker. J. O. advised that the police and social services worker decided that since J. O. was in breach of the Nova Scotia Court order that Hayley should go to her biological father until matters were formally resolved. J. O. says she did not lodge further complaints with DCRE. The evidence reveals that those further complaints were made at the instance of C. H. who herself was in contact with J. O. J. O. made one visit to seek the assistance of the Moose Jaw Police Service at the end of June 2004 for the purpose of finding out if Hayley was alright. [56] The Court then granted J. O. specified access from 8:00 a.m. Tuesday to 5:00 p.m. Wednesday, days when J. O. was not working. J. O. also received an order for telephone access with her granddaughter. Hayley began kindergarten in the fall of 2004. J. O. would drive her to school on her access days. Then access days were switched to Saturday at 8:00 a.m. concluding Sunday at 5:00 p.m. with telephone calls between J. O. and Hayley on Tuesday and Thursday evenings. [57] J. O. acknowledged that she told Hayley that judge would decide where Hayley would live. J. O. believes that Hayley is mature for her age and that it is wrong to lie to the child. She felt Hayley should know some things. She also observed change in Hayley’s behaviour and shares the same opinion as C. H. that, Hayley, being an only child, now competes for attention at school and at home. [58] J. O. acknowledged her regular use of marihuana. She says that she has smoked dope for years but never in Hayley’s presence. She advised the Court that her spouse Ken has big problem with Hayley calling Patricia “Mom.” She does not share this problem, as long as Hayley appreciates that C. H. is her real mother. [59] J. O. testified that she is now proud of C. H. She says that her daughter has matured and does an “awesome job” with Hayley. Accordingly, J. O. wants to enjoy grandmother-granddaughter relationship but with specified access because she believes that, with the history of raising Hayley, she is not typical grandmother. She wishes to see Hayley once or twice month and advised that she would accommodate such access by driving to and from Calgary. J. O. seeks couple of days of access during the Christmas break, excluding Christmas Day or Boxing Day. She also stated in her testimony her desire to have Hayley visit for one or two weeks in the summer as well as having regular telephone access. J. O. justifies her request to the Court as allowing Hayley to know that her grandparents “are still there for her.” [60] J. O. acknowledged under cross-examination that she does not discuss anything directly with G. K. All of her conversations are with Patricia. J. O. also advised that she does not propose to work after she moves to Edmonton this summer. She says that she is on stress leave and will be for some time. J. O. has been prescribed an antidepressant by her physician and will rely upon employment insurance until she is capable of working. J. O. admitted to the Court that she has suffered from chronic depression since 1992. Her prescribed medication is to continue until the end of this current year. It does not interfere with her ability to drive. ABOUT THE CUSTODY/ACCESS REPORT [61] Upon this Court’s order of February 14, 2005, custody/access report was prepared and filed with the Court October 31, 2005. The report states that: This assessment was not completed in full due to circumstances involving Cathie Hogan’s youngest daughter, Sarah, which will be outlined later in this report. Instead, preliminary interviews were conducted and interim recommendations will be made. [62] Hayley was not interviewed nor seen by the assessor. [63] Sarah died two and one-half months after the interim report was filed with the Court. There has been no followup. The assessor further states at p. 10 of the report: As have not yet observed or interviewed Hayley, cannot assess her level of attachment to any of the parties involved in this assessment.... agree with Greg and Cathie that Jean’s role should be that of grandmother, and do not believe that there is need for grandparent to have custodial responsibility in this situation. .... believe it is very important for these parents to begin communicating with each other, and that with some effort and good will there is the potential for cooperative parenting relationship between them. [64] The recommendations made by the assessor were predicated in large measure upon the fragile and taxing situation which Sarah posed to C. H. in the final months of the infant’s life. As matters then stood, Hayley was to remain in the primary care of her father with specified access for C. H. The assessor urged direct communication between G. K. and C. H. to avoid misunderstanding and mistrust. She recommended that J. O. have the option of overnight access to Hayley once in every two weeks. Finally, the assessor stated that the matter should be reviewed in the summer of 2006 and the Court provided with such an update. [65] This trial came on before review could be conducted. THE EVIDENCE [66] In almost all material respects the evidence which emerged at trial detailing Hayley’s short life and relationship with her parents, grandmother and extended family is not contradictory nor conflicting evidence. have made allowances for some of the opinions and certainly hearsay which was not necessary and particularly reliable. accept that the custody/access report has little probative value and is of limited assistance to the Court. As stated to the parties at the conclusion of the trial—this case is uniquely complicated by virtue of the fact that both parents, both sets of grandparents and their extended families are in state of flux moving to new residences in Calgary, Edmonton and for C. H.’s part pending upon her father’s new posting. Little evidence has been adduced by any of the parties setting out their respective proposals for Hayley’s immediate future and upbringing given these pending relocations. However, what is constant are the family members with whom Hayley must relate. THE APPLICABLE LAW [67] In the case of Hayley, whose parents lived in spousal relationship for the first two years of the child’s life, the relevant law is found in The Children’s Law Act, 1997, S.S. 1997, c. C-8.2. The relevant sections of that Act are: 3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of child are joint legal custodians of the child with equal rights, powers and duties. (2) Where the parents of child have never cohabited after the birth of the child, the parent with whom the child resides is sole legal custodian of the child. (3) The parents of child may enter into an agreement that may: (a) vary their status as joint legal custodians of the child; (b) specify the rights, powers and duties of each parent with respect to the child; (c) provide for access to the child by either parent or any other person; (d) authorize one of the parents to appoint, by written instrument, one or more other persons as legal custodian of the child and guardian of the property of the child for: (i) any time specified in the instrument during the child’s minority; or (ii) the duration of the child’s minority; and (e) provide for the custody of the child and guardianship of the property of the child after the death of either parent. 6(1) Notwithstanding sections to 5, on the application of parent or other person having, in the opinion of the court, sufficient interest, the court may, by order: (a) grant custody of or access to child to one or more persons; (b) determine any aspect of the incidents of the right to custody or access; and (c) make any additional order that the court considers necessary and proper in the circumstances. (2) Where the court grants custody of child to parent pursuant to subsection (1), the court, where in its opinion it would be in the best interests of the child to do so, may by order, authorize the parent to appoint person: (a) to have custody of the child on the parent’s death; (b) to be the guardian of the property of the child on the parent’s death; or (c) to have both of the duties mentioned in clauses (a) and (b). (3) On an application and prior to making an order pursuant to subsection (1), the court may make or vary an interim order on any terms and conditions it considers appropriate. (4) On application, the court may vary or discharge any order made pursuant to this section where there has been material change in circumstances since the date of the order. (5) When making an order pursuant to subsection (1), the court shall: (a) give effect to the principle that child should have as much contact with each parent as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person seeking custody to facilitate that contact; and (b) include in the order condition requiring any person who has custody of child and who intends to change the place of residence of that child to notify, as set out in subsection (6), any person who is granted access to that child or any other person who has custody of that child of: (i) the change; (ii) the time at which the change will be made; and (iii) the new place of residence of the child. (6) Any notification required pursuant to clause (5)(b) is to be given: (a) at least 30 days before the change; or (b) within any other period before the change that the court may specify. (7) When making an order pursuant to this section, the court, in the manner and on the conditions that the court considers appropriate, may provide for: (a) the division and sharing of parental responsibilities; and (b) the granting of access. (8) Where an order is made for supervised access pursuant to this section, the court may specify in the order the amount of any cost for the supervision that each party is required to pay. ... In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child; and (c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as father or mother. 9(1) In making, varying or rescinding an order for access to child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking access; (ii) the personality, character and emotional needs of the child; (iii) the capacity of the person who is seeking access to care for the child during the times that the child is in his or her care; and (iv) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; and (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to care for the child during the times that the child is in his or her care. (2) Unless otherwise ordered by the court, parent who is granted access to child has the same right as the custodial parent to make inquiries and be given information concerning the health, education and welfare of the child. (3) The right of parent who is granted access described in subsection (2) is not, unless the court orders otherwise, right to be consulted about or to participate in the making of decisions by the custodial parent. [68] Where it is proposed to locate child’s residence (a mobility application) the Court must examine the effect of such relocation upon the child’s relations with the access parent and any person of sufficient interest who has access rights to the child. This examination occurs in the context of assessing how the relocation of the child’s residence factors into the best interests principle when viewed from the child’s perspective. The Supreme Court of Canada provided the family bar and courts with “the principles that should guide judges upon mobility cases” in the Court’s seminal decision, Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] At para. 49, the law on these principles is summarized as follows: 49 The law can be summarized as follows: 1. The parent applying for change in the custody or access order must meet the threshold requirement of demonstrating material change in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child; (f) disruption to the child of change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [Emphasis in original] [69] third consideration of law that arises in this case is the importance of maintaining stability in the relationships which child has. This was stressed by the Saskatchewan Court of Appeal in the decision Haider v. Malach (1999), 1999 CanLII 12363 (SK CA), 177 Sask. R. 285 (C.A.). At para. 89, the court stated: ... In making decision as to custody, consideration must be given to the importance of maintaining stability in the relationships which the child has. This is particularly important when the court is faced with request to change the custody from the primary caregiver, who has had custody for some period of time, to the non‑custodial parent. The effect of change in custody on the child in such circumstances must be addressed by the evidence. Although this court has not and nor could it elevate this principle to an overriding or controlling one, it is an important factor in determining where the best interests of child lie. As the above review of the case law indicates, the weight to be given to maintaining the stability of such relationship will depend on the particular facts of given case. [70] In more recent decision of the Saskatchewan Court of Appeal, [S. (H.) v. S. (C.)], 2006 SKCA 45 (CanLII); [2006] S.J. No. 247 (QL) (Sask. C.A.), the appellate court overturned my decision as trial judge and in doing so revisited this issue of maintaining stability between child and the primary parent or psychological parent. In Haider v. Malach, supra, the Court of Appeal said it “has not and nor could it elevate this principle to an overriding or controlling one” but “it is an important factor in determining where the best interests of child lie.” It is important to point out that [S. (H.) v. S. (C.)], supra, was classic application to vary based upon mobility—the desire to relocate the child’s residence, whereas, this case is an original determination of custody where the parents and grandparents happen to be relocating. That said, the Court of Appeal in [S. (H.) v. S. (C.)], supra, states at para. [24] In our opinion, the trial judge placed too much emphasis on the fact that the children had grown up in Midale and that the respondent’s extended family live there. He stated clearly that he was cognizant of the maximum contact principle and supporting psychology on which it is based but then only considered the impact on the proposed separation of the children from their father. He did not consider the particular role of the primary parent in the lives of the children: the bonding between the children and their mother; the importance of maintaining the relationship with the psychological parent; and the desirability of maintaining the link. He did not consider the importance of maintaining stability in the relationships between the primary parent and the children. See Dybvig v. Brunen (2001), 2001 SKQB 321 (CanLII), 209 Sask. R. 298 (Q.B.); Rask v. Rask (2005), 2005 SKQB 159 (CanLII), 261 Sask. R. 269 (Q.B.); Malloy v. Quilty (1999), 1999 SKQB 47 (CanLII), 186 Sask. R. 95 (Q.B.). [71] The fourth and final legal concept which must be addressed in this case is an examination of the current status of the law relating to grandparent-grandchild access. will state the principles which currently govern such relationships, in the context of the child’s best interests later in this decision. ANALYSIS OF FACT TO LAW [72] For the first two years of Hayley’s life she was co-parented by G. K. and C. H. In 2001 she was parented by her mother alone until C. H. found it impossible for her to provide the necessary quality of care. Consequently, in the month of April 2002, C. H. and J. O. entered into an agreement whereby J. O. assumed responsibility for Hayley for the ensuing two years. Even at that point in time, G. K. and C. H. were deemed joint custodians of Hayley pursuant to s. 3(1) of The Children’s Law Act, 1997: 3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of child are joint legal custodians of the child with equal rights, powers and duties. [73] On November 27, 2002, the Nova Scotia Court granted custody of Hayley to the Osbornes. Hayley was ordinarily resident in Nova Scotia and that court had jurisdiction to make the order that it did. [74] When J. O. brought Hayley to Saskatchewan in March 2004, this Court acquired jurisdiction and made the interim orders that it did. Care was taken to defer any decision to vary the legal status of J. O. and Ken Osborne as custodians until this trial. However, G. K. became the de facto custodian of Hayley by April 2004. He has maintained de facto custody of the child to this date as confirmed by this Court’s interim orders. [75] Hayley is now part of G. K.’s nuclear family. To child age seven, the last two years of her life are perceived to be substantial part of her life. She is settled into home with stepmother, stepbrother and, until January of this year, where her father was constant presence in her life. She has enjoyed both her paternal and maternal grandparents and extended families for the past two years. She has established her own independent relationships within her school. However, change for Hayley is inevitable with the pending relocation of all of the families. Yet, move to reside with C. H., would represent compound change of physical residence, the primary caregivers or psychological parents, and dislocation from the grandparents’ families. THE FOUR STEP PROCESS [76] The decision to be made here must first consider which of G. K. or C. H. is to be the parent who will create the primary residence for Hayley and assume the daily management of Hayley’s life as primary caregiver. Second, is it in Hayley’s best interests that G. K. and C. H. be constituted joint custodians as C. H. requests, or, would the interests and welfare of Hayley be best served if one or other of the parents was empowered as sole custodian as G. K. requests? Third, and in either scenario, parenting scheme must be fashioned whereby Hayley will receive the maximum input which each of her parents is able to provide so long as that is consistent with Hayley’s best interests and taking into consideration the willingness of the person seeking custody to facilitate that contact. Fourth, given J. O.’s status as custodian and her lengthy responsibility for raising Hayley, would it be harmful to Hayley’s best interests to leave matters of J. O.’s access to be determined by either of her parents? If so, then the Court may provide an order of specified access to J. O. which has the effect of trumping parental discretion over the matter. Step 1: Hayley’s Primary Residence and Caregiver [77] In any analysis leading to custody order the Court must, among other considerations, consider only Hayley’s best interests and for that purpose take into account each of the factors recited in s. 8(a) of The Children’s Law Act, 1997. [78] In assessing the quality of Hayley’s relationship with G. K., it must be mentioned that the evidence of parenting capabilities and willingness for the first two year’s of Hayley’s life was minimal. Both G. K. and C. H. were very young to be parents but the evidence provided suggests that they managed. G. K. was not parental figure in Hayley’s life from late in 2001 until March of 2004. Since the latter date he has assumed parental responsibility for Hayley by increasing degrees. When Patricia and G. K. began to cohabit am satisfied that Patricia became the dominant parental figure in Hayley’s life over time. Since January 2006 the responsibility for managing Hayley’s daily life has fallen to Patricia. At best, G. K. is presence in Hayley’s life one week in four, and allowing for travel time, more likely days in 28. [79] was impressed with Patricia as witness. With the arrival of another baby in early July the Court must consider how taxing matters will be for Patricia to parent her newborn, Mathew and Hayley. There is no evidence of an actual move to Calgary for G. K.’s family as of this date. However, the intention to relocate into home somewhere within Calgary seems highly probable. Therefore, G. K. would again become daily presence in Hayley’s life, and likely secondary to Patricia’s role as the caregiver. [80] was not as impressed by G. K. as witness as was with Patricia. No evidence was adduced at trial to sustain finding that G. K. lacked any parental abilities, however, neither did G. K. impress me that he possessed any strong parental abilities. He is very young man who thus far has fathered four children for whom he must provide financially. That fact does not auger in in G. K.’s favour. [81] Jim Kuntz was never asked to comment upon the quality of his son’s relationship with Hayley, nor about G. K.’s capacity to act as Hayley’s legal custodian. In cross-examination Mr. Kuntz stated that C. H. was like daughter to him. He felt that she was an excellent mother when she resided in Moose Jaw circa 1999-2000. [82] Patricia Kuntz testified that G. K. taught Hayley to ride her bike and that the two play together. She stated that Hayley gets excited when she knows her dad is coming home. Patricia further testified that G. K. has lots of family and that they are help when needed. Patricia was never asked, nor did she volunteer any evidence which addressed G. K.’s parenting skills. She did state, under cross-examination that G. K. had looked after Hayley on evenings and weekends when the child was not at J. O.’s home. [83] Geraldine Kuntz was neither asked nor did she volunteer any evidence about G. K.’s relationship with Hayley nor her son’s capacity to parent and be custodian. G. K. stated that Patricia “doesn’t have wicked bone in her body, Tricia doesn’t like conflict and her role has been tough one.” Under cross-examination Geraldine Kuntz also commented that C. H. had been like daughter and she wished that G. K. and C. H. would work this out. [84] C. H. has not been in position to observe G. K.’s relationship with Hayley nor his parenting skills since 2001. J. O. was neither asked nor did she volunteer any evidence about G. K.’s relationship with Hayley nor his parenting skills and capacity to be custodian. She stated under cross-examination that, “I don’t discuss anything with Greg.” J. O. testified that C. H. was “an awesome mom always—that’s why she gave Hayley to us when she had to.” Since C. H.’s move to Edmonton, and with the responsibility of Sarah, J. O. saw C. H. grow and mature to the point she felt proud of C. H. and that her daughter is still an awesome mom. [85] C. H. has had very little parental responsibility over Hayley in the past four years. However, the evidence of Hayley’s reintegration into C. H.’s life through the access ordered by the Court speaks in favour of C. H. after her dark period and absence from her daughter’s life. The only evidence about Hayley’s relationship with C. H. and C. H.’s capacity to parent has been previously described. From her appearance in Court am satisfied that C. H. has told the Court the truth about her drug use ceasing after her arrest. am satisfied that C. H. has taken responsibility for her own life since the birth of Sarah. am further satisfied that C. H. has taken some responsibility for her father’s care and that she has withstood most serious test of her character and stability given the manner in which she parented Sarah and coped with her child’s death. [86] What troubles the Court is that C. H. provided little evidence as to how she proposes to create home and to care for Hayley. The Court was told that C. H. shares four-bedroom duplex situated at the Air Force Base at Cold Lake and this residence is about one mile from the school. C. H. is committed to caring for her father who may be posted once again to Cold Lake or move to the Moose Jaw Air Force Base at any moment. C. H. did not disclose how she would care for Hayley when she is at work, nor did she testify that she has any resources available to assist her. The Court assumes that C. H.’s father might play some role in Hayley’s life but no evidence was led in that regard, nor did Mr. Hogan testify in these proceedings. [87] The Court must take into account the personality, character and emotional needs of the child. The custody/access report does not address these matters as Hayley was never seen nor interviewed. The evidence placed before the Court by the witnesses is minimal in this regard. What can best be gleaned from the evidence is that Hayley is fairly normal, healthy and loveable child who has been subjected to fair degree of upheaval in her short lifetime. It is clear to the Court that Hayley has received too much information about these proceedings and that she is very much aware of the conflict, tension and negative emotions which the parties harbour toward one another. J. O. may be of the opinion that Hayley needs to know what is going on, however the Court takes far more guarded view of that matter. Hayley has and continues to act out in manner that indicates to the Court that the child is anxious and troubled about where she may live and what will happen to her relationships with family members from whom she derives stability, security, care and love. Throwing up after changeovers, rambunctiousness, antisocial behaviour and lack of concentration at school are but few of the classic symptoms which the Court hears of when youngster is the focal point of family conflict and does not know what is about to happen to her little world. [88] Upon the evidence presented, sparse as it was, am still able to find that each of G. K. and C. H. would be able to meet the physical needs of Hayley. Similarly, both G. K. and C. H. appear to be earning sufficient incomes and have sufficient family resources to call upon to assist in meeting Hayley’s financial needs. G. K. is taxing his income with the potential of five dependants, whereas C. H., with more modest income, would have Hayley as her only dependant. As to the social needs of Hayley, the scales weigh in G. K.’s favour in either Calgary or Moose Jaw where the Kuntz extended family are social resource. Hayley is familiar with her present school and teachers but anticipate that she would make new social circle in Calgary. The existing family of four, soon to be five, which Hayley has come to know as her family, gives G. K. an advantage from the social needs perspective. [89] Finally, as to the psychological needs of Hayley, the Court has confidence that G. K., aided by Patricia and his parents, should be able to meet Hayley’s psychological needs. The Court has seen C. H. testify but knows nothing more of the environment in which she would raise Hayley in Cold Lake or Moose Jaw. C. H. appears to have the potential to meet Hayley’s psychological needs. [90] If J. O. is to have role to play in Hayley’s life, as grandparent with specific and independent access rights, then she must amend her ways and recognize that Hayley’s psychological needs will be best met if J. O. does not interfere in the parenting roles which G. K. and C. H. will assume. She must also realize that her conduct toward Hayley must be supportive of Hayley’s parents, regardless of her personal opinions. [91] When considering the home environment to be provided to Hayley, again note that both parents propose to relocate. The minimal amount of evidence which was provided to the Court is speculative and lacking. Perhaps the timing of this trial was premature. However, the home environment is not just about four walls, the neighbourhood, the school and amenities, it is also and most important about the people who create the home environment surrounding Hayley. The Court can visualize G. K.’s home environment and finds that Patricia will be significant factor to achieving Hayley’s best interests if Hayley is to reside with G. K. When the entire Kuntz family relocate as family unit to Calgary, they will be able to add the wholesomeness to Hayley’s environment that she presently experiences. [92] am troubled by the lack of evidence and planning presented by C. H., not only as respects the home environment proposed for Hayley, but also touching upon the next judicial consideration, that is the plans C. H. has for the future of Hayley. [93] Finally, s. 8(a)(vii) directs the Court to consider Hayley’s wishes. However, Hayley is too young to express any meaningful sentiments in this regard. [94] In weighing the conditions for a custody order as s. 8 of The Children’s Law Act, 1997 requires, and in reflecting upon the Court of Appeal’s guidance as quoted from Haider v. Malach, supra, as well as [S. (H.) v. S. (C.)], supra, and further upon reflecting on the summary of law quoted at para. 49 of Gordon v. Goertz, supra, as some of those portions pertain to an original application for custody, I find that G. K. and his wife Patricia have been the primary caregivers and psychological parents of Hayley for in excess of two years. The preservation of that important relationship when added to all other factors in this case tips the scales or weight of evidence in G. K.’s favour. [95] Based upon the present circumstances and immediate prospects for each of G. K. and C. H., it is the Court’s conclusion that the family which has been Hayley’s experience for the past two years, even if relocated to Calgary, is where the continuity, consistency and stability necessary to attain Hayley’s best interests will be found. The Court is confident that G. K. and Patricia, taken as team, with the extended family support which the Kuntz’s presently offer, best attains the factors set forth at s. of The Children’s Law Act, 1997. When Hayley’s world stabilizes with the benefit of this judgment, the parties should accept their respective new roles in Hayley’s life and behave in bona fide manner. Only in this way will Hayley come to understand that C. H. and J. O. will be constant and reliable players in her life but that her home and nuclear family will be as it has for the past two years. CUSTODY: JOINT VERSUS SOLE CUSTODY [96] The legal terminology of custodian or custodial parent carries an unfortunate connotation. The allocation of parental responsibilities or shared parenting is more accurate and respectful. However, those labels and the allocation of parental responsibilities should not become vague and confusing for the sake of political correctness. There are times when the parents of child demonstrate the ability to co‑parent despite their own personal differences. Where this collaboration is possible the courts must show deference to the parents and permit them to raise their child or children as they determine, provided always that they are advancing the child’s best interests overall. Where this collaborative parenting is workable there is no legal reason to disenfranchise one parent and empower the other by designating the latter as the custodial parent or empowered decision-maker. [97] Regrettably, there are also situations where the parents are not capable of, or willing to communicate with each other in functional manner. This may be factor of the differences in each parent’s personality, character, intellectual ability, maturity level, physical health, or where distance becomes significant factor. In Hayley’s past, the evidence shows that G. K. and C. H. have not been able to maintain functional parental relationship. Evidence and opinions were offered at trial to the effect that if left alone, G. K. and C. H. may now have arrived at point in their personal development where the necessary collaboration required for healthy co-parenting may be possible. That has not yet been demonstrated upon the evidence. It should, however, be an objective for each of G. K. and C. H. to strive to achieve. [98] The Court also has concern that neither parent, G. K. nor C. H., has demonstrated the requisite independence to make decisions in Hayley’s best interests when faced with countervailing views of J. O. or Mr. and Mrs. Kuntz senior. [99] Finally, whether C. H. establishes new residence in Moose Jaw or remains in Cold Lake, Alberta, the distance of either centre relative to Calgary is significant. [100] For the above and present reasons, G. K. must be the sole custodian of Hayley. However, he must consult C. H. when contemplating any major significant decision in Hayley’s life—whether the issue is education, health related, spiritual, or where a decision will have a major impact upon Hayley’s growth or development. Routine day-to-day decisions are G. K.’s alone to make. When G. K. and C. H. have discussed such major issues, G. K. shall carefully consider and, when possible, accommodate C. H.’s opinions in each major decision. However, when G. K. and C. H. are hopelessly deadlocked, Hayley’s best interests require G. K. to make such decisions in timely and responsible way. ACCESS/SHARED PARENTING [101] C. H. has indicated she will reside wherever her own father is posted. The distance is day’s drive. It is in Hayley’s best interests to have the maximum contact with C. H. that the unique circumstances of the case will reasonably permit. [102] When there is long weekend, falling in period not hereafter dealt with, and while Hayley is in elementary school, C. H. will have the option to have Hayley for period of four days by having Hayley absent from school for one of the school days contiguous with three-day long weekend. C. H. must give G. K. 10 days advance notice of when she will exercise this option. [103] C. H. will parent Hayley for one-half of the official Christmas school break, commencing with the first half in even numbered years, and the last half of the said break in odd numbered years. C. H. shall parent Hayley for the entire of Hayley’s Easter school break or recess in each year. [104] C. H. will parent Hayley for two consecutive weeks in each of the months of July and August. Those weeks are not to be continuous. Given the expected delivery date of Patricia, being July 3, 2006, Hayley will spend the first two weeks of July 2006 with C. H. and the first two weeks of August with C. H. This will permit G. K. and Patricia to concentrate on the arrival of their baby and caring for Mathew while C. H. provides the assistance of parenting Hayley. Hayley will be in G. K.’s care for the two weeks preceding the commencement of school. [105] In future years, C. H. and G. K. shall consult with one another as to how the summer school break is to be equally divided. This consultation is to occur on or before June of each and every year. In the event of deadlock, C. H.’s choice for the summer split shall prevail. [106] G. K. and C. H. shall cooperate in creating other modes by which Hayley may maintain regular and consistent contact with her mother. This shall include reasonable and regular telephone access, the use of e-mails if the households are so equipped, exchange of tapes or disk recordings of appropriate material between Hayley and her mother, mail, and visual materials for Hayley to enjoy in her bedroom so as to benefit from her mother’s indirect presence in her day-to-day life. [107] Hayley must be permitted some form of access to her father on Father’s Day and to her mother on Mother’s Day. Hayley must have some contact or form of access on her birthday with each of her parents and to each of her parents on the parent’s birthday. RIGHTS OF GRANDPARENTS TO HAVE ACCESS WITH THEIR GRANDCHILDREN [108] J. O. is Hayley’s maternal grandmother. As noted earlier, she had the responsibility for raising Hayley for two years before moving to Saskatchewan. From that point on it was J. O.’s decision to integrate Hayley back into her father’s home and family. J. O. continued to parent Hayley for two days week thereafter until the date of this trial. It is in this manner that J. O. has distinguished her relationship with Hayley from the traditional role of grandparent. Section 6(1) and s. of The Children’s Law Act, 1997 govern the Court’s review of grandparent’s application to have access independent of the grandchild’s parents’ positions on the matter. Each of those sections has been quoted earlier in this judgment. [109] I have no hesitation in finding that J. O. is a person of sufficient interest in Hayley’s life given her previous role in raising the child. The Court must have regard only for the best interests of Hayley and for that purpose take into account each of the four parameters described in s. 9(1)(a)(i) to (iv). This examination is not restricted to parents who are competing with claims for access, but includes any other person of sufficient interest in the child’s life. [110] The debate around grandparent-grandchildren access is considerable. begin by referring to Family, Children and Youth Section, Department of Justice Canada, Background Paper, Grandparent-Grandchild Access: Legal Analysis by Dan L. Goldberg, 2003-FCY-15E. The executive summary is found at the outset of this 55-page paper. At p. it reads: In June 2000, the United States Supreme Court decided the case of Troxel v. Granville. The Court said that as long as parent adequately cares for his or her children, the state should not interfere with that parent’s constitutionally protected right to make decisions about his or her children’s contact with grandparents. In March 2001, the Ontario Court of Appeal decided the grandparent access case of Chapman v. Chapman. The Court held that in the absence of evidence that demonstrates parent’s inability to act in the best interests of his or her children, parent’s right to make decisions on his or her children’s behalf should be respected. These decisions include those about whom the children see, how often, and under what circumstances. Troxel and Chapman reflect the evolution in jurisprudence in the United States and Canada. With the paucity of social science research about litigious grandparent access applications, as well as the vagueness of the best interests of the child test, courts have often relied on nostalgic, sentimental notions of the role of grandparents, and have frequently granted access to grandchildren contrary to the wishes of the children’s parents. Four provinces, Quebec, British Columbia, Alberta and New Brunswick, as well as Yukon, have legislation specifically providing for grandparent access. Other provincial legislation as well as the federal Divorce Act allow for access applications by people other than parents without explicitly mentioning grandparents. It is becoming increasingly likely that the Divorce Act and provincial legislation such as Ontario’s Children’s Law Reform Act, may be subject to the scrutiny of the Charter of Rights and Freedoms. As such, it would be unacceptable for there to be unrestrained judicial interference with the rights of parents to decide what is in the best interests of their children. It is argued that the best interests of the child test, which is included in all provincial and federal family law legislation, is more appropriately suited to claims between parents than between parent and non‑parent. Accordingly, it is recommended that legislation regarding grandparent access provide for two‑stage, child‑focussed hearing. The initial stage would determine whether the grandchild would suffer actual or potential harm if access to their grandparent were terminated. If no such harm could be shown, then the hearing would conclude and no access would be ordered. If actual or potential harm could be proven by the grandparents, then the second stage would proceed and access would be determined using the best interests of the child test. It is recommended that provincial and territorial governments establish programs similar to Ontario’s Office of the Children’s Lawyer, which provides court‑ordered counsel for children in custody and access disputes, including those involving grandparents. Children’s counsel focus their efforts on gathering relevant evidence about the effect of grandparent access on their child clients. It is particularly helpful to the court to have, placed in context, the input of children who are able to express their views and preferences regarding their grandparents’ access. Children’s counsel are uniquely positioned to use dispute resolution techniques with the parties and their lawyers to, when appropriate, settle cases. [Troxel v. Granville, 120 U.S. 2054 (2000); Chapman v. Chapman, Ontario 1131/98, Ont. S.C.J., March 28, 2000 (unreported); and 2001 CanLII 24015 (ON CA), [2001] O.J. No. 705 (QL) (Ont. C.A.)] [111] At present s. 9(1)(a) of The Children’s Law Act, 1997, dictates that the Court shall have regard only to the best interests of the child. The background paper in the fifth paragraph of the quoted Executive Summary suggests that legislation regarding grandparents’ access provide for two-stage, child-focussed hearing which involves preliminary harm test, which, if met, would be followed by using the best interests of the child test. [112] In Saskatchewan, if grandparent is accepted as being person of sufficient interest, then s. 9(1)(a)(i) requires that the “quality of the relationship” between the child and grandparent must be examined. The quality of that relationship is but one of the four statutory parameters to be reviewed. Section 9(1)(a) is not intended to be an exhaustive list to the exclusion of other parameters or relevant considerations. Is s. of The Children’s Law Act, 1997 compatible with the two-stage child-focussed hearing contemplated by the background paper? That two-staged analysis is very much like mechanical rule of evidence in that it mandates that where no harm will result by terminating the child’s relationship with the grandparent that the matter is finished or at an end. No consideration of the best interests principle arises. If, however, harm will result to the grandchild, step two requires further analysis of the best interests of the child. [113] It might be argued that the harm test is encompassed within the definition of person of sufficient interest. If child would suffer no harm as consequence of severance of the grandchild-grandparent relationship, then that grandparent would not qualify as person of sufficient interest. If this is the proper and sustainable view of The Children’s Law Act, 1997, then we have in Saskatchewan the two-stage analysis. Step one: the grandparent must be person of sufficient interest, not by virtue of blood relations alone, but based upon the historical role which the grandparent has played in the grandchild’s life, which if terminated, would be harmful to the grandchild. If not person of sufficient interest, the matter is at an end. However if the grandparent is person of sufficient interest, then step two proceeds with the application of s. 9(1) and consideration of the best interest principle. [114] read The Children’s Law Act, 1997 in this way. grandparent may be person of sufficient interest if the grandparent-grandchild relationship leads to the conclusion that such relationship is beneficial to the child and consequently harmful if terminated. That is the first step. The second step arises only where the grandparent is found to be person of sufficient interest. It proceeds with review based upon the best interest principle as enunciated by s. 9(1) of the Act. [115] In Tucker v. Lester 2002 SKQB 225 (CanLII); [2002] W.W.R. 585; (2002), 220 Sask. R. 309, M-E. Wright J. reviews the law as it dealt with grandchildren and grandparent access. Justice Wright states at paras. 14 through 16, the following: 14 In Chapman v. Chapman (2001), 2001 CanLII 24015 (ON CA), 15 R.F.L. (5th) 46 (Ont. C.A.), Abella J.A. (as she then was) reaffirmed that the purpose of access is to preserve child’s positive relationships and had this to say of grandparent access at para. 19: relationship with grandparent can—and ideally should—enhance the emotional well‑being of child. Loving and nurturing relationships with members of the extended family can be important for children. When those positive relationships are imperiled arbitrarily, as can happen, for example, in the reorganization of family following the separation of the parents, the court may intervene to protect the continuation of the benefit of the relationship.... The test however, as she pointed out at para. 17 “... is not what, in theory, is best for children in general, but what is in the best interests of the particular children before the court.” 15 That is the same test that is imposed by The Children's Law Act, 1997 supra, (the Act). Regard must be had only for the best interests of MacKenzie and Morgan taking into account those factors enumerated in s. 9(1) (a) of the Act. The conduct of any person that is not relevant to the ability of that person to care for the children while in his or her care must be disregarded. In situations such as this where the person who is applying for access is not parent, there are other considerations which are not specifically identified in the Act. First, there is no automatic presumption that access is in the best interests of the children as there is in the case of an applicant who is parent. Second, the onus is on the person applying to demonstrate that access is in the best interests of the children—it is not for the custodial parent or parents to establish otherwise. Third, the court should be reluctant to interfere with custodial parent’s decision unless it is in the best interests of the children to do so. This evidentiary burden was summarized in Chapman v. Chapman, 1993 CanLII 2598 (BC SC), [1993] B.C.J. No. 316 (B.C. S.C.) at para. 24 and was subsequently adopted and followed by the British Columbia Court of Appeal in F.(N.) v. S. (H.L.) (1999), 1999 BCCA 398 (CanLII), 49 R.F.L. (4th) 250 (B.C. C.A.). 16 It was also held in Chapman, supra, (B.C.S.C.) at para. 24 that it is not in the best interests of child to be placed into situation of real conflict between custodial parent and non‑parent and that “... [w]hile the court must be vigilant to prevent custodial parents from alleging imagined or hypothetical conflicts as basis for denying access to non‑parents, in cases of real conflict and hostility, the child’s best interests will rarely, if ever, be well served by granting access.” [116] remind the reader that this case focusses upon grandparents’ access and not upon grandparents’ custody. The latter involves its own jurisprudence. [117] I am satisfied that J. O. is a person of sufficient interest in Hayley’s life and that if her relationship as grandmother to Hayley was thwarted by the actions of Hayley’s parents, the result to Hayley would be harmful. There are situations, and this is one of them, where the Court should curtail the tradition of access to a grandchild flowing from the parents who have the right to control the upbringing of their child and to determine what relationships the child shall be a party to. When the Court considers the quality of the relationship that has and continues to exist between Hayley and J. O., I am satisfied that an independent right of access is needed to attain Hayley’s best interests. Though there is a scarcity of evidence about Hayley’s personality, character and emotional needs, the history and intensity of Hayley’s relationship with J. O. weighs in favour of specifying access for J. O. [118] Again, J. O. is not to undermine G. K. and C. H.’s parental authority. It is not within J. O.’s right of access to interfere with G. K.’s parenting and C. H.’s access as defined and determined in this judgment. J. O. must refrain from any criticism of either G. K., Patricia Kuntz, or C. H. in Hayley’s presence. J. O. must not attempt to alienate Hayley from either of her parents, stepparent or extended family. By observing these rules J. O.’s capacity to grandparent and have access will also assist to attain Hayley’s best interests. [119] Finally, the Court has no evidence as to Hayley’s wishes. The custody/access report did not address the matter. There is evidence that Hayley loves her grandmother and it accords with common sense that Hayley would have such an affection for J. O. given the history and uniqueness of their relationship. [120] Now the difficulty is that J. O. is soon to establish her own residence in the City of Edmonton. This difficulty is compounded by the rights of C. H. to co-parent to the maximum reasonable in the circumstances. Presumably, J. O. will be able to see Hayley when she is in C. H.’s care. But that presumption is based upon the relationship between J. O. and C. H. being healthy and accommodating. J. O.’s independent right of access to Hayley should not be so extensive that, when coupled with C. H.’s access schedule, Hayley’s family life with her father, stepmother and half siblings is unduly interrupted. To therefore balance these competing claims, J. O. shall have Hayley the last weekend of each calendar month commencing 5:00 p.m. Friday and ending 8:00 p.m. the following Sunday where such weekends do not conflict with C. H.’s access. J. O. shall also have reasonable telephone access, once each Sunday, when Hayley is not in J. O.’s care, commencing at 8:00 p.m. J. O. shall place the phone call at her expense. Finally, C. H. is to accommodate J. O. by sharing access with Hayley during one of the weeks in which Hayley is in her mother’s care. [121] This is case where each of the parties have achieved measure of success. In such circumstances consider that each party should bear his or her own costs. J. N. S. Sandomirsky

Hayley is 7 years old. In this application each of her father, mother and maternal grandmother compete for some form of custody over her. The father seeks sole custody. The mother and grandmother seek joint custody with the father. The mother seeks to be designated as her daughter's primary caregiver. HELD: 1) The father and his wife Patricia have been the primary caregivers and psychological parents of Hayley for in excess of 2 years. The preservation of that important relationship when added to all other factors in this case tips the scales in favour of the father. 2) The family which has been Hayley's experience for the past 2 years, even if relocated to Calgary, is where the continuity, consistency and stability necessary to attain Hayley's best interests will be found. 3) The father must be the sole custodian of Hayley. He must consult with her mother. The evidence shows that the parties have not been able to maintain a functional parental relationship. Whether the mother establishes a new residence in Moose Jaw or Cold Lake, the distance relative to Calgary is significant. 4) A grandparent may be a person of sufficient interest if the relationship leads to the conclusion that such a relationship is beneficial to the child and consequently harmful if terminated. That is the first step. The second step arises only where the grandparent is found to be a person of sufficient interest. It proceeds with a review based on the best interest principle as enunciated by s. 9(1) of the Act. 5) The court was satisfied that the grandmother is a person of sufficient interest in Hayley's life and that if her relationship as grandmother to Hayley was thwarted by the actions of Hayley's parents, the result to Hayley would be harmful. There are situations, and this is one of them, where the court should curtail the tradition of access to a grandchild flowing from the parents who have the right to control the upbringing of their child and to determine what relationships the child shall be a party to. An independent right of access is needed to attain Hayley's best interests. The history and intensity of Hayley's relationship with her maternal grandmother weighs in favour of specifying access.

d_2006skqb251.txt

K. Bazin, IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 056 Date: March 21, 2013 Information: Y379568 Y379569 Location: La Ronge Between: Her Majesty the Queen Appearing: Brent Slobodian For the Crown Susan Ryan For the Accused Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of name or other information that would identify someone as either young person being dealt with under the Act, or as child or young person who is victim or witness in relation to an offence alleged under the Act. JUDGMENT R. J. LANE, [1] B. L. was convicted after a trial held in La Ronge on February 21, 2013, of:Information Y379568: Possess a substance included in Schedule I, to wit, cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, as well as,Information Y379569: Count 1- While bound by a youth probation order made by the Honourable Judge W. K. Tucker, of Saskatchewan Youth Court on the 20th day of August, 2012, did wilfully fail to comply with such order, to wit, keep the peace and be of good behaviour, contrary to s. 137 of the Youth Criminal Justice Act, andCount 2- While bound by a youth probation order made by the Honourable Judge W. K. Tucker, of Saskatchewan Youth Court on the 20th day of August, 2012, did wilfully fail to comply with such order, to wit, not attend within the Province of Saskatchewan unless with the prior permission of the Court, contrary to s. 137 the Youth Criminal Justice Act. [2] The issue before the Court is whether Mr. L. can be sentenced to a custodial disposition pursuant to s. 39(1)(d) of the Youth Criminal Justice Act. It has been conceded by the Crown, and have found that with this not being violent offence, and with his limited criminal record, Mr. L. is not subject to custody under either sections 39(1)(a), (b), or (c). The Ontario Court of Appeal in R. v. R.E.W., provided some guiding principles on the use of s. 39(1)(d) in the following quote:[1] The theme that runs through use of the term “exceptional” in both criminal case law and legislation, is that it is intended to describe the clearest of cases. Such cases include those where applying the normal rules would undermine the purpose of the legislation, where the exercise of the unusual power is necessary or required, and where the exercise of the unusual jurisdiction is capable of explanation. The wording of s. 39(1)(d) is consistent with this approach. The exceptional power to commit young person to custody is reserved for those circumstances where, in effect, any other order would undermine the purpose and principles of sentencing set out in s. 38. The analysis of s. 39(1)(d) must be set against the background of s. 38, which stresses the importance of interfering with young person’s liberty as little as possible. [3] That decision went on to summarize that the section must be narrowly interpreted because sections 39(1)(a), (b) and (c) already encompass most cases where custody would be expected. In addition, section 39(1)(d) is focussed solely on the circumstances of the offence, not the character or history of the offender. The circumstances of the offence must be so aggravating that nothing less than custody will satisfy the principles of sentencing contained in s. 38. The scheme of the YCJA suggests that the circumstances must be so extreme that, “anything less than custody would fail to reflect societal values”. An example would be when circumstances of the offence are shocking to the community. [4] Also the Supreme Court of Canada in R. v. B.W.P.,[2] clearly states that general deterrence is not sentencing factor to be considered by Court when dealing with charge under the YJCA. [5] There are numerous decisions from across Canada that deal with the application of s. 39(1)(d) of the YCJA, particularly in cases that involve conviction for possession for the purposes of trafficking or actual trafficking contrary to s. 5(1) of the CDSA, such as the case we have with Mr. L. [6] R. v. T. (C.S.), was case where larger quantities of more dangerous drugs were involved, more money was seized, and evidence existed of more structured drug trafficking operation than in the present case. The Court held in that case at paragraph 20 that:[3] While am obliged to the Crown for calling Officer Novak to provide insight in regard to this particular drug, its derivative and impact on our community, it seems to me that what we are dealing with in this case would equate to ordinary trafficking for lack of better description. don’t wish to minimize crack cocaine’s destructive nature and the dangers associated with its presence, use and distribution. But there is nothing am able to glean from these facts that would place this particular offence within the category of an exceptional case. [7] Also, the 2004 decision out of Ontario of R. v. F. (J.),[4] granted conditional discharge to youth who sold 83.32 grams of cocaine to undercover officers for $4,250.00. [8] On the other side of the coin we have number of cases where s. 39(1)(d) of the YCJA was applied, resulting in custodial dispositions for youth. [9] R. v. L. B.,[5] involved youth convicted of possession for the purposes of trafficking of cocaine. That youth had no prior record. He was part of “Dial-a-Dope” drug trafficking scheme that was large and well organized. The quantity of the cocaine involved in this case was about 3.8 grams of crack cocaine as well as 0.35 grams of cocaine powder. The street value was approximately $480.00. This youth was sentenced to six month deferred custody order. This case differs from Mr. L.’s case in that this case involves larger, more well organized operation than the evidence that was presented to describe Mr. L.’s operation. [10] R. v. J. B.,[6] involved youth trafficking in heroin. He had served nine months pre-trial custody. He had sold in excess of $10,000.00 worth of heroin on 13 different occasions. He had no prior criminal record and was sentenced to three month deferred custody order. [11] The decision of R. v. M. Q.,[7] was case of youth trafficking in heroin and cocaine. This youth had no record. The youth concentrated his sales mostly on geographic area that was frequented by youth. The Court found that the very existence of cocaine and heroin in the trafficking operation was itself an aggravating factor. Of greater significance though, is how strongly the Court viewed trafficking cocaine in areas frequented by youth. Judge K. Skilnick stated “I am satisfied that the trafficking in hard drugs in this community in location frequented by so many vulnerable youth, ought never be considered to be routine or usual.” This youth was sentenced to six month deferred custody order followed by 12 months probation. [12] It seems then that the following are factors the courts look at when considering sentence on s. 5(1) of the CDSA: 1) Quantity in this case Mr. L. had 76 grams of cocaine. According to Cst. Cam Graves, who was qualified as an expert to testify on the characteristics of drug operation as well as street values, the value of this much cocaine would depend on the quantities sold at particular time. He indicated that if it was sold by the ounce, the value would be between $3,800.00 and $5,050.00. He indicated that if it was sold at the 3.5 gram level, the street value would be between $5,500.00 and $6,600.00. He indicated that if the cocaine was sold by the gram, the street value would be between $6,080.00 and $7,600.00. Suffice to say that the amount of cocaine that Mr. L. had possession of was significant. 2) The role of the accused in the trafficking operation - in this case the evidence would seem to indicate that Mr. L. was the one and only person involved, although one would certainly suspect the driver of the motor vehicle knew what was going on. 3) Sophistication and size of the operation - the evidence seemed to indicate a fairly unsophisticated operation being conducted out of the back seat of a vehicle. 4) The impact on the community - cocaine has a huge impact on small northern communities. Over my 34 years as defence lawyer, Crown prosecutor and judge, the most violent crimes ever saw almost always involved ingestion of cocaine together with alcohol. 5) Type of drug involved - this was cocaine, and as indicated in the decision of R. v. M.Q., the fact that cocaine is the drug being trafficked, is in itself an aggravating factor. 6) The presence of weapons there were no weapons in this case. 7) Previous criminal record - in this situation the accused had one prior conviction of possession for the purpose of trafficking in cocaine, although under s. 39(1)(d) the criminal record of the accused is in general, not to be considered. 8) Is the area of the drug trafficking activity frequented by young people - in my years of living in the Town of La Ronge, Saskatchewan, I easily conclude that Kikinaahk Friendship Centre is the most popular gathering place for older children and adolescents in the district. It is here that the accused was cruising around in his vehicle with the cocaine in the back seat. 9) Was the accused motivated by financial gain or the need to feed an addiction while the accused was found with one package of cocaine on his person, he also had $660.00 cash. There was no evidence that this activity of the accused was designed in order to feed an addiction to cocaine. That being said, I am convinced beyond a reasonable doubt that the prime motivation behind the drug trafficking was financial gain. [13] So, the issue here is whether there is something about the circumstances of this offence, as opposed to the character or the history of the offender, that are so aggravating that nothing less than custody will satisfy the principles of sentencing set out in s. 38 of the YCJA. In other words, is this case where anything less than custody would fail to reflect societal values, or would non-custodial disposition shock the community of La Ronge and district in particular, and the people of Saskatchewan in general. [14] Section 38(1) sets out the purpose of sentencing options under s. 42 as follows: (1) The purpose of sentencing under section 42 (youth sentences) is to hold young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long‑term protection of the public. [15] Sections 38(2)(a) to (d) give general guidance to sentencing Court as follows: (2) youth justice court that imposes youth sentence on young person shall determine the sentence in accordance with the principles set out in section and the following principles: (a) the sentence must not result in punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons. [16] Then s. 38(2)(e) sets out what sentence MUST be: (e) subject to paragraph (c), the sentence must (i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community. [17] Section 38(3) sets out just what youth justice court shall take into account: (3) In determining youth sentence, the youth justice court shall take into account (a) the degree of participation by the young person in the commission of the offence; (in this case it looks like Mr. L. is the only player, other than perhaps the involvement of his driver.) (b) the harm done to victims and whether it was intentional or reasonably foreseeable; (as previously indicated in this decision have practiced criminal defence work in northern Saskatchewan for over 33 years and substances such as cocaine have inflicted upon users, their families and others, devastating effect. Mr. L. should have been able to foresee that effect.) (c) any reparation made by the young person to the victim or the community; (the accused was on probation order for conviction for possession for the purposes of trafficking in cocaine that said conviction having been entered only month before this particular incident. Rather than reparation, the accused has re-offended in the same way.) (d) the time spent in detention by the young person as result of the offence; (Mr. L. has been in remand for approximately one month.) (e) the previous findings of guilt of the young person; (in my opinion this is not relevant to sentencing under s. 39(1)(d)); and (f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section: 1. Northern Saskatchewan communities are generally small communities and are plagued with drug problems resulting in much property damage, loss and violent crime. 2. This is cocaine as referred to in the case previously referred to as R. v. M.Q., cocaine itself is an aggravating factor. 3. Mr. L. was cruising around Kikinaahk Friendship Centre which is the main gathering place for older children and adolescents in La Ronge. 4. There is little to no evidence that the motivation behind the drug trafficking operation for Mr. L. was anything but for financial gain. [18] To me however, the most aggravating factor that has the potential to move this offence into the exceptional case category is the fact that Mr. L. was only one month into a probation order after having been convicted of possession for the purposes of trafficking cocaine on August 20, 2012. One of the terms of that probation order was that he was to stay out of the Province of Saskatchewan unless he had the permission of the Court. assume Provincial Court Judge Tucker did not want this Alberta resident coming back to La Ronge in particular and Saskatchewan in general to sell narcotics. Not only did Mr. L. return to La Ronge, Saskatchewan, but he did so to continue selling cocaine. How could conclude that this probation order has in any way achieved the goal set out in s. 38(2)(e)(i), that is, be the sentence that is most likely to rehabilitate Mr. L. and reintegrate him into society. Further, how could possibly conclude that this probation order has promoted sense of responsibility in Mr. L. and how do we see his acknowledgment of the harm done to the community of La Ronge by his actions, when, within one month, he is back in La Ronge, Saskatchewan, selling cocaine. [19] As referred to in R. v. R.E.W.,[8] cannot imagine the citizens of La Ronge and district, in particular, and the citizens of Saskatchewan in general experiencing anything but shock at this turn of events shock that threatens widely shared community values. [20] Clearly, his previous sentence of probation as imposed by Judge Tucker on August 20, 2012, based on a conviction of possession for the purposes of trafficking in cocaine, has failed to promote his rehabilitation or his reintegration into society. [21] In summary the aggravating factors that, in my view, trigger the application of s. 39(1)(d) are as follows: 1) The fact that northern Saskatchewan is plagued by drug problems resulting in significant property damage, loss and violent crime; 2) The drug being possessed for the purpose of trafficking in this case is cocaine an aggravating factor in and of itself. Cocaine is highly addictive and very often results in horrifying violence; 3) Mr. L. was cruising around Kikinaahk Friendship Centre which is the main gathering place for older children and adolescents in La Ronge; 4) There is little to no evidence that the motivation behind the drug trafficking operation for Mr. L. was anything but for financial gain; and 5) The fact that Mr. L. was only one month into probation order after having been convicted of possession for the purposes of trafficking in cocaine, one of the terms of which was to stay out of the Province of Saskatchewan. Notwithstanding that probation order, the accused is back in La Ronge, Saskatchewan, possessing cocaine for the purposes of trafficking. [22] Thus find Mr. L. is subject to custody. What sentence is appropriate? He has served approximately thirty days in remand. don’t feel he would benefit by any more time in actual custody. do feel that deferred custody and supervision order is appropriate. I therefore place the accused on a six month deferred custody and supervision order on all three counts that he has been convicted on. The terms are the following: a) Keep the peace and be of good behaviour; b) Appear before the Youth Justice Court when required by the Court to do so; c) Report to the Youth Worker at La Ronge Youth Workers immediately upon release and thereafter be under the supervision of the Youth Court Worker, or person designated by the Youth Justice Court; d) Inform the Court Worker immediately upon being arrested by the police; e) Report to the police or any named individual as instructed by the Youth Worker; f) Inform the clerk of the Youth Justice Court or the Youth Worker of your residential address on release, and after release, report immediately to the Youth Worker any: i) Change in that address; ii) Change in your normal occupation, including employment, vocational or educational training and volunteer work; iii) Change in your family and financial situation; iv) Change that may reasonably be expected to affect your ability to comply with the conditions of the Order; g) Must not own, possess, or have the control of any weapon, ammunition, prohibited ammunition, prohibited device, or explosive substance; h) Comply with such reasonable instructions as the Youth Worker considers necessary in respect of any condition of the conditional supervision order to prevent breach of that condition or order, protect society and in addition: i) Report to the Youth Worker forthwith and be under the supervision of the Youth Worker; ii) Reside at residence specified of and in writing by the Youth Worker and do not change that residence without the prior written permission of the Youth Worker or the Court; iii) Not possess or consume any controlled substances as defined by the Controlled Drugs and Substances Act, except as prescribed by medical doctor; and iv) Not possess cell phone during the period of your deferred custody. [23] In addition, authorize the taking of bodily substance for forensic DNA analysis pursuant to s. 487.051(3) of the Criminal Code. In addition, make mandatory prohibition order under s. 51(1) of the Youth Criminal Justice Act where the offender is prohibited from having in his possession any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, for period of two years from the date of this order, pursuant to s. 51(1) of the Youth Criminal Justice Act. [24] Dated at La Ronge in the Province of Saskatchewan, this 21st day of March, A.D. 2013. R. J. Lane, [1] R. v. R.E.W., 2006 CanLII 1761 (ONCA), para. 31. [2] R. v. B.W.P., 2006 SCC 27 (CanLII), [2006] S.C.R. 941. [3] R. v. T. (C.S.), 2008 ONCJ 157 (CanLII), para. 20. [4] R. v. F. (J.), 2004 ONCJ 142 (CanLII). [5] R. v. L. B., 2007 BCPC 457 (CanLII). [6] R. v. J. B., [2003] O. J. No. 2339. [7] R. v. M. Q., 2009 BCPC 211 (CanLII). [8] R. v. W. (R.E.), supra.

The accused was convicted after trial of trafficking cocaine and breach of probation. The issue was whether the accused could be sentenced to a custodial disposition under s. 39(1)(d) of the Youth Criminal Justice Act. HELD: The youth was sentenced to deferred custody. The amount of cocaine was significant, the accused was the only person involved in the offence, it was a fairly unsophisticated operation, the impact on the small northern community where the offence occurred was huge, it is aggravating that the drug being trafficked was cocaine, the accused has a previous criminal record for trafficking, the place where the offence was committed is a friendship centre and a popular gathering spot for youth in the area and the offence was committed for financial gain. The Court held that the most aggravating factor on sentence was that the accused was less than one month into a probation order imposed for trafficking cocaine and was to stay out of the province. The Court held that it was impossible to conclude that the probation order the accused had previously been placed on had in any way achieved its goal of rehabilitation and reintegration of the offender.

d_2013skpc56.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 019 Date: February 24, 2016 Information: 39123041 Location: Prince Albert Between: Her Majesty the Queen and Aiden Pratchett Appearing: Michael Segu, Lana Morelli For the Crown Mark Brayford, Q.C., Brian Pfefferle For the Accused JUDGMENT M.M. BANIAK, [1] The accused, Aiden Pratchett, stands charged as follows: 1) Between the 29th day of September, A.D. 2014 and the 16th day of October, A.D. 2014, at or near Fond-du-lac, Saskatchewan did have in his possession child pornography, contrary to s. 163.1(4) of the Criminal Code; 2) Between the 29th day of September, A.D. 2014 and the 16th day of October, A.D. 2014, at or near Fond-du-lac, Saskatchewan did access child pornography contrary to s. 163.1(4.1) of the Criminal Code. [2] The trial commenced on October 5, 2015, in Prince Albert, Saskatchewan. [3] The Crown’s first witness was Constable Christopher Lair, member of the Prince Albert Police Service for the last 1/2 years and for 10 years before that, Constable Lair served as member of the RCMP. Since October 2013, he has been member of the Internet Child Exploitation Unit, commonly referred to as the ICE Unit. [4] He testified that investigations of child pornography are usually initiated by either complaints or by monitoring file sharing networks for subjects who are accessing, possessing, or sharing child pornography using file sharing software on the Internet. [5] The early portion of his examination-in-chief was primarily focused on the technical aspects of the investigation. [6] Constable Lair went to some length to differentiate the peer to peer file sharing network from the centralized server model: “in most cases when people are receiving information from the Internet they’re contacting specific site and downloading information from that site that is stored on server at that site. [7] Constable Lair explained that persons accessing the centralized server model are accessing the same server, the same Internet address, and obtaining the same information from the same physical location. [8] In contrast, according to Constable Lair “peer to peer is much different set up. It would contact network that would contact other peers, people that had files that they might want and they could share files peer to peer systems are not centralized. Peer to peer network is information that is obtained from many different internet sites. Users can obtain files from many different sources on that network.” (T9 10) [9] When asked how one can be certain, keeping in mind the different sources of the information being obtained from, that one is getting what one asked for, Constable Lair answered as follows: Okay. Because these files are being obtained from multiple sources and we’re getting just pieces of it called packets, the file sharing network, the file sharing software has to be able to identify packets of that file. And in order for that to happen, the system needs to know that it is, in fact, the exact same file. If it differs in any way, the software then takes these packets from multiple users, re-assembles them into one file, unless the source of each of those pieces is from the exact file, the software can’t put those pieces together. So this software uses what’s called hashing algorithm. hashing algorithm is mathematical formula that represent we call it digital DNA signature of particular file. So the software hashes that file and returns string of alphanumeric characters that when the system sees the same string it knows that it’s the same file. (T-12) [10] follow up question of: Okay. And if two files have the same hash value, what can you conclude from that?” Constable Lair answered as follows: If two files have the same hash value, you can be certain that the file itself is the exact same file. You cannot be sure that someone has changed the file extension or the file name. Those things could be changed, but the inside of the file that needs to be that you need to be viewed or to be deconstructed and reconstructed, if it has the same hash value, you can be sure that that date is exactly the same. [11] He was next asked: “And why are hash values you’ve explained why hash values are important to the functioning of the peer to peer network but why are they important to you as an investigator?” [12] His response: Well, they’re important to me because when we monitor the file sharing networks we see that particular IP address has number of files that they’re currently sharing on file sharing networks and those files are displayed by file name and they’re also displayed by hash value. Now, law enforcement has database of hash values that have been that the files associate with those hash values have been entered into the database because another police officer in another jurisdiction at some point has categorized that image as being child pornography image. So the software that we use to patrol the internet looks for file with those hash values in that database. So when see when use my law enforcement program to patrol the internet and look to see who is on file sharing networks trading child pornography would see user and would be able to see the list of files that they have been flagged with. And when see hash value, can’t see the file. So don’t know by looking at the hash value that, in fact, is child pornography. However, once have the file, once I’ve downloaded it and know that the hash value is the same, can say that the file reported by that person is child pornography whether or not I’ve got the file from them. When know that they have that hash value, file with that hash value in their shared folder on their computer that was available to the network, can get that file from any source and can be sure that at that point they had child pornography on that system because the hash value is the same. (T14) [13] Constable Lair testified that the file sharing network that pertained to this case is the Gnutella Network, and that the program used to access the Gnutella network was Shareaza. [14] Constable Lair went on to state that once person is on file sharing network and downloads files, that folder by default goes into directory created when the file sharing software was started: Now, if you have whatever files you have in that shared folder while you are on the internet are potentially visible to any user on the internet when they have put in search term that is in the file names that are in your shared folder. (T17) [15] He would use the Child Protection System (CPS) program to browse and see what was in someone’s shared folder: And so when step into my virtual police car, that is what see when log onto the CPS system .IP address the second column is the user name of the user that is reporting files on that IP address. That user name can be couple of different ways. You can enter your own name when you are running your file sharing client. You can enter user name. Or you can just allow it to go by default to what we call G.U.I.D. Now, G.U.I.D. is an acronym for globally unique identifier. G.U.I.D. is what the file sharing program, or client we call program, the file sharing client, when it’s installed, this system assigns G.U.I.D. And it could be easily perhaps understood as the serial number of that search warrant installation. So when download and install Shareaza 2.7.0.0. the system would assign me G.U.I.D. and then that’s the serial number for that software installation on that computer. If Shareaza then updates to 2.7.0.0. and update that, it assigns me new G.U.I.D. because that’s how serial number for that installation. so every computer has that software installed has different serial number that we call G.U.I.D. (T19) [16] According to Constable Lair, if two people, in the same house downloaded Shareaza on their separate computers, they would have different G.U.I.D. numbers on their installation. [17] When asked if two people could have the same G.U.I.D. number at the same time, Constable Lair replied that it was mathematically possible but extremely unlikely. (T20) [18] During the course of his investigation, once Constable Lair logs onto the Child Protection System (CPS), he looks for locations that are in his area of responsibility to investigate and then proceeds to zero in on the IP address. [19] The accused came to the attention of Constable Lair during such an investigation into file-sharing. Exhibit P-1 shows how the investigation commenced. The image obtained from the original download Exhibit P-2) was described by Constable Lair as follows: In my view that is young female child approximately six to ten years old laying on couch with her pants pulled to her knees and her legs up in the air showing her anus and vagina. In my view, the size of the child, the lack of genital development and facial structure that see, in my view, that was child six to ten years old. [20] In order to obtain the physical address and the name of the subscriber, Constable Lair applied for Production Order on September 30, 2014. The Production Order, (P-3), asked SaskTel for the name of the customer that was assigned that IP address on that time and date. Constable Lair explained why the request was so specific: As said earlier, IP addresses can change depending on the needs of the internet service provided. Therefore, it is important that determine which internet account on the date that was exchanging the date and time that was exchanging data that received that download from. At that date and time, that’s when need to know the physical address and name of that subscriber because two hours later that IP address could be subscribed to someone else. (T35) [21] Further investigation revealed that Aiden Pratchett was member of the RCMP O.F.C., Fond-du-Lac, Saskatchewan. [22] Constable Lair next applied for search warrant on October 15, 2014. The search warrant was issued and it authorized the search of the duplex located within the RCMP campground at Fond-du-Lac between the hours of 10:00 a.m. and 6:00 p.m. on October 16, 2014. (Exhibit P-4) [23] The search warrant authorized search of the entire duplex. [24] The search warrant was executed on October 16, 2014. The search team consisted of Constable Lair; Corporal Jared Clarke, who is an ICE investigator in the RCMP; Constable Lindsey Wall who is forensic technician with the Saskatoon Police Service ICE unit; Constable Shannon Parker, Saskatoon Police Service technician with the ICE unit; Staff Sergeant Ron Weir of the Regina Police Service, who is the provincial co-ordinator for the Saskatchewan ICE Unit. [25] In addition to the ICE team, RCMP Inspector Shelly Dupont and Staff Sergeant Garfiel Elliott were involved. [26] One unit of the duplex was occupied by Mr. Pratchett and his spouse, Sarah Colter, while Constable Bobby Michaud lived in the other unit. [27] After arriving at the campground, Bobby Michaud and Sarah Colter were detained. Mr. Pratchett, who was at the residence following night shift, was summoned to the detachment by Inspector Dumont. He arrived within six minutes of being called and was promptly detained by Corporal Clarke. [28] Mr. Pratchett’s residence was searched three computers were seized: “one was laptop computer; one was desktop computer, and one was larger tower, red tower custom built computer.” (T50) [29] The red tower computer has the operating system encrypted, so that it could not be accessed without password. [30] The red tower computer had three hard drives inside it, and fourth was found later. Three of the four hard drives were encrypted. [31] search of the unit occupied by Constable Bobby Michaud revealed one computer which was non-password protected. Examination of his computer did not yield any child pornography. At that point Constable Michaud’s detention was terminated. [32] The first interview (Exhibit P-5) with Mr. Pratchett was conducted by Corporal Clarke, while Constable Lair monitored it. The second interview was conducted by Constable Lair, and it took place on the same day. The first interview lasted about an hour and twenty minutes, while the second one was approximately one-half hour. (Exhibit P-6) [33] Prior to getting into any serious discussions with Corporal Clarke, Mr. Pratchett requested an opportunity to consult with counsel. This request was granted and Mr. Pratchett was eventually successful in speaking to counsel of his choice. He indicated to Corporal Clarke that he was satisfied with his call. [34] Every attempt by Corporal Clarke to obtain the password from Mr. Pratchett proved futile. During an interval when Mr. Pratchett spoke with Sarah Colter, she had indicated to him that her computer was not locked, but that Mr. Pratchett’s was: “yours is locked like Fort Knox apparently which sounds like your computer.” (Exhibit P-5, pg 42) [35] During the interview with Constable Lair, Mr. Pratchett described himself as being computer savvy: “Ahm. don’t know if you talked to my boss but I’m kind of the Detachment IT guy, right? I’m not by any means an expert. don’t know how you guys do what you do, but am very familiar with computer hardware on the user end.” (Exhibit P-6, pg 3) [36] During the interview with Constable Lair, Mr. Pratchett again reiterated his position that he was not going to be providing passwords. He also expressed the view that no one he could think of could have been involved: “I can’t in all conscience say that there’s anyone can think of who would have done this.” (Exhibit P-6, pg 53) [37] Mr. Pratchett also stated that he has never had anyone service his computer as he was quite capable of doing it himself. [38] Exhibit P-8 was two page document which comprised the Fond-du-Lac RCMP detachment work schedule from August 21, 2014 to October 15, 2014. Constable Lair testified that he reviewed Mr. Pratchett’s work logs for that time frame: Well, went through and did an analysis and comparison of his shift schedule and his work logs. And compared it to the activity that was flagged by CPS and found that every time there was activity on the CPS log with respect to his IP address, was time when he was not on duty. [39] He was asked: “Between the offence dates that we are talking about on Information 041, so September 29, 2014, to October 16, 2014, what CPS activity did you find that occurred while Mr. Pratchett was on shift?” Answer: “None”. [40] Constable Lair testified that CPS has the ability to browse the contents of the shared folder and that he was able to obtain copies of all those files being shared during the entire offence date. [41] These files were contained on three DVDs labelled Volume 1, Volume and Volume (Exhibit P-9). [42] representative sample from each disc showed these images as described by Constable Lair: Volume 1: It is female child nude from the waist down on bed, approximately six to eight years old. She is now and now we have an adult’s hand fondling her buttocks and anus. And now there’s still image of an adult penis attempting anal penetration. The title says, “honey shit lover sex”. (T82) Volume 2: We see female child lying on top of an adult male, both are nude, and the adult male is attempting vaginal penetration. (T83) Volume 3: We’re seeing female child approximately five to seven years old performing oral sex on an adult male. (T85) [43] The last file being flagged by CPS was at 11:32 a.m. on October 16, 2014, the day the search warrant was being executed. This was minute before Mr. Pratchett was called to attend the RCMP detachment. [44] On December 22, 2014, Mr. Pratchett was arrested. [45] Constable Lair again decided to interview Mr. Pratchett and this time he asked Sergeant Parisien to take part. According to Constable Lair, “. wanted Sergeant Parisien here to be able to answer any technical questions that Mr. Pratchett had that were done above my level of expertise”. (T93) [46] As the interview progressed, it became apparent that Sergeant Parisien played much more active role than simply being around to answer Mr. Pratchett’s technical questions. However, when all was said and done, the investigation was not advanced appreciably by this interview. [47] Constable Lair presented Mr. Pratchett with spreadsheet (Exhibit P-11) downloaded from CPS which chronologically set out all of the activity related to his IP address during the time in question, namely September 29, 2014, to October 16, 2014. [48] The entry on October 16, 2014, was at 11:32 a.m., one minute before Inspector Dupont called Mr. Pratchett and requested that he come to the detachment. Mr. Pratchett arrived at the detachment at approximately 11:40 a.m., and the ICE team entered the Pratchett residence at 12:13 p.m. They used key to gain entry and the house was unoccupied. The computer was shut off. [49] Mr. Pratchett offered the opinion that Constable Lair did not have “very good understanding of how computers work”. (Exhibit P-10, 7) [50] When Sergeant Parisien suggested to Mr. Pratchett that he and only he could have logged into the “encrypted computer, connected to the internet, searched for and found vile child abuse videos, downloaded them on to your computer and then shared them with the world, just minute before you were called by the Superintendent. .”, Mr. Pratchett responded by asking “is your experience with computers, Sergeant, that they only do things that people who are sitting physically at them tell them to do?” [51] When Sergeant Parisien answered “yes”, Mr. Pratchett stated: “Okay. Then don’t think we have anything more to say to each other today. .” (Exhibit P-10, 25) [52] Constable Lair was not cross-examined. [53] The Crown’s next witness was Constable Shannon Parker, forensic computer technician, employed by the Saskatoon Police Service. She became member of the provincial ICE Unit some 18 months earlier. [54] Prior to travelling to Fond-du-Lac to take part in executing the search warrant of Mr. Pratchett’s residence she was briefed as follows: During the briefing Investigator Lair stated that between September 29 and believe it was October 15 he had received some partial downloads. He had indicated that it was peer to peer file sharing investigation and that the Shareaza version 2.7.7.0 was responsible. He also provided file name and the hash associated with that and G.U.I.D. (T110) [55] Her role was that of an exhibit officer. As the exhibit report (Exhibit P-13) shows, thirty exhibits were seized from the Pratchett residence. She took 104 photos, 44 of which were assembled and comprise Exhibit P-14. [56] She testified that the red tower was seized and three hard drives were found in that tower. Later, while looking for serial number of the tower, she discovered fourth hard drive. She described this fourth hard drive as exceptional with great storage capability. [57] She testified that all of the hard drives from the red tower were completely encrypted and, therefore, not accessible to police. (T122) [58] Another item seized was router. Constable Parker explained its function as follows: And so what router basically does is it directs traffic from the outside world, so the world wide web, the wide area network, and it acts as bridge from that wide area network to your inside world, to your home network or to your land, your local area network. So it’s bridge between two networks, first and foremost. And then second of all, it’s going to direct traffic. And we can get into that later. But traffic is going to come into your router, and the router is going to say, I’m going to direct this traffic to the desktop right beside me here. I’m going to direct the traffic to Ms. Colter’s computer. I’m going to direct this traffic to the laptop or to whatever devices he’s got in the residence. So that’s the gist of what router is. (T124) [59] In her opinion, “because the router assigns each device in your home its own internal IP” (T 152), it is not possible that the data packets would end up at some other device. [60] In this particular case, Cosntable Parker was certain that the Shareaza traffic was destined only for the red computer tower: “Because the internal IP is tied to that VIN number, that MAC address. And that physical MAC address has been found on the red computer tower.” (T 152) [61] Constable Parker described MAC (Media Access Control) as being similar to VIN (vehicle identification number). Any physical device that has the ability to have network capabilities is assigned MAC address. So each device, or piece of hardware, has different MAC address: just like the vehicle example. It’s completely distinct, unique address physically assigned to physical device. (T 140) [62] Constable Parker was not cross-examined. [63] The next witness was Sergeant Darren Parisien, who was qualified as an expert in the peer-to-peer file sharing investigation and techniques. [64] He describes his duties as follows: develop and update training as it relates to peer-to-peer file sharing investigation techniques and software. And coordinate training nationally and internationally regarding peer to peer investigative techniques. And I’m the lead instructor for that case and have been since 2008. (T 159) [65] He testified that there are multitude of file sharing programs, including the Shareaza peer-to-peer file sharing, which “I’ve used number of times and I’m quite familiar with the software”. (T 167) [66] Sergeant Parisien testified as to how he became involved in this particular investigation: Well, learned from the investigators that there was some encryption that was encountered during the search warrant, specifically at least one entire computer was encrypted with program called True Crypt. And the investigators were unable to link some of the suspected criminal activity to concretely to that computer. So reviewed some of the information in relation to the child protection system logs which are basically created when law enforcement servers and crawlers send out messages to peer networks looking for people who are sources of known illegal files. So in reviewing that child protection system information made some observations regarding port number and program that was used in relation to that computer and further assisted Constable Parker of the Tech Unit with her examination of router which was seized from the residence during the search warrant. (T 196) [67] With respect to the observations he made regarding the port number, he testified as follows: in the port number in relation to the peer-to-peer file sharing application is the conduit for which the activity between the client running on the suspect’s computer and the peer-to-peer network interact by way of sending messages back and forth. The default port number that is involved with the file sharing application Shareaza is port number 6346. But when you install Shareza on your computer, it needs to assign port number. So basically conduit is port number. If you do nothing when you install the program, it assigns 6346 to your computer, sorry, to that application. But the user has the ability to change that port number. There are about 64,000 ports associated to router and any one of those, for the most part, any one of those ports are available to transfer information back and forth through your computer to the router. And in this case the 32888, which was the port number identified through the child protection system all the activity associated to Constable Lair’s investigation, that 32888 is not the standard port number. And wouldn’t be surprised if saw 6346, 6347, 6348 because those sometimes your computer picks different one, if one is available. But to see port number 32888, that would be consistent with user manually changing the port number and entering that port number to be used by the Shareaza file sharing program. [68] Sergeant Parisien also testified about G.U.I.D. numbers, and his review of the G.U.I.D. numbers associated with Mr. Pratchett’s installation of Shareaza. He testified that there were multiple G.U.I.D. numbers and he explained how these could be generated. So in Shareaza, specifically this version, but number of Shareaza versions, the user, when they’re running program, they can simply click on button and change their G.U.I.D. number. So there’s button that says, generate new G.U.I.D. So just click on this area under security, you click on certificates and this is well-known kind of aspect of Shareaza that is not really present in lot of other peer-to-peer programs. But in Shareaza you can click on, in the security tab there’s an area that says generate new G.U.I.D. (T 207) [69] In response to question of whether another person online on Gnutella, using Shareaza, could change your G.U.I.D. number, Sergeant Parisien’s answer was no: so you can’t change my G.U.I.D. You couldn’t say, add more folders. You couldn’t say show me what else is on your computer. You can’t say auto update this application. None of that. You can send me message but other things such as update, change port, update G.U.I.D., update version, those are all things that an outside user who is interacting with your computer with Gnutella Network has no ability to control or send messages in regards to. (T 208) [70] Sergeant Parisien prepared report regarding his investigation of Mr. Pratchett (Exhibit P-17). The report covered the period from September 15 to October 16, 2014. [71] In reference to that report, Sergeant Parisien was asked the following: “. you indicated in your report that files were downloaded over multiple days during multiple peer-to-peer sessions all linked to the same client and identical port. Is that stating based on what you’ve been telling us here this afternoon?” He answered: Yes. So the internal or sorry, the public IP address which basically points us to say, house, is the same. So we’re arriving at the same house. And the port umber is the same through all of this. If you look under column of the whole entire report, every single instance in here is 32888. And the reason it’s 32888 is because the user, when they set up Shareaza, said, all my Shareaza activity is going to come to the house on port 32888. That’s what want it to come and go from. So that allows me to determine that it’s likely the same computer. In this case the G.U.I.D. changes and there’s some other factors that are in the lay here. But this progression of files, even with the G.U.I.D. number changing here, this progression of files indicates to me that this is the same user and the same computer. You can see in this instance there’s five, sorry, six different G.U.I.D.s. Every single sorry five. Two of them are the same, which is on the same date, both on September 27th. But the presence of identical files, identical file names, identical port, identical IP address over standard period of time indicates to me that this is the same computer, the same installation of the program, the same user, the same pool of shared files that are being shared from this computer during this time frame. And that’s consistent with multiple files across this report. (T 221) [72] Defence declined to cross-examine Sergeant Parisien. [73] The next witness was Sergeant Joel Bautista, member of the Saskatoon City Police force for thirteen years and with the ICE unit since 2009. He is forensic technician. His involvement in the investigation started November 19, 2014, when he was asked to analyze the My Cloud storage device which was one of the 30 exhibits seized during the search of Mr. Pratchett’s residence. [74] He described My Cloud as follows: Basically, Your Honour, My cloud device is device that can be accessed in your own network. So with My Cloud the advantage of My Cloud is the fact that it can hold large amount of data and since it’s connected within your network, it can be accessed via laptop, stand alone desk top computer, anything connected within your network. This device consisted of four hard drives. Each hard drive was terabytes in size for total data storage size of terabytes. Basically My Cloud is personal, want to say, cloud storage device for the home use. (T 231) [75] He testified that each hard drive was re-attached into the My Cloud, and, once operational, hooked up to forensic laptop. This meant that Sergeant Bautista could view on the laptop what the user would be viewing if he were to go into the My Cloud. (T233) [76] Sergeant Bautista testified that he went through every folder on this device. The database where the passwords are kept was encrypted. [77] He was asked: “So were you able to get into that database?” His answer: No. So what did was for period of roughly five days, attempted quick brute force attack. Brute force attack basically takes all possible character combinations and tries to force that into the program in order to get it open. It’s not 100% full proof, but wanted to see the complexity, possible complexity of this suspect’s password. And this was my first, if you want to say, introduction into it. Usually if password is simple, may be less than eight characters, may be all upper case, all lower case, depending on the brute force attack, it would be in matter of minutes or seconds. This was little test to see just the password strength of the actual key pass. And in this case from November 25, 2014 to December 2, 2014, it was unsuccessful. (T 235) [78] During that time, if the program used was averaging some 20,000 passwords per second, billions of attempts would have been made to get into this key pass. [79] Sergeant Bautista was not cross-examined. [80] The next Crown witness was Constable Lindsey Wall, member of the Saskatoon Police Service, and since October of 2013 assigned to the provincial ICE Unit. He described himself as forensic technician. [81] He prepared forensic report (Exhibit P-21), and much of his testimony related to that report. [82] He was member of the team that entered Mr. Pratchett’s residence. His objective was to gather as much evidence as possible in short period of time. To this end, he would attempt to access Mr. Pratchett’s computer. [83] He was asked: “And how successful were you in doing that when it came to Mr. Pratchett’s computer?” Answer: Not very successful. when first walked over to Mr. Pratchett’s computer, the monitor was off. moved the mouse. When moved the mouse, the monitor activated, and this is the screen that came up when moved that mouse. That’s again taken with my small camera. It’s not very clear. But True Crypt Boot Loader 7.1A, and it requires password. (T 250) [84] He described True Crypt: as an encryption program. So True Crypt it’s freely available on the internet for download and it basically locks your computer. It’s different than Windows password that in this instance, with the boot loader, you can’t even access the operating system. You need to provide password before the operating system will load. (T 250) [85] He described the difference between Windows password and True Crypt as follows: If we were to think of Windows password say just door to room, with Windows password with the forensic tools that we have, the forensic tools that we have don’t recognize that Windows password. So we’re able to view the system. The system is up and running. can view the system. can triage. can do can use any of my other tools on that system. So if that’s room, Windows password, you can get in through the window and can see everything in that room as it should be. If we’re still thinking of the computer as room with the encryption software True Crypt, need the keys to get into that room. If don’t have the keys, number 1, can’t get in. can’t get in through the window. Even if could get in through window, everything in that room would be so disorganized you wouldn’t even recognize what you’re looking at in that room. So even if manage to use my forensic tools to access this drive, all the information on that drive is completely useless to me unless have the proper keys to put everything back together. (T 251) [86] Constable Wall testified that he was allowed full access to Sarah Colter’s computer. It was running and he did not need password to view it. He did not find anything relevant to the investigation on Ms. Colter’s computer. [87] Constable Wall also examined Constable Michaud’s computer and did not find anything relevant on it. Constable Michaud’s computer had different IP address and different wi-fi address than Mr. Pratchett’s. [88] Constable Wall testified that Mr. Pratchett’s red computer had four hard drives PE 17, PE 18, PE 19 and PE 30. [89] He examined PE 17 at the Pratchett residence: At the scene did quick triage. So basically looked for items that believed would provide us evidence for our investigation. looked through file folders, ran some key word searches. looked specifically for Shareaza, the downloading program that we believed was used. did find the Shareaza version 2.7.7.0 executable file on PE 17. (T 258) [90] He described an “executable file” as being “the file that you would click on to launch the program, or to start the program”. (T 258) In other words, the executable file is only the springboard to start the program, but the program still needs the configuration files in order to actually function.” (T 259) [91] None of the configuration files were found on PE 17. According to Constable Wall’s testimony, the executable file for Shareaza version 2.7.7.0 was created on September 15, 2014. [92] Constable Wall was not able to access the other three hard drives (PE 18, PE 19 and PE 30) as all of those drives were encrypted. [93] By further analyzing the hard drive (PE 17), Constable Wall concluded that the files that he was able to locate on Mr. Pratchett’s computer were match for the files he was provided by Constable Lair: With the CPS list was given by Constable Lair, those files contained hash values as well. So the DNA to those files. What did was ran these files that found through hashing program. So hashed these files as well and found that they were an exact match for the files on Constable Lair’s CPS list. (T 265) [94] Constable Wall was asked: “So if understand your overall forensic analysis correctly, you found the Shareaza version that Constable Lair was investigating on the one unencrypted drive on the red tower computer?” Answer: “Yes.” (T 294) [95] Defence did not cross-examine Constable Wall. Crown did not call further evidence. [96] Mr. Pratchett testified. His examination-in-chief was brief and succinct so much in fact, that reproduce it here in its entirety: Mr. Pratchett, you’re the accused in these proceedings obviously. Yes. want to take you back to the day that the officers came to Fond-du-Lac, October 16th of last year, just not quite year ago. And we’ve heard you were residing there, correct? That’s correct. Who was your employer then? The RCMP. And the October 16th meeting with the police, as we’ve seen, you were interviewed twice, at the Fond-du-Lac detachment that day that was video taped, correct? Yes. And you had chance to watch those subsequently, here in court for instance, correct? That’s correct. And were you attempting to tell the truth when you were answering those questions? Yes, was. Subsequent to that, just over two months later on December 22nd, during that interval you hadn’t been charged, correct, during that interval? That’s correct. And you hadn’t been provided with disclosure during that interval. No, had not. And on December 22nd when charges were proceeded with you were interviewed again. Okay. At that time you’ve seen the video here in court. Yes. Were you attempting to tell the truth in that interview? Yes, was. Now, want to ask you specifically, have you ever downloaded child pornography? No, have not. Have you ever possessed child pornography? No, have not. Do you have any interest in children in sexual way? No, do not. Did you commit the offences that are alleged against you? No, do not. Cross-examination of Mr. Pratchett [97] Mr. Pratchett acknowledged that he had an interest in computers; that he was enrolled in the Bachelor of Science in Computer Technology program through Athabasca University; and that his understanding of computers exceeded that of most average persons. He, in fact, built the red tower computer. [98] He agreed that others at the RCMP detachment in Fond-du-Lac would look to him for advice and assistance if they encountered any problems with their computers. [99] He agreed that he was concerned with security as it pertained to his computer, but expressed no specific concerns about it being stolen from or tampered with, at the RCMP detachment. [100] Mr. Pratchett acknowledged that the laptop computer and Ms. Colter’s computer had single Windows passwords but were not encrypted with True Crypt. [101] He was questioned as to why he was prepared to provide some passwords, including his work drives, but not the password to his red computer. He responded that he was simply following legal advice to not provide personal passwords. [102] However, he also agreed that even after receiving legal advice he was prepared to give up some passwords, but not the one to the red computer. [103] Mr. Pratchett explained why he used encryption: was not using the encryption in that fashion. was not concerned that someone would come into my house and access my computer while was away. My concern was that the computer would be stolen in which case it would be turned off or powered off at which point the password would assert itself. But in the ordinary use, the computer is on and it’s logged in. The password isn’t necessary. (T 317) [104] That answer led to this exchange: Lines 32, page T318: Okay. And how do you activate your encryption, Mr. Pratchett? Sorry. What do you mean by activate? Well, if I’m using your red tower computer, how do we get to the black screen that we saw during Constable Wall’s presentation this morning. You turn What has to happen? You turn on the computer. Okay. But if I’m already using it and am surfing the web on Firefox and walk away from the computer, does it automatically go to that black screen? No. So what has to happen? It would have to be turned off or re-started. So when the police entered your home, it’s fair to say that before they entered your home, the computer had either been turned off or re-started. Yes. Okay. And for anything to work on that computer and to get past the True Crypt encryption, logically then it has to be turned on, right? The computer has to be on. Yes. And you and can agree that in the minutes before Inspector Dupont called you to come to the detachment you were inside your residence. Yes. And other than I’m guessing your cat, you were alone? [105] Mr. Pratchett was next asked if someone “is smart enough to know the user name and the password for your router, you would agree with me that it would be virtually impossible to randomly guess your password for your True Crypt encryption”. His answer: agree, yes.” [106] Further: “Yes, in fact, we’ve heard the evidence that the police have tried over trillion combinations and have not gained access, right?” Answer: “Yes”. (T 321) [107] Mr. Pratchett also conceded that he monitored his computer fairly closely and “. kept close eye on the band width being used” (T 322), and that band width would be affected by files being uploaded or downloaded. [108] In the same vein, Mr. Pratchett agreed that he had his computer locked up to keep people out: wanted to be there when they did the search warrant, just so could, you know don’t like the idea of people in my house when am not there. You know, the cat’s in her blanket. know they’re worried that we might somehow delete something, but cuff me. don’t care. just t[sic] be there when they’re in my house. I’m private about that kind of shit. Same reason had my computer locked up. (T 331) Position of the Parties [109] Defence submits that although Mr. Pratchett is probably the most logical suspect, that does not establish guilt. He took the stand in his own defence and categorically denied downloading or possessing child pornography. [110] He was not able to explain how the child pornography ended up on his computer, but the accused does not bear this burden. [111] Defence argued that the accused did not try to blame anyone else at the detachment, or his spouse, for accessing or tampering with his computer; fact that should bolster his credibility. [112] Further, defence argued that no negative inference should be made against the accused for not giving up or surrendering his password as he was simply following legal advice and exercising his right to remain silent. [113] Defence counsel concluded his remarks with these words: And in this case suggest that his evidence is that he is innocent and that he has met the burden that is upon him to raise that reasonable doubt. And the fact that we can’t prove who did it, that’s not our burden. (T 337) [114] The Crown submits that all elements of the offences have been established. That the material in question is child pornography within the definition of the Criminal Code, and that the accused had knowledge and control of the illegal material. [115] The Crown further argues that the massive body of evidence presented at trial by all of the Crown witnesses went completely unchallenged. Therefore, taking the totality of the evidence into account, and the inferences that can be drawn from that evidence, the Crown contends that it has proven the accused’s guilt beyond reasonable doubt. [116] Section 163.1(1) reads as follows: 163.1(1) In this section, “child pornography” means (a) photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means, (i) that shows person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or (ii) the dominant characteristic of which is the depiction, for sexual purpose, of sexual organ or the anal region of person under the age of eighteen years; (b) any written material, visual representation or audio recording that advocates or counsel sexual activity with person under the age of eighteen years that would be an offence under this Act; (c) any written material whose dominant characteristic is the description, for sexual purpose, of sexual activity with person under the age of eighteen years that would be an offence under this Act; or (d) any audio recording that has as its dominant characteristic the description, presentation or representation, for sexual purpose, of sexual activity with person under the age of eighteen years that would be an offence under this Act. [117] Section 163.1(4) of the Criminal Code states: (4.2) For the purposes of subsection (4.1), person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself. [118] At the outset, it is my finding that the material viewed (Exhibits P-2, P-7, and P-9) , meets the definition of child pornography as defined in the Criminal Code. These were very young children in sexually explicit situations. [119] With respect to possession, the Supreme Court addressed comprehensively the various requirements which the Crown has to prove in Morelli[1]: Firstly, the accused has to have knowledge of the material; secondly, the accused knowingly keeps or shares the material in specific or particular place; and, thirdly, the accused intends to have the material for his own use or benefit. In order to establish the above, the Crown has to prove that the accused had sufficient control over the material in question. By proving that the accused knowingly stored and retained the material throughout the time in question, the Crown would satisfy the mens rea requirement. [120] The accused is charged with possession of child pornography and, secondly, of accessing child pornography. [121] The evidence adduced by the Crown was not challenged as none of the Crown witnesses were cross-examined. [122] It is worth mentioning that all of the witnesses, including the accused, have great deal of technological expertise and sophistication. So even though only one of the witnesses was qualified as an expert, it could easily be said that all of the witnesses were experts in their own right when it comes to Internet and computer technology. [123] The first witness, Constable Lair, testified that he commences his investigation if the child protection system flags an IP address as being in possession of child pornography. [124] In this case, Constable Lair obtained Production Order which pointed to Mr. Pratchett of Fond-du-Lac, SK as being the person behind the IP address sharing the child pornography. [125] Following the execution of the Search Warrant, police seized number of devices including Mr. Pratchett’s red computer. [126] As already outlined previously when examining the various witnesses’ testimony, all evidence pointed towards the accused’s computer network and the Gnutella network. Only the accused had access to his computer and only he knew what the password was. No one at the RCMP detachment in Fond-du-Lac, or in the Pratchett residence had access to the red computer. Sarah Colter did not know the password to the red computer and there is no evidence that she ever used it. There was no child pornography on her computer. In my view, there is absolutely no evidence to suggest that she may have been involved in any way. [127] The evidence, primarily through Constable Parker, establishes that all the material, all the Sharaeza traffic, came into the accused’s residence through router that directed everything to the red computer only. [128] The notion that someone could, either through luck or skill, access Mr. Pratchett’s red computer seems extremely unlikely. The best forensic technicians from the ICE Unit after attempting some three trillion possible configurations or combinations were unable to figure out or get past the True Crypt Boot Loader. [129] Mr. Pratchett himself was not surprised that the encryption system was so formidable. [130] This fact, combined with Mr. Pratchett’s diligence in regularly checking his band width usage, makes it highly unlikely that he would not have been aware if hacker had been using his computer. He was sophisticated and frequent user of the system. He was on his computer on daily basis. It is unlikely that he would be unaware of someone downloading material onto his computer. Moreover, Mr. Pratchett had other material, like car manuals that he said were his and which he referred to, in the shared folder. Undoubtedly, when accessing such shared folder, it would have been virtually impossible not to notice the explicit and eye-catching pornographic files. [131] Further, the evidence (Exhibit P-11) shows that the only time the CPS is flagging files and noting activity is when Mr. Pratchett is off duty and at home. [132] On the day of the search warrant execution, October 16, 2014, at 11:32 a.m., the computer was running. The accused was summoned to the detachment few minutes later and when the police entered the locked residence short time later, it was turned off. No one was at home. The inescapable conclusion is that it was Mr. Pratchett who turned it off. [133] According to Constable Wall’s testimony, the operating system on Mr. Pratchett’s computer could not be accessed remotely. [134] All of the Crown witnesses, from Constable Lair to Constable Wall, were convinced that it was Mr. Pratchett who controlled the flow of traffic to the red computer and that only he had access. That testimony was not challenged. [135] Accessing child pornography is defined in subsection (4.2): For the purposes of subsection (4.1), person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself. [136] The accused took the stand and denied possessing or accessing child pornography. He had no explanation or knowledge as to how the child pornography ended up in his folders. In fairness, the accused is not required to explain anything or disprove anything. The burden falls on the Crown to prove its case beyond reasonable doubt. [137] While there is conflict, or contradictory evidence, particularly between an accused who gives exculpatory evidence, and one or more witnesses who contradict and call into question the accused’s credibility, the direction given by the Supreme Court in W(D)[2] is instructive. The test is as follows: Firstly, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused. [138] denial does not create reasonable doubt any more than complaint or charge establishes proof of an offence having been committed. The testimony of the accused should not be analyzed separately. Rather, it should be weighed and evaluated in light of all the evidence. [139] Having regard to all of the Crown’s evidence, reject the accused’s evidence. found all of the Crown witnesses to be forthright and credible. In contrast, Mr. Pratchett was less forthcoming. Segments of what he said to the investigating officers during the interviews, and later his testimony at trial, were contradictory and at odds to the evidence provided by other witnesses whom found credible. [140] He testified that usually his computer was on and logged in, so that password would not be necessary to use it (T 317). However, Sarah Colter, when speaking to Mr. Pratchett during one of his interviews, stated that he had the computer locked up like Fort Knox. [141] He told the interviewer that he took casual approach to the “pc hygiene” (Exhibit P-6, 28) and that as result he was some “80 Windows updates behind because don’t usually turn my computer off”. [142] Yet he acknowledged that he was very security conscious and didn’t like “people in my shit”. (Exhibit P-5, 63) [143] Mr. Pratchett stated during the interview that he used the Shareaza program previously, but not for the last couple of years. The expert testimony of Sergeant Parisien, which accept, suggests that the version used by Mr. Pratchett only came out on September 13, 2014, mere days before the alleged offence dates. [144] Having rejected the testimony of the accused, before can convict, have to be convinced beyond reasonable doubt of his guilt based on the whole of the evidence. [145] The reasonable doubt standard is an exacting standard of proof. It is not proof to an absolute certainty, or beyond any doubt[3], but it requires great deal of certainty. It relies to certain degree on reason and common sense. [146] Relying on this definitive standard, the Crown must prove guilt beyond a reasonable doubt. This burden carries with it the duty of excluding all rational conclusions alternative to guilt. [147] In this case the Crown has met this burden. found the Crown witnesses, without exception, to be knowledgeable and credible witnesses. Their testimony was not challenged. [148] Examining the totality of the evidence, there is no evidentiary foundation for the presence of the child pornography in the accused’s computer other than that the accused was responsible for it being there. [149] The presence of the pornography on the accused’s computer, computer he guarded assiduously, is powerful piece of evidence linking the accused to the offence. [150] There is no evidence that anyone other than the accused ever used the red computer. In light of this, the notion that someone other than the accused was responsible is without merit. [151] The accused was sophisticated and frequent user of the system. He was on his computer on daily basis. To suggest that he would be unaware of someone, perhaps hacker, let’s say, of downloading material onto his computer is fanciful and defies logic. In short, find that Mr. Pratchett had knowledge of the material stored in his computer; that he had control over it; and that he knowingly stored and retained the material throughout the time in question. [152] In short, all evidence points towards the accused as being guilty of the offences he is being charged with. Accordingly, find him guilty as charged. M.M. Baniak, [1] Morelli, 2010 SCC (CanLII), [2010] [2] W(D), 1991 CanLII 93 (SCC), [1991] [3] Lifchus (1997), 1997 CanLII 384 (SCC), CR (5th) SCC (para 36).

HELD: The court found that the material viewed met the definition of child pornography as defined by the Criminal Code. Only the accused had access to his computer and knew his password. There was no evidence that the accused’s spouse was in any way involved. The evidence established that all of the file-sharing traffic came into the accused’s residence through a router that directed everything to the red computer only. The encryption on the red computer was so formidable that the best forensic technicians from the RCMP were not able to get past it. The court found that it would be unlikely for the accused not to detect a hacker given the encryption and his monitoring of bandwidth usage. A witness also testified that the accused’s operating system could not be accessed remotely. The court rejected the accused’s testimony given all of the Crown’s evidence. The Crown witnesses were all forthright and credible, whereas the accused was less forthcoming. The court found that the Crown met their burden of proving the offences beyond a reasonable doubt.

d_2016skpc19.txt

M.D. ACTON QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 180 Date: 2013 05 10 Docket: F.L.D. 323 of 2009 Judicial Centre: Regina, Family Law Division BETWEEN: KELLY DAVID MURPHY and LISA EVELYN MURPHY Counsel: Bruce Campbell for the petitioner James Struthers, Q.C. for the respondent JUDGMENT SANDOMIRSKY, J. May 10, 2013 [1] Madison is four years old (d.o.b. September 2, 2008). Her parents, Kelly and Lisa, separated from one another on October 14, 2009. By agreement, her parents have shared parenting on two week cycle. In the first week, Lisa parents Madison in her Moose Jaw home from Sunday at 7:00 p.m. until the following Wednesday at 7:00 p.m. In the second week, Lisa parents Madison from Sunday at 7:00 p.m. until Thursday at 7:00 p.m. Kelly parents Madison at all other times while residing in his parent’s home at Regina. Each parent has an equal amount of parenting time. The shared parenting regime has worked well while Madison was pre-schooler. However, this coming September Madison will be five years old and will commence school on regular basis. The inevitable decision as to where Madison will attend school, that is in Moose Jaw or Regina, is imminent. The parents cannot resolve this decision and defer to the court to determine where Madison’s primary residence shall be and thus in which city she shall attend school. THE EVIDENCE The Petitioner’s Case [2] Kelly is 27 years old. He met Lisa in 2007 and they were married on April 4, 2008. Lisa was pregnant with Madison at that point in time and delivered Madison on September 2, 2008. Madison was and continues to be healthy child. She is described by all witnesses as intelligent, bright, precocious, an extravert and loving child. Only her uncle had any criticism of Madison. He stated that she is prone to having temper tantrums if things are not going her way. By all accounts, the child is normal and has been resilient in coping with her parent’s separation and conflict. [3] Kelly and Lisa were divorced on November 26, 2012. [4] During his youth, Kelly moved about Saskatchewan with his parents, brothers and sister. Mr. Murphy, Sr. is pastor and his postings necessitated those moves. The Murphys resided in Moose Jaw and then Regina. They have resided in Regina since 2009, the year that Kelly and Lisa separated. Each of Kelly and Madison have their own bedrooms in the large Murphy residence situated in east Regina. Kelly describes this house as three stories (including the basement level). There are four bedrooms upstairs with two bathrooms. The main level includes the living and dining rooms, kitchen, bathroom and entries. Two bedrooms and bathroom are situated at the lowest level. [5] Kelly holds business certificate which he obtained from SIAST in 2006. He described himself as self-taught in various computer skills including graphics and design. Kelly graduated from high school in 2002 and briefly studied at bible college for four months. He had managed renovations of an apartment building in Moose Jaw before his father asked him to work part-time for their church. He has done so in variety of capacities including accounting, public relations, editing, programming and graphics. [6] Kelly testified his sister is 26 years old, his oldest brother 21 and his youngest brother 19. His youngest brother still resides within in the Murphy family home but is planning to move out on his own. It is Kelly’s intention to continue his university studies at the University of Regina where he is majoring in English and hopes to obtain Bachelor of Arts degree. Kelly requires two more classes to complete his BA program. He testified that he hopes to transfer to business co-op program in the fall of 2013 and pursue Business Administration degree. To achieve the latter will require minimum of two and one-half more years of study. Kelly told the court that he is taking three classes each semester rather than full class load of five classes. He does this in order to parent Madison and work part-time at the church. He is funding his university studies through student loans. His parents provide home, utilities and sustenance to both Kelly and Madison. [7] Kelly filed T-4 slips for each of the years 2011 and 2012 in which he reported annual income of $11,500.00 and $12,000.00 in those respective years. [8] Though separated for the past three and one-half years, Kelly has remained single and not involved in serious or romantic relationship. His time is divided between his work, studies and parenting Madison. [9] Whilst Kelly relies on his mother to care for Madison when he has class conflict, he was adamant that it was he, and not his parents, who parent Madison when the child is with him. Lisa and her witnesses did not suggest otherwise. [10] Kelly hopes to find good job, perhaps in marketing or finance, at which point in time he stated he would obtain his own condominium. [11] The Murphy’s residence is approximately two blocks from the Jack MacKenzie Public School St. Gabriel Separate School Complex. Kelly presently prefers St. Gabriel as his choice of kindergarten for Madison. At St. Gabriel, there is an afternoon kindergarten program. This would work best for Kelly and his mother in providing care for Madison during the daytime and when she is not in school. [12] Kelly testified that in the past year, he and Lisa do not talk much. This, in part, is due to Kelly’s realization that there was no prospect of reconciling with Lisa. Lisa had two very brief relationships with men after the date of separation from Kelly. She conceived and bore second child on January 26, 2013 as consequence of one of those relationships. The father of that child has nothing to do with Lisa, nor does he pay child support. He has seen the baby perhaps six times in the past three months. While Lisa testified that Nick, the father of her second child, would be great father and would be resource to her in raising the baby, the father’s actions have been to the contrary. In listening to Lisa testify and discuss her expectations of Nick, the court finds Lisa to be naive and lacking realism. Despite these ongoing differences, Kelly testified that he and Lisa can communicate civilly with one another on parenting issues which affect Madison. [13] Kelly has seen counsellor since separating from Lisa. He continues to see his counsellor irregularly and on an as needed basis. Kelly described himself as having “come long way” since the collapse of his marriage. Kelly’s parents shared this opinion in their respective testimony. Indeed, under cross-examination, Kelly opined: have improved and she has improved. We are better parents and Madison is better off without us being together. [14] typical month of work at the church consumes 64 hours of Kelly’s time. This is spent in two day blocks of eight hours per day. Kelly requires his parents babysit Madison only “a few hours of the typical week”. His sister resides in Regina and Kelly says that she is backup resource for him as well. [15] Kelly described Madison’s excitement over her mother’s recent pregnancy and the birth of her half-brother. He says that Madison’s level of excitement has diminished over the past months, though Madison is involved with her little brother. [16] Kelly resisted the suggestion under cross-examination that his parents resent Lisa. Lisa is member of their church in Moose Jaw. Lisa, Kelly and the Murphys are devoted practicing Christians. [17] It is important to note that each of Kelly and Lisa see the other as competent and loving parents of Madison. Kelly testified that Lisa is: ...incredibly important in Madison’s life and Madison loves her mother. We each have different things to offer Madison. But Madison needs one place to go to school. Madison needs stability one school one place that is her own. Madison needs both of us in her life and she needs both sets of grandparents whole extended family. Lisa shares similar sentiments in her testimony. [18] Kelly’s mother described her role at present to include picking Madison up in Moose Jaw on alternate Wednesdays and Thursdays and caring for Madison for about two hours on Friday afternoon when Kelly is in class. Mrs. Murphy, Sr. refuted any suggestion that she is the actual hands on care giver as opposed to Kelly. She testified that discipline of Madison, dressing the child, comforting, entertaining and calling the shots are exclusively within Kelly’s domain not hers. [19] Mrs. Murphy, Sr. described Kelly as a: ...careful, thoughtful and analytical parent. He is strong, confident, gentle, but firm, with Madison. Madison feels secure with her father. [20] Mrs. Murphy, Sr. described Madison to the court as being “brilliant, like her dad; imaginative and creative; sensitive and energetic”. Mrs. Murphy, Sr. said the family home backs onto park and that the school is within two blocks of their home. [21] Mrs. Murphy, Sr. explained that she had read the custody access assessment prepared in this case by Alan Jensen, M.S.W., R.S.W. She states that Mr. Jensen misinterpreted her comments that she harbours negative view of Lisa. Mrs. Murphy, Sr. says that the correct fact is that any negativity she harbours is with certain of Lisa’s behaviour, but not towards Lisa herself. The court finds this dichotomy somewhat confusing, preferring that one’s behaviour and self are inseparable. Evidence was contained in the custody access assessment that Kelly and his parents (or mother) resorted to obtaining mental health warrant at the time of separation under which warrant Lisa was arrested and detained briefly at the psychiatry wing of Moose Jaw Union Hospital. In this manner, Kelly and his mother obtained de facto possession of Madison, despite Lisa’s parents offering to keep the child. For the next six weeks, Lisa had no access to Madison until court order was granted in late November 2009 compelling shared parenting. [22] The Provincial Court judge who granted the mental health warrant was quoted by Mrs. Murphy, Sr. as advising that the attending psychiatrist who would examine Lisa would likely release her. If this quote is accurate, the warrant should not have issued. The Provincial Court should only issue such warrants if there is sufficient evidence that an individual is refusing to voluntarily seek medical attention and that individual poses reasonable apprehension of risk of harm to oneself or others. find the action of the Murphys was high-handed and suggests some considerable negativity existed at the date of separation towards Lisa. [23] Finally, and under further cross-examination, Mrs. Murphy, Sr. testified that Kelly is “artistic, voracious reader, heady guy”. She opines her son was unhappy for long time after separating but is rebounding and “more at peace”. [24] Mr. Murphy Sr. echoed similar evidence to that of his wife. [25] Deborah Beaudry, child’s pastor at the church, also testified on Kelly’s behalf. She described Kelly as being intelligent, articulate, receptive, fun-loving and affectionate. The Respondent’s Case [26] Lisa is presently 25 years old. She describes herself as “stay-at-home mom” to her two children, Madison and baby Colin, who was born January 26, 2013. [27] Lisa moved to new residence at the beginning of this year. It is rental eight-plex, two storey unit with basement. On the upper level are three bedrooms, one for Lisa and each child. There is bathroom on that level as well. The main floor contains the kitchen, dining and living areas. [28] Lisa testified that she graduated from grade 12 and then took correspondence course in interior design. She has not utilized that certificate in the field of interior design. Her employment has been sporadic. Her employers have included Wal-Mart, Superstore, Mac’s convenience store, Safeway and Providence Place senior’s residence. She worked at the latter part-time as housekeeper for approximately two years. Moose Jaw has been Lisa’s place of residence for the last four or five years. [29] Lisa testified that she has her mother and step-dad as well as their two girls (her sisters) residing in Moose Jaw. Her sisters are ages 11 and 12. Her father and step-mother reside in Brandon, Manitoba and also have two girls (half-sisters). Lisa advised the court that her own parents separated when she was only four or five years old. She further testified that she sees her mother once or twice week and that her mother lives but four or five minute drive from Lisa’s home. Lisa stated that she and her own father “...aren’t really that close. My dad is busy and not really that interested”. [30] Lisa describes Madison as being happy and healthy baby who developed quickly. She testified that she attended to Madison completing her vaccination program. Madison has her own family physician in Moose Jaw. She described Madison to the court as child weighing 37 pounds, standing waist-high to her mother, being outgoing, compassionate and loving. [31] Lisa has enrolled Madison in pre-school program at St. Agnes School in Moose Jaw. The school is situated within block of her residence. Madison attends the afternoon program as she has for the past two years. Lisa opined that Madison gets along well with her teacher and schoolmates. There are also neighbourhood children who are potential playmates for Madison when the weather warms up. [32] Lisa testified that Madison does not engage in extracurricular activities. She stated that is primarily because of the split week parenting regime which conflicts with many of the scheduled activity programs. [33] Lisa opined that Madison is very close to her baby brother. This relationship has been of short duration and undoubtedly Madison is fascinated with her baby half-brother. In this case, bonding between siblings and co-dependency are not of significant consideration given the ages of the children and the limited experience between them to date. [34] Lisa, like Kelly, sought and accepted personal counselling following their separation. Lisa looks to her counsellor on an as needed basis. Lisa feels she has made changes and advised the court that she feels she has more confidence and has better self-image. Lisa attends women’s support group within her church and feels that that experience has assisted her with her parenting skills. [35] Lisa described her health as good, though she takes supplements and has had weight deficiency in the past. [36] When asked about Mr. Jensen’s statement in his custody access assessment to the effect that, if the parties resided closer to one another, shared parenting would be realistic option, Lisa stated that she agreed with that proposition. However, Lisa testified that her re-locating to Regina is not feasible for economic reasons and because her support group and network are in Moose Jaw. [37] Lisa offered the advice that if the court makes her the primary parent, she would agree that Kelly should have Madison for three weekends of each calendar month and half of all school holidays. [38] Under cross-examination, Lisa advised that she will look for employment as soon as Colin is weaned perhaps couple of months from the present. Then Lisa stated that she would take upgrading or some skill or job training. Lisa then shifted gears once again stating to the court that she wants steady employment that will remove her from social assistance and make her financially independent. Finally, Lisa wavered in her testimony stating that right now, she needs to be at home to care for Colin, her baby, and for Madison. She stated that she does not want daycare workers looking after her kids and that daycare is expensive. [39] From observing Lisa’s demeanour in the witness stand and literally observing Lisa think and speculate out loud, it became apparent to the court that Lisa is uncertain of her future. She had not considered how daycare and its related cost might factor into any potential employment decisions. She was not able to describe any contingency plan for occasions when child might be ill or in need of care while she would be at work. Her comment that Colin’s father would be resource defies his real conduct to date, in which he has, for all intents and purposes, abrogated all responsibility for his new son. As stated earlier, Lisa projects as naive and somewhat immature and flighty in her thought patterns and perception of the real world in which she presently finds herself. Having said that, the court finds that Lisa is nonetheless competent and loving mother. [40] Lisa lives on social assistance. She testified that her rent and utilities are paid for directly by the Ministry of Social Services. She is unaware of the actual costs. Over and above those direct payments, Lisa testified that social services pays her $375.00 each month. She stated that in addition, she receives $796.00 from the Government of Canada in the form of the Canada Tax Benefit and GST. Lisa was not able to describe budget or financial plan to the court in contemplation of her pursuit of employment. She merely explained her understandable desire to earn sufficient money to become self-sufficient and off of social assistance. Lisa did advise the court that she was not attempting to obtain child support for either Colin or Madison. [41] Lisa filed her income tax return for 2012. Her total income was reported to be $12,894.77, made up of $1,432.72 of employment income, $1,200.00 UCCB and $10,262.05 social assistance payments. [42] Lisa also filed statement of needs and deductions prepared by the Ministry of Social Services for March/13. Needs were listed as: Basic allowance $225.00 Utilities 45.00 Shelter $542.00 Total Needs $843.00 Income was listed as: Wages $117.61 Wage exemption $117.61 Adjusted Wages $0 Total Income: $0 [43] In the result, the Ministry paid on Lisa’s behalf, and to her directly, the sum of $843.00 each month. Lisa stated that she has the potential to earn between $16.30 per hour to $17.40 per hour as housekeeper at Providence Place if she should obtain re-employment there. [44] Lisa was hesitant to commit to driving Madison between Regina and Moose Jaw given the condition of her vehicle and her concern about the vehicle’s performance in unfavourable weather. [45] Lisa agreed that Kelly is very good father, just as Kelly acknowledged Lisa to be very good mother. [46] friend from Lisa’s church and support group gave the court brief explanation of how the support group functions and engages Lisa within the group. The Custody Access Assessment [47] The court ordered custody/access report at the request of the parties. Such report was prepared by Alan Jensen, M.S.W., R.S.W. The report was filed July 25, 2012. The report is extensive and canvassed input from Kelly, Lisa, Mr. and Mrs. Murphy, Sr., counsellors to both Kelly and Lisa and number of individuals selected by Kelly and Lisa as their respective personal references. The reported evidence parallels the testimony given at trial in most respects. [48] The parental attributes of each of Lisa and Kelly are described by Mr. Jensen as follows: Assets of Lisa as Parent When asked what she offers Madison as parent Lisa wrote: “I have love, encouragement, knowledge on parenting (from parenting classes), good home for her, family to bring her to visit, understanding, she knows will listen to her and she can talk to me.” Lisa acknowledges that Kelly offers “love” to Madison. Lisa presents as caring, loving and conscientious parent. She has encouraged the socialization of Madison by involving her in pre-school and daycare. Lisa has consistently reached out for appropriate community support services. Liabilities of Lisa as Parent: When asked what her weaknesses are as parent Lisa responded: “Sometimes might be emotional if don’t get enough sleep. If too much is happening at once can feel frustrated.” If she is feeling this way Lisa will tell Madison to “please be quiet”. It appears that Lisa has encountered difficulties sustaining stable adult relationships and this may have consequences for Madison. Her relationship with Kelly was marked by domestic disharmony. Relatively soon after her short-term relationship with Matt, she commenced relationship with Nick, who is the father of her expectant child. It appears that this relationship may be “uncertain”, if not unstable. Assets of Kelly as Parent: When asked what he offers Madison as parent Kelly wrote: “A physically and emotionally safe and stable environment. Time, spent with myself, with other children and with family, on both my side and Lisa’s side of the family (I arrange visits with Lisa’s father’s family). plan my schedule around my time with Madison, to maximize the attention can give her. When cannot be around, arrange for her to spend time with my family.” Kelly presents as loving, devoted and conscientious parent. He recognizes that Madison is bright little girl and he has explored various educational options should she primarily reside with him. Kelly and Madison enjoy considerable support from extended family and their church community. Liabilities of Kelly as Parent: When asked what his weaknesses are as parent Kelly replied: “I focus on the moment and little on the future ... I’m not girl, therefore can’t multitask, therefore focus on Madison first and leave the rest.” It appears that Kelly’s current residential arrangement has advantages and disadvantages in relation to Madison’s best interest. On one hand she and her father enjoy considerable support and stability from Terry and Terri Murphy. On the other hand, the grandparent’s negative view towards Lisa might place the effective co-parenting of Madison at risk, if Kelly fails to assert himself. [49] At p. 13, Mr. Jensen expresses his views of Madison: It is this writer’s view that Madison, who is not yet four years old has endured great deal of conflict, instability and change already in her young life. What she does not need at this pivotal point in her development is to be exposed to more change and instability in adult relationships while in her mother’s care. That being said, Lisa deserves great deal of credit for addressing Madison’s educational and socialization needs and enlisting considerable support from her community. [50] Mr. Jensen discusses Madison’s exposure to conflict at p. 14 of his report and states: Exposure to Conflict: As previously stated, it appears that Madison’s life has stabilized considerably since the days when she was exposed to the domestic disharmony perpetrated by her parents. would concur that during those tumultuous days in late 2009 both parents displayed behaviors that would suggest they were “very immature”. At present the conflict that remains, appears to take the form of comments about the other parent that Madison hears and “feels”, as both parents and their supporters continue to push their agendas and voice their grievances. For many young children like Madison, their exposure to the tensions between their parents is particularly prevalent around the times of exchanges. Therefore it should come as no surprise when both parents report that Madison continues to encounter difficulties with transitions. Both sides need to make concerted effort not to portray the other parent to Madison in negative light. If this tendency goes unchecked into the future, this exposure to conflict will inevitably eat away at Madison’s sense of self-esteem and security. It should be remembered that Kelly and Lisa are Madison’s primary role models. [51] Mr. Jensen’s conclusion is reported commencing at p. 14 as follows: Conclusion: Through the course of this assessment this writer has come to view Kelly and Lisa as two young parents who overall, have grown in maturity since the time of the separation and have evolved into loving, caring and competent parents of Madison. Each parent has and will continue to provide something unique and beneficial, which will contribute to Madison’s ongoing care and upbringing. The court has asked the assessor: “with whom should the child primarily reside with when she attends school?” It is this writer’s conclusion that in terms of providing for the fundamental need of security and an appropriate plan for Madison’s future, that parent should be Kelly. It should be stressed that this decision was almost “too close to call”, given Lisa’s considerable strengths. In my opinion if Lisa and Kelly were to reside in the same community, shared parenting arrangement should be strongly considered. In the meantime with all things considered, Madison needs stable home to launch the next significant phase of her development, as her social and educational world expands into the life as new student. As long as Kelly and his parents commit to supporting Madison’s relationship with her mother, then this child stands to benefit from what both parents have to offer. [52] Mr. Jensen closes his assessment with eight recommendations. It is the court’s function to draw its own conclusions based upon the totality of evidence presented at the trial. The views of any assessor are independent conclusions of the assessor after gathering his or her evidence through the inquisitorial process of gathering evidence wherever the assessor deems appropriate. On the other hand, the court is given evidence under the accusatorial process of presenting evidence, that being the evidence which the parties to the dispute choose to present at trial. Unlike the inquisitorial process, judge may not embark upon seeking out evidence of his or her own accord or choosing. Hence, while appreciate the recommendations of Mr. Jensen, the court moves independently as trier of the fact, selecting the evidence the court considers factual and relevant to the issue or issues to be determined. Once having found those relevant facts, the court applies the same to the law. THE APPLICABLE LAW [53] This action comes before the court under the aegis of the Divorce Act, R.S.S. 1985, c. (2nd Supp.), being federal law, and, under The Children’s Law Act, 1997, S.S. 1997, c. C-8.2, which is provincial statute. Each statute recites the relevant tests and factors which trial judge must consider in custody dispute such as this. The Children’s Law Act, 1997 In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child; and (c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person's status as father or mother. The Divorce Act: (6) The court may make an order under this section for definite or indefinite period or until the happening of specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just. (7) Without limiting the generality of subsection (6), the court may include in an order under this section term requiring any person who has custody of child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child. (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [54] The overriding principle of law, embraced by each of the Divorce Act and The Children’s Law Act, 1997, as well as being the overarching principle of law governing child custody/access, is the best interests of the child. [55] Let me briefly mention some case law which expands upon the statutory guidance set out above. In the recent decision Seymour v. Seymour, 2012 SKQB 161 (CanLII), 396 Sask. R. 143, Justice Wilson makes the point as follows: 60 In addition to the statutory guidance as set out above, the principles of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27, 141 Sask.R. 241 apply. As set out by Wright J., in Norrish v. Norrish 2005 SKQB 396 (CanLII), 20 R.F.L. (6th) 366, the Gordon principles apply even though this is an initial application for parenting order as opposed to variation application. Justice Wright states, as para. 47, as follows: 47 The leading authority in this area remains Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27. Notwithstanding that Gordon involved an application to vary an existing custody order, many of the guiding principles set out in that decision are equally applicable in applications of first instance, as is the case here. Those principles were summarized by Austin J.A. in Bjornson v. Creighton (2002), 2002 CanLII 45125 (ON CA), 31 R.F.L. (5th) 242 (Ont. C.A.) at para. 18: The Gordon proceeding dealt with mobility within the context of an application to vary an order. In the instant case, the issue of mobility was dealt with at the original hearing following the two interlocutory orders made on consent. Despite these differences, the guiding principles set out in Gordon, which remain applicable in the case before us, are: 1. The judge must embark upon fresh inquiry into what is in the best interest of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 2. The inquiry does not begin with legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect and the most serious consideration. 3. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 4. The focus is on the best interests of the child, not the interest and rights of the parents. 5. More particularly, the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; (c) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reasons for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) the disruption to the child of change in custody; and (g) the disruption to the child consequent on removal from family, schools and the community he has come to know. [56] Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27, 141 Sask.R. 241, also stands for the proposition that custody application, such as is before the court today, involves child-centered analysis. It is the perspective of the child which the court must take. The child’s best interests are paramount to the needs and interests of the parents. In Gordon v. Goertz, Madam Justice McLachlin, as she then was, states at para. 28 the following: 28 The 1985 Divorce Act now instructs courts that the interests of the parents are no longer relevant in custody determinations. As noted previously, the child's best interests are not merely “paramount”, they are the only consideration. The revised Act also introduced statutory recognition of the principle that children generally benefit from contact with both parents.... [57] Addressing s. of The Children’s Law Act, 1997 and applying the best interests principle, the court must take into account the conditions expressed in s. 8(a)(i) through (vii). [58] The quality of Madison’s relationship with each of Kelly and Lisa and their respective extended families is the first consideration. There is little to choose between the quality of the relationship Madison has with each of her mother and father. While the parents have different personalities, it was common ground that Madison loves both her parents and they her. No evidence was presented to distinguish this parent child relationship between mother and father as one being more favourable than the other. Madison appears to have a close affinity to her paternal grandparents which the court attributes to largely one of opportunity. The maternal grandmother offered to care for Madison when Lisa was apprehended under the mental health warrant, but the paternal grandparents and Kelly refused and asserted their right of possession arbitrarily. However, in the past three and one-half years, the Murphy family have established a more constant presence in Madison’s life and it is within the Murphy residence where one might properly presume Madison feels more familiar and comfortable. Continuity and stability are relevant factors in this regard. [59] The personality, character and emotional needs of Madison have been described in this judgment. Madison is healthy child physically and emotionally. She has displayed resilience. Kelly and Lisa will have significant inputs in sharing the responsibility of parenting Madison pursuant to this judgment and, in doing so, should have every opportunity to address Madison’s emotional needs. [60] The physical and economic needs of Madison can best be met within the Murphy residence and under Kelly’s primary care. This is, in large measure, due to Kelly’s parents’ benevolence. The reality is that these factors do add to Madison’s best interests. court will not simply award custody on the basis of affordability and no one reading this judgment should consider the rationale herein so crassly. Wealth is not the deciding factor in this judgment. However, The Children’s Law Act, 1997, at s. 8(a)(iii) requires that the court shall take into account the physical and economic needs of Madison. They are best met in Kelly’s primary care. Lisa is struggling financially in her present circumstances. As to the psychological and social needs of Madison, it would be matter of speculation as no evidence expressly addressed those two factors at trial. The court is satisfied that both Kelly and Lisa are competent and capable of addressing these latter two needs. But once again, on balancing the weight of evidence, the preference weighs in Kelly’s favour. [61] As to the capacity of Kelly and Lisa to act as Madison’s legal custodian, the evidence is balanced. [62] The home environment proposed by Kelly outweighs that of Lisa. Again, this is not criticism of Lisa in any way. The reality of each home environment must be compared. The environment is combination of both the physical house, neighbourhood and school. Most important are the people in those settings who impact upon Madison’s life. In totality, while Kelly and Lisa are even on this count, the other family and social network again auger in Kelly’s favour. [63] When considering Kelly and Lisa’s respective future plans for Madison, one must, of necessity, consider the evidence of the future plans of the individual parent. Parent and child’s futures are inextricably entwined. Kelly presents with distinct plan for his future including parenting of Madison. Lisa is vacillating over her desire to stay at home and parent, particularly having expressed her dislike of daycare tending to her children. On the other hand, she wavered and recognized her need to work and her desire to gain financial independence. Kelly is the benefactor of his family’s generosity. Lisa has been left to go it alone that is reality. Her plans are uncertain, though her intentions are good. At this juncture in Kelly, Lisa and Madison’s lives, Madison will experience greater stability and continuity in Kelly’s primary care. [64] Madison is too young to express her wishes. [65] The Divorce Act does not mandate the court to examine the same factors which are set out at s. of The Children’s Law Act, 1997. Section 16(8) of the Divorce Act mandates that the court consider only the best interests of Madison as determined by reference to the condition, means, needs and other circumstances of Madison. The court has addressed each of those four parameters. [66] At s. 16(7) of the Divorce Act, it is prescribed that the court may include in any order under s. 16 requirement that the custodial parent who intends to change place of residence of the child notify the other parent at least 30 days before the change or within such other period before the change as the court may specify. Such notice must contain the time at which the change will occur and where the new residence of the child will be located. In my opinion, 30 days is not sufficient for Lisa or Kelly to assess the impact of change of residence, to confer with one another and, failing consensus, for the aggrieved parent to take legal action. Given the shared parenting regime, the court orders herein each of Kelly and Lisa shall notify the other of any impending change of residence no less than 45 days in advance of such change with full particulars as set out earlier. ANALYSIS AND CONCLUSION [67] Madison has arrived at new phase in her young life. She must begin school and be given the opportunity to engage in social, athletic and artistic facets of life which appeal to the child and nurture her wholesome development. It is in this next phase of child’s life that the child begins his or her progression to independence. It is in the youthful stage of life that child proceeds to define and grow his or her identity. Generally speaking, this progression is the right of the child. The parents bear the obligation and responsibility to accommodate and facilitate the child’s rights. This is not always an easy concept for the parents to understand and embrace. Sometimes parent falls into psychological trap of attempting to actualize the parent’s goals or aspirations through one’s child. We see this too often in minor sports. The reality is that in order for child’s best interests to be achieved, parents must allow the child to develop at the child’s own pace and in accordance with the child’s emerging skills, desires and aptitude. These principles apply to Madison. She requires the stability of primary residence, neighbourhood, school and social network. Her environment must be free of parental conflict and paternal or maternal families pushing their respective agendas onto Madison. Whichever parent is delegated by the court as the primary parent, in this instance being the parent to provide the primary residence and choice of school, both parents must accept and embrace the decision of the court, for they deferred this important decision to the court, being unable to agree between themselves. By accepting and embracing this decision, the parents must demonstrate their unconditional love for Madison and put an end to open conflict, denigration and lack of cooperation. Madison must see her parents as appropriate role models which includes consistent demonstration of civility, respect and occasional deference to the other parent. [68] The court finds that Madison’s best interests will best be served at this juncture by her residing with Kelly. Kelly’s life and living circumstances, while by no means firmly established, are more stable, certain and predictable than Lisa’s living circumstances. This became clearly evident to the court as each parent described their immediate goals, strategy for achieving those goals and the present status of their respective paths to achieving those goals. [69] Kelly has the good fortune of his parents providing stable home for Madison and by their agreeing to provide the necessary essentials Madison requires. On the other hand, Lisa displayed uncertainty as to how she will achieve her independence. found Lisa somewhat more immature and naive about the realties and options available to her at this stage in her life. She does not have the same support network as Kelly not fault of her making, simply reality. Neither of her mother or father testified on Lisa’s behalf. Nor could Lisa convince the court that her extended family will provide the safety net and support which Kelly’s family have offered. The court does not intend the Murphy family to take this judgment as an overwhelming endorsement. have expressed the court’s disappointment at the high-handedness in misusing the facility of mental health warrant. Mr. Jensen also came to the same independent concern where, at p. 14 of the report, he stated: ... At present the conflict that remains, appears to take the form of comments about the other parent that Madison hears and “feels”, as both parents and their supporters continue to push their agendas and voice their grievances. [70] However, with the benefit of hindsight and an open mind, it is facet of the human condition that we can grow and learn from our past experiences and mistakes. The court finds both extended families have good intentions and will likely do their respective parts to enable Madison’s best interests to be achieved. [71] Lisa should not take this decision as form of condemnation. The reality is that she is young woman with yet another infant to raise on her own. She has not received the benevolence of others to assist her in raising Madison nor her newborn. This saddens the court and appreciate the enormity of her struggles. To dedicate Lisa as the primary care giver of Madison would add to her already considerable burden, which would neither be fair to Lisa nor the children. In time, it is hoped that Lisa’s initial disappointment with the judgment will be replaced by understanding and agreeing with the court’s rationale. THE MAXIMUM CONTACT PRINCIPLE [72] Earlier in this judgment is recitation of factors found in the Divorce Act and The Children’s Law Act, 1997. One of those factors proscribes the principle that child should have as much contact with each of his or her separated parents as the facts and circumstances might reasonably permit. Paired with this principle is the corollary that the parent given primary care of child should facilitate the access or shared parenting of the child by the other parent. The latter corollary is euphemistically called “the friendly parent rule”. Once again, these legal principles of maximum contact and facilitation can be challenging to the parents, but must, for the child’s best interests and well-being, be adhered to and sedulously fostered. Kelly and Lisa, together with their supporters, cannot quibble over transporting Madison to and from Regina and Moose Jaw. It is minor inconvenience in the scheme of things in this case. Kelly and his parents are in much better position to facilitate Madison’s transportation than is Lisa. Kelly shall therefore bear the responsibility for transporting Madison. [73] From a legal position, both Kelly and Lisa shall continue in their capacity as joint custodians of Madison. Kelly shall be the primary care giver and provide the primary residence for Madison. Maximum contact, as have mentioned, is presumptively in the best interests of Madison. In recent decision, Schick v. Woodrow, 2012 SKCA (CanLII), 385 Sask. R. 153, the Court states at para. 25 as follows: 25 ... In my view, even where one parent has been designated the parent of primary residence, it is presumptively in the best interests of child to have as much contact with each parent as is reasonably possible having regard to the given circumstances and for each parent to play as active role in the life of the child as is practical. There is significant risk that parent who is prevented from playing such role and becomes passive bystander in the child's life will eventually drift away from on‑going involvement in the child's life. These considerations favour an order for joint custody in the absence of some reason relevant to the best interest of the child to the contrary. ... THE SHARED PARENTING REGIMEN [74] While mid-week visit (Wednesday evening) was once practice when Madison was younger, it is unrealistic to consider that now. First, it is impractical to drive that distance in order to accommodate the visit of an hour or two duration. It is especially so given mid-week visit would occur on school night and might limit extracurricular activity options available to Madison. Fortunately, we now live in an age of communication technology which is both sophisticated and affordable. The court asked Lisa about her having computer. She has none. However, during summation and argument, Kelly said it was within his means to procure computer for Lisa’s home. In this manner, Kelly and Lisa can complement their own communications by email. More important, webcams and skype are modes of communication by which Madison and Lisa can communicate regularly during the course of a week. In this manner, they see each other’s images and hear one another’s voices. It is the court’s opinion that Kelly accommodate Lisa with such means to see and speak to Madison, and vice versa, during the school week. It may be most appropriate to enable such contact prior to Madison’s bedtime. In this manner, each parent experiences putting Madison to bed, albeit not with equal intimacy. The importance and facility of the computer will ameliorate the mid-week need of travel. [75] The court orders that Lisa shall parent Madison three consecutive weekends and Kelly on the fourth weekend. Lisa’s first and third such weekends will commence on Friday evening at 5:00 p.m. (prior to Madison’s supper) and conclude on the following Sunday evening at 6:30 p.m. (after Madison’s supper). The second of such weekends will commence on Thursday at 5:00 p.m. and conclude the following Sunday at 6:30 p.m. Should either of these three consecutive weekends be contiguous with a statutory holiday, Lisa’s weekend shall be expanded accordingly. Or, if a school holiday occurs contiguous with Lisa’s weekend, Madison shall be with her for those additional days. The start and stop times will remain constant. This results in Madison missing one day of school in every four weeks to permit the longer weekend with her mother. Madison has been described as bright and intelligent child and therefore at kindergarten or grade one, missing day of school once in every four weeks should not compromise Madison’s academic standing. By the time Madison begins grade two, missing that additional day once in every four weeks might affect her schooling. The court therefore leaves Kelly and Lisa to determine the wisdom of Madison skipping school at that future point in time. [76] At Christmas and Easter, elementary school children in the City of Regina customarily have 14 and 10 days of school recess respectively. Kelly and Lisa shall each parent Madison for one-half of the school recesses. The court leaves the division of such Christmas and Easter breaks to be discussed and agreed upon by Lisa and Kelly. However, if the parents fail to agree on how these breaks, or any one of them, should be divided, then Lisa shall have Madison with her for the first half of the Christmas and Easter school recess and Kelly shall have the latter half of the said Christmas and Easter school recess in all odd numbered years. In all even numbered years, Kelly shall have the first half of the said school recesses and Lisa the latter half. Exchange times shall be 5:30 p.m. for commencing and 6:30 p.m. for concluding, unless Lisa and Kelly agree otherwise. [77] Kelly and Lisa shall make allowances for father’s day and mother’s day in each year such that Madison spends the respective day with her father or mother. [78] The summer school recess should be approached with Madison spending equal amounts of time with her mother and father. At age four, the longer duration away from either parent is generally more difficult than when the child is older. One week alternating intervals is suggested with each parent. However, life is never that simple. While the foregoing summer allocation is minimal and mandatory, this may not be practical or affordable if Lisa is employed and has limited annual holidays. Perhaps the same is true for Kelly. Here, the court defers to Kelly and Lisa to meet and discuss if an alternative sharing of parenting during the summer school recess better meets their collective and mutual needs. Parents are always at liberty to depart from court ordered regimen by mutual agreement. court order is fallback only when the parents cannot agree. However, should Kelly and Lisa not be able to agree on the specific division of the summer school recess, the court orders that Madison shall spend alternating weeks with each parent. [79] The court calculates the division of parenting time in year under the foregoing regime has the effect of placing Madison with Lisa for 30% of the year and 70% of the time with Kelly: days in 28 10 months 70 days with Lisa 31 days in 62 (July and August)= 31 days with Lisa days in 24 (Christmas and Easter)= 12 days with Lisa TOTAL: 113 of 365 days/year [80] The court has not been asked to address child support for Madison. Lisa has no financial resources to pay child support in any event given her present unemployment and lack of family support. [81] Finally, should Madison have a spring break from school of greater than three clear days, Kelly and Lisa shall provide each has at least one-half of those days to parent Madison. EXTRACURRICULAR ACTIVITIES [82] The choice of extracurricular lessons or activities for Madison must accord with the child’s best interests. It requires the collaboration of Kelly and Lisa in meeting with Madison, eliciting the child’s feelings and desires on the matter, and then having frank and unbiased discussion between Kelly and Lisa. The court strongly urges (short of an order) that Kelly and Lisa meet with Madison before the fall and winter semesters, as well as prior to summer registration deadlines. In this manner, they should choose an extracurricular activity or activities which best suit Madison’s needs and interests while also being reasonably affordable and causing the least, or no, disruption to the parenting regime mandated by this judgment. [83] The very nature of this trial is neither litigant is more successful than the other. The parents deferred to the court to make the difficult decision for them as to where Madison shall attend school and have her primary residence. As consequence, each party shall bear their own costs. NOTE TO TRIAL COUNSEL [84] The court expresses its thanks to Mr. Struthers, Q.C. and Mr. Campbell for the professional and collegial manner in which the trial was presented to the court. J. N. S. SANDOMIRSKY

The parties had a shared parenting arrangement since separation where each party parented their four-year-old child for equal times in a two-week cycle, the petitioner parenting in her home in Moose Jaw and the respondent parenting in his parent's home in Regina. The issue before the Court was to determine where the child should primarily reside and attend school. Each party saw the other as a competent and loving parent. The petitioner had another child, a half-brother to the parties' child, who was an infant at the time of the application. The petitioner was a stay-at-home mom on social assistance and the respondent was a student who worked part-time and lived with his parents. The respondent's parents were willing to assist the respondent financially and in the care of the child. The Court ordered custody/access report concluded that the child should primarily reside with the respondent, though the author noted that the decision was almost too close to make. HELD: The Court held that the best interests of the child would be best served by her primarily residing with the respondent and the parties having joint custody of the child. The Court first considered the quality of the child's relationship with each party and their families and concluded there was little difference between the parties but the child had a closer relationship with the respondent's extended family because she resided with them when she was with the respondent. The Court also determined that the child's economic needs could best be met residing with the respondent and his parents. The home environment of the respondent was found to outweigh that of the petitioner's. Further, the Court held that the child would have greater stability and continuity with the respondent, who has a concrete future plan. The petitioner's future plans were wavering and uncertain. The respondent was ordered to bear the responsibility for transporting the child to and from Moose Jaw and Regina. The respondent was also required to accommodate the petitioner and child by supporting Internet communications between them during the week, especially at bedtime. The petitioner was granted parenting time three consecutive weekends and the respondent on the fourth weekend. The second of the petitioner's weekends was extended to include another day as were any weekends with school or statutory holidays. The decision requires the child to miss one day of school every four weeks and the Court therefore left it to the parties to determine whether this can continue once the child begins grade two. The parties were ordered to each parent the child for half of Easter and Christmas breaks and they were to accommodate each other for Mother's and Father's Day each year. Further, the Court ordered that the child spend half of each summer holiday with each parent, suggesting that alternating weeks may be the best for the child, unless otherwise agreed to by the parties. Lastly, if the child has a school break longer than three clear days, the petitioner is to parent at least one-half of those days. The Court also urged the parties to collaborate and discuss the extra-curricular activities best suited for the child taking into account their affordability and disruption to the parenting arrangement.

c_2013skqb180.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 446 Date: 2006 10 02 Docket: DIV. No. 002479/2005 Judicial Centre: Melfort, Family Law Division BETWEEN: RAELYN DIANE KNUDSON, and KIRK HAROLD KNUDSON, Counsel: Mark R. Carson for the petitioner Melvin R. Annand, Q.C. for the respondent JUDGMENT MILLS J. October 2, 2006 [1] The parties met, married, made children and then separated. The petitioner mother has custody of the three children. She is employed with local auctioneer. The respondent father, before, during and after the relationship, is part of farming partnership with two brothers and two cousins running mixed grain and cattle operation. They have not settled division of the matrimonial property. Issues [2] What amounts, if any, are to be added to the sources of income set out in the father’s total income in his T1 General form to come to the appropriate level of income for the purpose of calculating child maintenance payments? The individual items are as follows: (i) non‑arm’s length salaries; (ii) personal expenses claimed as farm expenses; (iii) capital cost allowance on real property owned by the father; (iv) capital cost allowance on personal property owned by the father; (v) personal expenses claimed in partnership returns as farm expenses; (vi) capital cost allowance on real property owned by the partnership; and (vii) capital cost allowance on personal property owned by the partnership. [3] The parties have approached this case on the basis that the most representative and fairest method of determining this self‑employed father’s income is three‑year average under s. 17 of the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] (the “Guidelines”). The father’s income has fluctuated significantly in the last three years, and the inherent nature of farming is such that it is more appropriate in the circumstances of this operation to use three‑year average. In assessing each of the issues, will deal with them on year‑by‑year basis. Although the general rationale will apply to all the issues, the individual amounts will differ by year. (i) Non‑arm’s length salary [4] Under Schedule III, paragraph of the Guidelines, the non‑arm’s length salary paid in 2003 of $15,000 is to be added back into income unless the father establishes the payments were necessary and reasonable. There is evidence that the mother did perform services for the farming operation, mostly in the nature of bookkeeping, but no indication was provided as to whether the amount paid was reasonable. Given that in 2004 the amount of salary was $5,000, it would appear that the amount paid in 2003 and the healthy income to the farmer otherwise in that year, was means of splitting income, and as such, it has not been established that the value of the salary for 2003 was $15,000. It appears to me that more appropriate amount would be $5,000 utilized in 2004. In 2003, there will be added back income in the amount of $10,000 for non‑arm’s length salary. In 2004, no amount will be added back as the $5,000 appears to be reasonable amount. No claim was made for non‑arm’s length salary in 2005. (See Poff v. Fenell (1998), 1998 CanLII 13796 (SK QB), 173 Sask. R. 275 (Q.B.).) (ii) Personal expenses claimed as farm expenses [5] The father has expensed electricity, home heat, telephone, meals and office expenses of $4,675, some of which should be added back to income. It is clear in 2003 the father, in fact, added back $2,678 of these expenses based on certain percentages being allocated to personal use. In 2003, the total amount claimed on the return for business expenses is $2,000 and appears to be appropriate. It has not been established that the expenses claimed in 2003 in this area are not legitimate costs involved in running the farm enterprise. [6] The mother further wishes to have the sum of $2,000 of horse expense added back to income. The evidence does not support this approach. [7] In 2004, the amount claimed is similar to what have allowed in 2003 and is acceptable. [8] In 2005, the amount claimed is lower than the previous two years and is acceptable. (iii) Capital cost allowance on real property owned by the father [9] Schedule III, paragraph 11, of the Guidelines provides for the adding back of this expense claimed. Both counsel agree for 2003 the amount to be added back is $18; for 2004, $17; for 2005, $15. (iv) Capital cost allowance on personal property owned by the father [10] The decisions in Rudachyk v. Rudachyk (1999), 1999 CanLII 12271 (SK CA), 180 Sask. R. 73 (C.A.), and Beeler v. Beeler (1997), 1997 CanLII 10925 (SK QB), 161 Sask. R. 167 (Q.B.), acknowledged that capital cost allowance can be legitimate expense of self‑employed individual and should not be added back to income without some evidence to show all or part of the deduction is not appropriate. [11] In 2003, the majority of the claim by the father in this regard relates to his motor vehicle. He acknowledges portion of the vehicle is used for personal use and states that portion to be 10 percent. The mother says that the portions claimed as personal use should be 50 percent. Evidence was led by the father that he used the vehicle to efficiently combine personal and business use whenever he could. In looking at the last three years in total, the truck cost was listed at $23,283 with depreciation taken of $18,855 to date. The father testified he intends to use the truck for further significant period of time. The full amount claimed for capital cost allowance is not necessary for the replacement of the vehicle. This along with significant personal use of the vehicle makes it reasonable to add back 50% of the capital cost allowance claimed in each of the years in question which will result in an addition to income in 2003 of $2,882; in 2004, $3,829; in 2005, $2,733. (v) Personal expenses claimed in partnership returns as farm expenses (vi) Capital cost allowance on real property owned by the partnership; and (vii) Capital cost allowance on personal property owned by the partnership. [12] The next three categories involve the mother’s request to add back to the father’s personal income the amounts claimed in the partnership and then allocated to the individual partners. The analysis here is substantially different than that contained in the father’s personal farming statement. The father’s income tax return includes personal farm component which consists of much smaller income and expense statement on matters that are totally within his control and for which all benefits accrue to him. His tax return also includes the partnership statement which shows the same types of income and expenses but on partnership basis. There are five partners involved, two are his brothers, and it may be argued he has some substantial influence on them. The other two are his cousins. There was no evidence to suggest that the income statements of the partnership are fashioned in such way to reflect an inaccurate picture on cash basis of the operation of the farm partnership. There is nothing to suggest that the partnership is organizing its expenses or distribution to artificially lower the income of the father. This is not situation where the father is sole shareholder in corporation, and different analysis of add‑back becomes appropriate because of the benefit accruing in the corporation to the sole shareholder. This is not situation in which there is majority ownership in the partnership which would allow the father to control the activities of income distribution or asset purchase. There is nothing in the Guidelines to suggest that should be adding back any of the partnership amounts to the income of the father automatically. [13] The case law which focuses on the reasonableness of the expense as it relates to capital cost allowance and alleged personal expenses claimed on partnership returns acknowledges that these are legitimate expenses used to reduce income unless it is shown that they are unnecessary or unreasonable. There is nothing in the evidence that would lead me to the conclusion capital cost allowance being claimed by partnership is inappropriate or, indeed, that any of the expenses or accounting functions utilized by the partnership do not reflect the partnership business over the long term. Therefore, am not prepared to add back to income in any of the three years the amounts indicated in items (v), (vi) and (vii) by the mother. [14] therefore find that in 2003, 2004 and 2005 the income of the father is as follows: $12,822 Non-arm’s length salaries nan Capital cost allowance on real property 15 Capital cost allowance on personal property 2,733 Total income $15,570 [15] This total income averaged over three years comes to $29,983 each year. ear. The amount of maintenance payable is $568.00 per month. [16] The next issue becomes the starting date of this payment. The chambers judge, when setting the initial interim child support in October 2005, had significant difficulty in the affidavit evidence in coming to an appropriate determination of maintenance payable. [8] It is far from certain, at least for the purposes of this interim application, that the maintenance of $728 previously agreed (which represents an income of $40,000) is categorically wrong. It may well be, in final analysis, high or low but adjustment can be made in the account between the parties in due course. [17] It was argued by the father, and clearly contemplated by the chambers judge that an adjustment of child maintenance should take place when the issue was finally determined. When making the order in 2005, the chambers judge relied on the financial information in the years 2002, 2003 and 2004; however, review of the 2002 return shows his income level to be roughly similar to that in 2005. Therefore, the maintenance amount of $568.00 would have been appropriate in October 2005, and in accordance with the chambers judge’s comment, the adjustment can be made at this time. Assuming that the father had been making the maintenance payments as ordered, he will be in small credit position which he can offset against ongoing maintenance but in amount no greater than $50.00 per month so as not to cause any inappropriate financial hardship on the children. When arrears by the payor occur, this Court often allows those arrears to be paid monthly. see no reason why the overpayment by the payor should not be treated in the same fashion in these circumstances. [18] At the conclusion of the trial, an order for divorce, custody and access was made by consent. The issue of property division was adjourned to future trial date. The orders flowing from this trial are as follow (a) The respondent’s income is determined to be $29,983, and he shall pay to the petitioner for the support of Reidar Knudson, born December 18, 1998, and Bronwyn Knudson and Kadence Knudson, both born August 9, 2000, the sum of $568.00 per month commencing October 1, 2005, and continuing every month thereafter until a child is no longer a child within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provided that if he has overpaid child maintenance to this date, he may offset the overpayment against future maintenance payments but only to the extent of $50.00 per month so that the maintenance actually paid will not drop below $518.00 per month until the overpayment has been extinguished. (b) The income of the petitioner is found to be $24,300. (c) The respondent shall be responsible for 56 percent of the s. expenses, which, by agreement of the parties, consist of the non‑subsidized childcare and any health and medical costs in excess of $100.00 per annum. The payment of s. expenses in the percentage indicated shall commence on October 1, 2005, and in the event any shortfall exists in payment of s. expense payments by the respondent, they are payable forthwith. (d) The petitioner and the respondent are ordered to provide the other with copies of their income tax returns, including all schedules and partnership statements, no later than June 15, 2007, and by the same date in each year thereafter. [19] Although did not detect any animosity from the parties during their testimony, did detect lack of cooperation between counsel. This is one of those files where it appeared that the holding of trial, in fact, was more efficient and cheaper method of coming to conclusion regarding the issue of maintenance than ongoing negotiation or pre‑trial. Each party achieved partial success in their approach before me, and as such no costs are awarded to either.

The respondent father is part of farming partnership with two brothers and two cousins running mixed grain and cattle operation. Division of the matrimonial property is at issue. The issues include what amounts, if any, are to be added to the sources of income set out in the father's total income in his T1 General form to come to the appropriate level of income for the purpose of calculating child maintenance payments. HELD: 1) The father's income has fluctuated significantly in the last years, and the inherent nature of farming is such that it is more appropriate in the circumstances to this operation to use year average. 2) Non-arm's length salary will be added back into income unless the father established that payments were necessary and reasonable. In 2004 the amount of salary paid to the mother for bookkeeping was $5,000. It would appear that the $15,000 paid in 2003 was means of splitting income. $5,000 appears to be reasonable amount. 3) Some of the personal expenses claimed as farm expenses such as electricity, home heat, telephone, meals and office expenses should be added back to income. The father has added back portion of these expenses based on certain percentages being allocated to personal use. It has not been established that more amounts need to be added back. 4) The majority of the capital cost allowance on personal property owned by the father relates to his motor vehicle. He states the personal use of his truck is 10%. The full amount claimed for capital cost allowance is not necessary for the replacement of the vehicle. This along with significant personal use of the vehicle makes it reasonable to add back 50% of the capital cost allowance claimed in each of the years in question. 5) The mother has asked that the Court add back to the father's personal income the amounts claimed in the partnership and then allocated to the individual partners. The father's income tax return includes personal farm component which consists of much smaller income and expense statement on matters that are totally within his control and for which all benefits accrue to him. His tax return also includes the partnership statement which shows the same types of income and expenses but on partnership basis. There are five partners involved, two are his brothers and the other two are his cousins. There is no evidence to suggest that the income statements of the partnership are fashioned in such way to reflect an inaccurate picture on cash basis of the operation of the farm partnership. There is nothing to suggest that the partnership is organizing its expenses or distribution to artificially lower the income of the father. This is not situation where the father is the sole shareholder in corporation. This is not situation in which there is majority ownership in the partnership which would allow the father to control the activities of income distribution or asset purchase. There is nothing in the Guidelines to suggest that the Court should be adding back any of the partnership amounts to the income of the father automatically. There is nothing in the evidence that would lead the Court to the conclusion capital cost allowance being claimed by partnership is inappropriate or indeed that any of the expenses or accounting functions used by the partnership do not reflect the partnership business over the long term. The Court was not prepared to add back to the income of the father the personal expenses claimed in partnership returns as farm expenses, capital cost allowance on real property or personal property owned by the partnership. 6) The total income averaged over 3 years comes to $29,983 each year. Child maintenance shall be paid on that amount.

e_2006skqb446.txt

J. 2006 SKPC 95 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT REGINA, SASKATCHEWAN Between: HER MAJESTY THE QUEEN [F.R.] Mr. John Stoesser For the Crown Mr. Drew Belobaba For the Accused C.A. Snell, PCJ JUDGMENT October 18, 2006 I. INTRODUCTION [1] The Crown has applied pursuant to section 753 of the Criminal Code to have Mr. [F.R.] designated a dangerous offender. The Defence position is that he should be designated long-term offender. This decision addresses the question of whether the Crown has established beyond reasonable doubt that the offender is “dangerous offender” and must be sentenced to indeterminate detention. II. PROCEDURAL BACKGROUND [2] On April 19, 2005 found [F.R.] guilty of aggravated assault for wounding [P.M.] between July 1st, 2004 and August 25th, 2004. then ordered the preparation of pre-sentence report. However, prior to sentencing the Crown applied for remand for assessment, pursuant to section 752.1 of the Criminal Code, and presented materials indicating that Dr. Roger W. Holden would be qualified and able to provide the Court with the necessary assessment within the required time.[1] [3] was satisfied on the information before me that Mr. [F.R.] might be found to be dangerous or long-term offender and therefore remanded Mr. [F.R.] for the purpose of having Dr. Holden perform the assessment and provide his report to the Court. The matter was adjourned to permit Dr. Holden to complete his assessment, as initially he did not provide his report on the date promised. Once Dr. Holden’s report was received there were further adjournments to permit an examination by an expert chosen by the Defence. Dr. Holden’s report offered the opinion that Mr. [F.R.] should be found dangerous offender. Due to the delays in receiving the reports, the hearing did not proceed until June 12, 2006, more than year after the conviction for the predicate offence. [4] propose to review the applicable law at the outset, given that there were significant amendments to Part XXIV of the Criminal Code in 1997 which have been interpreted recently by both the Supreme Court of Canada and the Saskatchewan Court of Appeal, and given the unusual nature of this sentencing procedure. [5] The statutory requirements for finding that an offender is dangerous offender are found in section 753(1) of the Criminal Code as follows: 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;... [6] new designation was created in the 1997 amendments. Section 753.1 sets out the requirements of the new long-term offender designation, as follows: (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. (2) The court shall be satisfied that there is substantial risk that the offender will reoffend if ... (b) the offender (i) has shown pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms part, that shows likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons.[2] [7] There is significant difference between the sentence imposed on dangerous offender as opposed to long-term offender. The dangerous offender is made subject to an indeterminate sentence, with parole eligibility beginning after seven years in custody and reviewed every two years thereafter. The long-term offender is sentenced to definite term of imprisonment of more than two years, with normal parole eligibility, plus term of community supervision of up to ten years, which term can be reduced in certain circumstances. The result of the 1997 amendments, which did not change the criteria for finding person dangerous offender, is that some offenders who would previously have been found to be dangerous offenders may now be found to be long-term offenders, according to the cases decided since the amendments, which will now review. [8] In R. v. Johnson[3] the Supreme Court of Canada made it clear that the Court must now also consider, on dangerous offender application, whether the subject of the application might be found long-term offender, despite the fact that the requirements of s. 753(1) for dangerous offender finding have been met. The Court emphasized that the principles of sentencing contained in s. 718 to 718.2 of the Criminal Code continue to apply to the exercise of discretion in dangerous offender applications when determining what result will satisfy the sentencing objective of public protection. In particular, the fundamental principle of proportionality and the principle of restraint set out in paragraphs 718.2 (d), that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and (e) that 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, must be considered. The Supreme Court concluded as follows, at paragraph 28: The principles of sentencing thus dictate that judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e.. where definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met. [9] The Saskatchewan Court of Appeal issued concurrent judgments on three cases involving Part XXIV of the Criminal Code in 2004: Lemaigre v. The Queen,[4], R. v. K.R.S.,[5] and J.L.A.G. v. The Queen.[6] These cases all involved trial court decisions which pre-dated the Supreme Court of Canada decision in Johnson, so the Court of Appeal had to assess whether the trial judges in each of these cases had recognized the need to consider finding the offender long-term offender, even if he met the criteria of dangerous offender, and appreciated that the essential question to be considered was whether the risk to re-offend is reasonably open to eventual control in the community. Mr. Justice Cameron outlines the proper analysis in Lemaigre at paragraphs 14 to 16[7]: Having regard for the respective criteria governing the dangerous and long-term offender designations, an offender who qualified as dangerous offender will almost always qualify as long-term offender as well, provided there exists reasonable possibility of eventual control of the risk in the community. That leaves open the possibility that an offender, who would otherwise be sentenced as dangerous offender, might be sentenced as long-term offender instead. The sentence reserved for the latter is less restrictive, matter of significance because in principle the less restrictive sentence is to be imposed whenever reasonably fit. Hence, on dangerous offender application, the sentencing judge, before sentencing person to an indeterminate period of imprisonment as dangerous offender, must suitably consider the alternative, namely sentencing the person as long-term offender to determinate period in prison followed by period of community supervision: R. v. Johnson, 2003 SCC 46 (CanLII), [2003] S.C.R. 357. And in keeping with Johnson it is incumbent upon the judge, when considering the alternative, to 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. The corollary of this is that the sentence reserved for long-term offenders, the lesser of the two, is meant for that much broader group of offenders whose risk of re-offence, while exceptional, appears open to eventual control in the community by means of term in prison followed by period of supervision in the community supervision under such conditions as may serve to control the risk and reduce it to an acceptable level. [10] R. v. Lemaigre was case involving domestic violence which continued throughout the accused’s twenty year marriage to the victim. Mr. Lemaigre had lengthy criminal record for violence towards his wife and others, but over time he became less violent towards others. He also had serious alcohol problem. The types of offences committed by Mr. Lemaigre seemed to be explosive incidents of violence in the context of drunken arguments. The Court of Appeal remitted this matter back to the trial court as it was of the view that there had not been adequate consideration of the opportunities that might exist for the eventual control of the offender’s risk to re-offend in the future, stating as follows at paragraph 57 of the report: His test is not so much concerned with reducing the threat to an acceptable level as it is concerned with virtually eliminating the threat prior to release from prison. Not only that, his test excludes the potential for reduction of the risk to an acceptable level by means of community supervision, including the prescribed conditions to which community supervision is subject and the additional conditions that may be imposed by the Parole Board. [11] Mr. Justice Cameron also addresses, in Lemaigre, the responsibility of the trial court in assessing the evidence. At paragraphs 68 and 69 he states: .. An application to have an offender declared dangerous offender, and sentenced accordingly, cannot succeed without the sentencing judge being placed in position to properly discharge these responsibilities. Their proper discharge requires an appropriate base of fact and opinion. To the extent that base is lacking, the prosecutor’s application is at risk of being dismissed. Thus, if prosecutor, in advancing an application under section 753, should do nothing more than establish the existence of one or more of the dangerous offender criteria appearing in section 753(1)(a) the application runs the distinct risk of being dismissed, for the offender may choose to do nothing but stand passively aside. In that event, the sentencing judge would be left without the requisite base of fact and opinion to determine the essential question of whether the sentencing sanctions available under s. 753.1 are sufficient to reduce the threat of public harm to an acceptable level, notwithstanding the fact the requirements of section 753 have been met. In many instances the void will prove fatal to the application. This is especially so in borderline cases. [12] In R. v.K.R.S. the Court reversed finding that the accused was dangerous offender and found him to be long-term offender instead. The predicate offence which the offender had committed was an extremely brutal aggravated assault in which he caused irreversible brain damage to the victim whom he believed had sexually assaulted his sister. The accused had stomped on the victim’s head, stomach and groin area and kicked him when he was lying on the floor gravely injured. He had previously been convicted of another aggravated assault nine years earlier in which he had beaten the victim with baseball bat. Other previous convictions included robbery which involved him stabbing the victim in the thigh and assault with weapon for spanking six year old child with shoe. The error in law found by the Court in this case was the same as it found in Lemaigre; the standard is not whether cure is guaranteed but whether there is reasonable possibility of eventual control in the community. [13] On that issue Justice Jackson stated as follows, at paragraph 53 of the K.R.S. decision: To determine whether there is reasonable possibility of Mr. K.R.S. eventually being controlled in the community, one has to be concerned about behaviour exhibiting the degree of violence reflected in the aggravated assaults, and, to some extent, set aside the other offences. When one does this, one is left with one occasion with two aggravated assaults which occurred in 1991 when Mr. K.R.S. was 21 and the predicate offence, nine years later. There have been also periods when Mr. K.R.S. was drug and alcohol free, and he was working and not committing offences. From 1995 until 1998, Mr. K.R.S. seems, by all accounts, to have been living an appropriate life. Even after severely striking child in the guise of discipline in 1998, Mr. K.R.S. managed for almost another year and half to avoid violence. [14] The third case in the trilogy of Court of Appeal decisions noted above is R. v. J.L.A.G. The predicate offence in this case involved the attempted murder of woman and her parents. The accused had dated the woman briefly, but she had told him she no longer wished to date him. He attended to their home armed with three knives. The father was stabbed twenty-four times, the mother twelve times and the daughter thirty-six times. All suffered significant and long-term physical and emotional damage. The offender had previously been convicted of manslaughter for stabbing man who lived with his mother. He was only twenty years old at the time of this offence. [15] There was conflicting evidence at the hearing. The Crown expert reported that the accused “...suffered from severe personality disorder and presented high risk of serious violence offence, risk which was highly unlikely to be significantly modified within the foreseeable future, either through treatment, or aging, or restraining measures.”.[8] The Defence expert provided the opinion that the offender suffered from “...depression, post-traumatic stress, and an ‘intermittent explosive disorder’, conditions which were amenable to effective treatment with drugs.”[9] There had also been psychological assessments of the offender conducted previously, one of which suggested that he had an entrenched belief system foreclosing appreciation of the wrong he had done in his earlier offence. The trial judge concluded that the offender was not amenable to treatment. The Court of Appeal found he had properly considered the availability of long-term offender designation, therefore it upheld the dangerous offender designation. [16] Another Saskatchewan Court of Appeal decision which is instructive is R. v. Otto[10]. In this case the long-term offender designation was set aside and dangerous offender designation substituted. The Court concluded that the trial judge had failed to properly consider the evidence concerning attempts which had been made to control the offender’s behaviour in the community and the failure of the expert who testified to consider this when he gave his opinion. The Court quoted with approval at paragraph 20 passage from decision of the Ontario Court of Appeal[11] as follows: 47 Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and the amended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long‑term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within definite period of time: R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont C.A.). In R. v. M.(J.S.) (2003), 2003 BCCA 66 (CanLII), 173 C.C.C. (3d) 75 (B.C.C.A.), the court stated that the basic purpose of the dangerous offender provision before the 1997 amendment was the protection of the public and that under the amended legislation, the test for achieving that goal is set out in s. 753.1(c), namely, whether there is reasonable possibility of control in the community of the risk of the offender re‑offending. The court also noted that the French version of the section requires "une possibilité réelle", or "real possibility", which may require an even higher degree of certainty in the evidence than the English version, "reasonable possibility". [17] Thus, the decision in the present case will rest upon careful examination and evaluation of the evidence of the expert witnesses. There must be more than an expression of hope that the person can be treated, but we must not require an absolute guarantee of treatability. found the decision of my brother judge White, J. in R. v. R.H.L.,[12] to be very helpful on this issue, particularly his analysis at paragraph 13: The key factors which will determine whether there is reasonable possibility of control of the risk of harm in the community are those things that suggest that changing the offender’s behaviour is possible or whether it is well nigh impossible. Two situations immediately come to mind: the offender who is of low intelligence and/or has severe learning disabilities and the offender who suffers from deeply entrenched psychological disorder that is resistant to cognitively-based programming and/or treatment. These would constitute strong cases for dangerous offender designation. The contrary is also true; where the offender does not suffer from an inherent defect of character or reason one can often conclude that the possibility of change and reduction of risk in the future with treatment is not unrealistic it is not what one would call remote or unreasonable possibility. (references omitted) IV. PERSONAL HISTORY [18] Mr. [F.R.] is thirty-two years of age. He has amassed criminal record consisting of forty previous convictions, many of which were for violent offences, although ten convictions were for mischief. He is the youngest of eleven children.[13] He observed violence between his parents and did not have good relationship with his father. He has reported that he was physically abused by his father and by his siblings. His mother was, and is, his primary support within the family. However, his mother has acknowledged that she was busy raising some of her grandchildren when he was child and that he may have been neglected as result. [19] Mr. [F.R.] was placed in the Lebret Residential School when he was eight years of age for eight months, during which time he was subjected to physical and sexual abuse. Following the family’s move to Regina, he suffered racially based bullying at school, had few friends and often was involved in fights. His school attendance was poor and ended early. He achieved his Grade at the age of twenty, while he was in the penitentiary. [20] Mr. [F.R.] has long-standing history of alcohol and drug abuse. He began drinking at age twelve and by age fourteen he was drinking on regular basis, as much as he could, increasing as he got older. Similarly, he began using illicit substances at the age of twelve, beginning with marijuana and then Restoril, Valium and speed when it was obtainable. By the age of twenty he was using cocaine, morphine, Talwin and Ritalin intravenously. [21] Mr. [F.R.] has three children aged thirteen, eleven and nine from three separate relationships. He has little contact with his children. He acknowledged to the person who prepared the pre-sentence report that all three relationships involved domestic violence. As will be seen below, the most serious of his previous offences involve domestic violence. [22] He reported to one of the experts[14] that his father introduced him to Aboriginal traditions and his mother introduced him to Christian traditions. His familiarity with Aboriginal traditions is rudimentary at this time, but he has recently established contact with an Elder from his home Reserve. [23] Mr. [F.R.] has been made subject to various court orders to take substance abuse treatment and anger management or domestic violence treatment. His commitment to treatment while in the community was negligible. The probation documents in exhibit P-5 are replete with instances of his failures to report and to take programming arranged for him. He was manipulative with the probation officers who were very tolerant with his excuses and failures to respond and who were persistent in their efforts to supervise him and provide him with the programming he required and had been ordered to take. Although he was occasionally charged with breach of probation, he was by no means charged on every occasion when he might have been. [24] He did better when taking treatment while incarcerated. In particular, during his three year penitentiary term he successfully completed programs related to cognitive skills, parenting skills training, living without violence, and anger and emotions management. However, he was suspended for lack of attendance to an Aboriginal specific Alcoholics Anonymous program within the institution. Progress Report dated October 25, 1996 contained within the Correctional Service of Canada documents, marked exhibit P-6, states that he did not attend the Batterers Group as suggested, he did not make commitment to address his substances abuse issues and he did not address his aggression through the ABC program at the Regional Psychiatric Centre. V. CRIMINAL HISTORY A. The Predicate Offence- Aggravated assault of [P.M.] from July to August 25, 2004 [25] Mr. [F.R.], who was almost thirty years old at the time of the offence, and Ms. [P.M.], who was nineteen at that time, had been living together for about month and half prior to August 25th, 2004, when he was arrested for assaulting her. However, they had previously lived together for significant period of time prior to his service of jail term in 2003, beginning when she was seventeen years old. She testified at the hearing about Mr. [F.R.]’s violence toward her during that earlier time period, which will be outlined later in this decision. [26] On August 25, 2004, the police were investigating reported stabbing which took them to Mr. [F.R.]’s residence. Mr. [F.R.] initially denied them entry into the residence, but eventually did allow them to come in to check if anyone inside required assistance. [P.M.] was found lying in bed in one of the bedrooms, flat and still, with the sheets pulled up to her face. The officer was able to observe some injuries to Ms. [P.M.] and although she was not immediately cooperative, she went with the officer to the police vehicle and then to the hospital. Ms. [P.M.] initially blamed third party for her injuries, but later gave statement that Mr. [F.R.] had caused them. [27] The evidence at the trial was that Mr. [F.R.] had assaulted the victim with his fists, had whipped her with an electrical cord and had hit her on the head with bottle. She was observed to have suffered many injuries, but some of them had been caused on an earlier occasion. For example, her jaw was broken in two places but she had suffered pain in that area prior to the night in question so Ms. [P.M.] was not sure if it was broken on that night or if it had been broken previously. She testified that she had been whipped on the back with electric cords both on that night and previously. Ms. [P.M.]’s right eye was completely swollen shut; her other eye was swollen and bruised. She had cut to her right earlobe and the top of her ears were black with bruises. She had two cuts to the top of her head. She had bruises, of different ages, on both legs, her breasts and her arms. Her hands had cuts all over them. The photographs of her injuries which had been marked exhibit P-1 at the trial, made it clear that Ms. [P.M.] had been assaulted over period of time and not just on the evening of August 25, 2004. [28] Ms. [P.M.] testified that she did not report any of the incidents of violence to the police because Mr. [F.R.] told her that he would leave her and her family alone if she did not tell on him. She said that she was not allowed to see her family and rarely went out. She testified that she did not try to get away that night because he was always there making sure she did not phone anyone. B. Previous Criminal Behaviour [29] will review only the offences which involve violence. In addition to receiving evidence concerning previous convictions, the Court is entitled to receive and consider evidence of events which did not proceed to judicial determination previously, if the evidence is credible and reliable.[15] Accordingly, received evidence from [S.O.] concerning an assault on her by Mr. [F.R.], and, as noted above, from [P.M.] concerning other incidents of violent behaviour towards her by Mr. [F.R.], in addition to the predicate offence. [30] The incidents are set out in chronological order, except that have placed the description of Mr. [F.R.]’s only sexual offences in sequence at the time when they were dealt with in court, despite the fact that they would have been the first offences he committed. Since it is significant to know whether there have been periods of time when Mr. [F.R.] has been law-abiding citizen, have also attempted to outline when he was at large in the community although was not provided with documentary evidence of his release dates from prison, so have had to estimate those as best could. (1) Aggravated assault of Trevor Leigh on August 25, 1991 [31] On October 2nd, 1991 Mr. [F.R.] was convicted in youth court of aggravated assault. He received sentence of 11 months secure custody plus probation for two years, condition of which was that he take alcohol treatment. As there was no transcript available concerning this conviction, but there was Certificate of Conviction, admitted the statement of Lisa Marie Grey, as exhibit P-11, which outlines the circumstances surrounding the offence. She describes an incident in which Mr. [F.R.] got into fight with male victim. He then produced knife and stabbed the victim twice in the back. Apparently the injuries were not life-threatening. At the time of this offence he had already been before the youth court on two occasions concerning break and enter offences for which he had received probation and community service work sentences. He would have just completed his probation term when he committed this offence. [32] The next three violence related convictions all concern [T.R.], who was involved in relationship with Mr. [F.R.] on and off from January to December of 1993. There are three separate sentencing proceedings concerning offences during that time because initially Ms. [T.R.] was only prepared to testify about isolated incidents and not the entire sequence of events. In the result, there is an overlap, as outlined below, in the dates of the offence covered by the last of those convictions, which was entered on April 15, 1994 (for an assault causing bodily harm between April and October 1, 1993) and those entered earlier (on May 5, 1993 and December 29, 1993). Mr. [F.R.] would have been on probation at the time all of these offences were committed, having been released from custody on Sept. 21, 1992. (2) Assault on [T.R.] on January 14, 1993 [33] On May 5th, 1993 Mr. [F.R.] was convicted of assaulting [T.R.], for which he received $150.00 fine plus probation for months. The circumstances surrounding this offence are contained in the sentencing transcript, exhibit P-3. The victim was approached by Mr. [F.R.], who was her ex-boyfriend, at family recreation centre. An argument ensued. Mr. [F.R.] yelled at her, slapped her and kicked her. The Crown characterized the incident as unprovoked. However, the Summary of Mr. [F.R.]’s previous convictions prepared by the Crown (P-4) indicates that the incident was precipitated by Ms. [T.R.] having had fight with Mr. [F.R.]’s present girlfriend. This additional comment, while not in the sentencing transcript, is of benefit to Mr. [F.R.], as somewhat mitigating factor, so will consider it as such given that it was mentioned by the Crown in its Summary. (3) Assault causing bodily harm to [T.R.] and breach of probation on December 7, 1993 [34] Mr. [F.R.] was convicted of this offence on December 29, 1993. He received one month in jail for the assault and 15 days concurrent for the breach of probation, plus one year probation with the condition that he take anger management counselling. [35] Information provided at the sentencing hearing was that the parties became involved in an argument. Mr. [F.R.] grabbed Ms. [T.R.] by the hair and tried to pull her upstairs, then he grabbed her by the throat and choked her, following which he punched her in the eye so hard she fell to the ground. She was unable to see because her eye was swollen shut, cut and bleeding. She required stitches to her right eyelid and had other bruises to the face area. [36] The accused said in his sentencing remarks that he had enrolled in the Alternatives to Violence program himself. He said he was sorry and ashamed of himself. When asked by the court what started the fight he indicated that Ms. [T.R.] had been swearing at him and calling him down in front of his nephews and he felt humiliated. He said they had previously talked about his bad temper and that their relationship needed to be worked on, and that he had pleaded with her not to test his temper or provoke him but to help him work with it. He said he had quit drinking and drugs but that day it went awry and he felt really bad about that. He stated that he breached his probation condition not to contact her because he wanted to see how she was doing as she was having his baby in one month. He said that he wished she could really understand that he has problem with his temper and that he felt the program he was in could help him. (4) Assault causing bodily harm to [T.R.] between April 1, 1993 and October 1, 1993, and breach of probation [37] On April 25, 1994 Mr. [F.R.] plead guilty to serious continuing assault on Ms. [T.R.], which in fact preceded the individual incident that he was sentenced for on December 29, 1993 and in terms of the time period covered, would have included the single incident that led to the assault conviction on May 5, 1993. It may be noted that much of the assaultive behaviour occurred after the conviction on May 5, 1993. [38] The Crown outlined to the presiding judge that Ms. [T.R.] had been subjected to lengthy period of physical and emotional abuse by Mr. [F.R.] during their common law relationship. The Crown stated that Ms. [T.R.] had suffered beatings inflicted by Mr. [F.R.] on numerous occasions, beginning in mid-April of 1993 and carrying on through that year. She was pregnant for part of this time. The Crown indicated that Mr. [F.R.] isolated Ms. [T.R.] from her family and friends; that if Ms. [T.R.] wanted to go out he would ask his mother to keep an eye on her to make sure that she did not go anywhere. In addition, if she did go out, he would often accompany her. [39] Some of the events which Ms. [T.R.] provided details about are described in the sentencing submissions. One incident occurred when Mr. [F.R.] and Ms. [T.R.] were sleeping in bed. Mr. [F.R.], for no apparent reason, began kicking Ms. [T.R.] in the jaw. Her jaw locked and also she suffered swelling and bruised eye. [40] The next incident described occurred when Ms. [T.R.] decided to leave and was packing her clothes. An argument resulted. Mr. [F.R.] hit her in the face when she got out the door. She fell to the ground and screamed for the accused’s mother to try to stop him. However, Mr. [F.R.] then grabbed her by the hair, dragged her back into the apartment and kneed her in the head so hard that she blacked out. When she regained consciousness he was slapping her on the face. He proceeded to choke her until she passed out and then he threw her into the tub. Although he was continuing to hit her in the tub, his mother convinced him that he should stop because he was frightening his nephew who was present in the apartment. Mr. [F.R.] threatened to kill Ms. [T.R.]’s family and threatened to use Indian medicine on her. Approximately forty-five minutes later he renewed the assault and began hitting her with the crutches she required at the time as she was recovering from an operation on her foot. She suffered black eye and numerous bruises on her body. [41] On May 13th, 1993 Ms. [T.R.] moved out of the apartment. She visited Mr. [F.R.] periodically following that time but she did not move back in with him. In mid-August of 1993 Ms. [T.R.] was at her sister-in-law’s apartment when Mr. [F.R.] arrived there and began punching her, pulling her hair and burning her with cigarettes. They left to go to party and get something to eat. Mr. [F.R.] began hitting her again while she was driving the vehicle. They eventually pulled up to Mr. [F.R.]’s parents’ apartment. Ms. [T.R.] got out of the vehicle and began running. Mr. [F.R.]’s parents told her to keep running, but Mr. [F.R.] caught her on the front lawn and dragged her into the apartment. Once inside the apartment he kept the apartment door shut with her crutch and punched her in the face four times, which resulted in bruising on her forehead and swollen lip. She also suffered bruising to her wrists and legs. Although the police were contacted regarding this incident, Ms. [T.R.] did not complete the statement form they left for her so no charges were laid at that time. [42] In September of 1993 Ms. [T.R.] and Mr. [F.R.] got into an argument over his allegations that she was dating someone else. He punched her, knocked her to the ground and then punched her in the face. As she got up he pulled out inch locking blade knife and threw it at her, however it stuck in the wall. Ms. [T.R.] ran to the door but as she did he stabbed her in her upper left biceps. [43] In the same month Mr. [F.R.] and Ms. [T.R.] again got into an argument over her seeing another man. On this occasion Mr. [F.R.] took hockey stick and hit her several times causing significant bruises to her head, ribs and back. She indicated that her head hurt so badly that she could not wash her hair for at least month. Subsequently to the hockey stick assault Mr. [F.R.] hit Ms. [T.R.] on her legs with baseball bat, resulting in soreness and bruises. Ms. [T.R.] advised that Mr. [F.R.] had also occasionally struck her with steel bar. [44] In another incident, Mr. [F.R.] criticized Ms. [T.R.] for going to tanning studio. He grabbed her leg stating that if she wanted her skin another colour he would make her think twice. He then cut her above the left ankle and smeared blood up her leg. Finally, in October of 1993 Mr. [F.R.] inflicted two puncture wounds to Ms. [T.R.]’s left leg and one to her right leg. The Crown stated that Mr. [F.R.] prevented Ms. [T.R.] from seeking medical attention regarding any of her injuries. He stated to the Correctional authorities that this was because none of the injuries were serious enough to warrant medical attention.[16] [45] Mr. [F.R.] received penitentiary term of three years imprisonment for the continuing assault and one month concurrent for the breach of probation offence. In addition, he was made subject to ten year Firearms Prohibition Order. [46] Arrangements were made for Mr. [F.R.] to plead guilty to three dated sexual assault offences after he received the three year jail term, so what follows is not in chronological order. (5) Sexual Assault on S.C. October 21, 1988, sexual assault on N.B. between July 27, 1986 to August 31, 1987; sexual assault of A.R. between July 27, 1986 to August 31, 1987- conviction June 16, 1994 [47] On June 16th, 1994 Mr. [F.R.] entered guilty pleas to three counts of sexual assault related to offences occurring between July 27th, 1986 and August 31st, 1987 when Mr. [F.R.] was twelve and thirteen years of age, and one count which occurred on October 21st, 1988 when he was fourteen years of age. The Crown submissions were that these incidents were episodes of fondling younger cousins on their private parts, over their clothing. [48] In light of the fact that two of these three incidents occurred before Mr. [F.R.] was fourteen years old there was joint submission of one year concurrent time with respect to the incident which occurred in 1988, and time served on the two other matters since he had been denied bail earlier with respect to those charges. The presiding judge noted that had Mr. [F.R.] been sentenced at the time of the offences the sentence would not have been so severe and he would not have been denied bail. In all the circumstances, he accepted the joint submission, stating that the sentence was likely heavier than it would have been if imposed earlier. [49] Mr. [F.R.] was held until warrant expiry on his three year sentence in the penitentiary so he was not released until April 24, 1997. (6) Assault on [M.Z.] on November 6, 1997 [50] On March 17th, 1998 Mr. [F.R.] was convicted of assaulting [M.Z.]. He received sentence of six months imprisonment plus eighteen months probation. The transcript with respect to these proceedings was not available and Ms. [M.Z.] did not respond to personally served subpoena to testify on the application hearing. Since there was Certificate of Conviction in exhibit P-2 confirming that she was the complainant in this matter, permitted the Crown to file her statement regarding the incident, which was marked exhibit P-12. [51] Ms. [M.Z.]’s statement indicates that she began going out with Mr. [F.R.] around the beginning of July, 1997. His violence towards her commenced around the end of July. She lived with Mr. [F.R.] for few months but there were also times of separation. She agreed to go back to his house with him on November 6, 1997. Mr. [F.R.] became angry at her lack of response to his overtures and hit her once on the cheek, twice on the back of the head and punched her in the buttocks. Photographs marked exhibit P-7 from the Regina Police Service file, which also admitted, show minor bruising to the face and abdomen. [52] Since Mr. [F.R.] was released in April of 1997 there was really no gap in his violent behaviour prior to the commission of this offence, given Ms. [M.Z.]’s statement that he became violent with her towards the end of July, 1997. He would have been released from the jail term he received for his offence against Ms. [M.Z.] around the middle of July, 1998 so there was short gap of four months prior to his next offence but he would have been on probation at the time he committed the next collection of offences. (7) Uttering threats to [N.R.] November 30, 1998 (conviction January 31, 2000) [53] The complainant reported that her brother, Mr. [F.R.], telephoned her residence. When Ms. [N.R.]’s boyfriend answered the phone, Mr. [F.R.] told him to tell the complainant, “Quit fucking phoning here”. Ms. [N.R.] picked up another phone and told him that he was not supposed to be telephoning her residence. She indicated that Mr. [F.R.] started to swear and use foul language towards her and said that he was going to “come over and kill her”. He also threatened to damage her vehicle. She indicated that he sounded sober. Mr. [F.R.] received sentence of four months imprisonment for this offence. (8) Breach of Probation on January 26, 1999 (conviction January 31, 2000) [54] This offence related to Mr. [F.R.]’s failure to take the Abuse Prevention Education Supervision Group as instructed. He received two year suspended sentence. (9) Assault on Falcon Bitternose on June 23, 1999 (conviction January 31, 2000) [55] Apparently Ms. Bitternose and Mr. [F.R.] occasionally stayed in the same residence, but they were not involved in domestic relationship at the time of the offence. Mr. [F.R.] came home the evening of this offence and stood in front of Ms. Bitternose, who was lying down. He stated to her several times that he was not skinner and that he liked her. She reported that he then kicked her in the mouth. Although she tried to leave, Mr. [F.R.] grabbed her by the arm and told her she was not allowed to go anywhere. He apologized for kicking her. However, he then became aggressive again and punched her in the face. She told Mr. [F.R.] that she was feeling dizzy, but he punched her in the face again. The Crown indicated that she stated she was punched so hard that she blacked out. When she awoke she went downstairs and Mr. [F.R.] told her to get dressed because he wanted her to go out and commit theft. She ran to the 7-11 store with Mr. [F.R.] chasing her. She waited there until he left. When she was seen by the police later, they noticed bruises on her face and cuts to her shoulder. [56] Mr. [F.R.] spoke to Dr. Holden about this incident.[17] He stated that he came home drunk and was blacked out and he accidentally stepped on the victim’s head. He told Dr. Holden that the fact that he was charged with this made no sense to him. However, he was present at the sentencing hearing so he would have heard the facts related by the Crown on this occasion, and more importantly, the remarks of the sentencing judge, which will reproduce in the next paragraph. [57] The presiding judge, on this sentencing, noted that the accused was getting close to the point when the Crown might be prepared to consider taking habitual offender proceedings. Defence counsel told the court that the accused was now motivated to change. The judge addressed Mr. [F.R.] as follows:[18] You’ve shown by your record and what I’ve heard today that time and time again your mother, other members of your community, Probation Services, the courts have attempted to do things with you to help you to get hold of your spirits and make some changes so that rather than getting into trouble learn to understand the respect that people owe as first obligation to one another so that we can live in harmony in our communities. And you haven’t been able to do that and until you do you leave me with absolutely no choice with all of these violent offences in the past, particularly violent offences against women. You leave me no choice. don’t give up on you and that’s why- and I’m sure your family doesn’t give up on you either. That’s why there’s going to be probation order for as long as can make it at the end to provide for people to help open doors again for you. But do you understand what mean when say you’ve got to walk through those doors? It doesn’t do any good if make probation order saying you’re going to get treatment. If you don’t go for that treatment you’re going to be back here. And you are in very, very vulnerable position. You’ve got whole lot of serious offences against women, violent offences against women. And that’s why asked the prosecution that question. They are very close to making some form of habitual criminal application which would mean that you’d be in jail for –one doesn’t know how long, but you know it could be for the rest of your life, mean it’s as close as we come to throwing away the keys. When somebody has shown themselves by their offending to be permanent threat to the innocent members of society there are ways that those people can be locked up for literally permanently. And you don’t need that, your family doesn’t need that. You have to make these changes that are necessary. [58] Mr. [F.R.] was sentenced to four months imprisonment, consecutive, for this offence, and was placed on probation for two years as result of the suspended sentence received for the breach of probation offence dealt with at the same sentencing proceeding. (10) Assault causing bodily harm to [S.O.] on November 17, 1999 [59] Ms. [S.O.] is Mr. [F.R.]’s niece. She testified at the dangerous offender hearing about an incident which she said occurred on November 17th, 1999. However, it may be that she is mistaken about the date as the transcript of the January 31, 2000 hearing indicated that Mr. [F.R.] had been on remand from the end of October, 1999. Alternatively, it may be that the time of remand began little later. There was no evidence concerning whether this incident had been reported to the police but was not proceeded with, for some reason, or if it simply was not reported. However, as there was no indication that this matter had previously been adjudicated upon, permitted Ms. [S.O.] to testify about this incident and considered her evidence on the application. [60] Ms. [S.O.] testified that she had fallen asleep at her residence but awakened to discover that her sister Kara was arguing with Mr. [F.R.] outside the residence. She went outside and asked what was happening. Mr. [F.R.] asked Ms. [S.O.] to tell the other women who were there at the time who he was. She replied that he was “nothing but woman beating punk”, because she was friend of [F.B.], who had been assaulted by Mr. [F.R.] as outlined above. Mr. [F.R.]’s immediate response to this insult was to punch her in the jaw, breaking it. Her jaw was wired shut for two months. Ms. [S.O.] was sixteen years of age at the time of this incident. [61] Ms. [S.O.] was very good witness. She gave her evidence in very straightforward fashion and there was nothing in her demeanour or her testimony which would suggest that her evidence should not be accepted as truthful. Accordingly, believe her evidence and am satisfied, beyond reasonable doubt, that Mr. [F.R.] did assault her as testified to.[19] [62] As noted above, Mr. [F.R.] was sentenced on January 31, 2000 to total of eight months imprisonment, having been credited for three months on remand, plus two years probation. [63] There is gap in Mr. [F.R.]’s record from whenever he was released from jail after this sentencing, presumably around June of 2000 until March of 2002 when he was convicted of breach of recognizance, fail to appear and two counts of breach of probation, for which he received total sentence of four months imprisonment. This appears to be the only real gap of no criminal convictions or evidence of violent behaviour since his initial conviction as youth in 1990. There is only short period of time, from approximately May or June of 2002, when he would have been released after the four month jail term, until he began his relationship with Ms. [P.M.] later in 2002 or early 2003. (11) Assault causing bodily harm to [P.M.] alleged to have occurred prior to, and on April 9, 2003 [64] On April 9th, 2003, when the police were investigating an incident involving an assault and threats to Ms. Keshane, Mr. [F.R.]’s neighbour, which will be described below, the investigating officers discovered Ms.[ P.M.] (also the victim in the predicate offence) hiding in closet in the basement suite. She was taken to the General Hospital. Constable Hegi testified at the dangerous offender hearing that he observed great deal of swelling to her face and that her cheekbones were starting to blacken. When she was at the hospital in hospital gown the officer could observe that Ms. [P.M.] had great deal of swelling on her back and small lacerations, some short and some long, as well as puncture wounds to her legs. She had bruising and swelling on almost all parts of her body and the officer indicated that it was the worst assault result that he had ever seen to that point in his career. [65] Ms. [P.M.] testified at the dangerous offender hearing with respect to this incident and the period of time she cohabited with Mr. [F.R.]. She stated that during the time period when she lived with Mr. [F.R.], which began when she was seventeen years old, he would often assault her, when he was angry. She indicated that she often did not know what he was angry about. [66] She heard his argument with the neighbors on April 9, 2003. Mr. [F.R.] then came downstairs and took his anger out on her. He told her that she had better not tell anyone about him hitting her or she would get worse licking. She said that she had hidden in the closet because she had been beaten and Mr. [F.R.] did not want the police to see her like that. He told her to go into the closet and she did so. Although she was initially cooperative with the police, she later lied about the events because she was still with Mr. [F.R.] and did not want to get him in trouble and because he had promised that it would not happen again. [67] Ms. [P.M.] testified that she still has scars all over her body from the beatings she suffered at Mr. [F.R.]’s hands throughout the time she lived with him. The photographs introduced both at the trial and at the dangerous offender hearing confirm her evidence. She testified that in addition to whipping her on the back with curtain rod, he would use bat on her, on one occasion breaking her arm. Her arm was in cast when the police found her in the closet. In addition, he would use his hands and knives. She also testified that he would make her stand with her arms against the wall and then he whipped her with radio cord. [68] She indicated that marks shown in the photographs on her knee and just above her knee are places where he stabbed her. She also said that she had bald spots from stitches on the top of her head from injuries that he had caused. She agreed that Mr. [F.R.] used alcohol and drugs whenever he possibly could and that he certainly was high at the time of the incident on April 9, 2003. [69] found Ms. [P.M.]’s evidence to be credible and reliable and accepted it without reservation. (12) Assault with weapon and uttering threats to Shirley Keshane on April 9, 2003 (P certificate of conviction; transcript) [70] Mr. [F.R.] was convicted on December 16th, 2003 for assault with weapon and uttering threats. He had spent months on remand and received further six months imprisonment. This incident concerned an encounter between Mr. [F.R.] and neighbors who lived in the same building. Mr. [F.R.] came to the back door of the building and was pounding on it yelling, “let me in”, or words to that effect. This disturbed Ms. Keshane and her siblings who were living in an upstairs suite. They eventually went to the door and let him in. They asked what the noise was all about and asked him to be quiet. There was an argument, in the course of which Mr. [F.R.] threatened Ms. Keshane. She stated to him that she was not afraid of him at which point he pulled knife and threatened that he could “do her right there on the stairs”. He also uttered words to the effect that he could make phone call and have all of them “done in”. At that point Mr. [F.R.] went to the lower suite which was his and Ms. [P.M.]’s residence. [71] Presumably Mr. [F.R.] would have been released from this last jail term sometime in April of 2004. This was his last conviction prior to the predicate offence which was committed between July and August 25, 2004. [72] Before leaving this portion of the decision, some comments would be in order concerning Mr. [F.R.]’s criminal history. There are striking similarities between the evidence of Ms. [P.M.] and that of Ms. [T.R.] regarding the type of continuing physical and emotional abuse they suffered, controlling behaviour and threats to them and their families. [M.Z.] also referred in her statement to this type of behaviour when describing her relationship with Mr. [F.R.]. She mentions in her statement that Mr. [F.R.] made her kneel in front of him, lined up to be struck, while he yelled at her. At one point he threatened to cut her face. There are elements in these offences of acts designed to subjugate the victims which appear to be taken deliberately, as opposed to impulsively. [73] Since Ms. [M.Z.] did not testify, was hesitant to consider allegations which were not essential facts for the common assault offence on which the court was sentencing Mr. [F.R.]. However, given the similarity between what she describes and the accounts of the accused’s behaviour towards Ms. [T.R.] and Ms. [P.M.], believe that am entitled to consider his behaviour towards her to be another example of that pattern of behaviour. [74] also note that Mr. [F.R.] seems to have been particularly inclined to hit or kick women in the face, since this was an element of his assaults on [T.R.], [P.M.], [F.B.] and [S.O.]. VI. EXPERT EVIDENCE A. Evidence of the Crown Expert Dr. Holden[20] [75] Dr. Holden was qualified as an expert in forensic psychology. He has had extensive experience with providing risk assessments both for the National Parole Board and as an expert witness to the courts of Manitoba and Saskatchewan on many dangerous and long-term offender application hearings. [76] Dr. Holden interviewed Mr. [F.R.] for approximately six hours on September 26th and 27th, 2005. In addition, he administered number of tests or had Mr. [F.R.] complete tests on his own. In all, thirteen tests are outlined at pages 13 and 14 of his report. He felt that the results of the Minnesota Multiphasic Personality Inventory (MMPI) were not valid, on the basis that he felt Mr. [F.R.] was “faking good”, so he did not have the benefit of that test result in arriving at this opinion. However, he indicated that the fact Mr. [F.R.] did this did not affect the risk assessment, since this is not surprising thing for someone in Mr. [F.R.]’s position to do.[21] [77] With respect to his assessment of the risk which Mr. [F.R.] would present, Dr. Holden relied to great extent on the HCR-20, version 2, which is list of risk factors for predicting violent behaviour. There are twenty items of which ten are past or historical factors, five are present or clinical variables and five are future risk or risk management variables. One of the variables was psychopathy for which Dr. Holden used the PCL-R test. He stated that score of above 30 indicates serious psychopathy. Mr. [F.R.]’s score was 32. His total score on the HCR-20 was 36 out of 40, which resulted in Dr. Holden concluding that he has very high risk to re-offend violently in the future. On each variable examined in this test Mr. [F.R.]’s score was either that he was at an extremely high risk to re-offend violently or at very high risk or probability to re-offend violently, except with respect to the variable concerning mental illness. Mr. [F.R.] does not have any mental illness. [78] Dr. Holden testified that Mr. [F.R.] has significant personality issues; that he is untreatable; that his risk to re-offend is very high; that his risk to re-offend sexually is high and that he meets the criteria of dangerous offender. His opinion was that Mr. [F.R.] suffers from an antisocial personality disorder, some kind of substance abuse disorder and that aspects of his personality mirror psychopathy. [79] He testified regarding the issue of whether Mr. [F.R.] was psychopath or not, as follows:[22] I’m reluctant to label anyone psychopath because of the amount of connotations in the public of labeling someone psychopath, so prefer to suggest that he has aspects of personality which mirror psychopathy as we-as understand it. Psychopathy is constellation of personality attributes which tend to produce an individual who has little or no regard for convention, tends to be quite selfish, tends to justify behaviour on the basis of expediency, tends not to learn from one’s own–his own mistakes, tends not to accept treatment or accept even the possibility of needing treatment, very often has –psychopathy is (inaudible), 93 percent of the time actually with substance abuse; alcohol, 26 percent of the time with alcohol abuse, so there is hard relationship between (inaudible) abuse disorders and psychopathy. [80] Although Dr. Holden outlined what types of changes and treatments would be required, at minimum, to permit Mr. [F.R.] to be safe in the community, his conclusion was that it was not realistic to think that this could be achieved. He testified as follows:[23] think he has well-entrenched antisocial behavioural patterns. He has well-entrenched violence patterns going back to his early adolescence, perhaps earlier. He has personality traits which suggest that he hasn’t been able, up to this point, to live successful life, hasn’t been able to establish non-violent part of living, and hasn’t been able to establish any of the skill-sets or demonstrate the skill-sets which we would suggest are part of being successful in the community. So my suspicion is that it would take significant amount of work on his part. If indeed he is psychopathic, that’s not likely to work. In fact, the cognitive behavioural approaches which are the basis of corrections and other agencies rehabilitative efforts with inmates probably would be counterproductive with Mr. [F.R.]. [81] Dr. Holden was familiar with the Aggressive Behavioural Control program at the Regional Psychiatric Centre, and acknowledged that it is superior program. He agreed that if Mr. [F.R.] came out of that program admitting that he was very high risk to re-offend violently for the rest of his life, it might possibly make him safe, but only if he completely abstained from drinking. However, he doubted that Mr. [F.R.] would be able to do this. He notes in his report that Mr. [F.R.] told him that he had essentially sabotaged any treatment offered to him and that he continued to use illicit substances during his present incarceration at the Regina Correctional Centre. [82] Dr. Holden recognized that if there was any possibility of treatment rendering Mr. [F.R.] safe in the community, long-term offender designation should be the result, but his conclusion was that there was no possibility of that which he could anticipate at this time.[24] While it is not for the experts, but for the Court, to determine whether dangerous offender or long-term offender designation should be made, Dr. Holden’s opinion regarding Mr. [F.R.]’s potential for effecting change in his behaviour is worthy of consideration. [83] An issue arose concerning the reliability of one aspect of Dr. Holden’s opinion, as he was given incorrect information about Mr. [F.R.]’s criminal background. description of Mr. [F.R.]’s only sexual offences, which occurred between 1986 and 1988, but on which convictions were not entered until June 16th, 1994, is presented at page four of Summary prepared by the Crown, which was marked exhibit P-4. The description of these offences in this Summary is completely different from the circumstances presented by the Crown at the sentencing hearing as set out in the transcript, exhibit P-3, which have outlined above. The facts asserted, apparently from the police report, outline extremely intrusive and deviant behaviour far beyond that described by the Crown at the sentencing hearing which were incidents of fondling younger female cousins on their private parts, over clothing. [84] The information provided to Dr. Holden in the Summary was that one incident involved Mr. [F.R.] rubbing his penis on the sides of the victim’s vagina and forcing that same victim to perform fellatio on him. The other offences were described as fondling as well as one instance of Mr. [F.R.] laying his privates on top of the victim’s privates. The Summary states the plea bargain was necessary because of the weakness of the Crown’s evidence. It acknowledges that the facts provided to the court were “minimized” and sets out those facts. Nevertheless, from this point on in the Summary, with one exception, only the more serious facts are mentioned and noted to have been relied upon by the various correctional authorities who had subsequent dealings with Mr. [F.R.].[25] In the course of his testimony, Dr. Holden noted that he found Mr. [F.R.] to be in denial regarding his sexual crimes and resistant to any treatment concerning sexual deviancy. [85] The Crown Prosecutor candidly acknowledged that it was an error to provide the Crown expert with the more serious facts regarding the sexual offences. In the result, must discount Dr. Holden’s opinion concerning the risk Mr. [F.R.] presents of future sexual offending. [86] When asked to comment on the report and conclusions of the defence expert, Dr. Hengen, Dr. Holden stated that in his opinion Dr. Hengen’s assessment that Mr. [F.R.] was amenable to treatment was really an assessment that he was amenable to be taught to change, in the sense of having the intellectual capacity to change, rather than an assessment of his motivation to change.[26] [87] Dr. Holden testified that persons who are made subject to dangerous offender designation are provided with treatment opportunities such that this is no longer lifetime commitment to jail, as it used to be. In his view, person who is committed to treatment may well do very well under dangerous offender designation within the system.[27] B. Evidence of the Defence Expert Dr. Thomas J. Hengen[28] [88] Dr. Hengen has doctorate degree in cognitive psychology. His primary area of expertise concerns adult education. He also has extensive experience with Aboriginal learning, the Cree culture and post-traumatic stress disorder. He is clearly someone who has had great involvement and success in treating Aboriginal persons and the description of the programming and counselling he provides in his practice was quite impressive. He had never before been involved in providing an opinion in dangerous offender hearing but he had treated persons who were involved with the criminal justice system and utilized some tests specifically created to assess criminality. [89] Dr. Hengen also interviewed Mr. [F.R.] for considerable period of time and administered different tests than those used by Dr. Holden. He and Dr. Holden agree that Mr. [F.R.] is fairly bright individual, certainly above average intelligence. [90] Dr. Hengen’s conclusion was that Mr. [F.R.] likely suffered from post-traumatic stress disorder, the adult consequences of childhood attachment issues and serious drug and alcohol abuse problem. He outlines in the conclusions portion of his report at pages 17 to 21 the specific types of programs and focused treatment which he believes would render Mr. [F.R.] safe in the community by the use of intensive investment in holistic counselling and case management. He notes the importance of strong culture base to the learning plan, and the support required which has already begun by the involvement of Mr. Frank Lerat, an Elder who has been contacted by Mr. [F.R.] and is apparently willing to assist him in the future. [91] Dr. Hengen’s opinion was that one should not conclude, from Mr. [F.R.]’s history of involvement with treatment programs, that he is unwilling or unable to change his violent behaviour. He was critical both of the type of program offered to Mr. [F.R.] in the past and of the lack of culture base to that programming. Dr. Hengen’s conclusion at page 19 of his report is that: ...[F.R.] presents sufficient indicators of learning capability to provide reasonable probability that learning program designed specifically to address deficits in his self-regulating mechanisms of behaviour, based on the appropriate psycho-neurological assessment, might yield desirable results. Such an individualized learning program based on prescriptive assessment and professionally assigned remedy does not appear in any of the records or reports available to me at the time of the present report. include in this statement the records and reports that issue from various corrections services. [92] Dr. Hengen advised that the treatment programs he would be creating for Mr. [F.R.] would not be instituted in the correctional setting, but rather on release, and that one would know in the first six months if any success was being achieved. He indicated that motivation can be instilled through the programming, and that success provides its own motivation. [93] There was an area of disagreement between Dr. Holden and Dr. Hengen where felt Dr. Hengen’s opinion had more validity. Dr. Holden took note of the fact that Mr. [F.R.] had been involved in four fights and once was found to have an iron bar in his cell, while on remand at the Regina Provincial Correctional Centre. Dr. Holden factored this into his conclusion that Mr. [F.R.] was untreatable on the basis that if he could not control himself in structured setting like the jail he would not be able to do so in the community.[29] However, Dr. Hengen noted that the remand centre is very stressful environment and one’s behaviour there should not be used to determine how they would respond to treatment.[30] [94] There is no question but that Mr. [F.R.] presents, at this time, clear danger to the community, so in my view the fact that he also presents that danger, and acts it out, in the jail, is of little assistance in determining if his behaviour could eventually be controlled in the community on long-term offender sentence made up of lengthy period of incarceration followed by strict supervision in the community. Accordingly, do not accept Dr. Holden’s opinion that this is factor which should be taken to contribute to negative conclusion regarding Mr. [F.R.]’s amenability to treatment. [95] Dr. Hengen’s primary conclusion was that he does not believe that Mr. [F.R.] is psychopath who cannot be treated. He states at page six of his report that Mr. [F.R.] does not present evidence of entrenched psychopathy that is not profoundly influenced by his lack of impulse control in respect to drugs and alcohol. He clarified this statement in his evidence. He believes that Mr. [F.R.] is not psychopath, but rather that his violent behaviour will be controlled if his drug and alcohol addictions can be controlled. [96] Dr. Hengen questioned some of the variables of the psychopathy checklist utilized by Dr. Holden, indicating that they might not be accurate for Aboriginal persons. Examples he gave concerned the factors of having multiple relationships and of having children from multiple relationships. He indicated that these are not behaviours which are viewed negatively by the Aboriginal community and therefore they should not be assessed as indicators of psychopathy. Dr. Holden agreed with the suggestion by defence counsel that care must be taken to ensure there are no cultural impediments to an accurate test result, thus Dr. Hengen’s evidence raised concern about the reliability of Dr. Holden’s conclusions concerning Mr. [F.R.]’s score on the psychopathy checklist. Dr. Holden was cross-examined on this issue and stated that the way many of Mr. [F.R.]’s relationships ended was part of the assessment which resulted in points being attributed on this factor.[31] This makes it clear that there is more to this test and its proper application than is apparent from simply looking at the checklist. [97] Nevertheless, this is an important area of dispute, relating directly to the issue of whether Mr. [F.R.] is psychopath, and untreatable, or not. Dr. Hengen testified that neuropsychological assessment would be the only way to determine whether Mr. [F.R.] is amenable to treatment, or is psychopath who cannot be treated.[32] Since there was clear dispute between the experts on this issue, and it was the defence expert who was of the view that further investigation was required, concluded that should obtain this further information, particularly in light of the fact that of the experts, Dr. Holden had far greater experience in forensic psychology so his evidence on this specific issue would normally carry more weight. [98] Accordingly, ordered that such an assessment be conducted pursuant to section 723 of the Criminal Code. It was determined that Dr. Stevens would be able to perform this service, so the hearing was adjourned to August 28, 2006 to permit the assessment and report to be prepared, and for Dr. Stevens to attend to be questioned on his report. C. Evidence of Dr. Greg Stevens[33] [99] found Dr. Stevens to be an excellent and knowledgeable witness who was completely independent. Accordingly, within his area of expertise, where his opinion differs from that of the other experts, accept his evidence. Where his evidence confirms that of one of the other experts, it gives greater weight to that opinion. Dr. Stevens made it clear in his evidence that he was not in position to comment on the likelihood of success of any treatment programs which might be devised for Mr. [F.R.] as this was outside his area of expertise. [100] Although was not provided with the materials given to Dr. Stevens about Mr. [F.R.]’s previous offences, received an assurance by the Crown that the materials would be corrected to remove the improper information about his previous sexual offences.[34] [101] Dr. Stevens administered two personality tests, the Minnesota Multiphasic Personality Inventory-2 (MMPI-2)[35] and the Self-Regulation Skills Interview (SRSI). With respect to the results of the MMPI-2, Dr. Stevens’ report states at page 16 that while those with similar personality profile might express personal misgivings or vague sense of remorse for past acts, these feelings are often situationally based and dependent on their current circumstances. Such persons are often poor candidates for psychotherapy as they often resist psychological intervention, tend to argue with others, and rationalize or blame others for their problems. [102] In support of these findings, Dr. Stevens recounts at page 17 of his report Mr. [F.R.]’s comments concerning his present situation. He spoke of the ongoing uncertainty, dehumanizing treatment, lack of programs, “doing all these tests like monkey”, and the sense that the entire system is working against him “for one drunken night”, which has him on edge and under lot of pressure. While have some sympathy for the earlier comments, am concerned about his reference to his situation being the result of “one drunken night”, rather than prolonged period of violent conduct towards Ms. [P.M.]. It is of particular concern that even after two years on remand, with one of those years being under the threat of being found dangerous offender, he still does not appear to have accepted the seriousness of his offences and that he cannot drink or use drugs if he is to be in the community.[36] [103] This attitude is similar to that noted in the Penitentiary Placement Report dated October 1, 1994, contained within exhibit P-6 on the application, during Mr. [F.R.]’s incarceration in the Penitentiary for his previous serious domestic assault on [T.R.]. The report notes that Mr. [F.R.] admits most of the events and demonstrates some remorse, but also lacks empathy and insight, given that he made the statement that he didn’t owe her anything now as he is serving three year sentence for only six months of abuse. [104] The Self-Regulation Skills Interview (SRI) mentioned above is designed to measure number of dimensions related to rehabilitation and change. It assesses person’s awareness of the behaviour that needs to be changed, his expressed motivation to change the behaviour and the likely effectiveness of various strategies designed to counteract the target behaviour. While Mr. [F.R.] self reported that he was well motivated to change, his scores on the other two dimensions were closer to individuals who have experienced brain injury than non-brain injured individuals. Mr. [F.R.] is not in fact brain injured, but his similarity to those who are bodes ill for the likelihood of him responding positively to treatment. [105] In cross-examination Dr. Stevens indicated that the conclusion he drew from Mr. [F.R.]’s poor performance on this test was that he does not have the sophistication around the awareness to change and does not have the depth and richness to explore it. Dr. Stevens did not rule out the possibility that there are aspects of Mr. [F.R.]’s behaviour that are amenable to change, but he could not answer the question about whether there were enough aspects or if they would change to an acceptable degree to be safe in the community. [106] Dr. Stevens states in the summary of his report that Mr. [F.R.] could rightfully be classified as having an antisocial personality disorder and at least one or more substance abuse-related disorder. He noted that in addition to demonstrating number of the antisocial/lifestyle behaviours associated with psychopathy, he could also be evaluated as having some of the affective/interpersonal features of the disorder. [107] At Dr. Hengen’s suggestion, the instruction to Dr. Stevens was that he should place emphasis on the assessment of Mr. [F.R.]’s executive functions. Dr. Stevens describes executive function as being related to an individual’s ability to engage in goal-directed, planned and controlled behaviour. Dr. Stevens found no impairment of Mr. [F.R.]’s executive functions and found he had intact neuro-cognitive functioning, which were all in the average or above average ranges. In the result, there was no evidence of neuro-cognitive cause for Mr. [F.R.]’s violent behaviour. That being said, Dr. Stevens explained that this does not mean that his tests have established that Mr. [F.R.] is not psychopath, it just means that he did not find neuro-cognitive basis to state that he is psychopath. [108] Dr. Stevens testified that psychopathic personality disorder does not exist as legitimate diagnostic category in the DSM-IV-TR, which is the most widely used taxonomy of official classifiable mental disorders. As he is not trained in the administration and interpretation of the PCL-R instrument which Dr. Holden administered to Mr. [F.R.], he was not in position to comment on those results. He accepted that this test was the most widely accepted “formal” way to determine if person is psychopath, noting that it must be administered by suitably trained and experienced individual.[37] Accordingly, while did have some concern about the possible cultural bias in the PCL-R, as raised by Dr. Hengen, and noted earlier, was satisfied by Dr. Stevens’ evidence that Dr. Holden’s conclusions based on this test could properly be relied upon. [109] Dr. Stevens testified that there has recently been some change in the belief that psychopaths cannot change. He testified that many of the core elements which are the hallmarks of psychopathy are too entrenched to change. These include: being superficial, narcissistic, egocentric, having limited remorse, insight or empathy regarding the effect of their behaviour on others, and failure to accept responsibility. But there is now belief that psychopathy tends to decrease with age (from mid-40's on) and that the anti-social/lifestyle features of psychopathy including impulsivity, irresponsibility and the need for stimulation could be changed with proper programming and analysis. However, he was not able to give any indication of how long it would take to effect such changes, other than to say it would be long-term, nor was he able to indicate way to predict if the efforts would be successful. In his view, at minimum the individual must be willing, insightful and motivated to change. [110] There was no dispute about whether the offence of which Mr. [F.R.] was convicted qualifies as ‘serious personal injury offence’ as that term is defined in section 752, and as interpreted by the Saskatchewan Court of Appeal in R. v. Goforth.[38] [111] In addition, it is clear that Mr. [F.R.]’s predicate offence and past behaviour leads to the conclusion that the requirements set out in s. 753(1) have been met. The evidence presented at the trial of the predicate offence and during the dangerous offender application establish that he presently constitutes threat to the life, safety and well-being of other persons because of his persistent, repetitive behaviour that has shown failure to restrain his behaviour and that there is likelihood that he will cause injury to others through failure to restrain his behaviour in the future. There is also pattern of persistent, aggressive behaviour showing substantial degree of indifference regarding the reasonably foreseeable consequences of his behaviour to other people. In sum, he meets the criteria to be found dangerous offender. [112] It is equally clear that the pre-conditions in s. 743.1 (2)(a) and (b) have been met. Since he was previously sentenced to three years for similar offence, sentence of greater than two years would necessarily result if he was sentenced in the normal course on the predicate offence. Given his previous record of convictions there is clearly substantial risk that he will re-offend in violent manner. The sole issue left for me to determine is whether the evidence permits me to find that there is a reasonable possibility of eventual control of the risk Mr. [F.R.] poses to the community, so that he could be designated a long-term offender rather than a dangerous offender. This is not case where definite term of imprisonment would be appropriate, as was conceded by Defence counsel in argument. [113] The case law makes it clear that in order to find Mr. [F.R.] to be long-term offender it is not necessary to find that the risk he poses could be eliminated. The assessment relates to whether the risk he poses could be eventually reduced to an acceptable level if Mr. [F.R.] were sentenced to several years in prison, exposed to the treatment programs offered in prison, and then released into the community under supervision on conditions specially created to reduce the risk. This could include conditions that he take the treatment and counselling which could be provided by Dr. Hengen, and there could be limitations on his freedom of movement and living companions. [114] Dr. Hengen provided great deal of information about the opportunities for treatment programs specially designed for Aboriginal offenders and the evidence indicates that Mr. [F.R.] has the intellectual capacity to benefit from those programs if he has sufficient motivation to do so. The description he gave of an individualized adult learning program with holistic approach including cultural support seems the ideal program for any offender. Dr. Hengen has undertaken to assist Mr. [F.R.] in establishing connections to Elders and to provide the treatment programs required. [115] have referred earlier to the problem created by Dr. Holden having been given facts concerning Mr. [F.R.]’s sexual offences which did not accord with, and which were much more serious than those admitted in court at the time of sentencing.[39] Those more serious facts had also been provided to the Correctional Service of Canada following the sentencing, while Mr. [F.R.] was serving his three year penitentiary sentence. This has created an additional issue for me to consider in this application. [116] The correctional officials accepted the more serious facts as accurate, therefore they considered Mr. [F.R.] to be dangerous sexual offender who required specialized treatment. Mr. [F.R.] continued to assert that the facts were as stated in court and he refused treatment on the basis that the offences involved minor touching of an experimental nature, when he was very young, and that he did not require treatment since there had been no further sexual offence convictions. His refusal to take sex offender treatment resulted in the National Parole Board refusing him parole and holding him until his warrant expiry.[40] have had to consider Dr. Hengen’s evidence in the context of the Correctional Service of Canada focus on Mr. [F.R.] as dangerous sexual offender, which do not believe the evidence establishes, and whether the programming that he was offered was so inappropriate as to lead to the conclusion that he has not shown himself resistant to treatment and that he should therefore be allowed the opportunity to take the programming Dr. Hengen suggests. [117] However, while the programming offered to Mr. [F.R.] was not individualized, he was offered and in fact took programs designed to address aggression, domestic violence, anger management and substance abuse. Nevertheless, his conduct concerning [P.M.] was almost identical to his treatment of [T.R.]. In the result, while his failure to agree to take sex offender treatment resulted in his being denied parole, cannot conclude that Mr. [F.R.] was denied appropriate programming for his problems. He received the programming but his behaviour was not altered by taking that programming. Similarly, although he was denied the opportunity for gradual release into the community under supervision, he was often subject to sentences of community supervision through probation orders. These were not in any way successful in changing his behaviour, even after he was warned that an application such as this one might be taken if he continued with his violent behaviour. [118] Justice Jackson, as noted earlier, found it significant that the offender in R. v. K.R.S., supra, had managed, for some significant periods of time, to be in the community without criminal behaviour. I note, to the contrary, that Mr. [F.R.] does not have significant gaps in his violent offending, except for one period of about nineteen months between August of 2000 to March of 2002. While there is a significant time period between his offences concerning Ms. [T.R.] (1993) and those involving Ms. [P.M.] (2003), there are also the other violent offences concerning women which are of concern, both with respect to [M.Z.], which is a third example of that type of controlling, violent behaviour and the incidents concerning [F.B.] and [S.O.] which denote more explosive violent behaviour. [119] Dr. Stevens agreed with the suggestion by defence counsel that many of Mr. [F.R.]’s antisocial kinds of explosive behaviour, acts done in rages, are somewhat uncharacteristic of psychopath.[41] However, while some of the assaults which are on his record appear to be of this type, such as the immediate punch to Ms. [S.O.]’s jaw when she insulted him, his treatment of his domestic partners, as noted above, was not of that character, being deliberate rather than explosive. [120] In my assessment of the expert evidence am placing great deal of weight on Dr. Stevens’ evidence, since he is independent of both the parties and was specially qualified to assess Mr. [F.R.]’s personality characteristics and the potential for altering his future behaviour. consider Dr. Stevens to have corroborated the evidence of Dr. Holden in many respects, which has resulted in my acceptance of his opinion regarding Mr. [F.R.]’s amenability to treatment over that of Dr. Hengen. [121] In particular, on the issue of Mr. [F.R.]’s psychopathic characteristics, I have concluded that Dr. Stevens’ opinion supports that of Dr. Holden that Mr. [F.R.] is not someone who can be treated so as to reduce the risk of re-offence he presents to the community to an acceptable level. Dr. Stevens disagreed with Dr. Hengen’s conclusion that Mr. [F.R.] suffers from post-traumatic stress disorder. This then adversely affects Dr. Hengen’s opinion regarding the treatment programs which would be beneficial for Mr. [F.R.] and his anticipated prognosis for possible success in altering his behaviour after taking those programs. [122] There is also concern about Dr. Hengen’s conclusion that Mr. [F.R.]’s violent propensities will disappear if he gains control over his substance addictions. Although many of Mr. [F.R.]’s offences were committed while he was under the influence of drugs or alcohol, it is doubtful that the continuous beatings which he inflicted on his domestic partners can all be attributed to violence while under the influence of substances. Dr. Stevens noted that some, but not all, of Mr. [F.R.]’s previous offences involved the use of alcohol, therefore he viewed this as crucial area to be addressed, but he did not accept that substance abuse was the cause of all the earlier behaviour.[42] accept Dr. Stevens’ opinion on this issue. [123] Unlike the situation in R. v. Lemaigre, the risk Mr. [F.R.] poses is not just to a single person. Any woman he has contact with either through family relationships, intimate relationships or purely social relationships is at risk of his penchant to punch or kick them in the face. Those he is involved with in domestic or intimate relationship are at grave risk of his controlling, violent and torture-like abusing behaviour over lengthy period of time. It is unlikely that restrictions on his living arrangements would be effective in preventing him from being intimately involved with women, who would then be at risk. [124] Mr. [F.R.] is relatively young, so one is reluctant to order his detention on an indeterminate basis. As set out in the relevant authorities which were outlined above, restraint must be exercised in determining what sentence to impose. It must be the least restrictive sentence which is appropriate in the circumstances. On the other hand, Mr. [F.R.] is still long way from the age at which the experts say there may begin to be diminution of violent behaviour. [125] designation of Mr. [F.R.] as long-term offender subject to definite period of incarceration followed by close supervision, even for many years, would be based on hope that all persons are capable of rehabilitation rather than on evidence that it is reasonable to anticipate that he could be treated and controlled by combination of lengthy jail term and community supervision to the point where the risk he would pose to the community would be at an acceptable level. Unfortunately, I have come to the conclusion that Mr. [F.R.] has significant psychopathic features of his personality that are so entrenched as to be impervious to change such that the sentencing principle of public protection can only be achieved by an indeterminate sentence. Mr. [F.R.] falls within that small group of offenders described by the Supreme Court of Canada in R. v. Lyons as those “...whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration...”.[43] [126] Accordingly, for these reasons, and pursuant to section 753(4) of the Criminal Code, I find Mr. [F.R.] to be a dangerous offender and sentence him to indeterminate detention. Pursuant to section 760 of the Criminal Code order that copy of all reports filed, this decision and the trial transcript be forwarded to the Correctional Service of Canada. [127] will hear counsel with respect to any other orders which should be made to conclude sentencing. C.A. Snell Judge of the Provincial Court of Saskatchewan [1]Section 752.1 of the Criminal Code requires that the remand order for the purposes of the assessment should be for period not exceeding 60 days, and that the report of the person conducting the assessment is to be made available 15 days after the end of the assessment period. [2]This creates presumption that substantial risk is to be found in these circumstances, but it can also be found without the necessity of finding this pattern of repetitive behaviour. (see R. v. K.R.S., 2004 SKCA 127 (CanLII), [2004] S.J. No. 591; 2004 SKCA 127; 254 Sask.R. 211, para. 49) [3]2003 SCC 46 (CanLII), [2003] S.C.R. 357; 177 C.C.C. (3d) 97; 13 C.R. (6th) 205. [4]2004 SKCA 125 (CanLII), [2004] S.J. No. 589; 2004 SKCA 125; 254 Sask.R. 255; 189 C.C.C. (3d) 492 [5]Supra, footnote [6][2004] S.J. No. 590; 2004 SKCA 126 (CanLII); 254 Sask.R. 276; 189 C.C.C. (3d) 512 [7] Mr. Justice Cameron expresses the same principles in R. v. J.L.A.G. at paragraphs 40 to 42. [8]At paragraph 12. [9]At paragraph 21. [10] 2006 SKCA 52 (CanLII), [2006] S.J. No. 303; 2006 SKCA 52 [11]R. v. McCallum (2005), 2005 CanLII 8674 (ON CA), 201 C.C.C.(3d) 541; [2005] O.J. No. 1178 [2005] S.J. No. 70 (CanLII) 2005 SKPC 9; upheld without written reasons by the Sask.C.A., Oct. 19, 2005, leave to appeal to the S.C.C. denied, [2006] S.C.C.A. No. [13]This is according to the Pre-sentence Report. Other personal histories in the materials contain different numbers. do not think this is significant as the relevant point is that he came from large family and was by far the youngest. [14]Dr. Hengen’s report, page 10. [15]See R. v. Probe, [1983] S.J. No. 912 (Sask.C.A.) [16]Psychological/psychiatric Assessment Report dated July 28, 1994, Correctional Service of Canada records, exhibit P-6. [17]See page of Dr. Holden’s report, exhibit P-9. [18]At pages 50-51 of the collection of sentencing transcripts, P-3. [19]Note: Dr. Holden’s report includes an account by Mr. [F.R.] concerning an assault on niece, but it is so different from the account given by Ms. [S.O.] that am not confident that Mr. [F.R.] was referring to the same event. am giving him the benefit of the doubt and will not consider it to be his version of the events, which would have amounted to serious minimization of the incident. [20]His report was marked exhibit P-9 on the application. [21]Pages 21 to 23, Transcript. [22]Page 26, Transcript. [23]Page 35 to 36, Transcript. [24]Pages 50 to 51, Transcript. [25]Another defect in the Summary, P-4, concerns an assertion that the accused stabbed Mr. Desjarlais on the same date as the predicate offence. This was not established and should not have been referred to. [26]Pages 99-101, Transcript. [27]Page 128, Transcript. [28]His report was marked exhibit P-10 on the application. [29]Page 182-184, Transcript. [30]Page 322, Transcript. [31]Page 165, Transcript. [32]Page 292, Transcript. [33]His report was marked exhibit C-1. [34]Page 396, Transcript. [35]This was the personality test on which Dr. Holden was unable to obtain valid results. [36]Dr. Stevens recounts at page of his report that Mr. [F.R.] stated to him that he acknowledged that many of his problems occur when he is intoxicated and that he has “been considering making decision to stop- no, have made decision to stop.” [37]Page 18 of Dr. Stevens’ report. [38]2005 SKCA 12 (CanLII), [2005] S.J. No. 79; 257 Sask.R. 123; 193 C.C.C. (3d) 354; (motion for extension of time to apply for leave to appeal dismissed Dec. 22, 2005 [2005] S.C.C.A.No. 456). [39]Paragraphs 83-85 of this decision. [40]See exhibit P-6, the Correctional Service of Canada records. [41]Page 460, Transcript. [42]Page 456, Transcript. [43]1987 CanLII 25 (SCC), [1987] S.C.R. 309; 37 C.C.C. (3d) 1; 61 C.R. (3d) 1, at paragraph 44.

The Crown has applied pursuant to s. 753 of the Criminal Code to have the accused designated a dangerous offender. There is no question that the accused was convicted of a 'serious personal injury offence' as that term is defined in s. 752 of the Code. It is also clear that the accused's predicate offence and past behaviour lead to the conclusion that the requirements set out in s. 753(1) of the Code have been met. The sole issue left for the Court to determine is whether the evidence permits the Court to find that there is a reasonable possibility of eventual control of the risk the accused poses to the community so that he could be designated a long term offender rather than a dangerous offender. This is not a case where a definite term of imprisonment would be appropriate, as was conceded by defence counsel. HELD: The accused is a dangerous offender. He is sentenced to indeterminate detention. 1) The accused does not have significant gaps in his violent offending, except for one period of about 19 months beginning August 2000. While there is a significant time period between his offences concerning T.R. (1993) and those involving P.M. (2003) there are also the other violent offences concerning women which are of concern, both with respect to MZ, which is a third example of that type of controlling, violent behaviour and the incidents concerning F.B. and S.O. which denote more explosive violent behaviour. 2) The expert evidence supports a finding that the accused is not someone who can be treated so as to reduce the risk of re-offence he presents to the community to an acceptable level. 3) Although many of the accused's offences were committed while he was under the influence of drugs or alcohol, it is doubtful that the continuous beatings which he inflicted on his domestic partners can all be attributed to violence while under the influence of substances. 4) The accused does not pose a risk to just a single person. Any woman he has contact with either through family relationships, intimate relationships, or purely social relationships is at risk of his penchant to punch or kick them in the face. Those he is involved with in a domestic situation or intimate relationship are at grave risk of his controlling, violent and torture-like abusing behaviour over a lengthy period of time. It is unlikely that restrictions in his living arrangements would be effective in preventing him from being intimately involved with women, who would be at risk. 5) The Court was of the opinion that the accused has significant psychopathic features of his personality that are so entrenched as to be impervious to change such that the sentencing principle of public protection can only be achieved by an indeterminate sentence.

d_2006skpc95.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 078 Date: April 10, 2014 Information: 31461438 Location: Regina Between: Her Majesty the Queen Appearing: Ms. Carmen Choi For the Crown Ms. Christina Skibinsky For the Accused Note: Pursuant to s. 486(4) of the Criminal Code, the Court made an order directing that the identity of the complainant or witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way. RULING ON VOIR DIRE B. D. HENNING, [1] Ms. A.M.B. is charged that between the 10th day of December 2011 and the 11th day of December 2011, at or near Regina, did for sexual purpose invite, counsel or incite V.F., person under the age of sixteen years to touch, directly or indirectly, with part of the body or an object, the body of A.M.B., contrary to section 152 of the Criminal Code of Canada. [Charge amended May 21, 2013 to correct errors.] ban on publication of evidence that may disclose the identity of the person under sixteen years of age has been made in this proceeding. [2] The case involved alleged improper acts by the Accused with respect to her eight-year-old son, specifically massaging her in the nude on one or two occasions, while an adult male took photographs of the occurrence. During these acts the Accused covered her breasts and vagina, in whole or part, and that her son did not touch her on those areas, but did so elsewhere, including on her buttocks. It was thought from information received by police that these photographs would be found on computer, or other electronic devices, capable of storing pictures in the possession of the Accused. The ITO did not allege the commission of the offence of sexual assault, or creation of child pornography, but only of invitation to sexual touching. [3] The matter was set for trial on April 24th and 25th, and on April 10, 2013 Notice of Motion was filed, which was later amended, asking that voir dire be held to determine the validity of search warrant. The Defence sought ruling that the information to obtain the search warrant (hereafter referred to as ‘the ITO’) was sufficiently defective that the warrant was invalid, thereby infringing section of the Canadian Charter of Rights and Freedoms, and that evidence obtained should be excluded. Further, it was alleged that upon arrest or detention the Accused person’s rights under section 10(b) were also infringed. Notice was also given that the Defence wished to cross-examine the affiant who swore the ITO in detail on matters set out in the Notice. The matter was discussed with respect to procedure to be followed on April 30, 2013, and was adjourned to May 21, 2013 for conduct of voir dire. [4] On May 21, 2013 the trial commenced with voir dire in which the Crown called four police witnesses. Three exhibits were also introduced, being Exhibit P-1, an admitted Statement of Facts, Exhibit P-2a, the Information To Obtain Search Warrant, or ITO, sworn by Detective Sergeant Cory Lindskog of the Regina City Police, and Exhibit P-2b, the Warrant to Search, issued December 19, 2011. Evidence on the voir dire was completed on May 22, 2013, with written submissions to follow on the issues on the voir dire. At this stage of the case, the Defence arguments to have the Court determine that the search was done without authority concerned insufficiency of the ITO on which the decision to issue the search warrant was made, and alleged unreasonableness of the issuing justice’s decision. The Defence also alleged that section 10(b) of the Canadian Charter of Rights and Freedoms was infringed. [5] Exhibit P-1 sets out the facts in this matter in broad form, and this exhibit is attached as Appendix to this ruling. The facts were expanded upon by viva voce evidence, and details are of significance in considering whether any breach of the Charter occurred. These facts may also be relevant if breach is established in fact, and the question whether any evidence obtained should be excluded under the test of R. v. Grant, 2009 SCC 32 (CanLII). [6] The activity described in paragraph of this ruling was outlined in Exhibit P-2a, the ITO, from information taken from report by child protection worker who had interviewed the child. The ITO does not disclose evidence of offences of engaging in sexual acts, or creation of child pornography. In the ITO, there is statement that appears in Part as paragraph 3, which is again in the Warrant to Search, that authorizes search for images of explicit sexual activity with person under the age of eighteen, with emphasis on sexual organs and the anal region, which is not related to the offence alleged to have been committed, and is not supported in the ITO. The ITO and warrant authorized search for information and data in electronic form, and search for devices capable of storing such material, as well as conventional picture form. [7] The first witness was the affiant in the ITO, Detective Sergeant Cory Lindskog who had drafted the affidavit, and was the senior person in the investigation. He was member of the Regina Police Service and his work focused on investigation of alleged sexual abuse of children. He described the execution of the warrant as beginning with briefing at the police service which included social worker, staff sergeant, an RCMP representative, two constables and himself. All of this group except the staff sergeant then went to the location of the accused person’s house. She was at home in bedroom, and became very upset when advised that they had search warrant. She was detained and “given rights”. She was advised that she was suspect in an offence of invitation to sexual touching. She was given the right to counsel, which she stated she wished to exercise. She also wanted to change her clothes or become more appropriately dressed. She was agitated and was arrested for obstruction when she objected to police looking at computer. She was taken into custody and removed from the house to police vehicle. [8] The police focused immediately on laptop computer in the kitchen. The warrant clearly authorized the search and seizure of devices, which included cameras, “capable” of storing images or data, and computers or any other electronic devices, elaborately enumerated, as well as conventional photographs depicting sexual activity described as follows: “which shows person who was or is depicted as being under the age of eighteen years engaged in or depicted as being engaged in explicit sexual activity, or the dominant characteristic of which is the depiction, for sexual purpose, of sexual organ or the anal region of any person”. The difference between the offence alleged to have been committed and the nature of items sought has been noted. No breach of the Charter occurs, however, when another or different offence is discovered in the course of an otherwise valid search and seizure pursuant to warrant. The Ontario Court of Appeal decision in R. v. Jones, 2011 ONCA 632 (CanLII), is authority for this, but the police, in this case, were searching for items that pertained to an offence not alleged, although there is always potential for overlapping of evidence that would support different offences. However, the ITO did not disclose grounds to authorize search for items as described, and that represents an inconsistency within the documents. [9] In Jones, supra, the police searched house pursuant to warrant concerning fraud and inadvertently found child pornography image. As result, the police continued to search the computer as they were advised by the Crown that they did not need further warrant to do so. The first image was legally found due to the plain view doctrine, but the latter search was violation of section 8.[1]. The plain view doctrine only permits seizures of items in plain view, and does not permit further searches not authorized in the warrant. [10] Sgt. Lindskog indicated that the computer found in the present case was immediately searched for pictures by the RCMP member of the search party, on the premises notwithstanding that the warrant to search had specifically stated that police were authorized to “search for the said things and to bring them before me or some other justice” (emphasis added). [11] Sgt. Lindskog continued his testimony with information concerning the Accused’s transport to the Regina Police Service, her contact with lawyer, and her behaviour in police custody. He gave some evidence that pertained to the exercise of rights to counsel by the Accused, but it is apparent that he was not the person who facilitated that right. He indicated that would have been done by the transporting officers. In his evidence, he stated that the Accused’s rights were complied with “100%”, but he was not present when that was done. His evidence raises issues as to whether the right to counsel of choice was facilitated, but his evidence is in part hearsay, and recitation of practices that may not have been applied. [12] Constable Corrie Neufeld next gave evidence to largely similar effect and confirmed that cellular telephone and camera had been found and seized. She indicated that she had never reviewed the warrant to determine what items could be seized. She had conducted search of the Accused’s purse and found the cell phone. Notwithstanding that the ITO and warrant refer specifically to computers and cameras, and speaks generically in some detail of peripheral computer devices, and other data storage devices, it did not refer to cellular telephones. In R. v. Vu, 2013 SCC 60 (CanLII), it was recognized that cellular phones may have capacity to store data and pictures with resulting considerations equivalent to computer devices. (See Justice Cromwell, paragraph 38.) At the time of this search, however, that equivalency had not yet been established, and cellular phones were omitted from the ambit of this search. It was also not clear in law at the time of this search, that search of computer’s contents must be specifically authorized, or be the subject of further authorization. Although that was not determined as requirement, the description of the items sought was very much requirement. Although various devices were specifically sought that might store images or data, cellular telephones were not referred to. [13] conclusion may, therefore, in my opinion, be made that given the detail of items to be searched for, the omission of cellular telephones was intended, and the search of such items was not included under the warrant. No information was provided that might bring this cellular phone within the description of the other items sought, some of which is generic concerning electronic storage devices. The Court cannot, in my opinion, take judicial notice of the capabilities of cellular phones generally, and guess whether this particular one would be within the broad description of device capable of storing images or other relevant data. It was never suggested that relevant material was found on this cellular telephone. The seizure of the cellular phone does not appear covered by the warrant. [14] Constable Paul Fisher of the RCMP testified next. He knew they were to look for pictures of nude female with child. He went immediately to the kitchen of the house and found two computers and camera, but could not say who eventually seized them. He also had computer and used it in searching the other computer and the camera memory. He indicated he is software specialist. He described the camera. He stated that he immediately removed the memory card and searched it with his computer. There were no relevant pictures in it, but he seized the camera and card. He stated, however, that he did find almost immediately fifteen pictures in Toshiba Satellite laptop computer that he considered relevant. He did not search the second computer in the house. [15] The immediate viewing of pictures on the computer was explained and minimized as form of “previewing” for relevancy, but such distinction is without difference in this situation. The search of the computer was conducted immediately, and before returning any of the items to the justice, and without further authorization as is now required in R. v. Vu, supra. [16] The last witness was Corporal Davey who was an internet child exploitation investigator with the Regina City Police, and was the next-most-senior investigator present, after Sgt. Lindskog. Corporal Davey was member of the Internet Child Exploitation (ICE) and her investigative focus was somewhat different from that of Sgt. Lindskog. Her police field of expertise was in the area of child luring on the internet, and in child pornography. She considered the Accused person “non-cooperative”. She described the photographs that were of interest to the investigators, which were not exhibited. She stated that they showed two persons, one of whom was the Accused with her hands over her breasts, prone on bed, and with cell phone over her vagina. child in pajama bottoms was touching her, and had (a bottle of) lotion in his hands. The pictures showed touching on legs, thighs, feet and stomach, but not on the breasts or vagina. She expressed the opinion that the photographs were of sexual nature, but this opinion is not admissible. Cpl. Davey indicated that she had given opinion evidence in other proceedings in the field of child pornography, but she was not presented as an expert witness in this proceeding. It is apparent from her evidence that her interest was in seeking evidence of offences that went beyond invitation to sexual touching. However, she was also at the scene as part of search pursuant to the warrant issued. It is conceded at paragraphs 16 and 74 of the Crown Brief, dated June 27, 2013, that her purpose was to investigate child pornography. The witness indicated that she made an extensive search of the rest of the house. She was clearly looking for evidence relating to offences not listed in the ITO and warrant, but it cannot be said that she was not also searching for evidence relating to the offence that was listed. The Crown argues, however, that this breach is not serious or significant. This is so, in my opinion, because her actions would not have been different in investigating either or any of these offences, in this particular circumstance. [17] decision on the voir dire was delayed, and further argument occurred following the release of the case of R. v. Vu, supra on November 7, 2013, which is relevant to the issues with respect to search of the contents of computer. It is the Defence position that the warrant, by its specific wording, authorized the seizure, but not the immediate search, of the computer and data storage equipment, quite apart from the rules established in R. v. Vu, supra. [18] The search had been initially challenged by the Defence on the grounds of insufficiency and unreasonableness of the decision by the justice to issue the warrant. The Defence argued that the information contained in the affidavit did not meet the test of establishing that an offence had been committed, and further that misleading information was included. During argument, the Court also identified number of concerns with respect to the ITO which had not been raised by the Defence. [19] That misleading information alleged by the Defence consisted of the following. “caution for violence” with respect to the Accused that came out of CPIC search, the source of which was disclosed. This detail is not, in my opinion, significant as it comes from CPIC search that was fully described, and such background search of suspect is not an unreasonable step in an investigation. The second was the suggestion to search for explicitly sexual pictures, including ones of the anal region. This information is more significant, in my opinion, as it does not have basis in the information obtained from the child who was the only source of information of the alleged offence. As such it has the potential to suggest and raise suspicion that more serious offences may have been committed. It also appears to be the area of investigative concern for Cpl. Davey. [20] Other issues with respect to the affidavit to obtain the search warrant raised by the Court included the fact that the jurat of the affidavit or ITO lacked any statement to the effect that the person before whom the affidavit was sworn had the capacity to administer an oath. However, in comparing that signature with the signature on the Warrant to Search, they appear similar and the documents are related and dated similarly, so the Court may infer that the justice of the peace who issued the warrant was the person before whom the affidavit was sworn. By consideration of the two documents the missing information may be discovered and would rule that the ITO is not nullity. If, however, the two signatures could not be matched, different conclusion might be reached. [21] The information in the ITO related by Sgt. Lindskog came from number of different sources including the original complaint by the father of the child, who was separated from the mother and engaged in matrimonial dispute that included custody issues with her, who had learned of an incident from the child himself. The activity broadly described above was related by the father with the information that about ten photographs had been taken. Clearly this is information that is not in the personal knowledge of the affiant, but he does disclose the source. This information as well as other information obtained during an interview of the child by child protection worker, Ms. Theresa Gregoire, was included in report which she authored that was read by Sgt. Lindskog and referred to in the affidavit. [22] At no point does Sgt. Lindskog differentiate between information personally obtained by him, and information from third party sources, or state that he considers those sources to be credible and worthy of belief. He does disclose the sources, and it is apparent on reading the affidavit which statements are made on information and belief. The reader may infer that the affiant considered the information reliable. Essentially, the information comes from the child subject of the activity, related to police through the father and related to social worker. [23] Sgt. Lindskog also sets out some information he obtained from an internet search that pertained to A.M.B. as model of lingerie and other brief clothing. He also queried the Canadian Police Information Centre (CPIC) and the Regina Police Service data base, the Saskatchewan Government Insurance database, and City of Regina Customer Services and SaskEnergy records. would infer that the police data bases were checked for police file information on the Accuse, and energy and city records were checked for the purpose of establishing the Accused’s residence at the premises that were searched. [24] The value and reliability of the internet information about modelling in the ITO is not explained or commented upon. Information that is not manifestly relevant, or explained as relevant, and is included for no clear purpose, may be prejudicial to proper consideration by the justice of the issues. In this case, the Accused is disclosed to be model with various pictures on website wearing lingerie, or partially nude, in bathtub, and wearing tool belt and helmet. The purpose of including this information is not made clear, but it may have been to included to suggest propensity by A.M.B. to commit the offence alleged. However, such an inference is of dubious weight and potentially prejudicial. [25] The lack of precision in identifying sources of information as being personal, on information and belief, or stating belief in reliability of sources of information, is not necessarily fatal to the affidavit, if there is sufficient information that the person considering the affidavit may make those inferences from the material as presented. Many cases have dealt with this issue in the criminal law context, and an example of applying “a totality of circumstances test” that permits reader to determine sources and reliability where there is sufficient information to do so, is found in this case: R. v. Borowski (1990), 1990 CanLII 10973 (MB CA), 57 CCC (3d) 87 (Man. C.A.), Justice Lynn, for the Court. Thus, failure to differentiate information and belief from personal knowledge is poor drafting, but in this instance it is not fatal to the validity of the ITO because there is sufficient context to allow the justice to assess the information judicially, in my opinion. However, it is potential source of confusion to justice that is possibly cumulative with other issues as to completeness of information disclosed, and inclusion of information of questionable relevance. [26] Points of information not disclosed in the ITO that appear in the child protection worker’s report that came out during Sgt. Lindskog’s examination included the following, that have potential to detract from the likelihood of an offence having been committed are: a. the Accused told the child to massage her naked body because it was sore; b. the Accused used her cellular phone to cover her vagina and her hands to cover her nipples during the massage, but Joe, the tenant taking pictures, took pictures of her uncovered vagina, so that area was likely uncovered at some point(s); c. the child massaged her back, stomach, legs, feet, and buttocks with his hands; and the child knew or was directed specifically in massaging the Accused, which did not include the breasts or vagina; d. the child did not feel sexually abused (although his knowledge or opinion does not assist this issue great deal, but that was part of his narrative); e. there was history of unsubstantiated complaints by the father against the Accused, who had initiated the police investigation; f. Joe was not interviewed by police; g. the child said the whole incident was relatively brief, taking 15 to 20 minutes; and h. the child indicated where the pictures would be found. [27] From the foregoing review of evidence and documents, the following issues relating to the legality of the search arise: a. Was the Accused adequately accorded her section 10(b) Charter rights upon arrest? b. Was the Warrant to Search valid in view of the issues raised with respect to the completeness and validity of the ITO? c. Was the search of the computer conducted immediately on the premises legal, either because of the rules established in R. v. Vu, supra, or because of the wording of the warrant itself, that directed that items seized were to be returned to the issuing or another justice? d. If one or more breaches of the Charter are established, should evidence obtained be excluded? [28] Question A, regarding rights to counsel is raised by the examination of Sgt. Lindskog, and is not elaborated upon by the evidence of any other officer, or the Accused. This part of the trial was voir dire, conducted at the application of the Defence, to determine the validity of search conducted pursuant to warrant. The question of possible breach of right to counsel was also included, but was not, in my opinion, addressed fully in manner capable of being determined on its merits in this hearing. The Crown did not appear to be presenting evidence that might be expected to cover all aspects of the arrest and giving of the rights to counsel under section 10(b) of the Charter following the arrest. The Accused was considered, perhaps, but not necessarily correctly, to be committing the offence of obstruction at the scene of the search, and was consequently arrested. Her arrest and handling following arrest was not the focus of the voir dire, and was only tangentially raised. [29] The evidence such as there is on this point comes from Sgt. Lindskog, and is set out at pages 30 and following of the Defence Brief entitled “Reply of Accused”, dated July 19, 2013. His evidence refers to “they placed her in phone room with phone that calls out and we dial Legal Aid and put it through to them”. His evidence does confirm the Defence proposition that persons are given access to Legal Aid without options to consult other legal counsel, but he states this in manner to suggest that persons other than himself did this, and it was not his concern. It becomes clear that his evidence in this respect is hearsay when he states “she had spoke to Legal Aid before was even there” and that this would have been facilitated by members of the police service who transported her. He spoke to her after the search was completed at the police service. do not consider that the Court has any admissible evidence before it to the effect that section 10(b) rights were given or denied, other than at some time later when Sgt. Lindskog spoke with the Accused, she still wished to consult counsel, which he considered to be closed issue. This is not sufficient to determine the issue on its merits. [30] If the Defence wishes to raise further the issue of compliance with Charter section 10(b) rights, they may do so without prejudice when the trial continues. It is of significance in any event, that no prescriptive evidence could have been obtained by reason of the alleged denial of rights, which is of significance in considering an appropriate remedy if breach is established. [31] Question B, in considering the effect of the inclusion of the statements regarding modelling, and the omission of information listed above that potentially minimized the likelihood of the commission of an offence, the Court must consider R. v. Morelli, 2010 SCC (CanLII). In R. v. Morelli, 2010 SCC 8, the Court stated at paragraph 58 that the informant must present all material facts whether favourable or not. Morelli, supra, states that: When seeking an ex parte authorization such as search warrant, police officer indeed, any informant must be particularly careful not to "pick and choose" among the relevant facts in order to achieve the desired outcome. The informant's obligation is to present all material facts, favourable or not… This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or conclusion that would not be reached if the omitted facts were disclosed [emphasis in original]. [32] The question for the Court to determine is whether the information was misleading, and not whether it was meant to be misleading. (Morelli, supra, paragraph 59.) The Supreme Court of Canada in that case summed up the relevant legal question as follows: “whether the ITO, stripped of its erroneous and tendentious assertions, and amplified as indicated, provides sufficient credible and reliable evidence to have permitted the justice of the peace to find reasonable and probable grounds to believe both that the Accused was committing the alleged crime and that evidence of that crime would be found in the specified location”. After so doing, the Court must consider whether the facts set out in the ITO, as amplified, could have satisfied the issuing justice that the requirements for issuance of the warrant were met. [33] It therefore must be asked whether the justice could have issued the warrant with the above information. Given the description of the massage given by the child, and the child’s indication that pictures existed, justice could have ignored the fact that the child did not believe himself to have been sexually abused. It is doubtful that child would understand the charge of invitation to sexual touching. However, the omitted fact concerning the dispute of the parents and previous allegations against the Accused are relevant, particularly given that none of these previous allegations resulted in criminal conviction. Therefore, these omissions are potentially relevant to the possibility of manipulation of the complaint. This is compounded by the fact that the ITO relied only on the child’s evidence, and the other adult present at the event was not disclosed, or interviewed and no information was available from him. There was also the misleading statement in the ITO concerning the specific types of pictures searched for that suggested an investigation of more serious activity not supported by the information provided. There was modeling information included that added no information regarding the offence, but could suggest unwarranted sexual inferences. The affidavit also failed to differentiate information and belief, which is not sufficient to nullify the affidavit, but is potentially confusing for justice weighing the information. The cumulative effect of these errors, in my opinion, permit a conclusion that the ITO could not, in the form presented, support the issue of the warrant by a justice acting judicially. The above conclusion therefore renders the Warrant to Search a nullity, and the search unlawful. [34] Question C, does the search of the computer immediately without further authorization and/or without providing their return to the justice as set out in the final lines of the warrant render the search illegal? There are two analyses that must be made, first on the wording of the warrant, and second, in light of R. v. Vu, supra. [35] Under section 487(1)(d) of the Criminal Code, justice who issues warrant must either require that the individual executing the search warrant “bring the seized thing before, or make report in respect thereof to, the justice or some other justice”. As the justice in this case did not require report, and instead required the seized item to be brought before him, that would logically preclude the search without further consideration and authorization. Many items subject of warrant could be examined superficially before being turned over to justice without infringing such direction, but as the Supreme Court in R. v. Vu, supra concluded (and other cases before had suggested), computers are complex with much data that might be relevant, or not, and be highly personal, with the result that special handling is reasonable and necessary. In any event, the wording chosen is clear, and the items were to be brought to the justice. There would be little purpose to such direction without some special issue as to the handling of the items. [36] In R. v. Colet, 1981 CanLII 11 (SCC), [1981] S.C.R. 2, [1981] S.C.J. No. 2, the Supreme Court applied strict construction test to protect individual rights in situation of ambiguity in search. This was, of course, prior to the Canadian Charter of Rights and Freedoms, but the case recognized need to protect individual rights, which is fully consistent with development of the law since the Charter. This case reinforces the proposition that the directions in the warrant in this case, given privacy issues inherent to computers, required special care. The terms of the warrant were not complied with, and the items found as result were unlawfully obtained. [37] The Supreme Court in R. v. Vu, supra, at paragraph 20 has recognized that warrant must expressly grant the authority to search computer. At paragraph 47, this is expanded upon and explained with respect to privacy concerns raised by computer searches. conclude that the rule in R. v. Vu, supra, also renders unlawful the search that occurred here. [38] In summary, have concluded that the search was unlawful due to defects in the ITO, and further, that if that conclusion should be wrong in law, and it was lawful, then the immediate search of the computer without remitting it (and other items seized) to the justice is unlawful both on the express wording of the warrant, as well for failure to obtain specific authorization to search the computer, in compliance with the rule established in R. v. Vu, supra. That being so, must consider the appropriate remedy to be applied for breach of section rights under the Canadian Charter of Rights and Freedoms. The Defence asks for exclusion of the evidence obtained by the unlawful search in this case. It is conscriptive evidence, as was the case in R. v. Vu, supra, but the evidence obtained in that unlawful computer search was not excluded. [39] The case of R. v. Grant, supra, arose in the context of detention, and subsequent denial of section and 10(b) Charter rights. It established test for exclusion of evidence as remedy under section 24(2) of the Charter. Prior cases of R. v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607 and R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 had considered this issue before. Grant establishes “revised approach” for exclusion of evidence. At paragraph 85, McLaughlin C.J.C. wrote in brief summary: To review, the three lines of inquiry identified above the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. [40] In the case of R. v. Vu, supra, the evidence was not excluded because the Supreme Court did not consider the breach of the section Charter rights to be serious. This was so because police had authority to search the residence, the computer was found, and the law had been unclear with respect to computer searches up to that time. There was no bad faith or conduct, even though the search was considered intrusive. The evidence was important to the Crown case, and reliable, and the public interest with respect to the underlying offence, trafficking in drugs was high. Under Grant, supra the evidence was admitted. [41] In applying the Grant test, the Court must undertake detailed consideration of the seriousness of the conduct relating to the breach and the breach itself. “Good faith” breaches are recognized, but negligence and wilful blindness may preclude finding of good faith. In the present case, it has been concluded that section rights have been breached by failure to comply with the wording of the warrant, which was not the case in R. v. Vu, supra the unlawfulness was not determined only by the special considerations that relate to computers, and is therefore, more egregious breach. [42] In addition, the ITO was poorly drafted in the technical sense, and contained dubious material, with important information omitted. Issues with respect to execution of the warrant have already been referred. Informational errors included: a. potentially prejudicial information about the alleged perpetrator relating to sexually suggestive modelling; b. it described pictures to be sought of acts or conduct significantly more serious than there was any basis to believe had occurred, or regarding which evidence existed; c. it omitted information that might not be favourable to the police conclusion that offence(s) had been committed that came from the child interviewed; d. police failed to fully investigate the matter and provide information from an interview of material adult witness present at the alleged offence; d. it failed to disclose the conflicted relationship between the parent and the alleged perpetrator that could potentially influence information from the child subject of the investigation and the sole source of information in the ITO; e. in spite of briefing for peace officers involved in the search, they did not all know the terms of the order, and the search of the computer and camera memory card was conducted immediately, rather than taking items to the justice as directed in the warrant; and f. generally, poor and confusing drafting and organization of the ITO. The foregoing does not appear to have been done with deliberate bad faith, but shows poor investigation and negligence in not presenting fully information to the justice, and a low standard in the execution of the warrant. In this case, the numerous inaccuracies and failures on the part of investigators negative good faith due to serious and continuing negligence. [43] The Court must also look at the impact of the breach of the Charter protected rights of the Accused. At paragraph 77 in Grant, McLaughlin C.J.C. wrote the judge must “look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests”. In the present case, it was not only a computer that was unlawfully searched, but the entire home of the Accused that was unlawfully searched. The search had obvious personal emotional impact on the Accused, who was in her bedroom when police arrived. Her attire was not described, but she did at one point, according to police witness, ask to change her clothing. She was excited and confrontational, and as a result was arrested and removed from her house, and told that she would be charged with obstruction, a charge that is not before the Court. The scope of the illegal search was much wider than in Vu, and the personal and emotional impact that included arrest, was much greater. [44] These factors must be balanced to determine whether the evidence obtained should be excluded. In Part of the Grant case, the Court discussed the impact of the factors in situations of different types of evidence. In the present case, the evidence is prescriptive, but it is reliable. It is not conclusive of an offence, however, and there is the potential evidence to be obtained from the child involved, as well as the adult male who was present. The breach of the section Charter Rights consisted of potentially three modes: the defective ITO, the failure to observe the specific direction of the warrant to return the items to the justice, and the breach based upon the recent case of R. v. Vu, supra. The errors and omissions in the ITO go beyond ordinary inadvertence and constitute careless and negligent drafting and poor investigation as outlined. The impact of the breach was significant to the Accused person in multiple ways, and constituted an intrusive and unlawful search of her living space, and her own arrest. The charge is one of significance, with high societal interest, but so are the rights infringed in this breach of the Charter. [45] The impact of exclusion of evidence on this case and the public confidence in the administration of justice must be considered. Societal interest in the adjudication of this case on its merits is high as it involves an allegation of invitation to sexual touching by person in authority to young child. The adjudication of the charge before the Court is not entirely frustrated, however, if the evidence is excluded. Further, even with the impugned evidence, the outcome is by no means clear and certain. [46] The unlawful search produced photographic evidence that has been described and may be consistent with such an offence, but it is not of such weight as to be conclusive of the issue, in my opinion. Other evidence would have to be considered, and other evidence would, it may be reasonably assumed from the voire dire, be available. The photographic evidence would need to be augmented by evidence of the child involved, and of the person who took the pictures, and might be weighed in balance with evidence from the Accused. It cannot be said that exclusion of this evidence would be tantamount to dismissal of the charge, as the evidence excluded is only additional corroboration of evidence that would have to come from other persons. [47] The evidence to be excluded could only be determinative of the case if the Crown only intended to present the photographs to prove the invitation to sexual touching. As noted, the photographs are not be the only evidence available, though they might be very significant. However, in my opinion, for the Crown to rely only on the evidence of the photographs might not ensure conviction. For these reasons, conclude that the administration of justice is not affected by their exclusion as much as in cases where the crown case rests entirely on admissions in an excluded statement, or an excluded certificate of analysis. As such, the negative impact of exclusion on the reputation of the administration of justice is much diminished compared to those categories of cases. [48] For these reasons, in apply the test developed in R. v. Grant, supra, would rule the search unlawful and exclude the evidence obtained from consideration in this trial. APPENDIX INFORMATION 31461438 REGINA REGISTRY IN THE PROVINCIAL COURT OF SASKATCHEWAN IN THE MATTER OF HER MAJESTY THE QUEEN A.M.B. ADMISSION OF FACTS FOR VOIR DIRE The accused, A.M.B. (the “Accused”), through her Counsel, admits the following matters of fact for the purpose of dispensing with proof at the voir dire herein: 1. That on the 19th of December, 2011, the Regina Police Service executed Criminal Code search warrant at the residence located at 6415 Hird Crescent, Regina, Saskatchewan (the “Residence”). 2. That Samsung camera was located by Cpl. Lisa Davey (Cpl. Davey”) on the kitchen counter. That was seized by Cpl. Davey at 13:15 hours and labelled as item 678-1 on the Property List. 3. That Toshiba Satellite laptop (the “Laptop”) was located by police on the kitchen table. Cpl. Davey seized the Laptop at 13:20 hours and labelled as item 678-2 on the Property list. 4. That Samsung cellular phone was located and seized by Cpl. Davey from the Accused at the Residence. That was labelled as item 678-3 on the Property List. 5. That Gateway computer tower was located by Cpl. Davey on the living room floor. That was seized by Cpl. Davey at 13:40 hours and labelled as item 678-7 on the Property List. 6. That Cpl. Davey took twenty-one scene photographs at the Residence. 7. That Cst. Paul Fisher from the RCMP retrieved fifteen photographs from the Laptop at the Residence. These admissions are submitted and filed by consent of the Prosecutor and Defence Counsel. Dated this 21 day of May, 2013. “Carmen Choi” “Christina Skibinsky” Prosecutor Defence Counsel Carmen Choi Christina Skibinsky for

Constitutional Law – Charter of Rights, Section 8Criminal Law – Sexual Touching – Child VictimThe accused was charged that she did, with a sexual purpose, invite a person under the age of 16 years to touch a part of her body contrary to s. 152 of the Criminal Code. The case involved alleged improper acts by the accused with respect to her eight-year-old son. The information regarding the alleged incident had been given by the accused’s son to her husband. The parties were separated. The husband apparently involved a child protection worker, who interviewed the child. After this RCMP were contacted. On the basis of an RCMP’s affidavit, an ITO was prepared and a search warrant obtained. During the search, the accused’s cell phone was seized and photographs were found on it. They showed the accused lying naked on a bed with her breasts and vaginal area covered and showing her son in his pajamas, holding a bottle of lotion and touching her legs, feet and stomach. Before trial, defence counsel requested that a voir dire be held for the purpose of determining whether the information to obtain the search warrant (ITO) was sufficiently defective that the warrant was invalid, thereby infringing s. 8 of the Charter and that the evidence obtained should be excluded. The ITO did not allege that the commission of sexual assault or the creation of child pornography. The search warrant though authorized a search for images of explicit sexual activity with a person under the age of 18, with emphasis on sexual organs and the anal region, which were not related to the offence alleged to have been committed and was not supported by the ITO. The warrant authorized the search and search of devices that included cameras capable of storing images or data and computers or any other electronic devices as well as conventional photographs depicting sexual activity as described above. However, the warrant to search specifically stated that the police were authorized to search for the said “things and to bring them before or some other justice”. When the search warrant was executed, about three constables and a social worker went to the accused’s home. She was in her bedroom and was very upset when advised that there would be a search of her house. She was arrested for obstruction when she objected to the police looking at a computer, taken into custody and removed from the house to a police vehicle. During the ensuing search, one officer looked through a computer, searching for pictures. He testified that he had done so as “previewing for relevancy” and had in fact, found relevant photographs. Another constable, who had not reviewed the warrant, searched the accused’s purse and found a cell phone, which was an item not included in the warrant. Other issues raised by the defence included that the information contained in the affidavit had not met the test of establishing that an offence had been committed and that misleading information had been included. The affidavit had identified that the search was for explicit sexual pictures that did not correspond to the information obtained from the child, who was the only source of information of the alleged offence. The information in the ITO came from a number of different sources, including the original complaint by the accused’s husband who was engaged in a matrimonial dispute with her. The husband had made a number of complaints against his wife in the past, none of which resulted in a conviction. The officer who swore the affidavit had not differentiated between information obtained by him and information from third party sources. The officer also set out information, including photographs, he had obtained from an Internet search that pertained to the accused as a lingerie model. The purpose of including the information was not made clear. The officer did not disclose in the ITO the detailed nature of the information disclosed by the child to the child protection worker, which would have had the potential to detract from the likelihood of an offence having been committed, such as the accused asking her son to massage her because she was sore. The child stated that he did not believe that he had been sexually abused. Furthermore, the child identified the photographer, but the police had not interviewed him. The issues before the Court were: 1) if the Warrant to Search was valid in view of the issues raised with respect to the completeness and validity of the ITO; 2) if the search of the computer conducted on the premises was legal, either because of the rules established in R. v. Vu or because of the wording of the warrant itself; and 3) if there was a breach or breaches of the Charter, should the evidence be excluded? HELD: The Court found with respect to the issues that: 1) the ITO could not support the issue of the warrant by a justice acting judicially in considering the effect of the statements in the ITO regarding modelling and the omission of the information in the child protection worker’s report, that the husband of the accused had previously made allegations against her, the misleading statement in the ITO concerning the specific types of pictures that the officers would search for, suggesting an investigation of more serious activity not supported by the information provided. The Warrant to Search was a nullity and the search unlawful; 2) the search of the computer on the premises was illegal both in terms of its violation of the terms of the warrant and because the Supreme Court decided in Vu that a warrant must expressly grant the authority to search a computer; and 3) the evidence from the illegal search of the computer was excluded. The breach of the accused’s s. 8 Charter right was serious because of the negligence shown by the police in their investigation of the complaint, the drafting of the ITO and the execution of the warrant. The impact of the breach on the accused was serious. Her entire home was unlawfully searched as well. The effect of the search was emotional and upsetting to the accused and resulted in her arrest. The interests of society in the administration of justice will be protected because the exclusion of the evidence would not be determinative of the Crown’s case.

5_2014skpc78.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 58 Date: 20100413 Between: Docket: 1755 Her Majesty the Queen and Taryn Lynden Rathgeber Coram: Vancise, Lane and Richards JJ.A. Counsel: Todd G. Parlee for the Appellant Dean Sinclair for the Crown Appeal: From: Q.B. No. 307 of 2009 J.C. of Prince Albert Heard: April 13, 2010 Disposition: Dismissed (Orally) Written Reasons: April 21, 2010 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Lane Richards J.A. I. Introduction [1] The appellant, Taryn Rathgeber, was charged on a four count information in connection with an alleged impaired driving incident. He contended the information was nullity because it contravened s. 789(2) of the Criminal Code. The Provincial Court trial judge severed the count which was the source of the difficulty. Mr. Rathgeber then sought an order from the Court of Queen’s Bench quashing the trial proceedings. That application was dismissed and Mr. Rathgeber appealed to this Court. We dismissed his appeal with oral reasons following argument. [2] On November 26, 2008 Mr. Rathgeber was charged with four offences on information 24292894. The offences were impaired driving, fail to comply with breath demand, obstruction of peace officer and operating motor vehicle while disqualified. The latter count specified that he was disqualified “by reason of an order pursuant to ss. 253 and 254 of the Criminal Code.” The text of the information is set out below: Charge No. ...while his ability to operate motor vehicle was impaired by alcohol or drug did operate motor vehicle contrary to Section 253(1)(a) of the Criminal Code; and further Chg. #2 Charge No. without reasonable excuse, fail or refuse to comply with demand made to him by peace officer under subs3ection (sic) 254(2) of the Criminal Code to provide forthwith sample of his breath as in the opinion of Constable Michel FORGET 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; and further Chg. #3 Charge No. did wilfully obstruct Cst. M. FORGET peace officer to wit: engaged in the execution of his duty by giving false surname contrary to Section 129(a) of the Criminal Code; and further Chg. #4 Charge No. did operate motor vehicle while disqualified from doing so by reason of an order pursuant to Section 253 and 254 of the Criminal Code contrary to Section 259(4) of the Criminal Code. [3] On November 27, 2008, Mr. Rathgeber pled not guilty to each of these offences. At that time his trial counsel, Mr. Kapoor, advised the court that he wanted to preserve his right to object to the form of the information after plea. He did not specify the nature of the objection although he did say that he might make an application to have the information “struck out” or that he might make an application for severance. [4] The trial was scheduled for April 9, 2009. On that date, Mr. Kapoor made an application for an order quashing the information as being nullity. He contended it was drafted so as to violate s. 664 of the Code. The applicable provision was actually s. 789(2). (2) No information in respect of an offence for which, by reason of previous convictions, greater punishment may be imposed shall contain any reference to previous convictions. [5] In the course of argument, the trial judge said he did not understand why the defect, if there was one, could not be cured by severing count 4, the charge concerning the driving while disqualified offence. Mr. Kapoor’s response was less than clear. At first, he said the severance would not be sufficient to remedy the defect. Subsequently, he said that whether or not it could be severed was up to the judge. He then argued against severance on the grounds that it would be too costly to run trials on different days. He later repeated his opposition to severance order but then again proposed to leave the decision to the trial judge. [6] The prosecutor advised the court that he had received no notice of the application. He also indicated that one of the Crown’s witnesses was moving out of province and for that reason the trial should proceed without further delay. He opposed the application to quash the information. [7] The trial judge then dismissed the application to quash. He held that the defect could be addressed in one of two ways and said the drive while disqualified charge could be amended to strike out the words “by reason of an order pursuant to Section 253 and 254 of the Criminal Code.” Alternatively, he said the defect could be cured if that count was severed. The trial judge advised that he was satisfied he could fairly try Mr. Rathgeber even with knowledge that he had or might have criminal record. [8] Mr. Kapoor immediately indicated that he wanted an adjournment so that he could apply for certiorari. This was opposed by the prosecutor. The judge compromised by holding that he would hear the Crown’s evidence and then adjourn the trial. With that, Mr. Kapoor made an application to sever the drive while disqualified charge. The prosecutor consented to the application and the judge made the order. [9] The judge then stated that he was ready to begin the trial on the impaired driving, refusal and obstruction charges. Mr. Kapoor objected again. He said it would be improper for the judge to preside at trial on those charges but that it would not be improper for him to hear the trial on the drive while disqualified charge. The judge proceeded with the trial as he had earlier proposed. [10] The prosecutor called evidence and closed his case on the impaired, refusal and obstruction charges. The trial was then adjourned so that Mr. Kapoor could take issue with the ruling on the application to quash. He ultimately filed notice of motion returnable in the Court of Queen’s Bench for an order to quash the information or prohibit the trial judge from proceeding on it. [11] Mr. Kapoor’s primary argument in the Court of Queen’s Bench was that the information was nullity and should have been quashed. The Chambers judge disagreed. He said the defect in relation to s. 789(2) of the Code could have been cured by way of amendment or severance. He also held that the trial judge did not err either by failing to recuse himself or by hearing evidence on the impaired driving, refusal and obstruction charges. [12] The Crown acknowledges that, as originally drafted, the information in this case ran afoul of s. 789(2) of the Code. This concession is proper one. [13] In this Court, Mr. Rathgeber did not pursue his argument that the information was nullity which should have been quashed in its entirety. Rather, he contended that, after recognizing a problem in relation to s. 789(2) of the Code and severing count 4 of the information, the trial judge should have dealt only with that count. More specifically, Mr. Rathgeber contended that an apprehension of bias arose when the judge elected to proceed on the first three counts, i.e. the charges concerning impaired driving, refusing a breath demand and obstruction. This was said to be the case because the judge had learned of previous conviction in the course of severing the drive while disqualified count. [14] The test for apprehension of bias is well settled. The leading case in the criminal context is R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] S.C.R. 484, 151 D.L.R. (4th) 193. Cory J. adopted the following statement of principle from de Grandpre J.’s often-cited judgment in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII (SCC), [1978] S.C.R. 369 at p. 394: …the apprehension of bias must be reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information…[the] test is “what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. [15] In our opinion, Mr. Rathgeber’s argument cannot succeed. We are in general agreement with the decision of the Chambers judge. In dealing with count 4, the trial judge learned only of the Crown’s allegation that Mr. Rathgeber had driven while disqualified pursuant to ss. 253 and 254 of the Code. This was not enough to give rise to reasonable apprehension of bias. [16] It is inevitable that accused persons will appear before judges who know of their criminal histories. The community rightly trusts that such information will play no part in judicial decision making. Accordingly, at least in the normal course, mere knowledge of an accused’s criminal record does not automatically disqualify judge from presiding at trial. See: R. v. Moosomin, 2008 SKCA 168 (CanLII), 239 C.C.C. (3d) 326 at paras. 16-20; R. v. J. (D.B.), 2000 BCCA 616 (CanLII), 149 C.C.C. (3d) 534 at para. 19; R. v. Dorscheid (1991), 116 A.R. 79 (Alta. C.A.). [17] We are not persuaded by the argument advanced on behalf of Mr. Rathgeber. No reasonable apprehension of bias arose by virtue of the trial judge’s decision to proceed in relation to the first three counts in the information. Conclusion [18] Mr. Rathgeber’s appeal must be dismissed. This matter is remitted to the trial judge in order that the case can be concluded.

The appellant was charged on a four count information in connection with an alleged impaired driving incident. He contended the information was a nullity because it contravened s. 789(2) of the Criminal Code. The Provincial Court trial judge severed the count which was the source of the difficulty. The appellant then sought an order from the Court of Queen's Bench quashing the trial proceedings. That application was dismissed and the appellant appealed to this Court. At trial, the appellant made an application for an order quashing the information as being a nullity. He contended it was drafted so as to violate the Code s. 789(2) of which states: 'No information in respect of an offence for which, by reason of previous convictions, a greater punishment may be imposed shall contain any reference to previous convictions.' The trial judge dismissed the application to quash. He held that the defect could be addressed in one of two ways: The drive while disqualified charge could be amended to strike out the words 'by reason of an order pursuant to Section 253 and 254 of the Criminal Code.' Alternatively, he said the defect could be cured if that count was severed. The trial judge advised that he was satisfied he could fairly try the appellant even with knowledge that he had or might have a criminal record. The appellant's application for a writ of certiorari quashing the information was dismissed by the Court of Queen's Bench. In this Court, the appellant did not pursue his argument that the information was a nullity which should have been quashed in its entirety. Rather, he contended that, after recognizing a problem in relation to s. 789(2) of the Code and severing count 4 of the information, the trial judge should have dealt only with that count. More specifically, the appellants contended that an apprehension of bias arose when the judge elected to proceed on the first three counts, i.e. the charges concerning impaired driving, refusing a breath demand and obstruction. This was said to be the case because the judge had learned of a previous conviction in the course of severing the drive while disqualified count. HELD: The appeal is dismissed. The test for apprehension of bias is well settled. The leading case in the criminal context is R. v. S.(R.D.). The test is: what would an informed person, viewing the matter realistically and practically û and having thought the matter through û conclude. It is inevitable that accused persons will appear before judges who know of their criminal histories. The community rightly trusts that such information will play no part in judicial decision making. Accordingly, at least in the normal course, mere knowledge of an accused's criminal record does not automatically disqualify a judge from presiding at a trial. No reasonable apprehension of bias arose by virtue of the trial judge's decision to proceed in relation to the first three counts in the information.

b_2010skca58.txt

Information 24060439 2003 SKPC 56 IN THE PROVINCIAL COURT FOR SASKATCHEWAN AT WATROUS, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN -and- Joanne L. Thompson Christopher White, for the Crown. John Williams, for the defence INTERIM RULING March 22, 2003 Jackson, PCJ Background [1] The accused stands charged that on or about the 16th day of July 2001, at Manitou Beach, in the Province of Saskatchewan, did ..."while her ability to drive a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to section 253(a) and section 255(1) of the Criminal CodeAndhaving consumed alcohol in such quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle contrary to section 253(b) and 255(1) of the Criminal Code." [2] The matter came on for trial before me on February 24, 2003, in Watrous, Saskatchewan. [3] At the conclusion of the Crown's case, the defence brought a motion to exclude the Certificate of Analyses, such evidence flowing from an invalid approved screening device demand, which infringed the accused's s.8 and s.9 Charter rights. [4] The Crown conceded that if such Charter breaches were found, the appropriate remedy would be to exclude the Certificate of Analyses pursuant to s.24(2) of the Charter. [5] At issue is whether the arresting officer formed the requisite belief necessary to make roadside demand pursuant to s. 254(2). More specifically, whether the officer's determination that the accused motorist had "consumed alcohol" was sufficient to bring it within the parameters of this section. [6] second issue was whether the officer's opinion, so formed, could be objectively upheld on the evidence before me leading to such demand. [7] The Crown called RCMP Constable Zambak as its only witness. [8] Cst. Zambak testified he was on vehicle patrol northbound from Manitou Beach near the Town of Watrous. He encountered the accused's vehicle coming from the opposite direction, which he clocked at 90 kilometres per hour in 60 kilometre per hour zone. [9] He initiated pursuit and the subject vehicle was stopped within approximately 200 metres of giving chase. Upon approaching the vehicle, he noted the accused to be the driver and male to be seated in the passenger seat. third passenger was in the rear seat. He detected an odour of alcohol coming from the vehicle and observed plastic bag with roughly half dozen empty beer bottles on the floor. [10] The accused was noted to have bloodshot eyes. She was unable to produce driver's licence or registration for the vehicle. She was polite and cooperative. [11] he accused was asked to take seat in the rear of the patrol car. Cst. Zambak testified that while in the patrol car he was able to ascertain the odour of alcohol was emanating from the accused's breath. The reliability of this piece of evidence was called significantly into question, however, in cross-examination when Cst. Zambak conceded that the only reference to smell of alcohol in his notes, the CANSAY statement, Continuation Report, Prosecutor's Information Sheet and Particulars of Offence related to smell of alcohol coming from the vehicle. Nowhere was there any mention of alcohol being detected on the accused's breath. [12] The importance of noting such material aspect as alcohol coming from the accused's breath in this type of investigation is vital. The absence of any reference to it in all five documented reports raises potential disclosure issues at least, and, in any event, compels the court to conclude that the officer may well be mistaken in this regard. [13] Cst. Zambak testified further that the accused admitted to having her last drink approximately one hour before being stopped. In cross-examination it was pointed out that this notation was found between the "demand" and "fail" portion of his notes. In the circumstances, he conceded this admission may have in fact occurred after the ASD demand was made, although it would be his usual practice to ask this prior to the demand. [14] In any event, the officer testified that he formed the opinion that the accused "had consumed alcohol" and accordingly he administered the approved screening device demand. He reiterated this phraseology in cross-examination. [15] Based upon the ASD "fail" and the driving evidence, Cst. Zambak believed he had reasonable and probable grounds to make formal breath demand. He candidly admitted that he had no grounds otherwise, and if she had passed the approved screening device he would have let her go or given 24-hour suspension, depending on the result. [16] Following the requisite rights and cautions, the accused was transported to the nearest detachment in Lanigan and subsequently provided breath samples of 120 mgs. and 110 mgs., respectively. [17] At the scene and the detachment, she declined to exercise her rights to counsel. [18] The first issue raised by the defence related to the evidence of the arresting officer that he determined the accused "had consumed alcohol" and therefore, together with the other evidence he had on hand, he believed he was justified in making the ASD demand. [19] Defence counsel maintained this was not what was required by s. 254(2) which reads, in part: Where peace officer reasonably suspects that person who is operating motor vehicle ...has alcohol in the person's body..." (emphasis added) [20] In support of this proposition, defence counsel provided three decisions: R. v. Hendel [1997] O.J. No. 2849 D.R.S. 97-15263 (Ont. Ct. of Justice (General Division R. v. Smith [1997] O.J. No. 3677 D.R.S. 98-01567 (Ont. Ct. of Justice (Prov. Division)); R. v. Passero [1999] O.J. No. 1370, Court File No. 9953/98 (Ont. Ct. of Justice (General Division)). [21] The Crown subsequently acknowledged by correspondence to the court that no authority had been located to refute these decisions. [22] Initially, had believed the comparison between "had consumed alcohol" and "has alcohol in the person's body" to be distinction without merit. Upon reflection, and having given careful consideration to the cases cited, I am persuaded that the words "had consumed alcohol" are indeed insufficient for the court to conclude that the officer had a reasonable suspicion there was alcohol in her body at the time of the ASD demand. [23] Evidence of consumption manifested by physical observation and/or through dialogue with the motorist may well provide such reasonable suspicion of alcohol in the body. The threshold is far lower than the required belief to make formal breath demand. The wording of the section, however, is clear and unambiguous. It does not leave trier of fact with the necessity of drawing inferences that consumption of alcohol at some point in itself equates to having alcohol in the body. [24] Support for this interpretation can be found in the words of Madam Justice Charon of the Ontario Court of Appeal in R. v. Latour, 1997 CanLII 1615 (ON CA), 34 O.R. (3d) 150 (released June 17, 1997), at paragraph 31, cited with approval in each of the three cases referred to the court (supra): "The section simply provides that, prior to making the demand, the peace officer must reasonably suspect that person who is operating motor vehicle (or who is engaged in any one of the other named activities) has alcohol in his or her body. If the peace officer forms the required suspicion, he or she may make demand that the person provide "forthwith" sample of breath for analysis in an approved screening device." [25] Crown counsel in R. v. Hendel (supra) at page 3, paragraph 13, cited the decision of the Alberta Court of Appeal in R. v. Gilroy (1988) 1987 ABCA 185 (CanLII), M.V.R. (2d) 123, as contra position, wherein Mr. Justice McClung states at page 125: "The offence does not call for proof beyond reasonable suspicion that the suspect driver has alcohol in his body, valid demand and an invalid refusal. Legislative priority has removed the process from the Judge's consideration of the degree of impairment that is displayed before the demand is made. The test is consumption alone and not its amount or behaviourial (sic) consequences." [26] Although Mr. Justice McClung states "...The test is consumption alone...", this must be read in context with the first sentence of the quote "...The offence does not call for proof beyond reasonable suspicion that the suspect driver has alcohol in his body...". (emphasis added) [27] Even if one could construe this passage to require "consumption alone" to be sufficient, would be inclined to the contrary view that there still must be reasonable suspicion of alcohol in the body, for the reasons stated above. [28] The second issue raised by the defence related to the objective evidence to support the arresting officer's reasonable suspicion. [29] Although this determination is unnecessary given my conclusion on the previous point raised, on the evidence before me I would clearly find there was no objective basis upon which a reasonable suspicion of alcohol in the body could be made. [30] This conclusion is reached for two reasons. As set out previously at paragraph 12, the evidence of alcohol on the breath of the accused was not reliable in the circumstances of this particular case. Secondly, the admission of having had her last drink being possibly made after the demand (as conceded by the officer), same could not be relied upon to formulate the required reasonable suspicion. See R. v. Gavin 1993 CanLII 1978 (PE SCAD), [1993] P.E.I.J. No. 136 (C.A.). [31] This then leaves only the evidence of speeding, bloodshot eyes, empty beer bottles in a plastic bag with three persons in the car, and smell of alcohol coming from the vehicle. Objectively, these grounds alone cannot support a conclusion of reasonable suspicion of alcohol in the body of the motorist. useful review in regard to this issue can be found in R. v. McDarby [1998] O.J. No. 2443 (Ont. Gen. Div.) and R. v. Trory [1998] O.J. No. 3297 (Ont. Gen. Div.). [32] For all of the foregoing reasons, the defence application to exclude the Certificate of Analyses based upon a breach of ss. 8 and 9 of the Charter is granted, pursuant to s. 24(2). [33] Accordingly, there being no evidence upon which to convict in regard to the second count, same is dismissed against the accused. [34] The court will now entertain submissions from Crown and defence as to the resumption of the trial in regard to the first count of impaired driving. Jackson, P.C.J.

The accused was charged with driving while her ability to do so was impaired contrary to s. 253(a) and s. 255(1) of the Criminal Code and driving while over .08 contrary to s. 253(b) and s.255(1) of the Criminal Code. At the conclusion of the trial, the defence brought a motion to exclude the certificate of analysis as the demand flowed from an invalid approved screening device demand. HELD: The defence application to exclude the certificate of analysis based on a breach of s. 8 and s. 9 of the Charter was granted. There being no evidence upon which to convict in regard to the .08 charge, it was dismissed. 1) The Court found a distinction between 'had consumed alcohol' and 'has alcohol in the person's body'. The Court found the words 'had consumed alcohol' to be insufficient for the Court to conclude that the officer had a reasonable suspicion there was alcohol in the accused's body at the time of the demand. 2) There was no objective basis upon which a reasonable suspicion of alcohol in the body could be made. The evidence of alcohol on the breath was not reliable in the circumstances of this case. The admission of having had her last drink was possibly made after the demand and could not be relied on to formulate the required reasonable suspicion. The evidence of bloodshot eyes, empty beer bottles in a plastic bag with three persons in the car and the smell of alcohol coming from the vehicle could not alone support a reasonable conclusion of reasonable suspicion of alcohol in the body of the motorist.

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J. 1999 SKQB 209 Q.B.G. A.D. 1999 No. 1616 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JAMES BRADY PLAINTIFF (RESPONDENT) and THE ATTORNEY GENERAL OF CANADA, DAVID KEEGAN and BERWYN LARSON DEFENDANTS (APPLICANTS) E. Van Olst for David Keegan D.G. Kohlenberg for The Attorney General of Canada R.J.E. Parker for James Brady FIAT LAING J. November 24, 1999 [1] The defendant, Dr. David Keegan, applies for an order pursuant to the inherent jurisdiction of this Court, or alternatively s. 50 of The Queen’s Bench Act, S.S. c. Q-1, for an order:(1) requiring the plaintiff to be examined by a qualified psychiatrist within thirty (30) days; and(2) requiring a report from the said psychiatrist as to whether the plaintiff is mentally competent to instruct his solicitor, which report shall be filed with the Court; and(3) staying any further proceedings in this action until a report is filed. This application is supported by the other defendants. [2] The background to this law suit is decision of this Court in Brady v. The Public Trustee for Saskatchewan, Dr. David L. Keegan, et al., Q.B.G. No. 690/1999 which resulted in an order revoking certificate of incompetence issued on December 18, 1998 with respect to the plaintiff, James Brady. [3] Mr. Brady is 78 years old and widower. In the fall of 1998 one or more persons employed by the Veterans Home in Saskatoon became concerned about Mr. Brady’s mental health; particularly, with respect to his ability to manage his own financial affairs. The concern expressed was that Mr. Brady was being subjected to what was described as “elder abuse”, and was being financially taken advantage off by third party. The staff person or persons decided it was proper to have Mr. Brady’s mental competency tested and the procedures available in The Mentally Disordered Persons Act, R.S.S. 1978, c. M-14 (hereinafter referred to as the “Act”), were resorted to. [4] The Act, despite its pejorative title, exists at this point in time solely to legislate the procedures to be followed in determining if person is mentally competent to manage his or her estate. Mr. Brady was tested by the defendant, Dr. Larson, who on the basis of his examination and the test results concluded Mr. Brady was mentally incompetent to manage his estate. Dr. Larson reported the results of his examination to Dr. David Keegan who at the time was the chief psychiatrist for the Saskatoon Health District, and Dr. Keegan issued the certificate of incompetency. The result that follows from the issuing of such certificate is that the Public Trustee takes over the estate of the person named. [5] Mr. Brady, following an unsuccessful appeal to review panel provided for in the Act brought an application for judicial review. Mr. Justice Matheson of this Court granted the application on the basis the competency examination had been obtained by the subterfuge (initiated by persons other than Dr. Keegan) of asking Mr. Brady to attend medical examination in connection with pension application he had made some time earlier and then administering to him mental competency examination; and also on the basis there was no record of the review panel hearing and no reasons given by the review panel for its decision to uphold the certificate. Mr. Justice Matheson in his fiat of May 19, 1999, at pp. 11-12 stated in part as follows: The fact that he was requested to attend for physical examination, for fictitious purpose, but was then subjected to competency examination, might very well have affected his responses to the inquiries made of him. The subterfuge utilized to attempt to determine Jim Brady’s competence to administer his own affairs cannot but leave one with the impression that he was not treated fairly. That impression is in no manner alleviated by the almost total lack of information as to the review panel’s inquiry and, more particularly, the absence of any reasons whatever for the decision reached by the review panel. While there is nothing in the available material to even suggest that Jim Brady was not treated fairly during the review panel’s investigation, on the other hand the absence of the foregoing information does not permit conclusion that he received just and fair hearing. Consequently, there must be an order revoking the certificate of incompetence issued on December 18, 1998. [6] The statement of claim in this action alleges that the issuance of the certificate of incompetency has caused Mr. Brady personal injury consisting of mental anguish, emotional suffering, loss of liberty, stigmatization, etc. The claim alleges conspiracy, abuse of process, breach of fiduciary duty, and negligence. Position of the Parties [7] Counsel for the applicant states the defendants are reluctant to initiate the procedure to have the plaintiff undergo another mental competency examination pursuant to the Act because of this intervening law suit, and the fear of being further accused of improper conduct or improper motives in doing so. At the same time, the defendants are of the view that on the basis of the evidence that led to the original certificate of mental incompetency being issued, and the evidence led at the review panel, they have more than reasonable and probable grounds to believe the plaintiff lacks the mental competence to instruct counsel in this law suit. [8] The applicants recognize that if the requested order is granted, and the plaintiff is found to be incompetent, this action could nevertheless continue with the appointment of a litigation guardian. However, counsel is candid enough to admit that based on the existing law in this Province which requires litigation guardian to be independent of the interest in the matter being litigated (Vide: Szwydky v. Magiera, 1988 CanLII 4975 (SK QB), [1989] W.W.R. 165 (Sask. Q.B.)) his client would have some hope that any such independent person would not pursue this law suit. [9] Plaintiff’s counsel states the application is simply another subterfuge and abuse of process to obtain evidence to support the original findings of incompetency to the benefit of the applicants in this law suit, and to possibly obtain new certificate of incompetency. He takes the position there is no acceptable medical evidence on the issue of Mr. Brady’s incompetency due to the flawed nature of the previous examination as found by Mr. Justice Matheson, and he relies on note provided by Mr. Brady’s family physician dated February 1999 which he provided to the review panel in which he cryptically notes he had examined the plaintiff and found him to be “physically fit for his age and mentally sound”. [10] Counsel for the applicant relies on the decision of this Court in Halstead v. Anderson (1993), 1993 CanLII 9038 (SK QB), 115 Sask. R. 257 (Sask. Q.B), in support of his position that this Court has the inherent jurisdiction to make the requested order. As noted by Baynton J. in this decision, the inherent jurisdiction of the Court exists in order that the Court might control its own process and he provides examples in this respect therein. Baynton J. went on to point out at p. 265: [35] Case authority suggests that the court should decline to exercise its discretion to grant orders on the authority of its inherent jurisdiction except in clear cases. Some of the authorities go further and infer that the court should decline to invoke its inherent jurisdiction if there is some other legal means by which the applicant can reasonably and realistically obtain the relief sought. In my view there is good rationale for such principle. [36] Firstly, there is no need that the court invoke its inherent jurisdiction if the remedy sought is readily available to the applicant by some other lawful means. Secondly, the risk of bypassing or duplicating existing legal procedures set out in legislation or the rules is avoided, (as is the risk of making an order that is contrary to law). Thirdly, granting discretionary orders outside the procedural framework established by statute or common law introduces an element of uncertainty into the law. [37] accordingly conclude that even if the court has the power pursuant to its inherent jurisdiction to grant relief, it should exercise its discretion to do so cautiously, only in clear cases, and only when the relief sought cannot reasonably and realistically be obtained by the applicant in some other lawful manner. [11] On the facts in this matter an alternative does exist; namely, the Act, which if resorted to could not only determine the merits of this application (if Mr. Brady was found mentally incompetent litigation guardian would be appointed), but could also determine on the merits the mental competency of Mr. Brady for the reason an examination was requested in the first instance. [12] To the extent the defendants or relatives of the plaintiff are hesitant to re-initiate such proceedings solely because of the earlier fiat, they should not be if they still hold the view the plaintiff is incompetent to manage his estate. There is nothing in the fiat of Matheson J., or in the general law that precludes person from doing so. Matheson J. at p. 12 of his fiat noted: The foregoing conclusion is not intended, in any manner, to impugn the motives of any of the individuals who initiated the incompetency proceeding or participated therein. There is absolutely no reason to even suspect that any of those individuals were actuated by any motive other than the best interests of Jim Brady. [13] If new competency proceedings were initiated, it would be procedurally important that persons who were involved in the medical examination or opinion of the plaintiff’s mental competence not be involved in any subsequent examination, but this should not be problem. Dr. Keegan’s affidavit indicates he ceased to be the chief psychiatrist for the Saskatoon Health District as of March 31, 1999, and the new chief psychiatrist would be capable of appointing designate other than Dr. Larson to conduct any such examination. [14] Our civil procedure does not contemplate the trial of an issue on person’s competency to bring civil law suit. Our Rules contemplate only what should happen when person is ruled incompetent under other provincial statutes which exist to provide the procedures and procedural safeguards to make such determinations. These procedures contemplate medical examinations, requests for medical re-examination, review panels, and judicial review as safeguards that person not lose the right to conduct his or her own affairs on the basis of the opinion of one person. Likewise, the criminal law with respect to its provisions on fitness to stand trial requires that such determination only be made following the trial of an issue, or on the recommendation of professional review panel who review any psychiatric evaluations made with respect to such person. [15] This application requests single psychiatric examination, and suggests the results of the same should be determinative of the issue on the plaintiff’s mental competence to instruct counsel. The complex medical/legal issues on what constitutes fitness and/or ability to instruct counsel (Vide: Schiffer; Mental Disorder and the Criminal Trial Process, Butterworths, 1978, p. 65, et seq.), leaves room for difference of opinion amongst medical and legal experts. It would therefore seem inappropriate that this Court should order single examination for determination of an issue where it would be unwise to act on single recommendation. Rather than this Court attempting to set down new set of procedural safeguards for determination of person’s mental competency to engage in civil litigation, with the inevitable time and costs associated with the trial of such an issue, it is preferable that the procedures outlined in existing legislation be resorted to for any such determination. [16] If the defendants or relatives of the plaintiff choose not to seek another determination of his mental competency to manage his estate, the Court’s process will not be offended should the litigation continue. It should be emphasized, that counsel for the plaintiff as an officer of the Court has the ethical responsibility to be satisfied that his client is mentally capable of providing him with instructions at each stage in the proceedings. The mental competency required to manage one’s financial affairs may well be lesser test than whether person suffers from mental disorder that renders him or her incompetent to stand trial or to instruct counsel. The opinion of Dr. Larson emphasizes Mr. Brady’s poor memory, but does not suggest he is delusional or incapable of coherent thought. In circumstances where the evidence was overwhelming that party to civil litigation was mentally incompetent without having been certified as such, it is my view the better procedure would be for the court to refer the question of the person’s mental competence to the chief psychiatrist pursuant to s. 38.3 of the Act and allow the chief psychiatrist to determine if it was advisable to make arrangements to have the person examined. A certificate of incompetence issued pursuant to the Act has the same effect as a finding that the person is incapable of instructing counsel or understanding the proceedings of trial, for the simple reason that the issuance of a certificate would result in a litigation guardian being appointed. This is not a case where I feel obliged to take this step based on the evidence presented. [17] Counsel for the applicant raised the issue of costs as reason why the litigation should be stayed pending determination of the plaintiff’s mental competence. The argument seemed to be premised on the fact that if the plaintiff was subsequently found to be incompetent and the action was discontinued, or the defendants were successful in their defence, that they would be at risk of not being able to collect taxable costs against the plaintiff. am not aware of any law that suggests costs incurred in defending oneself in civil action against person who is subsequently found to be incapable of managing his or her estate are not recoverable from the estate of such person. [18] With respect to the applicant’s request in the alternative that the Court order an examination pursuant to s. 50 of The Queen’s Bench Act, the section provides: 50(1) In any action brought to recover damages or other compensation for or in respect of bodily injuries sustained by any person, the court may order that the person, in respect of whose injury the damages or compensation is sought, shall submit to be examined by one or more duly qualified medical practitioners, whom neither party proposes to call as witness or witnesses at the trial of the action. The applicant admits the purpose of the requested examination is not for the purpose of assessment of damages at this point in time, but for another purpose as outlined in the foregoing. This legislation does not apply to this application. [19] The application is dismissed. [20] The plaintiff is entitled to his costs of the application in any event of the cause. [21] Order accordingly.

FIAT. A defendant applied for an order pursuant to the inherent jurisdiction of the court, alternatively s.50 of the Queen's Bench Act, for an order requiring the plaintiff to be examined by a qualified psychiatrist within 30 days; requiring a report to be filed with the court as to whether the plaintiff is mentally competent to instruct his solicitor; and staying proceedings until a report is filed. The certificate of incompetence issued in December 1998 was revoked (QBG No. 690/1999) on the basis the competency examination was obtained by subterfuge (other parties had asked the plaintiff to attend a physical examination for a fictitious purpose but conducted a competency examination); there was no record of the review panel hearing; no reasons were given for the decision to uphold the certificate. The plaintiff alleged the issuance of the certificate caused mental anguish, emotional suffering, and loss of liberty and alleged conspiracy, abuse of process, breach of fiduciary duty and negligence. HELD: The application was dismissed. 1)Our civil procedure does not contemplate the trial of an issue on a person's competence to bring a lawsuit. A certificate of incompetence issued pursuant to the Act had the same effect as a finding that the person is incapable of instructing counsel or understanding legal proceedings and would result in the appointment of a litigation guardian. This step was not deemed necessary based on the evidence presented. A stay was refused. 2)Costs incurred in defending a civil action against a person who is subsequently found to be incapable of managing his or her estate are recoverable from the estate. 3)Queen's Bench Act s.50 did not apply. 4)The plaintiff was entitled to his costs in any event of the cause.

c_1999skqb209.txt

J. Q.B. A.D. 1996 No. 172 J.C. E. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF ESTEVAN BETWEEN: CATHERINE DONAGHY, by her litigation guardian, HOWARD DONAGHY RESPONDENT (PLAINTIFF) and AARON SCHUTTE APPLICANT (DEFENDANT) Gerald B. Heinrichs for the respondent (plaintiff) Sheldon M. Stener for the applicant (defendant) JUDGMENT MATHESON J. June 11, 1999 [1] The plaintiff has applied for an order, pursuant to s. 55 of The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 (the “Act”), requiring Saskatchewan Government Insurance (“SGI”) to pay to the plaintiff the amount awarded to the plaintiff in a judgment dated October 29, 1998. [2] The defendant, on the other hand, has applied for an order setting aside the judgment and striking out the claim of the plaintiff. BASIS OF APPLICATIONS [3] In her statement of claim dated October 7, 1996, it was alleged that the plaintiff, as pedestrian, had, on October 26, 1995, been pinned between an automobile operated by the defendant and stationary motor vehicle, thereby causing personal injury to the plaintiff. [4] It was further alleged that the acts of the defendant in injuring the plaintiff were criminal acts, and that he also committed the torts of assault, battery, trespass and intentional interference with the plaintiff. The defendant did not defend the claim against him and was noted for default. The plaintiff applied for summary judgment, but was required to proceed to hearing to assess her damages. [5] After hearing date was fixed, SGI intervened, pursuant to s. 56 of Act, and filed statement of defence wherein it was admitted that the plaintiff was struck by moving motor vehicle operated by the defendant but that the claim was barred by s. 102 of the Act. [6] On September 29, 1998, MacPherson C.J.Q.B. ordered that the hearing to assess the plaintiff’s damages, scheduled for October 1, 1998, should proceed without prejudice to SGI’s assertion that the claim of the plaintiff was barred by statute. [7] The plaintiff’s damages were assessed in the total amount of $37,717.35, which included punitive damages of $10,000.00. SECTION 102 OF THE ACT [8] Section 102 of the Act came into force on January 1, 1995, approximately ten months before the plaintiff was injured by the defendant’s automobile. That section states: 102 Notwithstanding any other Part of this Act or any other Act or law, but subject to the other provisions of this Part: (a) no person has right of action respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force; (b) no action or proceeding lies or may be instituted in any court respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force; and (c) the right to benefits stands in lieu of all right of action to which person is or may be entitled to respecting, arising out of or stemming from bodily injuries caused by an automobile arising out of an accident that occurs on or after the day this Part comes into force. [9] Section 101 of the Act defines “accident” and “bodily injury” as follows: 100(1) In this Part: (a) “accident” means any event in which bodily injury is caused by an automobile; ... (d) “bodily injury” means any physical or mental injury, including any acquired brain injury, permanent physical or mental impairment or death. SUBMISSION OF PLAINTIFF [10] The plaintiff has asserted that it is common ground that the defendant wilfully drove into the plaintiff, trapping her leg between the defendant’s automobile and second automobile; that the defendant fled the scene in his automobile calling out of the window of his automobile that the plaintiff was “dirty little rat”; and that the defendant was tried and convicted of the Criminal Code offence of operating motor vehicle in manner dangerous to the public. [11] The plaintiff has further submitted that s. 102 cannot have been intended to deprive a citizen of the right to sue a defendant for injuries caused by assault, battery, intentional infliction of mental suffering, fraud, deceit and fraudulent misrepresentation. The fraudulent aspects of the plaintiff’s claim arise by virtue of the defendant having motioned to the plaintiff, more than once, that it was safe for her to proceed into the pedestrian crosswalk. [12] If s. 102 of the Act precludes an action for damages as result of the intentional inflicting of harm on victim by use of motor vehicle, “then it is an actionable tort to beat someone up in Saskatchewan with baseball bat but not so if the assailant uses an automobile”. [13] That statement may be accurate, but it overlooks the fact that, although s. 102 of the Act prohibits certain types of law suits, it does not result in the victim not being compensated for personal injuries incurred as a result of an automobile. The Act clearly contemplates scheme of compensation to individuals who have suffered bodily injuries caused by an automobile. [14] Herbert v. Misuga (1994), 1994 CanLII 4577 (SK CA), 116 Sask. R. 292 (C.A.) involved claim against the defendant motor vehicle driver for damages for assault and battery. [15] The defendant Misuga had admitted that he had intentionally steered his truck at the plaintiff Herbert, although he said his intention was to frighten Herbert but not cause the serious injuries incurred when Misuga’s truck struck Herbert. [16] The action was brought more than one year after the injuries were inflicted. The question to be resolved was whether s. 143 of the then The Vehicles Act, 1983, S.S. 1983, c. V-3.1 repealed by The Vehicle Administration Act, S.S. 1986, c. V-2.1 applied: 143(1) No action may be brought against person for the recovery of damages occasioned by motor vehicle after: (a) the expiration of 12 months from the time when the damages were sustained .... Herbert argued that the injuries were not caused by the motor vehicle used as such but by the motor vehicle used as weapon of assault. Consequently, it was submitted the statutory limitation as to commencement of assault actions—two years—applied, rather than s. 143(1) of The Vehicle Act, 1983. [17] In order to accept the foregoing submission, it would have been necessary to conclude that Misuga’s truck was not being used as motor vehicle when it struck Herbert. The Saskatchewan Court of Appeal could not reach that conclusion, and stated that the limitation period in s. 143(1)(a) of The Vehicles Act, 1983 applied. [18] The wording in s. 102(a) of the Act—no person has right of action arising from bodily injuries caused by an automobile—is indistinguishable from the wording in s. 143(1) of The Vehicles Act, 1983—no action may be brought against person for the recovery of damages occasioned by motor vehicle after 12 months. Thus, the same result is dictated in this case as in Herbert v. Misuga: the plaintiff had no cause of action by virtue of her injuries having been “caused by an automobile”. [19] Consequently, there must be a declaration that the plaintiff was precluded, by s. 102 of the Act, from commencing a valid legal action, with the result that the judgment obtained is a nullity. [20] There will be no order as to costs.

Plaintiff applied for an order pursuant to s.55 of the AAIA requiring SGI to pay to the plaintiff the amount awarded to her in an earlier judgment. The defendant has applied for an order setting aside the judgment and striking out the plaintiff's claim. A car-pedestrian accident occurred causing personal injury to the plaintiff. The defendant was convicted of dangerous driving under the Criminal Code. The plaintiff sued for battery and assault. The defendant was noted for default on this claim and the damages were assessed at $37,717.35, $10,000 of which were punitive. The plaintiff submits that s.102 of the Act should not deprive a citizen of the right to sue a defendant for injuries caused by assault, battery, fraud, or similar torts. HELD: The plaintiff has no cause for action by virtue of her injuries having been caused by an automobile. The plaintiff was precluded by s.102 of the Act from commencing a valid legal action with the result that the judgment obtained is a nullity. Although s.102 of the Act prohibits certain types of law suits, the act provides victims with compensation for injury. No order as to costs.

8_1999canlii12618.txt

J. NOVA SCOTIA COURT OF APPEAL Citation: ITI Education Corp. v. Torstar Corp. et al, 2002 NSCA 152 Date: 20021129 Docket: CA 179966 Registry: Halifax In the Matter of: ITI Education Corporation and In the Matter of: The Application of TORSTAR CORPORATION to appoint Ernst Young Inc. as Receiver and Manager pursuant to Civil Procedure Rule 46 and further In the Matter of: The Application of Roswell Computer Books Halifax, Ltd. for an Order granting leave to Roswell Computer Books, Halifax, Ltd. to commence proceedings against Ernst Young Inc., for an Order requiring Ernst Young Inc. to comply with provisions of Section 81.1 of the Bankruptcy and Insolvency Act (1985), R.S.C., c. B-3; (1992) c. 27 Judges: Roscoe, Cromwell and Oland, JJ.A. Appeal Heard: November 29, 2002, in Halifax, Nova Scotia Written Judgment: December 3, 2002 Held: Appeal allowed per oral reasons for judgment of Cromwell, J.A.; Roscoe and Oland, JJ.A. Counsel: Charles J. Ford, for the appellant Alexander S. Beveridge, Q.C., for the respondent Reasons for judgment: [1] This is an appeal by a supplier from the refusal by MacDougall, J. of an order requiring the receiver to release goods to the supplier pursuant to s. 81.1 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended. [2] The single issue is whether the judge erred in finding that the goods were “subject to [an] agreement for sale at arms’ length” at the time the supplier presented a written demand for repossession. [3] The goods in issue were books supplied to ITI as course materials. ITI was obliged by its contract with its students “... to provide, at its discretion, textbooks and courseware needed for the program...” and the students acknowledged that “... it is necessary for ITI to change ... materials ... from time to time” and that such changes “... may be made during the course of the student’s program.” ITI intended to use the books which had been supplied for a module starting at the end of August, but they had not been distributed to the students and remained on the shelves at ITI as of the date of the receivership and the supplier’s written demand in mid-August. [4] The judge held that once ITI had decided what course materials it would use, there was binding contract to supply those very materials to the students. He found that ITI had selected the books in issue here and that, therefore, the books delivered to ITI were subject to an agreement for sale to the students. [5] In our view, the judge erred in law in so holding. ITI retained discretion under its contract with its students as to what course materials it would supply. The fact that it intended to supply certain materials did not give rise to a contractual obligation to provide those particular materials. It follows that, as of the date of the supplier’s demand, these books were not “subject to any agreement for sale” within the meaning of s. 81.1(1)(c)(v) and that the judge erred in finding otherwise. [6] Leave to appeal is granted, the appeal is allowed and an order will issue directing return of the goods or payment of their value. Counsel for the appellant will prepare the order for review by counsel for the respondent and submission to the Court. The respondent shall pay to the appellant costs fixed at $1500 inclusive of disbursements. Cromwell, J.A. Concurred in: Roscoe, J.A. Oland, J.A.

A supplier delivered computer books to an educational institution prior to the appointment of a receiver for the institution. Immediately after the appointment of the receiver, the supplier presented a written demand for repossession of the books. The receiver refused, claiming that the books were subject to an agreement for sale to the institution's students and therefore, exempt. A judge of the Supreme Court agreed and the supplier appealed. Appeal allowed; return of books or payment of their value to the supplier ordered. Although the goods were supplied as course materials, the institution's contract with its students obliged it to provide, in its discretion, textbooks and courseware needed for the program and the students acknowledged that it was necessary for the institution to change materials from time to time. The books had not been distributed to the students as of the date of the supplier's demand. The fact that the institution intended to supply certain materials did not give rise to a contractual obligation to provide these particular materials. Thus, the books were not subject to any agreement for resale within the meaning of the Act.

3_2002nsca152.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2010 SKCA 149 Date: 20101206 Between: Docket: 1921 Kelly Gene Bromm Appellant (Petitioner) and Leanne Marie Bromm Respondent (Respondent) Coram: Lane, Richards and Ottenbreit JJ.A. Counsel: Gwen V. Goebel for the Appellant Sherry L. Fitzsimmons for the Respondent Appeal: From: 2010 SKQB 85 (CanLII) Heard: October 18, 2010 Disposition: Appeal Dismissed Written Reasons: December 6, 2010 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Richards Ottenbreit J.A. I. Introduction [1] Kelly Gene Bromm (the “father”) appeals from the decision of the Chambers judge which varied the custody provisions of a consent judgment dated March 30, 2005 governing custody and access to the parties’ children. The application before the Chambers judge also included child maintenance issues but the father does not appeal that part of the decision. For the reasons hereinafter set forth, the appeal of the father is dismissed. II. Background and Evidence [2] The father and Leanne Marie Bromm (the “mother”) were married in 1993 and separated in June of 2004. They have two children who are now aged ten and seven. On separation when the children were four and one, the couple entered into separation agreement wherein they agreed to joint custody with the children’s primary residence to be with the mother. The father was entitled to generous access pursuant to the agreement including each Tuesday afternoon and Thursday night and every second weekend. The children were primarily resident with the mother thereafter. [3] In March of 2005 the father applied for divorce judgment and the terms of the separation agreement with respect to custody and access were incorporated into the consent judgment. [4] In July of 2008 the father brought an application to vary the custody arrangement to one of shared custody. Shortly thereafter the mother brought an application to vary child support. The parties went to mediation and were able to resolve some of their issues but not all of the custody and access issues. total of ten affidavits including 63 exhibits were filed by the mother and the father before the Chambers judge over the 18 months between the application date and when the matter was heard. The father, in support of his application to vary, alleged that the mother had mental health issues including depression and obsessive compulsive disorder; that the original custody agreement, although suitable for the children when they were younger, was no longer suitable; that because neither child had been in school when the original custody agreement was reached there was no provision regarding school holidays; that the mother was not flexible regarding changes to the father’s access time or requests for additional access; that the mother was not consulting with the father before making decisions regarding the children’s activities and care; that the children’s psychological problems, as described by the mother were not present when the children were with the father; that the children when they were with the father repeatedly stated that they wished to spend more time with him; that the mother had left the children’s health problems untreated. The father argued that he had adjusted his position at work to accommodate parenting needs, and that child psychologist had described the children as balanced and happy in both homes. [5] The mother filed affidavits denying or challenging substantial portion of the father’s allegations and alleged that the father inadequately parented the children, that his work schedule disrupted their lives and that the children’s psychological issues were not appropriately handled by the father. significant amount of the affidavit material exchanged between the father and the mother was controverted. III. Chambers Judge’s Decision [6] The Chambers judge followed the two-step process respecting variation applications set out in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27. The father alleged that there had been material change in circumstances, citing the wishes of the children, his current accommodation situation and the mother’s refusal to provide additional access. The Chambers judge determined that these grounds did not constitute change in circumstances. The Chambers judge however, was satisfied that the original parenting arrangement was structured based on the tender years of the children. She determined that the children’s eventual attendance at school was not considered in the separation agreement and consent judgment, and that there had therefore been material change in circumstances as contemplated by s. 17(5) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) (the “Act”). She then went on to state that parenting arrangements should be in the best interests of the children having regard to the change in circumstances and the children’s condition, needs, means and circumstances. [7] The Chambers judge disagreed with the father’s submission that the principle of maximum contact as set forth in s. 17(9) of the Act mandated shared parenting arrangement and determined that the principle of maximum contact applied only to the extent that it was consistent with the best interests of the children. She ultimately found that the changing ages, interests and increased maturity of the children supported change in the custody arrangement, but that this was not sufficient to support finding that shared custody was in the best interests of the children. She noted that the children’s primary residence had always been with the mother and that the mother had more time off to spend with the children. As well, the mother’s residence was in the same residential community as the school. She determined that shared parenting regime would be significant change for the children. Although she addressed the issue of the children’s health, she could come to no conclusion with respect to that issue because no medical evidence was provided by either party with respect to that and the evidence was controverted on that issue. [8] The Chambers judge accordingly made minor changes to the custody arrangement to accommodate the sharing of school holidays and to allow the children to spend meaningful time with the father on week nights. IV. Parties’ Position on Appeal [9] The father argues that the Chambers judge erred in her application of the best interests of the children test by considering only the impact of the change in circumstances when making her determination, by failing to apply the principle of maximum contact, by applying a presumption of the status quo and by finding that evidence as to the wishes of the children was irrelevant. He also argues that there was insufficient relevant uncontroverted evidence on material issues on which final determination could be made and that the Chambers judge erred by giving weight to irrelevant considerations, controverted affidavit evidence, inadmissible evidence and short term matters which did not have direct application to the long standing best interests of the children. The father’s counsel suggests that the custody determination, if any were to be made, should in any event only have been an interim one given the conflict in the material filed by each side. [10] The mother argues that the Chambers judge recognized and stated the relevant law by acknowledging the applicable sections of the Act, particularly ss. 17(1), (5) and (9), and correctly stating the best interests test. The mother disputes the father’s grounds of appeal and the father’s assertion that the Chambers judge relied on insufficient, irrelevant or contradicted evidence and submits that there was sufficient uncontroverted evidence to make decision. [11] Both counsel before us acknowledged that the issue of whether the judge should make an interim order or final order was not addressed before the Chambers judge and that neither party requested viva voce hearing on the basis that the material was too controverted to allow decision to be made on affidavit evidence alone. V. Jurisdiction and Standard of Review [12] This Court in Stavric v. King, 2009 SKCA (CanLII), 320 Sask. R. 37 recently stated the standard of review to be applied in custody matters by appellate courts: [30] The applicable standard of review for courts appealing custody matters was considered recently by the Supreme Court of Canada in Van de Perre v. Edwards [2001 SCC 60 (CanLII), [2001] S.C.R. 1014]. There the court restated the standard of review to be applied in custody matters by appellate courts. [31] Bastarache J., writing for the court, noted that the scope of appellate review in custody cases is extremely narrow. He referred to the decision of Madam Justice L'Heureux-Dubé in Hickey v. Hickey [1999 CanLII 691 (SCC), [1999] S.C.R. 518] where she stated: [Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. ... There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is material error, serious misapprehension of the evidence, or an error in law, it is not entitled to overturn support order simply because it would have made different decision or balanced the factors differently. [Emphasis added.] [32] Mr. Justice Bastarache noted that the issue in Hickey involved support orders but the principles applicable to support orders are equally applicable to orders concerning child custody. [13] The order appealed from is highly discretionary in nature and the basis for intervention on appeal is narrow. In Lumberjack v. Canada (Attorney General), 2004 SKCA 137 (CanLII), [2005] W.W.R. 445, the Court stated at para. [17] The order was made in the exercise of discretionary power, fact that serves to narrow the basis for intervention on appeal: Only if the chambers judge abused his discretion by acting on some wrong principle, by disregarding some material matter of fact, or by failing to act judicially, is the Court of Appeal at liberty to interfere. Either that or the result must be so plainly wrong as to invite intervention on that basis: Rimmer v. Adshead, 2002 SKCA 12 (CanLII), [2002] W.W.R. 119 (Sask. C.A.). [14] Where findings of fact are rendered on the basis of affidavit evidence alone without the benefit of cross-examination, it is open to an appellate court to evaluate the reasonableness of the findings: Valley Beef Producers Co-operative Ltd., et al v. Farm Credit Corporation, 2002 SKCA 100 (CanLII), 218 D.L.R. (4th) 86 at paras. [15] The two issues on this appeal are: (1) was there sufficient uncontroverted evidence for the Chambers judge to make her determination; and (2) did the Chambers judge err in her determination that there was change in circumstances and in the determination of what the best interests of the children were. (1) Sufficient Uncontroverted Evidence [16] There must be sufficient evidentiary basis for the Chambers judge to properly assess the issues in play, otherwise the decision will be set aside or sent back for further evidence. In Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (C.A.), the Court found the evidentiary record was so sparse with respect to number of crucial matters that the Court would not undertake an assessment of the question before it and returned the matter to the Chambers judge for viva voce hearing. [17] Likewise in Twist v. Twist, [1997] S.J. No. 487 (QL), 1997 CanLII 9762 (SK C.A.), Cameron J.A. wrote at paras. [1] Given the state of the evidence before the learned chamber judge—affidavit evidence which was partially inadmissible, largely contradictory, and materially deficient—we are all of the view there was an insufficient factual basis for the making of the custody order in issue. Accordingly we have decided to set the order aside and remit the matter to the Court of Queen’s Bench for determination, if need be, along the lines of that suggested in Bradley v. Zaba, (1996), 1996 CanLII 4930 (SK CA), 18 R.F.L. (4th) (Sask. C.A.). [2] The contradictions in the affidavits are many and obvious, and we need not comment upon them, except to say that to the extent they concern relevant matters of importance to the issue, they do not provide an appropriate evidentiary basis for making findings of fact.... [18] However, the Chambers judge’s decision will only constitute reviewable error if the evidentiary record is lacking to the point that it cannot sustain her findings of fact. [19] The father alleges that there was significant and highly controverted evidence on material issues ranging from the relationship between parent and child, to health issues, to the maturity level of the children—in total, approximately 14 points which the father claims are highly controverted. The father argues that the Chambers judge did not at any point make finding that there was sufficient uncontroverted evidence to make final determination. This is an argument which first appears on appeal. The father also argues that even if the issue was not raised by the parties, the Chambers judge nevertheless had duty to determine whether there was sufficient uncontroverted evidence. [20] It is implicit in the decision of the Chambers judge that she determined there was sufficient uncontroverted evidence on the material issues for her to be able to find a change in circumstances and determine the best interests of the children. The Chambers judge is not obliged to expressly state that she found the evidence before her as whole to be adequate to allow her to make decision. The 14 controverted points raised by the father were dealt with by the learned Chambers judge by either making finding of fact or addressing the issue, or declining to make finding of fact, or determining that the point although controverted was not material or essential to her determination of the best interests of the children on all of the evidence. Given her careful finding of facts and her declining to find some facts in the absence of evidence, it is obvious that the Chambers judge felt the evidence on the whole was sufficient to allow her to make decision. [21] The evidentiary record as controverted as it is, is not lacking to the point where the Chambers judge had no proper basis for her decision. Significantly, at the time this matter was argued in Chambers, neither party suggested the Chambers judge had an insufficient foundation of fact, uncontroverted or otherwise, on which to make decision. The Chambers judge had, on the whole, sufficient uncontroverted evidence as it related to the change in circumstances, the impact of the change in circumstances and the children’s overall best interests. [22] Although Valley Beef Producers Co-operative, supra deals with the issue of the findings of material fact made by the Chambers judge on affidavit evidence alone, the standard of reasonableness applicable in that case is equally applicable to the issue of the Chambers judge’s implicit determination that she had sufficient uncontroverted evidence upon which to make decision. The judge’s review of the evidence and the weight to be given to that evidence in this context must be given considerable deference. Given the voluminous evidence before the Chambers judge as well as her careful review of the evidence, the issues at play in this case, the relief sought, the arguments as framed by the parties and the best interests of the children, it was reasonable conclusion that the evidentiary threshold necessary to make decision based on all the uncontroverted evidence had been reached. This, coupled generally with the deference accorded to judges on custody matters, even in the case of decision based on affidavit evidence, suggests that in this case no error was made by the Chambers judge on this issue. (2) Did the Chambers Judge Err re the Change in Circumstances and the Best Interests of the Children [23] The father argues that the Chambers judge, in applying the best interests test, considered only the impact on the status quo of the change in circumstances when she should have considered the entirety of the children’s current situation. This argument amounts to submission that the Chambers judge in deciding what was in the best interests of the children, considered only the fact that the children had matured six years and had entered school. This argument cannot succeed. The test as to how the best interests of the child is approached on variation is stated by McLachlin J. (as she then was) in Gordon v. Goertz, supra: [17] The threshold condition of material change in circumstance satisfied, the court should consider the matter afresh without defaulting to the existing arrangement: Francis v. Francis (1972), R.F.L. 209 (Sask. C.A.), at p. 217. The earlier conclusion that the custodial parent was the best person to have custody is no longer determinative, since the existence of material change presupposes that the terms of the earlier order might have been different had the change been known at the time. (Willick v. Willick, supra, at p. 688, per Sopinka J.) The judge on the variation application must consider the findings of fact made by the first judge as well as the evidence of changed circumstances (Wesson v. Wesson, supra, at p. 194) to decide what custody arrangement now accords with the best interests of the child. The threshold of material change met, it is error for the judge on variation application simply to defer to the views of the judge who made the earlier order. The judge on the variation application must consider the matter anew, in the circumstances that presently exist. [18] Section 17(5) of the Divorce Act directs that the judge must consider the child's best interests "by reference" to the material change in circumstances. However, the inquiry cannot be confined to that change alone, isolated from the other factors bearing on the child's best interests. In Willick v. Willick, supra, L'Heureux-Dubé J. discussed (at pp. 734-35) the scope of review of support orders in the context of similar wording in s. 17(4): Once sufficient change that will justify variation has been identified, the court must next determine the extent to which it will reconsider the circumstances underlying, and the basis for, the support order itself. For the reasons below, believe that it is artificial for court to restrict its analysis strictly to the change which has justified variation. Moreover, while variation hearing is neither an appeal nor trial de novo, where the alleged change or changes are of such nature or magnitude as to make the original order irrelevant or no longer appropriate, then an assessment of the entirety of the present circumstances of the parties and the children which recognizes the interrelationship between the many factors to be considered is in order. [Emphasis added by S.C.C.] The same principle holds true when an applicant is able to demonstrate material change in circumstances in custodial variation proceeding. In order to determine the child's best interest, the judge must consider how the change impacts on all aspects of the child's life. To put it another way, the material change places the original order in question; all factors relevant to that order fall to be considered in light of the new circumstances. The Chambers judge clearly used this approach. The Chambers judge in her analysis went on to consider factors other than just the children’s changes in age and enrollment in school. In particular, she noted that the mother had always been the primary caregiver and that shared custody would represent significant change; that the mother did not work Wednesdays and thus had more time to spend with the children; that the mother and her husband provided two-parent home; that the mother was able to take the children to and from school; that the father’s residence is not located in the same residential community as the children’s school; and that the children have been doing much better since the parents attended high conflict mediation. [24] The father argues that in determining what was in the best interests of the children the Chambers judge did not properly consider the principle of maximum contact. This argument cannot succeed. The Chambers judge correctly stated that s. 17(9) of the Act does not provide that the maximum contact principle alone provides a sufficient basis upon which to order shared parenting. This comment was in the context of the argument made by the father that he wanted shared parenting arrangement which would provide virtually equal time to each parent, which would have amounted to shared parenting. In fact, the order of the Chambers judge gave the father further significant time during the school holidays and on Tuesday evenings. Her treatment of the issue does not mean that she then dismissed the issue as irrelevant. She assessed this principle in the context of the children’s best interests. [25] The father also argues that the Chambers judge in making her decision was operating under presumption in favour of the status quo. This inference is not supported by the written reasons. The Chambers judge was entitled not only to take into account the change in the status quo, but was required to do so as part of her broader consideration of the children’s condition, means, needs and circumstances. There is no evidence that she stopped her inquiry at the status quo and that she did not assess the children’s best interests against the proposed new circumstances and its impact on them. Indeed, at para. 43, she specifically said her decision took into account “… the children’s condition, means, needs and circumstances.” [26] The father argues that the Chambers judge erred by finding the children’s wishes to be irrelevant. The Chambers judge found that the father’s evidence regarding the wishes of the children could not be used to support his request for shared parenting arrangement. Beyond this, it was open to the Chambers judge to give limited or no weight to the wishes of the children. She observed that given their ages and maturity levels, their wishes would not normally be taken into account in structuring parenting arrangement. In this case, the evidence regarding the children’s wishes was limited and inconclusive. In the context of conflicting evidence regarding the children’s wishes, it is open to the Chambers judge to decline to make finding on the issue and to proceed to base the decision on other factors. This argument cannot succeed. [27] The father’s argument that the Chambers judge erred in law and fact by giving weight to irrelevant considerations, controverted affidavit evidence, inadmissible evidence and short-term matters cannot succeed. The father focuses primarily on the letters from the psychologists attached to his own affidavit. These were proffered by the father as evidence that the children are doing relatively well and are happy. The observations of the psychologists that the children are happy and seem to be doing well is corroborated by the emails between the parties to that effect in any event. Although the content of the letters is not sworn to in an affidavit by either psychologist, it is clear that the Chambers judge gave the letters only limited weight in the context of her discussion of the health issues and she was in any event unable to draw conclusions on these issues from the evidence before her. [28] We can find no error in the approach taken by the Chambers judge to her analysis of the best interests of the children. Conclusion [29] There is no material error, or misapprehension of the evidence, or error of law by the Chambers judge in proceeding on the evidence she had before her and in her determination of the children’s best interests and her crafting of a suitable order. Accordingly, the appeal is dismissed. The mother shall have her costs in the usual way. DATED at the City of Regina, in the Province of Saskatchewan, this 6th day of December, A.D. 2010. “Ottenbreit J.A.” Ottenbreit J.A. Lane J.A. concur “Richards J.A.” Richards J.A.

The father appealed from the decision of the Chamber's judge which varied the custody provisions of a consent judgment. The father had been unsuccessful in arguing for a shared custody arrangement in the Court below. The father argued that the Chamber's judge erred in her application of the best interests of the children and failed to apply the principle of maximum contact by applying a presumption in favour of the status quo and finding that the wishes of the children were irrelevant. For the first time on appeal, the father also argued that there was insufficient uncontroverted evidence before the Chambers judge to allow her to make a proper decision. HELD: The appeal was dismissed. It is implicit in the Chamber's decision that there was sufficient evidence before the Court to reach a conclusion about the best interests of the children and to find a change in circumstances. No error was made on this issue. The Chamber's judge correctly applied the test to determine the best interests of the children as articulated in Gordon v. Goertz. The Chamber's judge correctly concluded that the Act does not provide that the maximum contact principle alone provides a sufficient basis for ordering shared parenting. She addressed this principle in the context of the children's best interests. There is no evidence that the Chamber's judge stopped her inquiry at the status quo and that she did not assess the children's best interests against the proposed new circumstances and its impact upon them. The Chamber's judge was entitled to give limited or no weight to the wishes of the children. There is no material error or misapprehension of the evidence.

8_2010skca149.txt

nan IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 130 Date: September 9, 2010 Information: 43397893 Location: Saskatoon Between: Her Majesty the Queen and Michael Anthony Pesenti Appearing: Dorinda Stahl For the Crown Michael Owens For the Accused INTERIM DECISION D.E. LABACH, [1] The accused, Michael Pesenti, is charged that on or about August 9, 2009, at Saskatoon, Saskatchewan, he did: a) commit an offence under s. 254(5) of the Criminal Code and, at the time of committing the offence, knew or ought to have known, that his operation of the motor vehicle caused an accident resulting in bodily harm to another person, contrary to s. 255(2.2) of the Criminal Code; and b) operate motor vehicle while his ability to operate the vehicle was impaired by alcohol or drug and did thereby cause bodily harm to Neil Honatzis, contrary to s. 255(2) of the Criminal Code. [2] He came before me for preliminary inquiry on these charges on July 26, 2010. After the Crown had called all of their witnesses on the preliminary inquiry, asked Defence Counsel if they had any witnesses to call on behalf of the accused. They advised that they had one witness they wished to call but required an adjournment as that witness was not available to testify on this date. The Crown opposed the Defence adjournment request. It is on this request that must now make decision. [3] By way of background, the accused’s charges were first before the Court on August 10, 2009 and shortly thereafter he retained Mr. Owens to represent him. On August 19, 2009, Mr. Owens wrote to the Crown requesting full and complete disclosure. [4] An initial disclosure package was prepared and forwarded to Defence Counsel on August 24, 2009. Since this incident involved a motor vehicle accident, included in this package was a narrative, notes and calculations done by Sergeant Barbar, an accident reconstructionist with the Saskatoon Police Service as well as eight pages of Crash Data Retrieval Information. [5] On August 26, 2009, Defence Counsel wrote the Crown requesting that they review his August 19th disclosure request and forward any further disclosure that had yet to be sent. [6] Both charges the accused was facing were indictable. On December 21, 2009, Mr. Owens, on behalf of the accused, elected trial by Queen’s Bench Judge without Jury and requested preliminary inquiry date. The inquiry was set to July 26, 2010 and Case Management hearing was set to May 4, 2010. [7] Subsequent disclosure was forwarded by the Crown to Defence Counsel as follows: February 25, 2010 photographs taken by Sergeant Barbar and witness list for the preliminary hearing; March 4, 2010 an audio disk and the MDTT; April 14, 2010 the booking photograph of the accused and the hospital records of the complainant. [8] It is of some significance that in the witness list forwarded by the Crown on February 25, 2010, they advised that they would be calling four witnesses at the preliminary inquiry. Sergeant Barbar was not listed as one of those witnesses. [9] On May 4, 2010, case management conference on this matter took place in front of my colleague, Judge Agnew. review of his notes from the case management shows that Mr. Owens took no issue at this time with the witness list provided by the Crown or with the fact that Sergeant Barbar was not going to be called by the Crown at the preliminary inquiry. [10] Following the case management conference, the Crown forwarded further disclosure as follows: May 28, 2010 detention video of the accused; June 15, 2010 Highway Traffic Board Report; June 16, 2010 further notes of Sergeant Barbar. [11] On June 22, 2010, Mr. Owens wrote to the Crown. According to the Crown, in this letter, Mr. Owens asked that they have Sergeant Barbar available as a witness for the preliminary hearing. According to Mr. Owens, his letter asked that Sergeant Barbar be made available for the preliminary inquiry as the Defence may wish to call him as witness. However it read, this was the first occasion that Defence Counsel made the Crown aware that they wished Sergeant Barbar to be present as witness at the preliminary inquiry. [12] The Crown responded to Mr. Owens by way of e-mail dated June 23, 2010. In their e-mail they advised that Sergeant Barbar was not available to testify at the preliminary inquiry as he was out of the country for 2010 having being seconded to peace keeping mission in Afghanistan. Despite his absence, the Crown requested the Defence agree to admit Sergeant Barbar’s calculations regarding the accident and the accompanying data he accumulated including the crash data retrieval information for the purposes of the preliminary inquiry. [13] Mr. Owens wrote back to the Crown and advised that he was not prepared to simply let this evidence be admitted at the preliminary inquiry without Sergeant Barbar being called as witness. [14] The preliminary inquiry proceeded on July 26, 2010. The Crown called the four witnesses they advised they were going to call and then they closed their case. The Court heard no evidence of any measurements, observations or calculations made by Sergeant Barbar in relation to an accident reconstruction nor did the Crown attempt to file any crash data retrieval information. [15] The Court then asked Mr. Owens if he had any witnesses to call on the preliminary inquiry and he advised that he wished to call Sergeant Barbar. Since Sergeant Barbar was not available at present, Mr. Owens requested an adjournment to call him. The Crown opposed this adjournment request. [16] The only issue need address is whether the Defence is entitled to an adjournment to call Sergeant Barbar as witness. [17] The primary purpose of preliminary hearing is to satisfy the justice that there is sufficient evidence to put the accused on trial, with the result that the Crown has discretion to present only enough evidence to establish prima facie case. See Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd ed.) Vol. 1, p. 13-6, para. 13:0060; R. v. Barbeau 1992 CanLII 76 (SCC), [1992] S.C.R. 845 at para. 22; R. v. Sazant 2004 SCC 77 (CanLII), [2004] S.C.R. 635 at para. [18] The secondary purpose of preliminary inquiry is to provide the accused with an early opportunity to discover the Crown’s case against him. However, this discovery function remains incidental to the main focus of the preliminary inquiry, that is, the determination of whether there is sufficient evidence to put the accused on trial for the offences charged. See Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd ed.) Vol. 1, p. 13-6, para. 13:0060; R. v. Hynes 2001 SCC 82 (CanLII), [2001] S.C.R. 623 at para. 31; v. B.(E.) (2002) 2002 CanLII 23582 (ON CA), 162 C.C.C. (3rd) 451 (Ont. C.A.) at para. 41. [19] There was some argument from Defence Counsel that should adjourn the preliminary inquiry and force the Crown to call Sergeant Barbar once he returns from Afghanistan because to do otherwise would limit the accused’s ability to make full answer and defence. Defence Counsel seemed to be of the view that since the Crown asked him to admit Sergeant Barbar’s data and calculations regarding his accident reconstruction at the preliminary inquiry, this was an indication they would be relying on his evidence at trial. They pointed to the fact that Crown counsel would not commit to not calling Sergeant Barbar at the accused’s trial as an indication that they viewed his evidence as important. cannot say that agree with Defence Counsel’s position in this regard. And even if did, have no authority to force the Crown to call particular witness at preliminary inquiry, let alone their entire case. [20] Unlike at trial, justice conducting preliminary inquiry has no power to direct Crown counsel to call certain witnesses. The Crown has an unfettered discretion to call whatever witnesses it requires. See Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd ed.) Vol. 1, p. 13-4, para. 13:0040; Salhany, R. E., Canadian Criminal Procedure (6th ed.) p. 5-16, para. 5.480; R. v. Brass (1981), 1981 CanLII 2366 (SK QB), 64 C.C.C. (2nd) 206 (Sask. Q.B.). [21] Moreover, the evidence adduced at preliminary inquiry does not reflect the whole of the evidence which will be presented at trial nor does it reflect the strength of the Crown’s case at trial. See Ewaschuk, E.G., Criminal Pleadings and Practice in Canada (2nd ed.) Vol. 1, p. 13-6, para. 13:0060; R. v. Power, 1994 CanLII 126 (SCC), [1994] S.C.R. 601 at para. [22] If am to grant this adjournment it must be on the basis that the Defence wishes to call Sergeant Barbar as witness rather than that the Crown has an obligation to call him as part of their case. [23] Section 537(1)(a) of the Criminal Code states as follows: justice acting under this Part may: a) adjourn an inquiry from time to time and change the place of hearing, where it appears to be desirable to do so by reason of the absence of witness, the inability of witness who is ill to attend at the place where the justice usually sits or for any other sufficient reason; [24] The principles which must guide justice in the exercise of the discretion to adjourn preliminary inquiry because witness is unavailable are those developed at common law and applied at trials. The conditions which must ordinarily be established were put succinctly in R. v. Darville (1956) 113 C.C.C. 117 (S.C.C.): a) That the absent witnesses are material witnesses in the case; b) That the party applying has been guilty of no laches or neglect in omitting to endeavour to procure the attendance of these witnesses; c) That there is reasonable expectation that the witnesses can be procured at the future time to which it is sought to put off the trial. See R. v. McKenzie 1989 Carswell BC 592 (B.C.S.C.) at para. 18; R. v. Abel 2009 CarswellNWT 63 (N.W.T. Terr. Ct.) at paras. and 5. [25] Applying the first principle in Darville, supra, to the present case, I cannot be certain that Sergeant Barbar is not a material witness in this preliminary inquiry. He was present at the accident scene and took measurements, made notes and did some calculations. How he did his measurements, the assumptions and notes he made and the formulas he used to do his calculations may prove very material especially since the Defence has engaged their own accident reconstructionist. have also been advised that Sergeant Barbar had discussion with the accused shortly after the accident. The questions and answers from that meeting may be very material to the accused’s state of mind or knowledge at the time he refused to comply with the Intoxilyzer demand or speak to whether there is casual connection between the accused’s alleged impairment and the accident that caused the bodily harm to the complainant. [26] I am also not satisfied that the Defence is guilty of neglect in procuring the attendance of Sergeant Barbar at the July 26 preliminary inquiry date. month earlier, Defence had written letter to the Crown requesting that they have Sergeant Barbar available at the preliminary hearing. Crown immediately replied advising that he was out of the country in Afghanistan. If Sergeant Barbar was in Saskatoon but the Crown was refusing to call him then without taking the time to issue and serve subpoena on him, would find the Defence negligent in procuring his attendance. But when the Defence is advised that Sergeant Barbar is halfway around the world on peace keeping mission in the middle of war zone, do not think that they are negligent in not going to the trouble and expense of preparing subpoena that could not be effectively served on him in any event. [27] Lastly, have been advised by Crown counsel that Sergeant Barbar’s secondment is finished in January, 2011 and he is expected back in Saskatoon at the Saskatoon Police Service at that time. I am satisfied that there is a reasonable expectation that he can be procured on the adjourn date and that such adjournment is relatively short in duration. [28] Therefore I grant the Defence request for an adjournment so that they can make the necessary arrangements to call Sergeant Barbar as a witness for the Defence in this preliminary inquiry. At this time, see no need to deal with the Defence request to be able to cross-examine Sergeant Barbar when he appears as their witness. In my view, Sergeant Barbar is being called as Defence witness and as such can be examined-in-chief by Mr. Owens. If situation arises in the course of his examination that creates basis for Mr. Owens to make an application to cross-examine Sergeant Barbar then we will deal with it at that time. D.E. Labach,

Defence sought an adjournment of a preliminary hearing to call a police accident reconstructionist as a witness. Prior to the commencement of the hearing, defence counsel was aware that the Crown did not intend to call this person as part of its case. One month prior to the preliminary hearing, defence counsel requested that the accident reconstructionist be made available as witness. The Crown advised defence that the officer was out of the country on peace keeping mission. The officer was expected back within months of the commencement of the preliminary hearing. HELD: The defence request for an adjournment was granted. The Court could not be satisfied that the officer was not a material witness to the preliminary inquiry. The Court was not satisfied that defence was guilty of neglect in failing to procure the officer's attendance when they had been advised by the Crown that he was out of the country. The length of the adjournment would not be lengthy.

e_2010skpc130.txt

Dated: 19981015 Docket: 2964 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Lane Jackson JJ.A. SASKATCHEWAN VALLEY CREDIT UNION LIMITED APPELLANT (Respondent) and ROBERT LANSON and SHARON SEVERSON RESPONDENTS (Applicants) COUNSEL: Mr. D. Layh for the appellant Mr. L. Francis for the respondents DISPOSITION: On Appeal From: Q.B.G. 580/97, J.C. of Battleford Appeal Heard: 05 October 1998 Appeal Allowed: 05 October 1998 (orally) Written Reasons: 15 October 1998 Reasons By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson VANCISE J.A. Introduction [1] The issue on this appeal is the priority of security interest in mobile home granted by Johnathon Nickel to Robert Lanson and Sharon Severson (Lanson) and subsequent purchaser for value, the Saskatchewan Valley Credit Union (the Credit Union), having regard to the operation of s. 28(1) and s. 30(2) of The Personal Property Security Act, 1993[1] (P.P.S.A.). [2] The facts are not in dispute and are fully set out in the judgment of the trial judge. To facilitate an understanding of this oral judgment brief recitation of the facts will suffice. [3] Lanson loaned Nickel $16,000 to purchase mobile home. Lanson registered their financing statement giving them security interest in the mobile home. At trial it was found that Lanson knew that Nickel would either rent to sell the mobile home, their only concern being that upon sale Nickel would repay the loan in full. Nickel did sell the mobile home but did not disclose the sale to Lanson. The purchaser, Spruce Meadow Trucking Ltd., did not require financing and did not search the Personal Property Registry. Spruce Meadow Trucking Ltd. later sold the mobile home to Dale Rempel who obtained financing by the Credit Union. The Credit Union registered financing statement claiming security interest in the mobile home and its proceeds. It was at this time that Lanson discovered that the mobile home had been sold and attempted to seize it. The Credit Union resisted seizure and an application was brought before the Court of Queen’s Bench to find priorities as between the parties. At trial, Mr. Justice Krueger concluded that Lanson did not authorize the sale of the mobile home within the meaning of s.28(1) of the P.P.S.A., and the sale did not occur in the ordinary course of business as contemplated by s. 30(2) of the P.P.S.A., with the result that his security interest continues and takes priority over the security interest of the Credit Union. The Credit Union appeals this decision. Issues [4] The issue on this appeal is reduced to whether the security holder, Lanson, authorized Nickel to sell the mobile home as contemplated by s. 28(1) or if he was not authorized, did he sell the mobile home in the ordinary course of business as contemplated by s. 30(2). Applicable Statutory Provisions 28(1) Subject to this Act, where collateral is dealt with or otherwise gives rise to proceeds, the security interest: (a) continues in the collateral unless the secured party expressly or impliedly authorizes the dealing; and (b) extends to the proceeds; but where the secured party enforces security interest against both the collateral and the proceeds, the amount secured by the security interest in the collateral land the proceeds is limited to the market value of the collateral at the date of the dealing. 30(2) buyer or lessee of goods sold or leased in the ordinary course of business of the seller or lessor takes free of any perfected or unperfected security interest that is given by the seller or lessor or that arises pursuant to section 28 or 29, whether or not the buyer or lessee knows of it, unless the buyer or lessee also knows that the sale or lease constitutes breach of the security agreement pursuant to which the security interest was created. Section 28(1) [5] Section 28(1) reiterates the common law principle of nemo dat quod non habet. The debtors right to deal with collateral is subject to the security interest granted to the creditor unless certain things occur i.e., the secured party authorizing expressly or by implication the dealing with the security. [6] The trial judge found that Lanson perfected his security interest under the terms of The Personal Property Security Act, 1993 by the registration of the financing statement on April 6, 1995. That registration being prior in time to the registration of the Credit Union takes priority unless the Credit Union can demonstrate that Lanson lost the priority due to the operation of s. 28(1). The security agreement between Nickel and Lanson anticipated Nickel dealing with the security, the mobile home. Section of the security agreement expressly provided: will look after the property and keep it in good repair. will not sell it nor grant another security interest in it, without repaying in full my indebtedness to the secured party. [7] Lanson knew that Nickel was buying the mobile home to rent it out or resell it. Thus, the issue is reduced to whether the agreement or the conduct of Lanson authorized the resale. [8] The trial judge found that Lanson had not authorized the sale to Spruce Meadow Trucking Ltd. He, in effect, found that Lanson, the secured party had to authorize the buyer, Spruce Meadow Trucking, to deal with the property and that the buyer must know of the authorization. With respect, in our opinion, he was in error. Section 28(1) contemplates the secured creditor (Lanson) authorizing the debtor to deal with the secured creditor. It does not contemplate an authorization to a third party to deal with the collateral. The fundamental issue is whether the authorization is subject to the pre-condition of payment in full. The trial judge found that Lanson had no interest in releasing the security interest until he received payment in full. [9] In our opinion, that interpretation is incorrect. The authorization to sell must be given before the sale. Lanson clearly gave Nickel express authority to deal with the security. That dealing would include resale. The fact the debtor failed to pay the secured creditor does not invalidate the sale to the buyer. [10] The appellant relied heavily on Canadian Commercial Bank v. Tisdale Farm Equipment Ltd.[2] In that case the trial judge found that “dealing” with the security interest was based on the express condition that the security interest would only be released on payment of the entire proceeds in circumstances where all parties, including the vendor the purchaser and the holder of the security interest, had knowledge of the security interest. That is not the case here. Canadian Commercial Bank is restricted to cases where the secured party agrees with the buyer to release the security interest on the express condition that the obligation is satisfied in full and makes it clear to the debtor that he does not intend to rely simply on the proceeds. [11] There is distinction between conditional authorization and an authorized sale subject to conditions that the proceeds be remitted to the secured party. (See: Cuming and Wood, Saskatchewan and Manitoba Personal Property Security Acts Handbook (Carswell, 1994) at pp. 198-99). Section 28(1) provides that “when collateral is dealt with or otherwise gives rise to proceeds, the security interest continues in the collateral unless the secured party expressly or impliedly authorizes the dealing. In other words the security interest in the collateral does not continue when the secured party authorizes expressly or by implication the dealing.” In this case the trial judge clearly found that Lanson authorized the dealing. It follows that the security interest did not continue in the collateral and the title passed to the buyer, Spruce Meadow Trucking Ltd., free from the secured interest. It follows the Credit Union acquired the collateral free of the security interest of Lanson and that the Credit Union therefore has priority over the security interest of Lanson and that Lanson’s rights against Nickle are restricted to the proceeds. [12] It is not necessary for us, given the express authorization by Lanson to Nickel to deal with the collateral, to determine whether one could find on the facts of this case that there was an implied authorization to deal with the collateral as result of the prior commercial dealings of the parties. [13] In light of this finding it is also not necessary for us to deal with the claim for priority of the Credit Union based on s.30(2) of The Personal Property Security Act, 1993. By declining to deal with this matter we are not to be taken as approving of the reasons of the trial judge. [14] The appellant shall have costs in the usual way on double Column V. [1]S.S. 1993, c.P-6.2 [2](1984) 1984 CanLII 2337 (SK QB), 35 Sask. R. 166 (Q.B.) approved in (Sask. C.A.) 1985 CanLII 2883 (SK CA), [1987] W.W.R. 574.

The issue on appeal was reduced to whether the security holder, Lanson, authorized Nickel to sell the mobile home as contemplated by s28(1) or, if not authorized, did he sell the mobile home in the ordinary course of business as contemplated by s30(2). Lanson loaned Nickel $16,000 to purchase a mobile home and registered their financing statement giving them a security interest in the mobile home. The trial judge found that Lanson knew that Nickel would either rent or sell the home but that upon a sale Nickel would repay the loan in full. Nickel sold the home but did not disclose the sale to Lanson. The purchaser, SP Trucking, did not require financing and did not search the Personal Property Registry. SP Trucking sold the home to Rempel who obtained financing from the Credit Union which registered a financing agreement claiming a security interest in the home and its proceeds. Lanson attempted to seize the home. The trial judge found Lanson's security interest continued and took priority over that of the Credit Union as Lanson had not authorized the sale to the trucking company and that Lanson had no interest in releasing the security interest until he received payment in full. HELD: 1)Section 28(1) reiterates the common law principle of nemo dat quod non habet. The debtor's right to deal with collateral is subject to the security interest granted to the creditor unless certain things occur- ie. the secured party authorized expressly or by implication the dealing with the security. 2)The trial judge was in error in finding the secured party, Lanson, had to authorize the buyer, SP Trucking, to deal with the property and that the buyer must know of the authorization. Section 28(1) does not contemplate an authorization to a third party to deal with the collateral. The fundamental issue was whether the authorization was subject to the pre-condition of payment in full. 3)The authorization to sell must be given before the sale. Lanson clearly gave Nickel express authority to deal with the security which would include resale. The fact the debtor failed to pay the secured creditor did not invalidate the sale to the buyer. 4)Canadian Commercial Bank is restricted to cases where the secured party agrees with the buyer to release the security interest on the express condition that the obligation is satisfied in full and makes it clear to the debtor he does not intend to rely simply on the proceeds. There is a distinction between a conditional authorization and an authorized sale subject to conditions that the proceeds be remitted to the secured party. 5)The trial judge clearly found that Lanson authorized the dealing. It followed that the security interest did not continue in the collateral and the title passed to the buyer. The Credit Union acquired the collateral free of the security interest of Lanson and Lanson's rights against Nickle were restricted to the proceeds. 6)By declining to deal with the matter of s30(2), the appellate court was not to be taken as approving of the reasons of the trial judge. 7)The appellant was awarded costs on double Column V.

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