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NUNN, J. 1990 S.H. 75281 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JANET MAIE MILLAR, OF Halifax, County of Halifax, Province of Nova Scotia, and SYLVIA MURIEL HUGHSON, of Ottawa, in the Province of Ontario, Executrices under the Last Will and Testament of George A. Bentley and Helen Pauline Bentley, both of Halifax, aforesaid, deceased, and JANET MAIE MILLAR AND SYLVIA MURIEL HUGHSON, in their own right and RONALD EARL BRIGGS, OF Halifax, County of Halifax, Province of Nova Scotia, and LINDA MARIE McNEIL, of Halifax aforesaid Defendants HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice G. A. Tidman, Trial Division, on December 20th, 1990 DECISION: January 23, 1991 COUNSEL: Mr. John Chandler, for the Plaintiffs Ms. Mary Meisner, for the Defendants 1990 S.H. 75281 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JANET MAIE MILLAR, OF Halifax, County of Halifax, Province of Nova Scotia, and SYLVIA MURIEL HUGHSON, of Ottawa, in the Province of Ontario, Executrices under the Last Will and Testament of George A. Bentley and Helen Pauline Bentley, both of Halifax, aforesaid, deceased, and JANET MAIE MILLAR AND SYLVIA MURIEL HUGHSON, in their own right and RONALD EARL BRIGGS, OF Halifax, County of Halifax, Province of Nova Scotia, and LINDA MARIE McNEIL, of Halifax aforesaid Defendants This is an application under the Vendors and Purchasers Act, c. 324, R.S.N.S., 1967 (the Act) on behalf of the vendors/plaintiffs (v/plaintiffs) for a declaration that an objection to title raised by the purchasers/defendants (p/defendants) is without merit. This matter first came before me as contested chambers application. Mr. Chandler, who represents the v/plaintiffs, at that time, agreed to obtain additional affidavit evidence in the hope of satisfying the p/defendants that the v/plaintiffs have good title to the property. Additional affidavit evidence has been adduced, but the v/plaintiffs still maintain their objection to title. Counsel agreed that in deciding the application, could consider all the additional material provided. After having heard counsel further on December 20, 1990, granted the application with written reasons for so doing to follow. The cause of the vendor's concern The property in question is residential lot with purported 40' frontage on the north side of Kaye Street in the City of Halifax. Kaye Street is part of built up residential area in the north end of Halifax known as the Hydrostone area, large part of which was destroyed in 1917 by the Halifax Explosion. Alex Bond, prior to 1913 by two separate deeds, one containing 80' of frontage and the other 60', acquired total of 140' of frontage on the northside of Kaye Street in Halifax. As the issue before me deals with missing lot frontage, for the purposes of this application will refer only to the frontage of the various lots conveyed. The 140' frontage acquired by Bond was bounded on the west by property of the Memorial United Church or its predecessors in title and on the east by one Trider or his predecessors in title. The p/vendors title search at the Registry of Deeds located conveyances of lots out of Bond or his heirs containing total of only 120' of frontage on Kaye Street. The remaining unaccounted for 20' creates the problem now before the court. The lot in question is described as having frontage on Kaye Street of 40', there is no dispute with the apparent adjoining property owners as to the boundaries of the land in question and the lot, in fact, has approximately 40' of frontage on the ground. The concern of Ms. Meisner on behalf of the p/defendants is that the Bond heirs, according to the recorded conveyances, retain ownership of the remaining 20' of frontage. From her search of the records at the Registry of Deeds she is not able to pinpoint the location of the 20' of missing frontage and fears that it could be up to one half of the frontage of the lot in question. Property history In 1913 Bond conveyed lot having 40' of frontage to Fred Killam. That lot which was apparently vacant at the time, was situate to the east of the lot in question. The lands to the west of the lot conveyed to Killam contained the Bond residence. The Killam residence was built on the 40' lot. Leota Bentley, daughter of Fred Killam, who lived in this property, states in statutory declaration that this lot which the Killams occupied was, in fact, wider than the 40 feet called for in the deed. Alex Bond was killed in the Halifax Explosion and at the same time both the Bond and Killam residences were destroyed. The Killam residence was immediately rebuilt. The Bond residence, however, was not rebuilt leaving vacant lot between the Killam residence lot and the United Church lot. In 1920, Bond's daughters, Bertha Wournell and Ethel Hockin, conveyed 25' of frontage to the United Church being the western portion of the vacant Bond lot, which apparently contained remnants of the foundation of the Bond residence which was destroyed by the Halifax Explosion. In 1931, Wournell and Hockin conveyed another 40' of frontage to Fred Killam. In 1937, Wournell and Hockin conveyed 15' of frontage to Fred Killam's widow, Rosina. This lot was described as adjoining the eastern boundary of the United Church property. The frontage of the lots described in the four conveyances out of Bond and his heirs totals 120', 95 of which were conveyed to the Killams. There are no further recorded conveyances out of Bond or his heirs. In 1941 Rosina Killam conveyed 16' of frontage to the United Church. property plan introduced as evidence dated June 26, 1940, and purportedly prepared by Provincial Land Surveyor by the name of Knight, shows the Killam property as having frontage of 116', 16' of which borders on the United Church property to the west. The 16' strip is designated on the plan as lot "to be conveyed to the United Church". Although the plan shows the remaining Killam property as having 100' frontage there are recorded conveyances to the Killams totalling only 95'. After Mrs. Killam's conveyance to the United Church of 16' only 79' of frontage remained recorded in the name of the Killams. Thus the missing frontage may actually be 21'. Objections to Title The objections to title put forward by Ms. Meisner on behalf of the purchasers are: 1. That the Bond heirs may have an interest in the lands in question, and, if not, 2. That the Crown may claim an interest in the lands under the Escheats Act R.S.N.S., 1989, c. 151. Mr. Chandler's answer is that the Killams and their successors have established good possessory title to the lot in question. Legislation Section (formerly Section 3) of the Act, under the terms of which this application is brought, provides: "A vendor or purchaser of any interest in land or his representative may, at any time and from time to time, apply in summary way to judge or local judge of the Trial Division of the Supreme Court in respect of any requisition or objection or any claim for compensation, or any other question arising out of or connected with the contract and the judge or local judge may make such order upon the application as appears just, and refer any question to referee or other officer for inquiry and report." Is this proper application under the Vendors and Purchasers Act? Ms. Meisner on behalf of the p/defendants argues that this is not proper application under the Vendors and Purchasers Act and submits that title to the lot must be perfected by an application under the Quieting of Titles Act. She states that this court has expressed conflicting views as to whether possessory title may properly be determined under the Vendors and Purchasers Act. She says that, although Parsons v. Smith (1971), N.S.R. (2d) 561 (S.C.T.D.) and Stevens v. MacKenzie (1979), 41 N.S.R. (2d) 91 (S.C.T.D.) indicate that the issue of possessory title may be properly be dealt with under the Act, the later case of Keohane v. McNaulty (1989), 1989 CanLII 1493 (NS SC), 92 N.S.R. (2d) 261 (S.C.T.D.) seems to indicate otherwise. do not agree that Keohane changes the view of the law expressed in Parsons and Stevens. Davison, J. in Keohane, in an application under the Vendors and Purchasers Act, dealt with the issue of possessory title and, in fact, resolved that issue on the same basis as did Hart, J. in Parsons v. Smith, supra, and Glube, J. (as she then was) in Stevens v. MacKenzie, supra. It is para. 11 of Keohane that gives Ms. Meisner the difficulty she expressed. It provides in part: "The Vendors and Purchasers Act is intended to provide summary ruling as to whether an objection to title is valid and thereby remove confusion that may be created by the filing of frivolous objections to title. Applications should be confined to this narrow focus. There are other statutes available for declarations of title statutes which have built‑in protection for providing notice to interested persons and to permit the intervention of those persons. Foremost among those statutes of course, is the Quieting Titles Act." In my view, Davison, J. was giving very good advice by suggesting that party with highly doubtful title to property rather than risking an unsuccessful application under the Vendors and Purchasers Act should go directly to more recent legislation designed to cure title, such as the Quieting Titles Act. While it is true that applications under the Vendors and Purchasers Act can determine only if an objection to title is valid, it is also true that an applicant under the Act who is able, on balance of probabilities, to prove good possessory title is entitled to the relief sought, in this case, finding that the objections to title are invalid. The wisdom of the advice of Davison, J. is shown in the final outcome of all three cases referred to by Ms. Meisner in which the applicants all failed to prove possessory title. The Law In all of those same three cases the standard used in proving good possessory title is that set out in the following para at p. 297 of Armour on Titles, (3rd ed.): "The declarations or affidavits to prove possession should not be confined to general statements that the trespasser has been 'in possession' or 'occupation'. There ought to be evidence of the actual facts which are relied upon as constituting the possession or occupation under the Statute. Thus the person in possession should show whether the land has been fenced and whether that is what is relied upon; whether it has been resided on, and if so, whether continuously or at intervals; whether it has been cultivated, and how whether by continuous occupation or by taking crops off and leaving the land vacant between visits. In all cases the purchaser should be put in possession of the actual facts, so that he may exercise his judgment upon their effect, instead of stating the effect, leaving him in ignorance of the facts upon which the vendor relies." Objection #1 The Evidence of Possession George Bentley acquired the lot in question in 1957 from Killam heirs. The lot was vacant until he built his residence on it in 1961. Ms. Meisner does not dispute that there has been open, notorious and continuous possession by the vendors and their title predecessors since that time. Her concern, is that the time period between 1961 and the present does not establish the 40 year period of such possession required by the Limitation of Actions Act (c.258 R.S.N.S. 1989) in order to defeat another claim of ownership. Several statutory declarations containing allegations of possession during the time in question were submitted by Mr. Chandler. Leota Bentley, sister‑in‑law to George Bentley and daughter of Fred and Rosina Killam, in two separate statutory declarations deposed to acts of possession of the lands in question. She states that she is now 78 years of age and lived in the Killam home with her parents on the lot adjacent to the east of the lot in question continuously from 1913 until her marriage in 1936. She says she lived in Dartmouth from 1936 until 1950, but during that time "frequently" and "regularly" visited the Killam homestead being the lot in question and the adjacent residence lot. She says she lived outside the Province from 1950 until 1965, but returned every summer and stayed with her mother at the homestead property. She says that her father, Fred Killam, mother Rosina, brother‑in‑law George Bentley, and his wife Pauline, all of the owners of the property, which included the lot in question during the time in question, are now deceased. She says Fred Killam died in 1936. In her first declaration Mrs. Bentley deposes in para 11: "11. THAT since at least 1931 until 1957 when the property on Kaye Street was conveyed to George A. Bentley, my father and mother and my mother after my father's death owned and continuously occupied openly, visibly and notoriously the entire lands designated R. Killam on Kaye Street shown on the plan attached as Schedule "B" extending northward to the mid point of the block outlined in red thereon, and my father and my mother after my father's death maintained home, garden, lawn and outbuildings thereon as well as fence on the mutual boundary with the Church and, subsequent to 1957, George A. Bentley and Helen Pauline Bentley owned and occupied the lands designated R. Killam on Kaye Street on the plan attached as Schedule "B" and in particular the subdivided portion designated Lot on the plan attached as Schedule "A" until the time of George Bentley's death in 1987 and by Pauline Bentley until the time of her death in 1990." In her second declaration she deposes in para's 11 through 14: "11. THAT during his lifetime my father owned and operated Nova Scotia Nursery and during the lifetime of my father and mother, they owned the properties designated R. Killam and M.A. Wickwire on the Plan of R. Killam Property, Knight, P.L.S., dated 1940, copy of which is attached hereto as Schedule "C". 12. THAT there was driveway to the west of our house (as referred to in paragraphs and herein), west of the driveway was lawn, and west and north of the lawn were the arbors and rose shrubery as refered (sic) to in Paragraph 13 herein, and further west of that was approximately fifteen (15) or sixteen (16) feet of "under‑utilized" lands and which under‑utilized lands were conveyed by my mother to the Church in 1941, by the Deed referred to in paragraph herein and which sixteen feet (16') area is shown on Schedule "C" as the lands "To be conveyed to U. M. Church". To the west of this fifteen feet (15') piece of land was the Church property, as refered (sic) to in paragraph herein. 13. THAT prior to 1931, my father planted large number of rose bushes and other shrubs on the lands west of our home in the area which is designated Lot on the plan attached as Schedule "A". The rose bushes and other shrubs remained until my brother‑in‑law George Bentley acquired the property. Although there were no buildings per se on that particular area, my father built many arbours and wooden walkways in the area which is designated as Lot on the plan attached as Schedule "A", and built swing and frame on that portion of property. He also constructed walkway in the rear of the Lot area going up to the Church property (my father was one of the Trustees of the Church). Father also planted raspberry bushes along the rear of the entire property. My family and friends very much enjoyed and openly used this area and have numerous photographs of the area as described herein. 14. THAT my father, nurseryman, very much maintained this area on regular and frequent basis and after his death, my mother continued to do so although probably in less professional way than my father." The plan to which she refers as Schedule "B" to her first declaration, and as Schedule "C" to her second declaration is designated "Plan of R. Killam property". It is signed by one Knight (whose initials are unintelligible) P.L.S. and is dated June 26, 1940. It shows the R. Killam property as having 100' frontage on the north side of Kaye Street and being bounded on the west by 16' frontage strip designated to be conveyed to the United Memorial Church which is bounded on its west by the United Church property. The Knight plan shows the Killam lot bounded on the east by lot designated "C. Trider" which extends eastwardly 80' to the intersection of Albert and Kaye Streets. The western half of that lot is now owned by Morris Moore who also provided statutory declaration. In the declaration he states that he has resided on his Kaye Street property since 1941 and has always believed that his property was bounded on the west by the Killam/Bentley property. In paragraphs and of his statutory declaration he deposes: "3. THAT for as long as have resided on Kaye Street, George A. Bentley and Helen Pauline Bentley and their predecessors in title owned and occupied all the lands and premises westward from the point hereinbefore mentioned to the eastern boundary of lands of United Memorial Church defined by chain link fence running northwardly from Kaye Street to the southern boundary of Young Street, which distance along Kaye Street am informed by review of the plans attached hereto as Schedules "A" and "B" is 100 feet. 5. THAT the lands designated R. Killam on the plan attached as Schedule "B" and G. Bentley on the plan attached as Schedule "A" were occupied continuously, visibly, openly and nortoriously by George Bentley and Helen Pauline Bentley and in particular Lot as shown on the plan attached as Schedule "A" upon which George Bentley built his own home and know of no claim adverse to the ownership of George Bentley and his predecessor in title for the 49 years and upwards that have lived at 5321 Kaye Street." Also in evidence is the statutory declaration of William Orr. In it he states that he is 78 years old, and has been involved with the United Memorial Church in various capacities since 1920, including as church elder which he still is. He states further that in his memory the land between the church property and the Killam residence was used as driveway, lawn and gardens until George Bentley built his house around 1960. Mr. Orr states that he knows of no dispute concerning the location of the boundary line between the Church and Killam properties. Janet Millar, daughter of George Bentley, declares by affidavit that in 1957 her father bought from the Killam heirs lot which includes the lot in question. She says that she resided in the house on the lot adjoining the lot in question (referred to as the Killam house) until she moved into the new residence George Bentley built on the lot in question in 1961. Ms. Millar, who states she was born in 1946, provides in para's and of statutory declaration: "3. THAT when was about or years of age had occasion to visit the property on the north side of Kaye Street when it was owned by Rosina Killam. My Aunt Leota and Uncle Ken Bentley had come home to Nova Scotia for holiday visit and had spent week or so in the valley visiting our family and they asked me to go with them and their daughter, Barbara, to spend week with Aunt Leota's mother, Rosina Killam, in Halifax. We stayed in the building shown on the plan attached hereto designated as four unit apartment building and now known as 5329 Kaye Street. 4. THAT remember that the lands to the west of the Killam house extended in gradual upward slope to the base of hill. The hill rose sharply to plateau and recall that the hill was mowed at that time and in the years subsequent was mowed from time to time by church officials. The base of the hill was the western limit of the Killam property and in later years was the western boundary line adjacent to which my father built house in 1961. can remember that the land between the Killam house and the base of the hill consisted of type of garden with many shrubs and spaces of law interspersed with patches of garden in and around through which pathways ran and upon which we as children used to run. It is my recollection that the gardens were tended enough to know that there was someone who cared and it was my understanding that the gardens belonged to Rosina Killam, who was at that stage an elderly woman." Assessment records from the Nova Scotia Archives of the lands between the Church and Trider (later Moore) properties were produced in evidence. One assessment card covers the period from 1920 to 1947. On the card the titles "Estate of Alex Bond" and "Kaye" appear in the spaces respectively designated "owner" and "street". In the space designated "street no." the word "lot" rather than civic number is inserted which indicated that the land was vacant. For the year 1920‑21 the land assessment is shown as "1200". It fluctuates over the years reducing to "400" by 1947. Reductions in assessment coincide with the transfers of land from the Bonds to the United Church in 1920 and to Fred Killam in 1931. For 1947 and subsequent years the assessment is transferred to new card in the name of Rosina Killam. The former card in the name of the Estate of Alex Bond contains the notations "to Rosina Killam July 25/38" and "16' to Church Sept. 3/41". Since the last conveyance out of the Bond heirs was to Rosina Killam by deed recorded July 25/38 and the 16' frontage was conveyed to the Church by Rosina Killam by deed recorded Sept. 3/41 this suggests that the practise in the assessment office on property transfers may have been, at least in some cases, not to transfer the property assessment to card in the new owner's name. This practise is further suggested by the assessment card for #29 Kaye Street in the name of Fred Killam. It contains the notation "transferred to Rose M. Killam by will" and although Fred Killam died in 1936, the assessment was not transferred to new card in the name of Rosina M. Killam until 1947, the same year the assessment from the card in the name of the Estate of Alex Bond was transferred to new card in the name of Rosina M. Killam. The assessment records indicate that all of the property on the north side of Kaye Street between the Morris Moore property and the Church property, subsequent to 1946, was assessed to Rosina Killam and later to George Bentley. Findings re Objection No evidence was adduced to contradict the allegations made in the several statutory declarations submitted by Mr. Chandler and none of the declarants were cross‑examined on the evidence contained in the declarations. In deciding that the v/plaintiffs have established good possessory title to the lot in question, find the following elements of proof of possession have been established from the evidence: 1. The lot has been assessed for municipal tax purposes in the name of Rosina Killam and her successors in title since at least 1946. The lot and the adjacent Killam house lot were occupied by Fred and Rosina Killam openly and continuously from at least 1931 until the property was sold to George Bentley in 1957. During that time period the lot in question was used as garden, lawn and driveway and fence designated the mutual boundary between the Killam and United Church lands. Fred Killam, prior to 1931, had planted rose bushes and other shrubs and constructed swing and fence on the lot in question and had constructed and used walkway on the lot to the adjoining church property. This evidence is set out in the statutory declarations of Leota Bentley and is supported by the evidence set out in the declarations of Janet Millar, William Orr and Morris Moore. 2. There is no evidence of any claims by others against the lot in question. 3. The plan of property dated 1940 showing lands including the lot in question, indicates that the lands were surveyed by Provincial Land Surveyor in 1940 and that the lot in question was then owned by Rosina Killam. That plan, the later plan dated 1961, the assessment records referred to, and the evidence contained in the statutory declarations are all consistent with occupation and ownership by Rosina Killam and her successors in title. Conclusion Objection I am satisfied on the basis of the evidence submitted that the vendors and their predecessors in title, namely, the Killams and the Bentleys, by open, notorious and continuous possession since at least 1946, a period in excess of 44 years, have established a good and marketable possessory title to the lot in question. state "since at least 1946" because that is the year in which the assessment for the lands was transferred to new card in the name of Rosina Killam. However, the evidence also indicates that such possession has been exercised since at least 1938 when the 15' strip was transferred from the Bond daughters to Rosina Killam and suspect since as far back as 1931 when the 40' lot was conveyed to Fred Killam from the Bond daughters. Objection Ms. Meisner submits that even if find that possessory title has been established by the required proof of possession for more than 40 years this would not, under the Limitation of Actions Act, defeat claim by the Crown under the Escheats Act R.S.N.S. 1989, c. 151 against whom such possession must be proved for period of at least 60 years. Section 2(b) of the Escheats Act provides: "The Governor in Council may direct the Attorney General to take proceedings to revest in the Crown ..... (b) any or all lands of persons dying intestate and leaving no heirs or persons entitled to the said lands under the laws of the Province." Therefore, before such claim would threaten title to property the Provincial Cabinet, with the Lieutenant Governor's consent, must direct the Attorney General to take revesting proceedings. Even if this came to pass it would be difficult, if not impossible, to determine the exact location of the 20 or 21 missing feet to which the Crown must lay claim in order to defeat the present possessory ownership. No one to date has been able to pinpoint the location of the missing 20' or 21' of frontage. One of the two original lots conveyed to Alex Bond contained 60' of frontage on Kaye Street. The first conveyance to Fred Killam in 1913 described lot having 40' frontage on Kaye Street, although, as stated by Leota Bentley, that lot was in fact much wider than 40'. Indeed, the intention may have been to convey all of the frontage of 60' described in the original lot rather than 40' as described in that first conveyance. Although mere speculation, suspect that the mystery of the missing frontage bears on that Killam residence lot, rather than on the lot in question. Conclusion Objective In any event the possibility of such a claim by the Crown, as Mr. Chandler suggests, is so remote as to be frivolous and as such is, therefore, not a valid objection to title. Having found that neither objection to title is valid, the application is granted, but without costs. J. Halifax, Nova Scotia January 23, 1991 1990 S.H. 75281 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: JANET MAIE MILLAR et al and RONALD EARL BRIGGS et al

This was an application by the plaintiff vendors for a declaration that an objection to title raised by the defendant purchasers was without merit. For the plaintiffs, that the Vendors and Purchasers Act can be used to establish possessory title, and the plaintiffs had succeeded in demonstrating 'open, notorious and continuous possession' of the property for over 40 years. The possibility of a claim by the Crown under the Escheats Act was ruled so remote as to be frivolous.

6_1991canlii4510.txt

J. D.I.V. A.D. J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: SCOTT CAVERS and KAREN CAVERS RESPONDENT D.J. Kovatch for the petitioner R.B. Hunter for the respondent JUDGMENT HUNTER J. January 24, 1996 The petitioner, Scott Cavers ("Scott") and the respondent, Karen Cavers ("Karen") were married April 7, 1973, and separated in October 1994. The petition was issued on February 21, 1995. There are two children of the marriage, Chad (born in 1976) and Ryan (born in 1978). The judgment for divorce was granted at the conclusion of the trial. Theissues left to be determined are division of the petitioner'spension, the quantum, if any, of child support and spousalsupport and whether the matrimonial home should be transferredto the respondent or be sold and the proceeds divided. Scott commenced employment with the Regina Police Services in 1971 and continues to be employed there in the rank of Sergeant. He has worked in various units in the police service and in the later years from 1988 until December, 1994, he was assigned to the robbery-homicide unit. In this unit he often worked significant overtime hours and his salary, including overtime during those years was approximately $71,000. In December, 1994, he was transferred to the position of co-ordinator of the Domestic Violence unit. In this position, Scott works four 10-hour days per week and is not scheduled for week-end or evening shift work. He seldom, if ever, works overtime in this unit. His salary (including all add-ons) will approximate $63,000 for the 1995 calendar year. This current work schedule suits Scott as the two sons, Chad and Ryan have continued to reside with Scott since the date of separation. Scott is limited in the units to which he can be assigned because of previous back injury. He cannot transfer to unit which may involve any confrontation. Karen was certified nursing assistant and continued this employment after her marriage. Early in the marriage, Karen completed her nurses training program. In 1976, just prior to writing her exams to become registered nurse, Karen suffered cerebral hemorrhage. Karen required surgery and rehabilitation and as result she was unable to work outside for home for year or two. Karen did in-home babysitting during this time and while Chad and Ryan were infants. Karen suffered memory loss and she continues to suffer aphasia, dyslexia and seizures as result of this hemorrhage. After Ryan was born in 1978, Karen went back to work at the Pasqua Hospital on casual basis. Later, Karen worked part-time at three separate institutions and then again tried to take classes toward her registered nurse certification. Karen found the lingering problems with her lack of short-term memory from the hemorrhage affected her exam-writing ability and she discontinued taking classes. In 1983, Karen commenced work at Myers House and worked there for years. When her employment was terminated, she received unemployment insurance benefits until she started work in 1992 at New Dawn, treatment facility located outside Fort Qu'Appelle. Today, Karen continues to be employed there as full time assessment counsellor. During the marriage, Karen developed chemical dependency on Gravol and she suffered an incident of drug overdose. In 1992, Karen went through drug rehabilitation following which she has not experienced any further incidents. Scott and Karen separated twice before October, 1994, when Karen left the matrimonial home for the last time. Karen has since resided in Fort Qu'Appelle which is closer to her place of employment. Scott and Karen were not in healthy financial situation when they separated. They owed approximately $55,000 on the house mortgage and $26,000 to the Bank of Montreal for two car loans. There was debt to Canada Trust in excess of $9,000 to consolidate loans including credit card loans. In addition, there were other small debts. After separation, Scott continued to pay the mortgage loan and utilities for the matrimonial home. The monthly payment to the Bank of Montreal approximated $800. Scott attempted to pay on all the debts except for the Bank of Montreal car loans, which he expected Karen to pay. Karen attempted to renegotiate this loan to smaller monthly payment. The Bank's final proposal was to accept $554 monthly payment but Karen viewed this as too much. In the course of her negotiations, Karen learned from the bank representative that she had not signed for the loan and that it was in Scott's name alone. Accordingly, Karen ceased making any payments on this loan. As result of this, Scott was unable to handle the debt load and in May, 1995, he filed an assignment in bankruptcy. In the statement of affairs, Scott disclosed unsecured debts of $42,607 and secured debts of $56,995. The significant secured debt was the mortgage on the matrimonial home. The only joint unsecured debt for which Karen was signatory was the Canada Trust debt which Scott showed as $7,797 at the date of the assignment. Scott is eligible to apply for his absolute discharge in February, 1996. Accordingly, he is still an undischarged bankrupt at the date of trial. Because the loan for Karen's car was solely in Scott's name, the debt for her car has been eliminated through the bankruptcy process. Scott's car was repossessed and he repurchased it from the Bank of Montreal on terms set by the Bank. Scott's regular salary to November 28, 1995, was $52,406 but with additional amounts paid to him, his total salary to this date was $57,902.98. He anticipates his final salary for the year 1995 will approximate $63,000. Karen's gross salary is $2,194 per month or approximately $26,300 annually. Commencing May 1, 1995, an interim child support order was granted whereby Karen was ordered to pay $300 per month (net of tax) for the support of Ryan. Karen has 1992 Sundance car which she values at $5,500 and two RRSP's which at trial have been cashed in. When the petition was issued Karen stated the RRSP's were $2,182.09 and $3,819.62 respectively. Karen's pension from employment is in the form of an RRSP and is worth $3,819.52. The liabilities for which Karen has some responsibility are the Canada Trust joint loan with current balance of $7,730 and she owes $2,187 on her Mastercard for expenses incurred on trip to Saskatoon that she and Scott took in September 1994. Currently, Karen is not making any payments on the debts. She rents house in Fort Qu'Appelle for $300 per month and also pays all the utility costs. Scott and Karen have divided the household goods to their satisfaction. The matrimonial home has only small equity at best and that will probably not exist after payment of real estate fees when the home is sold. Scott's unsecured debts have been eliminated through the bankruptcy process but he is still an undischarged bankrupt. Scott's primary asset is his pension plan for his 24 years in the police service. The period of the marriage for purposes of pension entitlement is 21.4928 years. Scott's earliest retirement date under the plan is when he reaches 25 years of service which will occur in September, 1996. How to divide this pension is the main issue in this action. Scott and Karen were employed throughout the majority of their marriage, and each contributed the income earned to support the family. Most of the earnings were spent and few assets were acquired. Both parties received the benefit of this lifestyle. In hindsight Scott and Karen may now wish they had limited their children's sports activities so that more assets could have been acquired, but the lifestyle was choice made by them at the time. The plan administrator for the Regina City Police Pension Plan testified that he understood that The Pension Benefits Act, 1992, S.S. 1992, c. P-6.001, ss. 46(3) requires that the division of pension on the breakdown of the marriage of the member of plan "must not reduce the member's commuted value to less than 50% of the member's commuted value prior to the division". The commuted value is $113,900 for the 21 years of marriage. There is current liquidity problem with the pension plan and the plan members are required to make additional contributions. Also there are restrictions on the amounts that can currently be paid out of the plan and portion of any lump sum payout must be deferred for years. The calculation performed by the administrator in accordance with his understanding of the pension plan is that the maximum amount available for transfer to spousal RRSP by reason of the marriage break-down is 1/2 of $150,600 (calculated to the date of trial) or $75,300. This is based on the total time Scott has contributed to the plan (not just for the period of the marriage) and is calculated to the date of trial, not the date of the petition or date of separation. Because of the solvency requirements only $64,000 could be paid out now and the remainder could be paid out in years. The lump sum payout must be transferred into locked in RRSP and the spouse can begin to receive pay-out on monthly basis on the earliest eligible date for retirement of the plan member, i.e. September, 1996. If Scott actually terminated his employment now rather than waiting until the earliest eligible retirement date, the amount payable would be the higher of commuted value or the contributions with interest. Scott has excess contributions of $73,097. When there is marriage break-down, the plan administrator divides the pension on the basis of the commuted value only and excess contributions are not considered for the purpose of the lump sum transfer to locked in spousal RRSP on marriage breakdown. The total pay- out on termination would be the commuted value ($113,930.) and excess contributions ($73,097.) for total of $187,027. Ontermination Scott would have the option of leaving the fundsin the plan and the payment would be deferred until Scott isage 65. Alternatively, Scott could have the commuted valuetransferred to a locked-in RRSP. If Scott should retire at his earliest eligible date, i.e. September, 1996, he would receive monthly pension of approximately $3,000 until age 65 at which time it would be reduced to $2,500 because of the integration with the Canada Pension Plan that is provided for under the terms of the Regina City Police pension plan. If Scott works beyond his earliest eligible date, he will increase the amount of his monthly pension benefit on retirement. Scott testified that he has considered the possibility of retiring when he has 30 years of service in 2001. He cannot afford to retire in 1996. David Keat ("Keat"), consulting actuary from Saskatoon testified on behalf of Karen. He calculated the actuarial present value of the pension accrued during the marriage as at October 4, 1994 (the date of separation) assuming retirement age of 45 at $331,100 and at age 55 at $129,341. In doing these calculations, he did not assume any future salary increase and no discount was factored in for the effect of income tax. He did assume that Scott will not die, retire or quit his employment before September 1996. Therefore the three values that have been suggested in the evidence for the purpose of valuation and distribution of the pension plan are $150,600, $187,027 and $331,100. The method of distribution is complicated in this case because Scott is an undischarged bankrupt. The choices presented are valuation in accordance with The Pension Benefits Act, 1992, or the commuted value plus excess contributions or present day valuation assuming retirement after 25 years of service. The statutory limitations apply with respect to any amount which can be transferred out of the pension plan. There is no issue that the maximum that can be transferred immediately to locked-in RRSP in Karen's name is $64,000. In Fisher v. Fisher (1983), 1983 CanLII 2021 (SK QB), 21 Sask. R. 235 (Sask. Q.B.) Scheibel J. examined the issue of valuation of the Regina City Police Pension Plan for the purposes of the matrimonial property division. In that case, the husband had already reached the earliest eligible retirement date but had not retired. The husband was age 47 and the wife age 49. Scheibel J. canvassed extensively the many factors to be considered in the methods of valuation of pensions which apply as well in this case. Scheibel J. allowed the option to the husband to either pay lump sum amount or periodic payments based on valuation assuming the earliest retirement date of the husband. More recently, in Knippshild v. Knippshild, [1995] W.W.R. 257 (Sask. Q.B.), Klebuc J. held that the retirement method of calculating the value of the pension will yield the fairest value as often the termination method does not. (Termination method means calculating the present value based on accrued benefits to which the employee is entitled assuming participation in the pension plan on specified date. Retirement method means calculating the present value under which portion of the value of the employee's projected future pension entitlement on retirement is deemed to be related to the period of the marriage). Klebuc J. noted the negative aspects of using the retirement method of valuation but determined that these could be overcome by the use of applicable contingencies. Also, he held that the "most likely retirement date" rather that the earlier retirement date should be used in calculating value. In this case, there is further consideration. The only marital asset of any value is Scott's pension. There are no funds available for any lump sum payment. Even if such funds were available, Scott is an undischarged bankrupt and any funds in his possession belong to the trustee for the benefit of Scott's creditors subject to the applicable exemptions. In my view, the only fairness that can now be employed in valuation and distribution of Scott's pension plan is an "if and when order". Scott may retire as early as 1996 but that is unlikely as he will not be able to afford to do so. He hopes to retire after 30 years of service but given his present financial situation that may prove to be unlikely as well. Since he is limited to the kind of police work he is able to do because of his physical disability, there is reasonable prospect that he may work until he reaches 35 years of service. Karen wants the retirement method used to calculate the value of the pension. She then wants the maximum allowable transferred immediately to locked- in RRSP ($75,300 of which $64,000 can be paid immediately and the remainder in years in order to comply with the liquidity requirements of the Regina Police Service Pension Plan). Then to circumvent the fact that there are no other assets for lump-sum pay out and to avoid the effect of Scott being an undischarged bankrupt, Karen wants monthly sum paid to her disguised as spousal support but which is in effect, the balance of the value of Scott's pension adjudged owing to her. Then when Scott actually retires, Karen will receive percentage of his monthly pension benefit. In my view, there are too many uncertainties in this case and because Scott is an undischarged bankrupt, the retirement method is not acceptable to calculate the value of the pension. There are only two options, i.e. an order that the maximum commuted value calculated in accordance with The Pension Benefits Act, 1992, be transferred to locked-in RRSP in Karen's name or an "if and when" order. Perhaps the only way fairness can beachieved in these circumstances is to allow Karen to make thechoice between the only two options which are available. Accordingly, if Karen desires to have funds in her name immediately, she shall on or before March 1, 1996, provide Scott with written notification that she wants the maximum allowable commuted value transferred to RRSP. If Karen fails to provide the written notice in the time provided, then there will be an order that when the monthly pension benefit commences to be paid to Scott, the plan administrator shall pay to Karen portion of the monthly pension benefit calculated as follows: years of marriage monthly pension benefit 1/2 years of service Karen's monthly entitlement This leaves the issue of child support. Ryan is in high school and is dependant. Karen is obligated to pay child support for so long as Ryan is registered as full-time student at recognized educational institution for reasonable period following the completion of high school. Chad is registered for an EMT course which should commence in the spring of 1996. The course is approximately months in length. Only if Chad is registered and attending recognized educational institution as full-time student, is Karen obligated to pay child support. Because Chad's anticipated course is of short duration, have determined in these circumstances that no child support is payable in respect of Chad. Karen shall pay to Scott, as child support for Ryan,$260 per month commencing January 1, 1996, and continuing onthe 1st day of each month thereafter for so long as Ryan is achild within the meaning of the Divorce Act, R.S.C. 1985, c. 3(2nd Supp.) Karen has applied for spousal support. Karen was employed throughout the marriage and continues to be so employed. The parties were "spenders" not "savers". Through the circumstances of the debts and Scott's bankruptcy, Karen has car available to her. Karen's primary difficulty in up-grading her skills is affected by her illness in 1976 and the lingering disabilities, not because of the marriage. Karen says she subordinated her employment demands to her family obligations. It is not unusual in family situation where both parents are employed that one of the parents must carry out the primary parenting duties. These duties shift between the parents as the children grow older. That is what occurred in this family and as the boys got older, Scott became more involved as parent. Both Scott and Karen shared the parenting duties in varying degrees throughout the term of the marriage. In the circumstances, there will be no orderfor spousal support. With respect to the matrimonial home, there will bean order that the home shall be sold and the proceeds, if any,divided equally between the parties. The matrimonial home shall be listed for sale on or before April 1, 1996. All other contents of the home, other than those ordered at the conclusion of trial to be transferred to Karen, shall vest absolutely in Scott. There will be no order as to costs.

Issues included the division of a pension, child and spousal support and whether to transfer or have sold the matrimonial home which had a small equity. The petitioner was an undischarged bankrupt and any funds in his possession belonged to the trustee. The only marital asset of any value was the petitioner's pension but lump sum payment was not available for five years as there was a liquidity problem. The parties had been 'spenders' not 'savers'. HELD: 1)The respondent was to pay child support for one child. 2)Spousal support was denied. 3)The matrimonial home was to be sold and proceeds were to be divided equally. 4)Three values were suggested for valuation and distribution of the pension plan. The retirement method of calculating the value of the pension yields the fairest value as opposed to the termination method. The practice by the plan administrator on marriage breakdown was to divide the pension on the basis of the commuted value only and excess contributions were not considered for the purpose of the lump sum transfer to a locked in spousal RRSP. The options were to leave the funds in the plan and defer payment until age 65 or have the commuted value transferred to a locked-in RRSP. The respondent was to make the choice between the only two options. If she wished to have the funds in her name immediately, she was to provide written notification otherwise there would be an order that the respondent is to receive a portion when the monthly pension benefit commences.

c_1996canlii6728.txt

Date: 19970520 Docket: CAC 135795 NOVA SCOTIA COURT OF APPEAL Chipman, Freeman and Pugsley, JJ.A. BETWEEN: LINDA ANNE HILL and HER MAJESTY THE QUEEN Respondent Donald L. Presse for the Appellant Denise C. Smith for the Respondent Appeal Heard: May 20, 1997 Judgment Delivered: May 20, 1997 THE COURT: Leave to appeal is granted, but the appeal is dismissed as per oral reasons for judgment of Chipman, J.A.; Freeman and Pugsley, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by: CHIPMAN, J.A.: This is an application for leave and, if granted, an appeal from a sentence of 12 months incarceration imposed by Gruchy, J. in Supreme Court. The appellant pled guilty to a charge of fraud exceeding $5,000 contrary to s. 380(1)(a) of the Criminal Code. The appellant had engaged in carefully planned scheme which enabled her to defraud her employer of more than $144,000. Following detection, she immediately accepted responsibility for her actions, cooperated with the authorities and pled guilty at the earliest opportunity. No explanation, other than one consistent with greed and envy, was ever given for the commission of the offence. Only about $17,000 was recovered from bank account of the appellant. At the appellant's sentencing it was urged upon Gruchy, J. that he should impose a conditional sentence. He declined to do so saying that in the circumstances of this case, such an option was not appropriate. We have heard the argument of counsel and have carefully reviewed the reasons for judgment of Gruchy, J. in passing sentence. We are satisfied that the trial judge considered all the appropriate principles in imposing sentence in this case, and that he committed no error. See this Court's judgment in R. v. Frenette, May 14, 1997, C.A.C. No. 132540. Leave to appeal is granted, but the appeal is dismissed. Chipman, J.A. Concurred in: Freeman, J.A. Pugsley, J.A. 1997 C.A.C. No. 135795 IN THE NOVA SCOTIA COURT OF APPEAL BETWEEN: LINDA ANNE HILL and HER MAJESTY THE QUEEN RESPONDENT APPLICATION FOR LEAVE TO APPEAL AND NOTICE OF APPEAL PARTICULARS OF CONVICTION 1. Place of conviction Halifax, Nova Scotia 2. Name of Judge Justice David Gruchy 3. Name of Court Nova Scotia Supreme Court 4. Name of Crown Prosecutor at trial Gary Holt 5. Name of Defence Counsel at trial Donald L. Presse 6. Offence of which appellant convicted Fraud over $5,000.00 7. Sections of the Criminal Code or other statutes under which appellant convicted 380(1)(a) Docket: CAC 135795 NOVA SCOTIA COURT OF APPEAL BETWEEN: LINDA ANNE HILL and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: CHIPMAN, J.A.

The appellant plead guilty to a charge of fraud exceeding $5,000. She engaged in a carefully planned scheme to defraud her employer of $144,000. Only $17,000 was recovered. The sentencing judge refused the appellant's request for a conditional sentence, finding that in the circumstances of the case such an option was not appropriate. She appealed. Dismissing the appeal, that the sentencing judge considered all the appropriate principles in imposing sentence. He did not commit any error.

c_1997canlii1647.txt

19980217 Docket No. CA 139357 NOVA SCOTIA COURT OF APPEAL Chipman, Roscoe and Flinn, JJ.A. BETWEEN: WORKERS' COMPENSATION BOARD OF NOVA SCOTIA and GLORIA WEAGLE, TIM BELLEMORE, JASON WARD, CHARLES HUBLEY, BLAIR HATT, SAMUEL PROVO, JEFFREY THOMSON, ARTHUR GATES, AUBREY COOMBS, LINDA ROBERTS, HOWARD LIGHTLE, MARIE THOMPSON, WAYNE BROWN, GEORGE WELDON, WILLIAM MacDOUGAL, ISABEL LOWE, WAYNE CLATTENBURG, FELIX CYR and SHIRLEY MOSHER Respondents David A. Miller, Q.C. and David P.S. Farrar for the appellant/applicant K.H (Kenny) LeBlanc and Anne S. Clark for the respondents Appeal Heard: February 17, 1998 Judgment Delivered: February 17, 1998 THE COURT: Application for the stated case dismissed, per oral reasons for judgment of Flinn, J.A.; Chipman and Roscoe, JJ.A. concurring. The reasons for judgment of the Court were delivered orally by: FLINN, J.A.: We are substantially in agreement with the submissions of counsel for the respondent that this Court should decline to answer the questions submitted to it by the applicant. These questions are eight in number, but when broken down into their several parts, result in some forty questions. We are asked to relate those forty questions, not to one case, but to nineteen factual summaries presented by the Board with respect to cases before it. In Hebb v. Family and Children's Services of Lunenburg County et al (1982), 51 N.S.R. (2d) 447, Macdonald J.A. said the following at p. 449-450: When available, the stated case procedure is an expeditious method of obtaining judicial opinion as to the correctness in law of certain interlocutory or final decisions or rulings. ... In my opinion stated case or similar proceeding in civil matters must state all the relevant facts and must indicate the question, or questions, of law to be determined by the court. The question must be responsive to the facts and findings and must not be of moot, hypothetical, purposeless, speculative or academic nature. The questions which the applicant has put to this Court are, in the words of Macdonald J.A. in Hebb, ". . . predicated on a determination as yet unmade . . .They are therefore, in my view, not responsive to the evidence or to any determination made to date in the case and, indeed, by their very wording are speculative and hypothetical". Further, to give definitive answers to broad ranging questions concerning the interpretation of provisions of the Workers' Compensation Act, S.N.S. 1994-95, c. 10, could stifle the incremental development of jurisprudence with respect to claims under that Act. As Justice Sopinka said, in R. v. Martineau, 1990 CanLII 80 (SCC), [1990] S.C.R. 633, at p. 682: In my view, the issue of subjective foresight of death should be addressed only if it is necessary to do so in order to decide this case or if there is an overriding reason making it desirable to do so Overbroad statements of principle are inimical to the tradition of incremental development of the common law. Likewise, the development of law under the Canadian Charter of Rights and Freedoms is best served by deciding cases before the courts, not by anticipating the results of future cases. We, therefore, decline to answer the questions which the Board has submitted. The application for the stated case is, therefore, dismissed without costs. Flinn, J.A Concurred in: Chipman, J.A. Roscoe, J.A. C.A. No. 139357 NOVA SCOTIA COURT OF APPEAL BETWEEN: WORKERS' COMPENSATION BOARD OF NOVA SCOTIA and GLORIA WEAGLE, TIM BELLEMORE, JASON WARD, CHARLES HUBLEY, BLAIR HATT, SAMUEL PROVO, JEFFREY THOMSON, ARTHUR GATES, AUBREY COOMBS, LINDA ROBERTS, HOWARD LIGHTLE, MARIE THOMPSON, WAYNE BROWN, GEORGE WELDON,) WILLIAM MacDOUGAL, ISABEL LOWE, WAYNE CLATTENBURG, FELEX CYR) and SHIRLEY MOSHER Respondents REASONS FOR JUDGMENT BY: FLINN, J.A.

The Workers' Compensation Board applied, by way of stated case, to have the Court answer questions with respect to the interpretation of certain provisions of the Workers' Compensation Act. There were 40 questions in total. The Court was asked to relate the questions to 19 factual summaries presented by the Board concerning cases before it. The Court was required to decide whether the questions were the proper subject matter of a stated case. Dismissing the stated case application, that the questions submitted are hypothetical and speculative. They are therefore inappropriate questions for a stated case, which requires that questions must be responsive to the facts and must not be speculative.

3_1998canlii1847.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 22 Date: 2013-03-01 Between: Docket: CACV2359 Larry Philip Fontaine, et al. Non-Parties (Plaintiffs) and The Attorney General of Canada Prospective Respondent (Defendant) and The Presbyterian Church in Canada, et al. Non-Parties (Defendants) and Merchant Law Group LLP Prospective Appellant (Non-Party) Before: Lane J.A. (in Chambers) Counsel: Gordon J. Kuski, Q.C., and Amanda Quayle for the prospective appellant Sean Hern for the prospective respondent Application: From: 2012 SKQB 517 (CanLII) Heard: February 13, 2013 Disposition: Leave denied Written Reasons: March 1, 2013 By: The Honourable Mr. Justice Lane Lane J.A. [1] The prospective appellant, Merchant Law Group LLP (“MLG”), seeks leave to appeal an order of Gabrielson J. in Chambers dated December 11, 2012. The Chambers judge was acting in his capacity as an Administrative Judge appointed pursuant to the Court Administration Protocol (the “CAP”) established as part of the settlement of the Indian Residential Schools litigation. As part of the overall settlement, Verification Agreement (the “VA”) dated November 20, 2005 was entered into between Canada and MLG respecting verification of MLG’s legal fees and disbursements. The parties are disputing MLG’s obligations under the VA and each had made an application to the Administrative Judge for directions. [2] In issue is approximately $20 million in legal fees, disbursements and interest which MLG is claiming, and the prospective respondent (“Canada” or the “Government”) seeks verification of the claim. [3] MLG challenges the Administrative Judge’s order ordering MLG to contact ESI Software, Inc. (“ESI”) and arrange for ESI to re-create the redacted electronic billing records as whole from the “live data” in MLG’s present billing program. [4] The parties agree on the criteria to be considered in leave applications as articulated in Rothmans, Benson Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask. R. 121 and succinctly put they are; firstly, is the proposed appeal of sufficient merit to warrant the attention of the Court and, secondly, is the proposed appeal of sufficient importance to the proceedings, or the field of practice or the state of law, or to the administration of justice generally such as to warrant determination by the Court of Appeal. Canada also argues the impugned order was discretionary one attracting deferential standard of review. [5] There have been several judgments of the Administrative Judge dealing with the verification of MLG’s legal fees and disbursements, all of which provide more extensive background to the issue before me. Suffice it to say the judgments recognize that in order to ensure an efficient administration of the verification dispute, the parties are allowed to apply to the Administrative Judge for directions as specific issues arise, and he is authorized to make such orders or directions as are appropriate within the framework of the verification agreement: July 2, 2008, 2008 SKQB 271 (CanLII), 321 Sask. R. 285; December 30, 2009, 2009 SKQB 512 (CanLII), 347 Sask. R. 238; February 8, 2012, 2012 SKQB 68 (CanLII), 390 Sask. R. 283. [6] restatement of the context in which the claims and the verification process arose has two aspects. Firstly, the reasons for the verification process in the overall scheme of the Residential Schools litigation; and secondly, the verification process itself. The leave application arises in the context of the verification process but it will be helpful to look at the reasons for the process. I. THE REASONS FOR THE VERIFICATION PROCESS [7] The background to the process is set out by the Administrative Judge in his decision of July 2, 2008, at para. 32 In determining whether the first step of the VA has been completed, the purpose of the verification process must be considered. Canada submits that its purpose was as set out in an affidavit of Iacobucci, sworn June 15, 2006. Iacobucci’s statements as to the purpose of the verification were not contested by MLG in its material. Paragraphs 1, 2, 26 and 32 of Iacobucci’s affidavit are the relevant sections which refer to the purpose of the verification process: 1. Since May 30, 2005, have served as the Federal Representative leading negotiations with interested parties toward the resolution of the legacy of Indian Residential Schools. These negotiations, which resulted in Settlement Agreement as described below, included long and complex discussions respecting legal fees. Indeed, legal fees were central element of the negotiations and there would have been no Settlement Agreement without an agreement on legal fees. therefore have knowledge of the matters to which depose herein. 2. The discussions of legal fees with Tony Merchant, Q.C., representing the Merchant Law Group (‘MLG’), were particularly long and complex. As described in detail at paragraph 26 of this affidavit, had and continue to have number of very serious concerns about the information put forward by MLG to justify its position on legal fees. These concerns include: (a) uncertainty about the number of former residential schools students who had retained MLG; (b) lack of evidence or rationale to support the MLG’s claim that it had Work-in-Progress of approximately $80 million on its residential school files; and (c) an apparent discrepancy between the amount of class action work MLG represented it had carried out and the amount of class action work it had actually done. 26. required this verification process as part of our fee agreement with MLG because had very serious concerns about the information put forward by MLG to justify its position on fees. These concerns included the following: (a) Actual number of retainers. MLG represented during the legal fees negotiations that it had entered into Retainer Agreements with 7,000 to 8,000 former students, but was unable to offer any evidence as to how many of these Retainer Agreements existed as of May 30, 2005. (b) The number of retainers that MLG represented existed changed frequently during the negotiations and appeared not to make allowances for cases that had settled or determined by trial, former clients who had died, and those who were represented by other law firms. (c) (redacted) (d) Actual amount of Work-in-Progress. MLG represented that it had Work-in-Progress outstanding on these files of approximately $80 million, but was unable to offer any evidence to support this amount or to explain how and why these costs were incurred. have recently been shown copy of an article that appeared in the Leader Post on August 9, 2004 in which Mr. Merchant was reported to have stated that MLG carried approximately $12 million in unpaid work .... (e) Actual amount of class action work. MLG represented that it should be paid substantial fees in respect of the class actions it had brought but, unlike the National Consortium, MLG appeared to have expended very limited resources on these class actions. 32. The verification process agreed to by MLG is essential to provide me with sufficient information to determine the reasonableness of the fees to be paid to MLG. The Merchant Fees Verification Agreement requires me to satisfy myself that the amount of fees to be paid to MLG is reasonable and equitable ‘taking into consideration the amounts and basis on which fees are being paid to other lawyers in respect to this settlement’. The basis on which fees are being paid to other lawyers in respect of this settlement is to compensate them for outstanding Work-in-Progress, capped at $4,000, in respect of each Retainer Agreement existing as of May 30, 2005 and to provide an appropriate multiplier for class action work. To apply these principles to the MLG fees, Canada needs to have reliable information respecting, among other things: (a) the number of Retainer Agreements that MLG had with its clients as of May 30, 2005; (b) the amount of MLG’s Work-in-Progress in respect of each Retainer Agreement, bearing in mind the $4,000 cap for each Retainer Agreements; and (c) the amount and nature of the class action work that MLG says it carried out. [emphasis added] [8] It is clear from the affidavit of Mr. Iacobucci, who was Canada’s representative in the settlement negotiations, that it is incumbent on MLG to satisfy the concerns he raised and that the fees to be paid are reasonable and equitable. In order to allow MLG to verify its claims, the VA was signed. [9] The relevant provisions of the VA are as follows: Agreement Between the Government of Canada and the Merchant Law Group Respecting the Verification of Legal Fees The Government of Canada and the Merchant Law Group agree that in addition to the requirement to provide an affidavit as set out in Article of the Agreement in Principle, the Merchant Law Group’s fees shall be subject to the following verification process. 1) The Merchant Law Group’s dockets, computer records of Work in Progress and any other evidence relevant to the Merchant Law Group’s claim for legal fees shall be made available for review and verification by firm to be chosen by the Federal Representative the Honourable Frank Iacobucci. 2) The Federal Representative shall review the material from the verification process and consult with the Merchant Law Group to satisfy himself that the amount of legal fees to be paid to the Merchant Law Group is reasonable and equitable taking into consideration the amounts and basis on which fees are being paid to other lawyers in respect of this settlement, including the payment of to 3.5 multiplier in respect of the time on class action files and the fact that the Merchant Law Group has incurred time on combination of class action files and individual files. 3) If the Federal Representative is not satisfied as described in 2) above, he and the Merchant Law Group shall make all reasonable efforts to agree to another amount to be paid to the Merchant Law Group for legal fees. 4) If the Federal Representative and the Merchant Law Group cannot agree as described in 3) above, the amount to be paid to the Merchant Law Group for legal fees shall be determined through binding arbitration, but that amount shall in no event be more than $40 million or less than $25 million. The arbitration shall be by single arbitrator who shall be retired judge: [10] When the final Settlement Agreement (the “SA”) was executed on May 8, 2006, it made provision for the determination of the legal fees payable to MLG as follows: (2) The fees of the Merchant Law Group will be determined in accordance with the provisions of the Agreement in Principle executed November 20, 2005, and the Agreement between Canada and the Merchant Law Group respecting verification of legal fees dated November 20, 2005 attached hereto as Schedule ‘V’, except that the determination described in paragraph of the latter Agreement, will be made by Justice Ball, or, if he is not available, another Justice of the Court of Queen’s Bench of Saskatchewan, rather than by an arbitrator. (4) In the event that the Federal Representative and either the National Consortium or the Merchant Law Group cannot agree on the amount payable for reasonable disbursements incurred up to and including November 20, 2005, under s. 13.08(1) of this Agreement, the Federal Representative will refer the matter to: (b) The Saskatchewan Court of Queen’s Bench, or an official designated by it, if the matter involves the Merchant Law Group; to fix such amount. ... All legal fees payable under Section 13.08 will be paid no later than 60 days after the Implementation Date. Schedule which was attached to the SA was identical to the VA. [11] The parties see the implementation of the VA as at Step (para. of the VA) with MLG arguing it has satisfied its obligations to make its records available for review and verification by Canada’s auditors (“Deloitte”) and the auditors must now file its report and, as agreed upon, send copy of its report to MLG. Having completed Step 1, according to MLG, once MLG receives the auditors’ report the parties can commence negotiating settlement (Step 2) and failing an agreement, pursue trial determination. Canada says MLG has not completed Step of the verification process. The Administrative Judge agreed and made the impugned order. II. BACKGROUND TO THE IMPUGNED ORDER [12] Earlier in the process an issue arose with regard to the need to protect solicitor client privilege during the review of MLG’s files and records. In the Administrative Judge’s order of July 2, 2008 he directed the parties to determine how verification process could be completed without breaching solicitor client privilege. protocol was established and MLG retained ESI which was able to develop the redacted electronic billing records with the solicitor client privileged information removed. MLG had been using ESI software for its own electronic billing program. [13] The governing protocol contained the following definitions: “Settlement Agreement” means the May 10, 2006 Settlement Agreement approved by the court in this proceeding. “Client Files” means the records and documents, in hard-copy and electronic form, which comprise all of MLG’s work product for which MLG claims fees and disbursements pursuant to Article 13.08(2) of the Settlement Agreement. “Electronic Billing Records” means MLG’s electronic billing records relating to the Client Files. “Redacted Electronic Billing Records” means the Electronic Billing Records from which information that is solicitor-client privileged, as specified in this order, has been removed. [14] It is to be noted the electronic billing records which were to be provided by MLG were the electronic billing records relating to the files which “comprise all of MLG’s work product for which MLG claims fees and disbursements …”. [emphasis added] [15] In September of 2010 MLG delivered the redacted electronic billing records. The second part of the verification process, which was physical file review at MLG’s offices, was scheduled for April 2011. Shortly before the commencement of the physical review, Canada learned the redacted electronic billing records which had been produced were not accurate. [16] The Administrative Judge explained the issue in his February 8, 2012 fiat: On April 6, 2011, counsel for MLG wrote letter to counsel for Canada in which it raised the issue which then gave rise to the application for directions currently before the Court. In this letter, counsel for MLG stated: This issue of different effective dates for consideration, and MLG’s preparation for the April audit has caused MLG to identify time entries on some of the files which the firm will not seek to bill or appear to be misdescribed. MLG may update or amend residential school accounts and continues to amend time recorded on its files as required. In the result, the Esilaw data provided by MLG to your client will not entirely match live data or future submissions. Counsel for Canada took exception to this letter and in responding letter of April 7, 2011, questioned whether the electronic billing records provided were in compliance with the Court’s December 30, 2009 order if further amendments would be required. Further correspondence ensued between the parties in which counsel for MLG stated that MLG had complied with the order, but that it could further update or amend such records subject to its final account. [17] Canada would later learn, as it sought to determine how many entries were “misdescribed” or for which MLG would “not seek to bill”, that 57,468 entries were inaccurate or for which MLG was not seeking to bill which totalled approximately $4 million in fees. [18] MLG’s response was to provide additional information in format which could not be reconciled with the initial redacted data prepared by ESI. MLG is now using different software from different supplier for its internal billing. Canada’s auditors said that significant number of the entries and deletions provided by MLG could not be reconciled with the redacted electronic billing records created by ESI. [19] However, MLG says it cannot now use ESI because they are in dispute over an account of approximately $9,100 and ESI will not assist MLG with any work until the account is paid. [20] MLG advised the Administrative Judge that it could not provide the now requested information in form which could be reconciled with the earlier data relying on advice from its internal technology personnel. [21] Canada contacted ESI which responded by an e-mail stating it believed it could reconcile the information. It was, of course, the software provider which came up with the earlier solution to protect solicitor client privilege. [22] This impasse, with Canada seeking the information to reconcile the data it had received and MLG saying it has complied with Step of the verification process and demanding that Canada’s auditors now prepare and forward its report so the parties can proceed to Step 2, led each party to make an application for directions. As stated earlier, the Administrative Judge’s order is the basis for the leave application now before me. [23] The Administrative Judge said it appeared that both parties agreed there was need for one comprehensive database for the purpose of the verification process. He was satisfied, based on the information before him, it was possible for ESI to provide the information which was necessary to allow Canada’s auditors to continue with the verification process. He said the dispute between ESI and MLG over the accounts from previous work done by ESI for MLG should not be allowed to prevent this from happening. He suggested there were avenues which MLG could take to allow ESI to proceed. He ordered: 17 (1) That MLG contact ESI Software, Inc. and arrange for ESI to re-create the redacted electronic billing records as whole from the “live data” for the residential schools litigation. This arrangement should be in accordance with the proposed directions attached as Appendix to my fiat of December 30, 2009, with such further terms as the parties may agree to. Upon creation of the redacted electronic billing records, copy shall be delivered to Canada and/or its agent Deloitte so that it might complete the audit required for the verification process. III. POSITIONS OF THE PARTIES A. THE PROSPECTIVE APPELLANT [24] MLG argues the Administrative Judge exceeded his jurisdiction by requiring MLG to pay the disputed account of non-party relating to matters wholly unconnected to the action. Further, he did so on his own motion without notice and either without evidence, or on evidence not properly before him. MLG argues judge performing an administrative function pursuant to contract cannot order party to pay disputed account without due process as precondition to achieving the balance of his directions. It argues that to allow such an overreaching authority substantially enlarges and changes the law of contract interpretation and could affect the thousands of pending Indian Residential School compensation applications which are being dealt with under the overall rubric of the IRS settlement. It says the order was, in substance, mandatory injunction. [25] MLG takes issue with the Administrative Judge’s finding both parties agreed there was need for common database. MLG says it is not their position and that Canada’s auditors have enough information to prepare its report. [26] MLG further argues the Administrative Judge based his decision on e-mails which were not evidence. This, it continues, is an error of law and the Administrative Judge was incorrect. The document referred to on this issue is copy of letter to ESI and an e-mail response referred to in para. 11 of the Administrative Judge’s fiat. These were attached to an affidavit deposed by legal secretary for the law firm acting for Canada. This is the only information the Administrative Judge had which indicated ESI could do the work proposed and it should not have been admitted. MLG argues it is “extremely important to the profession and to the administration of law generally that judges adhere to rules of evidence in hearing and determining disputes between parties” (para. 76, Brief of Law). If not addressed this establishes an important precedent. [27] MLG goes on to say the impugned order added further terms and requirements to his order dated February 8, 2012 and this constituted, in effect, an appeal of his prior order which was of itself unsound and extended beyond what Step of the verification process required of MLG. The Administrative Judge’s actions constitute, in effect, litigation by instalment. [28] Finally, MLG says the Administrative Judge erred in failing to require Deloitte to complete its report and then requiring Canada to deliver the report to MLG; further erred in concluding MLG had not complied with the February 8, 2012 order by delivering the redacted electronic billing records to Canada; and finally, erred by failing to conclude the process set out in para. of Schedule was completed. B. THE PROSPECTIVE RESPONDENT [29] Canada says MLG’s overall position is that Canada has been delaying the verification process while MLG has been diligent in complying with it. It says the exact opposite is happening. [30] MLG agreed to the verification process and in his July 2, 2008 fiat the Administrative Judge specifically set out what was required of MLG in order to allow Canada to calculate the fees payable to MLG. It says fundamental premise of the verification process was that MLG would “provide firm and final representation of what work product MLG says supports its claim for $40 million in fees” (para. 13, Memorandum of Argument). This requirement was set out in the earlier referred to definition of “Redacted Electronic Billing Records” as set out in the order of December 30, 2009. Further, MLG was ordered to provide accurate information in the fiat of February 8, 2012. [31] As result of that order, MLG produced 1,270 page hardcopy list of the 57,468 time entries to be deleted or changed which Canada estimated to approximate $4 million in unwarranted time. That information was provided in different format from that of the original redacted electronic billing records. MLG has made it impossible to reconcile the latter information with the records previously supplied. Any allegations of delay by MLG are simply unfounded and in applying the test for the granting of leave, the Administrative Judge made discretionary order clearly within his jurisdiction. [32] Contrary to the argument of MLG, the Administrative Judge did not err by requiring MLG to pay the alleged accounts of ESI without sufficient information and without due process. In fact, clear reading of the fiat was direction which simply required MLG to provide the redacted electronic billing records as required by the order of December 30, 2009. Given the mandate to attempt to get verification of MLG’s accounts, the Administrative Judge was not going to allow relatively small bill to stand in the way. The Judge simply made suggestion as to how MLG should deal with the matter. [33] With regard to the alleged error in finding MLG agreed with Canada that there was need for one comprehensive database for the purpose of completing Step of Schedule V, in fact it was MLG which stated in its Prayer For Relief in the Request for Directions application that there should be one database. The order sought by MLG required the Government to immediately deliver copy of the auditors’ report to MLG with any supporting data which should include “inter alia, the merger of MLG’s revised billing data with the redacted electronic billing data provided to Deloitte by ESI Software Inc. (“ESI”) prior to Deloitte’s physical inspection of MLG’s files”. Further, the judge only stated there “appeared” to be an agreement on this point, this does not constitute firm finding on the point. In any event, it was not necessary for his decision. [34] With regard to the issue of hearsay evidence, such evidence has been tendered during the course of the process. Indeed MLG tendered the hearsay evidence of its Executive Director. Further, the judge did not need to rely on the evidence in any event because it was clear ESI could accomplish the required task because it had already done so. [35] Replying to MLG’s argument that the Administrative Judge erred by adding further terms and requirements to his previously issued order dated February 8, 2012; and that MLG had complied with that order because the order did not specify the form of revisions and it was therefore open to MLG to provide new information in format which could not be reconciled with previous data, it is clear, says Canada, that at the time of the February 8, 2012 order neither Canada nor the court had any idea there were some 57,000 time entries which were misdescribed or would not form part of the claim. If it had been known at the time of that order, it is very likely the order would have specified that the new data should be compatible with data previously provided. Further, it is open in the process for the court to give further directions from time to time to ensure that the process is properly concluded. [36] Finally, there was no error by failing to require Deloitte to complete its report and order the report delivered to MLG. It was open to the Administrative Judge to find that Step of the verification process was not yet completed and Deloitte cannot complete its report without the reconciled electronic billing data. [37] In summary, it says this was discretionary order procedural in nature and each of the grounds of MLG is bound to fail. An appeal will unduly delay the proceedings and will unnecessarily add to the cost of proceedings. There are no issues of importance to the administration of justice to warrant consideration by the Court. Decision [38] I am in agreement with the argument of the prospective respondent and leave to appeal is denied. The order appealed from was simply a discretionary order designed to move the verification process along and ensure the process meets its overall objective of determining if the amount of MLG’s fee is reasonable and equitable. This is precisely what the Administrative Judge is required to do. The prospective appellant is overstating the effect of the order. The Administrative Judge could simply have ordered MLG to supply the new information in form that is compatible with the redacted electronic billing records. He was obviously attempting to be helpful by suggesting to MLG what it might do to resolve its issue with ESI and obtain the compatible electronic records. He was correct to not allow such small monetary dispute to stand in the way of multimillion dollar claim. do not see this issue warranting the attention of the Court. [39] The Administrative Judge made no error when he said the parties were agreed on common database because that is exactly what MLG requested in its Prayer for Relief. Further, see no issue of importance requiring the attention of the Court on the issue of the evidence or information upon which the Administrative Judge relied. Both parties relied on hearsay evidence and an application for directions is simply an informal procedural step to ensure the verification process moves along. [40] The prospective appellant fails to establish there is a matter of sufficient importance to the proceedings before the Court, or to the field of practice or the state of law, or to the administration of justice generally to warrant a determination by the Court. [41] agree with the prospective respondent an appeal will further delay and add to the cost of proceedings. [42] Leave to appeal is denied. The prospective respondent shall have its costs in the usual manner. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of March, 2013. “Lane J.A.”

The prospective appellant applied to leave to appeal an order made in Chambers. The Merchant Law Group and the Crown had been involved in protracted negotiations regarding the manner in which Merchant would bill the Crown for legal fees regarding their representation of Indian residential school claimants. The parties eventually reached a 'Verification Agreement', respecting the verification of Merchant's legal fees and disbursements. In order to protect solicitor-client privilege, Merchant's software company was able to develop redacted electronic billing records with the privileged information removed. When Merchant did submit a bill, it was discovered that the electronic billing records were inaccurate. The parties then became involved in a dispute regarding the Merchant's obligations under the Agreement. They had each made an application to a Chambers judge acting in his capacity as an administrative judge for the purposes of the Agreement for directions. The judge ordered (see: 2012 SKQB 517) that Merchant should contact its former software company and arrange for them to re-create the redacted electronic billing records as a whole from the 'live data' in the appellant's present billing program. Before the software company would perform this task, the Court ordered Merchant to pay the outstanding fees. Merchant had disputed these fees and had refused to pay them. Merchant took the position that the administrative judge had exceeded his jurisdiction by requiring the law firm to make this payment: the judge had over-reached his authority. In addition, the judge had based his decision on emails that were not evidence.HELD: The Court noted that leave to appeal under Court of Appeal Rule 11 is granted in accordance with the criteria established in Rothmans, Benson & Hedges Inc. v. Saskatchewan. Leave to appeal was denied. The order appealed from was simply a discretionary order designed to move the verification process along and ensure the process met its overall objective of determining if the amount of Merchant's fee was reasonable and equitable. The prospective appellant failed to establish that there was a matter of sufficient importance to the proceedings or to the field of practice, the state of law or the administration of justice to warrant a determination by the Court.

d_2013skca22.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 013 Date: January 18, 2011 Information: 24292040 Location: Moosomin Between: Her Majesty the Queen and Lee Charron Appearing: Mr. Barrie Stricker For the Crown Mr. Gary Moore For the Accused DECISION ON CHARTER APPLICATION R. GREEN, [1] Mr. Charron is charged with operating or with being in the care or control of a vehicle while impaired by alcohol on August 25, 2009, at Rocanville. Count number two on the information operating or being in care or control of vehicle over .08 was dismissed by me upon the defence application for nonsuit. [2] During the testimony of Cst. Pshyk, the final Crown witness, an issue arose about whether the defence had been provided with full disclosure by the Crown. As a result, Mr. Charron then applied to the Court, pursuant to s. 24(1) and 24(2) of the Charter, for a variety of remedies, which include a stay of the impaired driving charge, an order for a mistrial on that count, a direction that Mr. Moore be allowed to further cross-examine Crown witnesses and an order excluding evidence. In making this application, the defence asserts a breach of Mr. Charron’s right to make full answer and defence under s. 7 of the Charter as a result of a lack of full disclosure. [3] Upon Mr. Charron being charged Mr. Moore requested and received disclosure from Cst. Granrude of the Moosomin RCMP, who at that time was acting as the agent of the Crown. That disclosure included two Intoxilyzer 5000C Operational Checkseets (Exhibit D-1 and D-2). Both of these sheets, as received by Mr. Moore, did not have section entitled Observations on Subject or section for the technician’s name. These sections, which appear at the bottom of the original documents (Exhibit P-2 and P-3), were cut off in the process of photocopying. Mr. Stricker, the prosecutor, as well received the cut off versions of the Checksheets in his information package from the police, but had access to the original Checksheets at the trial and tendered one original as Exhibit P-2 during the re-direct examination of Cst. Pshyk. [4] The two areas of testimony at the trial which are relevant to this defence application are: (1) During the Crown’s case, Cst. Granrude testified about his observations of Mr. Charron after his arrest and at the RCMP detachment; and (2) Later in the Crown’s case, the Intoxilyzer technician Cst. Pshyk testified about his observations of Mr. Charron at the scene of the stop and, subsequently, at the detachment. On direct examination Cst. Pshyk made no reference to slurred speech by Mr. Charron. On cross-examination, when that was pointed out to him by Mr. Moore, Cst. Pshyk said he could not recall if Mr. Charron had slurred speech. On redirect examination, when shown his original Intoxilyzer 5000C Operational Checksheet by the prosecutor (Exhibit P-2), Cst. Pshyk responded to the prosecutor’s question “Does it list or not list slurred speech?” by saying “It says slurred speech”. [5] In his notice under the Constitutional Questions Act Mr. Moores asserts that Mr. Charron’s rights under s. had been infringed by lack of full disclosure. He said this deficiency came about because: (1) Cst. Granrude’s notes and General Occurrence Report provided to the defence did not disclose observations about Mr. Charron’s condition at the detachment that Cst. Granrude described in his testimony at the trial; and (2) The Operational Checksheet provided to the defence (Exhibit D-1) did not contain notations under the heading of Observations on Subject that included the words “slurred speech” and “two beer started around 2100", as was contained in the original Checksheet which was filed by the Crown as Exhibit P-2 during the re-direct examination of Cst. Pshyk. [6] Section 24(1) of the Charter allows person whose rights under the Charter have been infringed to apply to court to obtain remedy which the court considers appropriate and just in the circumstances. Section of the Charter protects Mr. Charron’s right to be make full answer and defence. In order for him to do so, the Crown must provide an accused person with complete and timely disclosure (R. v. Bjelland, 2009 SCC 38 (CanLII), [2009] S.C.R. 651, at para. 20). failure to provide full disclosure, however, does not necessary constitute violation of s. 7, as an accused person must generally show “actual prejudice” of his ability to make full answer and defence in order to be entitled to remedy under s. 24(1) of the Charter (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] S.C.R. 411 at para. 74). [7] Dealing first with the disclosure concern regarding Cst. Granrude, am satisfied, based on this officer’s testimony, that he did not make any notation in his notes or in his General Occurrence Report about his observations of Mr. Charron’s condition at the detachment. As result, am not satisfied there was any failure to provide disclosure, or any breach of Mr. Charron’s s. rights, related to this concern. [8] The second disclosure concern, however, related to the undisclosed bottom portion of the Checksheet, stands in different light. In this trial, Mr. Moore did not know the full content of the Operational Checksheet until after he had completed his cross-examination of the author of the document, Cst. Pshyk. Had he known of the reference to slurred speech in that original document, under the heading Observations on Subject, I am satisfied that Mr. Moore would not have challenged Cst. Pshyk on his failure to made mention that Mr. Charron’s speech was slurred. That is because, had he known the full contents of the original check sheet, he would have known that such a question would have inevitably drawn the re-direct examination which occurred in this case. In the context of how and when the failure in disclosure came to light in this trial, I am satisfied that Mr. Charron suffered actual prejudice in his right to make full answer and defence. As a result, I am satisfied on a balance of probabilities that his rights under s. 7 were infringed. [9] Mr. Moore acknowledged in argument, despite its mention in his notice, that this was not one of the clearest of cases that would justify judicial stay of the impaired driving charge (see L'Heureux-Dube J. at page 37 and 38 of R. v. O’Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) (S.C.C.)). agree that this is not such case to justify judicial stay, nor do find mistrial to be the appropriate remedy. [10] In Bjelland (supra at para. 24), the Supreme Court stated that judge should only exclude evidence for late disclosure, under s. 24(1), “in exceptional cases: (a) where the late disclosure renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order or (b) where exclusion is necessary to maintain the integrity of the justice system”. [11] This is not a case where I find bad faith was the cause of the lack of disclosure on the part of either Cst. Granrude or Mr. Stricker. am satisfied that the officer inadvertently failed to copy the full extent of the Operational Chechsheets, and that the incomplete copy went to both the defence lawyer and the Crown prosecutor. That said, I am further satisfied that the prosecutor referred to the original Checksheet during Cst. Pshyk’s re-direct testimony and introduced the Checksheet into evidence (Exhibit P-2) without taking sufficient time and care to ensure that the original was what he had in his file and what had been disclosed to the defence. [12] Taken together, what occurred here is in my view an exceptional case. The lack of full disclosure on what was a critical point in this case, and the time at which this failure was discovered, rendered this trial to be unfair in a way that I am not satisfied can be remedied through an adjournment and a disclosure order. The evidence that resulted from this breach was of questionable probity, as Cst. Pshyk never did testify to recalling slurred speech by Mr. Charron at the detachment, but only that his Checksheet referred to this. Nevertheless, in effect, question that never would have been asked with full disclosure was asked, and the response by the Crown became part of the evidence at this trial. As result, view the appropriate remedy to be exclusion of the evidence which flowed from the breach of Mr. Charron’s right to make full answer and defence under s. 7. [13] I order, pursuant to s. 24(1), that the Operational Checksheets (Exhibits P-2, P-3, D1 and D2) and any reference to Exhibit P-2 in the re-direct examination of Cst. Psych be excluded from evidence at this trial. [14] Given my decision on the application under s. 24(1), there is no need to consider the s. 24(2) application. As the Crown has completed its case, we will now proceed with the defence case, as Mr. Moore has indicated that defence intends to call evidence at this trial.

The accused was charged with impaired care or control. The Court dismissed the charge of care or control over .08 after a non-suit application. During re-examination of the final Crown witness, and after the defence had concluded its cross-examination of the witness, it became apparent that the disclosure package given to both the Crown and Defence did not include the bottom portion of the Intoxilizer Operator's Checklist because it had been cut off during photocopying. During the defence cross-examination, the officer testified that he could not recall if the accused had slurred speech. In re-direct, the Crown showed the officer the original Intoxilizer Operator's Checklist and the officer confirmed that it listed slurred speech in the observations section. The accused applied for relief under s. 24(1) of the Charter alleging a breach of his right to make full answer and defence. HELD: The defence lawyer did not know the full content of the Intoxilizer Operator's Checksheet until after he had completed his cross-examination of the author of the document. The Court was satisfied that if the defence lawyer had been aware of what was noted in the document, he would not have challenged the officer on his failure to mention that the accused's speech was slurred because he would have been able to predict that such a question would result in re-direct by the Crown. The accused suffered actual prejudice in his right to make full answer and defence and a breach of s. 7 is made out. While the Court cannot attribute bad faith to either the RCMP or the Crown, the Court was satisfied that the prosecutor referred to the original checksheet during its re-examination of the officer without taking sufficient time and care to ensure that the original was what had been disclosed to the Crown and Defence. This is an exceptional case where the lack of full disclosure and the time at which it was discovered rendered the trial unfair in a way that can only be remedied by excluding the evidence under s. 24(1).

4_2011skpc13.txt

Court of Appeal for Saskatchewan Docket: CACV2923 Citation: Walker Bank of Montreal, 42 Date: 2017-06-08 Between: John Alphonse Walker and Rachael Doris Walker Appellants (Defendants) And Bank of Montreal Respondent (Plaintiff) Before: Jackson and Herauf JJ.A. and Wilkinson J. (ad hoc) Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Herauf In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Wilkinson On Appeal From: QBG 215/13, Prince Albert Appeal Heard: November 15, 2016 Counsel: Bernie Kopera for John Alphonse Walker No one appearing for Rachael Doris Walker Collin Hirschfeld, Q.C., for the Respondent Herauf J.A. I. Introduction [1] This appeal concerns the application of s. of The Limitation of Civil Rights Act, RSS 1978, L-16 [LCRA], in relation to motion for deficiency judgment by the respondent bank. [2] The main issue relates to how the proceeds of sale of property by judicial listing should be applied against mortgage balance when there are both purchase money and non-purchase money balances. The determination of this issue will resolve the correct amount of the deficiency judgment and involves consideration of two prior decisions of this Court, namely, Bank of Montreal Hrynewich Holdings Ltd. (1989), 1989 CanLII 4737 (SK CA), 79 Sask 134 (CA) [Hrynewich Holdings], and Farm Credit Canada Andrew, 2006 SKCA 31 (CanLII), 265 DLR (4th) 651 [Andrew (CA)]. It also requires review of these decisions to ascertain whether or not the conclusion reached in Andrew (CA) is contrary to that reached in Hrynewich Holdings. [3] The appellants granted residential mortgage in favour of the respondent on January 10, 2011, securing loan in the amount of $460,800.00. This loan was consolidation of existing debt. Part of the debt was the balance of $373,089.00 owed on an original loan, which had enabled the appellants to purchase the land. The remaining $87,711.00 was non-purchase money financing approved by the respondent. The appellants fell into default and the respondent commenced foreclosure proceedings. At that time, the balance owed had grown to $536,186.72. The property was sold through judicial listing orders and the net sale proceeds were paid to the respondent. However, these proceeds were not sufficient to satisfy the loan. The respondent then sought an order entitling it to the deficiency. [4] The Chambers judge considered s. 2 of the LCRA and held that the amount of the deficiency judgement should be $162,675.99. This amount was calculated as follows: $536,186.72 total amount owed to March 23, 2016 ($372,444.01) amount paid out of court (sale proceeds) ($ 1,066.72) amount of remaining LCRA protection $162,675.99 balance owed and amount of deficiency judgment III. issues [5] There are two issues to determine: a) how should the proceeds of the sale be applied against the mortgage balance, and b) what is the proper amount of the deficiency judgment? will deal with each issue in turn. A. How should the proceeds of the sale be applied against the mortgage balance? 1. The Limitation of Civil Rights Act [6] The issue on appeal revolves around s. of the LCRA. The section reads: Action on personal covenant prohibited in certain cases 2(1) Where land is hereafter sold under an agreement for sale in writing, or mortgaged whether by legal or equitable mortgage for the purpose of securing the purchase price or part of the purchase price of the land affected, or where mortgage is hereafter given as collateral security for the purchase price or part of the purchase price of land, the vendor’s or mortgagee’s right to recover the unpaid balance due shall be restricted to the land sold or mortgaged and to cancellation of the agreement for sale or foreclosure of the mortgage or sale of the property, and no action shall lie on the covenant for payment contained in the agreement for sale or mortgage. 2. Purpose of s. [7] The LCRA is one of Saskatchewan’s depression-era Acts designed to protect debtors (i.e. farmers) during time of stagnant growth and poor markets. As stated by Professor Ronald C.C. Cuming, the overarching objective of the LCRA was the “minimization of the economic effects of default by debtors, who undertook debt obligations in the purchase of land or machinery, by protecting their unencumbered assets from enforcement of money judgments for deficiency claims until economic conditions improved” (Ronald C.C. Cuming, “Section 18 of the Saskatchewan Limitation of Civil Rights Act: Good Idea or Troublesome Relic?” (2014) 78 Sask Law Rev at 4). [8] Section 2, which limits mortgagee’s remedy to the property and protects an individual mortgagor from being personally liable on any deficiency, is one of the mechanisms enacted in furtherance of the LCRA’s overarching objective. As noted by the Supreme Court of Canada in National Trust Co. Mead, 1990 CanLII 73 (SCC), [1990] SCR 410, this section is important because “[i]ndividuals usually take out mortgages to secure residential houses or farms,” “[t]heir home is typically the largest single asset they have,” and “once that is lost the individual in many instances has little else to seize and imposing the additional burden of personal liability would be onerous and perhaps futile” (at 422). [9] Professor Cuming has also discussed the policy objective of s. 2: The policy objective of section is to protect non-corporate person who has entered into loan contract providing for mortgage on the land being purchased with the proceeds of the loan from liability in excess of the value of the land. In National Trust Mead the Supreme Court of Canada recognized the public policy basis of the section and gave broad interpretation to its provisions consistent with this policy. Viewed in its historic context, it would appear that the legislative objective was to preclude purchasers of land from being subject to large judgments that could be enforced through seizure and sale of other property of the mortgagors (most likely, unencumbered farm land or machinery). [Footnotes omitted] Ronald C.C. Cuming Q.C., Overview of Saskatchewan Real Property Security Law, (Regina: Queen’s Printer, 2016) at 10-2 to 10-3. [10] Finally, this Court has spoken on the historical background of depression-era legislation in Lozinski Mayoh and Mayoh (1984), 1984 CanLII 2579 (SK CA), 32 Sask 312 (CA) [Lozinski]: [11] During the “Great Depression of the Thirties” and for some years following, purchasers and mortgagors in this province were visited with series of misfortunes over which they had no control economic stagnation with its elements of drought, depressed prices for primary products and massive unemployment. With no legislative protection from creditors, property owners, both urban and rural, faced the prospect of losing their homes and their potential source of livelihood from farming and other occupations. Some were in fact forced from their homes to join the ranks of the itinerant or migratory unemployed. The legislature finally intervened to stem this tide and extended protection to prevent further disaster at the hands of aggressive financial institutions and creditors. “New Deal” legislation was not confined to the United States of America. Our legislature introduced and passed numerous legislative programs to grapple with the perils of the depression and its aftermath Even though the referenced legislation at issue in Lozinski was The Land Contracts (Actions) Act, RSS 1978, L-3, it is instructive when interpreting the spirit and intent of s. of the LCRA. 3. Applicable Case Law and Analysis [11] The Chambers judge was correct when he considered Hrynewich Holdings to be the controlling authority in this case. Hrynewich Holdings dealt with circumstances similar to the case at hand. Hrynewich Holdings Ltd. granted mortgage to the Bank of Montreal following consolidation of debts that included purchase money mortgage debt. The new consolidated loan principal amount was $345,000.00. This amount was made up of: (a) the balance owed on the purchase money mortgage: $158,707.00; and (b) the balance owed on non-purchase money debt: $186,293.00. [12] As of the time of trial, the debt owing under this mortgage was $609,458.00. This amount was made up of: (a) the original principal: $345,000.00; (b) arrears of interest: $255,065.78; and (c) arrears of taxes: $9,393.52. [13] This Court held that where there is consolidation of purchase money and non-purchase money mortgage debt, the protection of s. of the LCRA continues to apply but only to that portion of the mortgage loan that was given to secure the purchase price of land (at para 6). Therefore, the Court stated that the benefit of s. should apply to the purchase money debt balance ($158,707.00) but not apply to the remaining non-purchase money debt balance ($186,293.00). The Court then remitted the matter to the court below for the purpose of “fixing the amount of the mortgage subject to s. of The Limitation of Civil Rights Act, the prorating of the value of land to that portion of the debt subject to the said s. …” (at para 8). [14] When the matter was returned to Queen’s Bench, the Chambers judge issued the following fiat: take the “value of the land” to be the sale price and take the Court of Appeal judgment to mean that the sale price is to be divided and applied proportionately between the amount of the debt represented by the prior mortgage and the amount represented by later advances. It follows then that because the portion of the loan attributable to the purchase price of land represented forty-six percent of the total, the sale price should be divided and applied accordingly. That is, forty-six percent ($105,100) is to be applied to the debt represented by the prior mortgage, and fifty-four percent ($123,400) is to be applied to the remainder. The deficiency can then be calculated by reducing the total amount outstanding by forty-six percent and deducting from the resulting figure the further sum of $123,400. The formula will look like this. $717,275-(46/100x717,275)-123,400=$263,928.50 These figures must, of course, be adjusted to reflect interest which accrued between April 3, 1990, and the date of the sale, the expenses of the sale, and the costs of the action. [15] It is obvious from this fiat that the Chambers judge, in the calculation of the deficiency judgment, pro-rated the calculation pursuant to the percentage owing on both the purchase money and non-purchase money balances. The fiat is in accord with the direction from this Court when it remitted the matter to Queen’s Bench. [16] The other relevant decision from this Court is Andrew (CA). In that case, this Court considered the deficiency calculation conducted by Kyle J. in Farm Credit Canada Andrew, 2005 SKQB 197 (CanLII), 266 Sask 187 [Andrew (QB)], in relation to s. 25 of The Saskatchewan Farm Security Act, SS 1988-89, S-17.1.[1] In that case, loan in the amount of $93,700.00 was given by Farm Credit Canada (FCC) to Mr. Andrew in 1981. Of this amount, $60,000.00 was used to finance land purchase and the remaining $33,700.00 was used to pay off existing debt held by Mr. Andrew. The loan was secured by mortgage granted to FCC in relation to the land purchased and another quarter section of land already owned by Mr. Andrew. In 2000, Mr. Andrew sold the land he had purchased with part of the loan for $48,000.00 and applied the proceeds against the debt, reducing the debt from $104,280.00 to $56,280.00. [17] In his deficiency calculation, Kyle J., without reference to Hrynewich Holdings, found the portion of the loan attributable to the purchase of the land was 64.03% ($60,000.00 $93,700.00). In 2000, when the land was sold, Kyle J. held that the balance of the loan attributable to the purchase of land was $66,770.48 ($104,280.00 64.03%). The $48,000.00 in proceeds from the sale went against this portion of the loan, leaving balance attributable to the purchase of land of $18,770.48. Justice Kyle then found the proceeds of the other security covered by the mortgage may be credited against the purchase money balance. When that balance (which includes accrued interest) had been exhausted, Kyle J. stated that the s. 25 protection would no longer apply and the mortgagee can then sue on the non-purchase money portion of the debt. Reference can be made to the portions of the judgement of Kyle J. that are relevant: [10] Under the provisions of The Saskatchewan Farm Security Act the right of lender to recover the unpaid balance of mortgage securing the purchase price of farmland is restricted to the land to which the mortgage or agreement relates as well as to any collateral security including guarantee. Where mortgage secures the purchase price of land as well as indebtedness incurred for other purposes the lender is entitled, after identifying the share of the loan applicable to purchase money, to credit all of the proceeds of security against the balance then owing in respect of the purchase of land. [11] In the case at bar that would mean that the original percentage of the total loan applicable to the purchased land, 64.03%, might be reduced by the realization of any security. [13] When other security covered by the mortgage is realized the proceeds may be credited against the remaining purchase balance. When that purchase balance has been fully met, with accrued interest, the protection accorded by the Act will no longer be factor and the personal covenant will be enforceable to retire the remaining loan. If all security is realized and the purchase balance plus accrued interest has not been fully met, the lender will sustain loss to the extent of the remaining purchase balance (absent some third party guarantee). Inherent in this approach is the fact that the borrower will not be exposed to any claim on the personal covenant which exceeds 35.97% of the original loan principal plus accrued interest with all regular payments on the loan having been credited against the principal and interest owing on the entire loan at the time they were made. [Emphasis added] [18] Justice Kyle’s decision clearly indicates that the lender is entitled to apply the realized security proceeds to the purchase money balance first. [19] Mr. Andrew appealed the decision and sought determination as to the extent to which s. 25 of The Saskatchewan Farm Security Act protects the debtor from an action on the personal covenant to pay the unpaid balance owing for mortgage taken in part to secure the purchase price of farmland. In his factum, Mr. Andrew argued Hrynewich Holdings held that the lender can only sue on the portion of the balance owing that is greater than the original purchase money mortgage balance. Since, at the time of trial, the balance of the mortgage was $37,490.30 and the original purchase money amount was $60,000.00, the lender was precluded from suing for the balance. In the alternative, Mr. Andrew argued that any deficiency claim should be limited to the portion of any shortfall to which the original purchase money advanced related to the initial funds advanced. Essentially, Mr. Andrew argued that the proceeds should be applied to the non-purchase money balance first or, in the alternative, the proceeds should be distributed between the two portions on pro rata basis. [20] The respondent, FCC, argued the trial judge was correct and that it was entitled to rely upon the land it held as security to recover the purchase money portion of the loan and then pursue Mr. Andrew on his personal liability to pay the non-purchase money portion. FCC stated that s. 25 of The Saskatchewan Farm Security Act was not intended to give the mortgagor immunity from liability for the portion of the indebtedness that was not purchase money funds, and nothing in the section requires mortgagee to treat its security as securing pro-rated amounts of the purchase money and non-purchase money portions of the debt. [21] In considering the appeal, this Court described the decision of Kyle J. as holding that the lender can apply the proceeds of sale against the balance owing on the portion of the loan applicable to the purchase money mortgage and then sue for the balance: [7] Mr. Justice Kyle found that where mortgage secures the purchase price of land as well as indebtedness incurred for other purposes, the lender can, after identifying the portion of the loan applicable to the purchase money mortgage, apply the proceeds realized against the balance owing on the purchase of the land and sue for the balance. [8] He found that the portion of the loan attributable to the purchase of the land was 64.03% or $66,770.48. The NW 22-8-10 W3 sold for $48,000 and was credited against the $66,770.48 leaving balance of $18,770.48. [9] He found that when the other security covered by the mortgage is realized, the proceeds may be credited against the balance of the purchase money balance and when the purchase money balance together with all accrued interest has been fully met, the protection afforded by s. 25 will no longer apply. The mortgagee can therefore sue on the covenant for the balance owing, which represents the non-purchase money portion of the debt. [10] In an order dated June 14, 2005, Kyle J. concluded that given that the sale proceeds of the SE 20-9-10 W3 of $35,419.32 exceeded the balance of the purchase money of the loan, s. 25 of the Act did not prohibit FCC from suing on the covenant and FCC was entitled to judgment in the amount of $37,490.30 as at February 2, 2005 together with interest at 12.75% until April 25, 2005. [22] This Court agreed with the analysis of Kyle J. stating that “Mr. Justice Kyle correctly set out the principles to apply in establishing the amount of the loan that was not advanced to purchase land and in determining the amount that was not subject to the protection of s. 25 of the [Saskatchewan Farm Security] Act” (Andrew (CA) at para 15). Therefore, the appeal was dismissed. [23] It is obvious that this Court’s endorsement of Andrew (QB) is at odds with its previous ruling in Hrynewich Holdings. There was no indication in Hrynewich Holdings that sale proceeds were to be applied to the purchase money debt first. As noted in the previous references to Hrynewich Holdings, the direction was to simply pro-rate the proceeds to purchase money and non-purchase money percentages to ascertain the amount of the deficiency judgment. [24] In my view, the decision in Andrew (CA) was made per incuriam. Reference can be made to this Court’s decisions in Hawrish (1986), 1986 CanLII 3208 (SK CA), 32 CCC (3d) 446 (Sask CA) at 455–456, and Grumbo (1998), 1998 CanLII 12345 (SK CA), 159 DLR (4th) 577 (Sask CA) at para 21, for an explanation of per incuriam. [25] Simply put, decision is one made per incuriam if the following conditions are met: (a) the panel deciding the case did not advert to judicial or statutory authority binding on it; and (b) had the panel considered this authority, it would have decided the case differently. [26] The finding that the decision in Andrew (CA) was made per incuriam is somewhat unusual in these circumstances, as this Court did avert in Andrew (CA) to its previous ruling in Hrynewich Holdings. This Court in Andrew (CA) made brief reference to Hrynewich Holdings as follows: [14] This matter was considered in Bank of Montreal v. Hrynewich Holdings Ltd. There the Court dealt with s. of The Limitation of Civil Rights Act which is virtually identical to s. 25 of the Act. stated, on behalf of the Court: [6] the benefit of s. should apply to $158,707.00, which is that part of the amount of the consolidated loan of $345,000.00 which was secured by mortgage given to secure the purchase price of land. Section will not apply to the remaining $186,293.00. [Footnotes omitted] [27] It is important to reiterate that Kyle J. did not reference Hrynewich Holdings in Andrew (QB). [28] The Andrew (CA) decision makes no further reference to Hrynewich Holdings other than what is reproduced above. While it was clear the Court was aware of its previous decision, it was forgetful of its conclusions as to how sale proceeds should be allocated to the respective purchase money and non-purchase money debt balances. As indicated earlier, Hrynewich Holdings held that the sale proceeds should be allocated proportionately between the purchase money debt and the non-purchase money debt in order to determine the deficiency judgment. This was the binding authority at the time Andrew (QB) and Andrew (CA) were decided. However, in Andrew (CA), it was held that all the proceeds, whether from the land initially purchased or land held as collateral security, should be applied exclusively to the purchase money debt first, ignoring the non-purchase money debt. [29] These are obviously contrary conclusions. However, the conclusion in Andrew (CA) would not have been made had the Court considered Hrynewich Holdings in its entirety. Therefore, Andrew (CA) is not binding and the reasons in Hrynewich Holdings should guide the disposition of this appeal. In my view, Hrynewich Holdings respects the spirit and intent of s. of the LCRA and is the correct interpretation to be placed on that provision. In addition, Hrynewich Holdings accords with the policy behind the legislation as set out earlier in this judgment. [30] Finally, the decision in Hrynewich Holdings accords with the view of Professor Cuming that payments should be allocated on a pro-rated basis to the purchase money and non-purchase money portions. Reference can be made to his comments on the accounting issues for the purposes of applying s. in situations where purchase money and non-purchase money mortgage debt is consolidated: Where the agreement provides that the mortgage secures prior or additional new debt, the mortgagee is entitled to bring action against the mortgagor only for the amount of owing to the mortgagee that is not related to the acquisition of the mortgaged property. Prima facie, this amount is determined by deducting from the total debt the amount of the debt owing at the date of the refinancing. The picture becomes more complicated when the mortgagor has made payments to the mortgagee under refinancing arrangement providing for single “consolidated” debt composed of purchase-money and non-purchase-money obligations, including prior debt or additional money loaned to the mortgagor. When the mortgagor makes payments under the refinancing arrangement that are applied by the mortgagee to the consolidated debt, it is not possible to determine what portion of the payments made by the mortgagor are allocated to the purchase-money obligation and non-purchase-money obligations, respectively. At common law, debtor has the right to allocate payments made to creditor to whom he or she owes more than one debt. Failing allocation by the debtor, the creditor may allocate the payments. In the absence of any specific designation by the debtor or the creditor, the payments are allocated to the various obligations in the order in which they were incurred. However, it is doubtful that the common law rules dealing with allocation of payments were designed to address allocation where the two or more debts have been consolidated and the payments are made by the debtor toward discharge of the consolidated amount. Under such an arrangement, there is only one debt, not two or more. It is the understanding or agreement of the parties that payments are allocated to the consolidated debt and not the separate component of that debt. In the absence of such provision, neutral approach involves allocation of the payment on pro-rated basis to debt affected by section and the non-purchase-money debt. [Emphasis added; footnotes omitted] Ronald C.C. Cuming Q.C., Overview of Saskatchewan Real Property Security Law, (Regina: Queen’s Printer, 2016) at 10-4 to 10-6. B. What is the proper amount of the deficiency judgment? [31] The parties did not make extensive submissions on this point. The appellants simply contend that s. of the LCRA should be interpreted liberally thereby permitting the sale proceeds ($372,444.01) to be applied to the purchase money debt and the non-purchase money debt on pro rata basis to determine the amount of the deficiency judgment. [32] The respondent relies upon this Court’s decision in Andrew (CA) and the clear direction that the sale proceeds be applied to the purchase money debt first. [33] Since we have found the decision of this Court in Andrew (CA) was decided per incuriam, it should not be followed. The determination of the amount of the deficiency judgment is governed by the principles set out in Hrynewich Holdings. An application of these principles to this appeal leads to the following calculation for the amount of the deficiency judgment. [34] On January 10, 2011, the appellants borrowed $460,800.00 from the respondent. Of this amount, $373,089.00 (approximately 80.97%) represented purchase money debt and $87,711.00 (approximately 19.03%) represented non-purchase money debt. At the time of the Chambers hearing, the total balance owed by the appellants, including all accrued interest, was $536,186.72. The purchase money portion of this amount is $434,150.39 (80.97% of $536,186.72) and the non-purchase money portion is $102,036.33 (19.03% of $536,186.72). [35] To determine the sum to which the respondent is entitled, the proceeds from the judicial sale must be distributed pro rata between the purchase money and non-purchase money balances. The sale proceeds were $372,444.01. Of this amount, $301,567.91 (80.97% of $372,444.01) is to be applied against the purchase money portion. The purchase money debt balance is decreased to $132,582.48 and is protected by s. of the LCRA. The remaining sale proceeds of $70,876.10 (19.03% of $372,444.01) are applied against the non-purchase money portion. The remaining non-purchase money debt balance is decreased to $31,160.23. It follows that the order below should be varied to entitle the respondent to take out deficiency judgment against the appellants in the amount of $31,160.23. IV. conclusion and disposition [36] The appeal is allowed with respect to the amount of the deficiency judgment. The respondent is entitled to take out a deficiency judgment in the amount of $31,160.23 as at March 23, 2016, against the appellants. [37] During oral submissions, the respondent consented to the order for solicitor-client costs being set aside. In its place, the parties agreed there should be an order that either party may return the matter of costs relating to the motion for the deficiency judgment to the Chambers judge. The appeal will also be allowed to this extent. [38] The appellants have been successful on this appeal. While the Court appreciates the concessions made by the respondent, these were only made at the hearing of the appeal after counsel for the appellants had made his submissions. In our view, this is an appropriate case in which to order costs of the appeal to the appellant, John Alphonse Walker. Costs are set at $2,500.00 payable forthwith. “Herauf J.A.” Herauf J.A. concur. “Jackson J.A.” Jackson J.A. concur. “Herauf J.A.” for Wilkinson J. (ad hoc) [1] In Andrew (CA) at para 14, this Court stated that s. 25 of The Saskatchewan Farm Security Act is “virtually identical” to s. of the LCRA.

Statutes – Interpretation – Limitation of Civil Rights Act, Section 2The appellants had granted a residential mortgage in favour of the respondent that secured a loan in the amount of $460,800. The loan was a consolidation of existing debt, part of which was the balance of $373,089 owed on the original loan that had enabled the appellants to purchase the land. The remaining $87,711 was non-purchase money financing approved by the respondent. The appellants fell into default, and the respondent commenced foreclosure proceedings when the balance owed had increased to $536,186. The property was sold through judicial listing orders and the net sale proceeds were paid to the respondent. As the proceeds were insufficient, the respondent sought an order entitling it to the deficiency. The Chambers judge considered s. 2 of The Limitation of Civil Rights Act (LCRA) and held that the amount of the deficiency should be $162,675.99. The issues on appeal were how the proceeds of sale should be applied against the mortgage balance and what the proper amount of the deficiency was. HELD: The appeal was allowed. The court reviewed the purpose and policy behind the LCRA. It then examined its conflicting decisions in Hrynewich Holdings and Andrews and held that the latter was a per incuriam judgment and therefore not binding and the approach set out in Hrynewich would guide the disposition of this appeal. Therefore, it found with respect to each issue that the holding in Hrynewich meant that payments should be allocated on a pro-rated basis to purchase money and non-purchase money debt balances and the proper amount of the deficiency to which the respondent was entitled to judgment against the appellants was $31,160.23.

6_2017skca42.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 213 Date: December 23, 2013 File: 24472276 Location: Swift Current Between: Her Majesty the Queen J.T. Mr. Steve Kritzer For the Crown Mr. Adrian McBride For the Defence Note: An Order pursuant to s. 486.4 of the Criminal Code of Canada has been made directing that any information that could identify the complainant or witness shall not be published in any document or broadcast or transmitted in any way in respect of the proceeding. JUDGMENT L.A. MATSALLA, [1] The accused, F.D.J.T., is more commonly known as J.T. and will refer to him as such. [2] Mr. J.T. is charged that he did, on March 1st of this year: 1. commit sexual assault on K.S. contrary to section 271(1) of the Criminal Code, and 2. for sexual purpose touch K.S., person under the age of 16, directly with part of his body, to wit his penis, contrary to section 151 of the Criminal Code. The Crown elected to proceed by way of indictment on both charges and the accused elected trial by this Court. [3] It is important to place the facts in this case in context. [4] Both parties are aboriginal persons who live on the N[...] First Nation in the Maple Creek district of this Province. The accused and the complainant are well acquainted with one another in fact their mothers are cousins. The accused lives with his grandmother in trailer and K.S., along with her father and her young cousin, live in her grandmother’s house. She has twin sister and another sister who lives in trailer near the house. At the time of the alleged offences, yet another sister (who shall refer to as C.Y.S.) was in relationship with the accused and they had two-year-old daughter. It was not made clear as to where C.Y.S. was residing at the time of the alleged offence. It should also be noted that the evidence disclosed that there appeared to be some animosity between K.S.’s family and the family of J.T. arising out of the issue of access to the two-year-old child and, in particular, there was dispute as to who should be entitled to the Child Tax Benefit for the child. The complainant told the Court that she did not get along well with J.T. before the incident and in cross examination, she more specifically said that she did not like him because of the way that he had treated, C.Y.S. It appears that she was aware that he had had other liaisons with other women while he was in the relationship. Nonetheless she told the Court that since the incident she no longer feels the same way about him. The Evidence of the Crown [5] policeman testified that on June 4, while J.T. was in custody, he obtained statement from him. The Crown’s main witness was K.S. It is common ground that she was 15 years of age on the date of the alleged incident and that she was 16 at the time of trial. [6] Ms. S. testified that on February 28, 2013, she had returned home from school, picked up her laundry and, with her grandmother, made her way to Maple Creek and then to the residence of “Jillian” (whose last name was not made clear to the Court). At about 5:00 p.m. J.T. was dropped off outside the residence and K.S. testified that she could tell he had been drinking. She said that she stayed away from him when he drinks. K.S. went to the laundromat with her grandmother and, after completing the laundry, they met K.S.’s father and then returned to the residence on the N[...]. Later K.S. went into town with others to pick up J.T. and C.Y.S. from jigging class. take the class to be cultural dance class. She went on to say that J.T. and C.Y.S. were “hammered” when they were picked up. [7] Upon returning to the residence, she watched television. Then, at about 9:00 p.m. she went to C.A.S.’s trailer where she met J.T. and her two older sisters. She had mickey of vodka in her purse. She recalled that she sat between her sisters and they drank the vodka out of her bottle and from another similar bottle. She told the Court that she had had only little bit and she felt sober when, after midnight, she made her way back to the house however, in cross examinations she said that she was “hammered” when she left the trailer. She tripped and fell and recalled that some dogs came to her and jumped upon her. Once in her bedroom she changed into her pajamas. She recalled that she was wearing undergarments each of specific brand. She turned off the light, turned on fan and went to bed. [8] She believed that she later heard J.T. and C.Y.S. walk into the living room of the house and they were arguing. Evidently she did not want to hear them arguing because she turned up the speed of the fan and went back to bed. [9] She told the Court that the accused came into her bedroom about 20 minutes to one and half hour later and called her by her nickname (“Freida”), and he asked her if she was still up. She responded affirmatively and asked him why he wanted to know. J.T. said that he loved her (which take to be C.Y.S.) and that he didn’t “like it when we fight”. K.S. did not participate in the conversation. She said that she listened to him for couple of minutes and then she decided not to listen. J.T. crawled on top of her, tried to take her pajama bottoms down while she said “no, no”. At this point in her testimony, she requested that C.Y.S. be removed from the courtroom because, she explained, her crying “made it harder for me”. By agreement C.Y.S. briefly left the room only to return. She then went on to tell the Court that he removed her pajamas as she said “no, no, don’t”. She had placed her hands on her stomach but he pushed them away in the process causing one hand to hit wall and the other the frame of the bed. She said that he pushed the bottom of her pajamas down to her ankles, dropped his pants similarly, undid his belt and “shoved his penis into me” as he held her hands down. She clarified her testimony by saying that he “put it into my vagina”. She said that she was too weak to resist and too scared to scream but she did tell him “no [J], no [J], stop”. She had her face in pillow but he grabbed her face and made her “tongue kiss” him. She remembered smelling alcohol on his breath. In her words, he “raped me”. She testified that during this time she hoped that her mother would save her. He then got up, pulled up his pants and left the room. She put on her night clothes, turned on the light to see if he had left the room and then she used room freshener spray “to make the room smell cleaner” because she “felt so ugly”. She then said that she forced herself to sleep. She told the Court that, prior to the incident, she had not experienced sexual intercourse. [10] She said that the next day she had trouble getting up because she was hung over and she was sore howver she was able to go to school in the afternoon. She told the Court that she felt little effect from the alcohol that she had consumed. Five days later she tried to call her cousin to speak to her about the incident but she could not get the words out. She also was about to tell teacher at school but the teacher was busy with other students. She expressed her feelings in her journal but then burnt the pages after she gave statement to the police about the incident. The pertinent pages were tendered in Court by the defence during cross examination. Subsequently K.S. took pregnancy test that proved to be negative and, since she was concerned about getting sexually transmitted disease, she underwent HIV/AIDS tests that also proved to be negative. [11] As one might expect, K.S. faced many questions from defence counsel including questions relating to statement that she made to the police and to the statements that she made in her journal. [12] Counsel pointed out that she did not tell the officer about number of events including the suicide of friend or relative that had taken place during the same period of time and she had not advised the officer that J.T. had been picked up at jigging class. She had told the Court that J.T. had removed his pants but in the statement she told the officer that she did not see him get undressed. In Court she said that J.T. pulled the blanket away from her but in her statement she told the officer that she did not know if he removed the blankets from her. In Court she said that J.T. tried to kiss her but she did not tell the officer about the incident. [13] In her journal she admitted that she wrote that she thought that J. raped her the night before and, after describing the incident in her bedroom in some detail, she went on to say that she did not know if it had all been dream or real life yet she goes on in her journal to write that she intended to get pregnancy test. In an entry dated March 3, she wrote that she had discussed the incident with her twin sister although, in cross examination, she testified that when her sister questioned her about the incident, she denied it. [14] Overall, she was not comfortable in cross examination. At one point she was reluctant to answer some questions. The Evidence of the Defence [15] The only witness called by the defence was the accused. He was 22 years of age at the time of the alleged offence. [16] He told the Court that on February 28, he was caring for his daughter at his grandmother’s residence on the N[...]. At about noon, he left the residence with his grandmother to go to Maple Creek and he then went to cousin’s residence where he and four others drank 24 beer between 3:00 and 5:00 p.m. He himself drank five beer. At about 5:00 p.m. he left the residence to try and find more beverage alcohol and when he returned he discovered that the others had obtained more beer which was then consumed. He said that he drank about eight more beer. At about 10:00 or 11:00 p.m. he returned to his grandmother’s residence and he went to his bedroom in the basement where he sat in chair and watched television. He then advised the Court that earlier that evening between 5:00 or 6:00 p.m. he went to the nearby trailer where he was drinking with K.S.’s sisters. K.S. arrived at the trailer at about 8:00 p.m. with some alcohol. Prior to her arrival he drank one half of mickey bottle and after K.S. arrived he had couple of sips from her mickey bottle. [17] He said that K.S. left the trailer at about 9:00 or 10:00, however he continued to drink vodka and beer and he smoked cannabis joint before leaving with C.Y.S. at about 11:00. During the time that he was at the trailer he and C.Y.S. had argued about the baby and she had become sick. He went downstairs with C.Y.S. until about 12:00 midnight or 12:30 when, as result of an argument, she went upstairs. She later brought J.T. something to eat. [18] He testified that he did not leave the basement until the following day. He did not go to K.S.’s room and he did not touch her inappropriately or have intimate relations with her. He did say that he saw her the following day either before or after she had gone to school. [19] According to him there was no animosity between the two of them that night, however, he recalled that K.S. had told him on prior occasion that she did not like the way in which he had treated C.Y.S. [20] In cross examination, he admitted that on July 27, 2006, he had been convicted, as youth, of three counts of failing to comply with disposition and two counts of failing to comply with an Undertaking. He admitted that on July 26, 2008, he had been convicted of two counts of failing to appear in Court. He admitted that he had provided statement to the police about the incident during the morning of June 4, but that he was drunk at the time. He recalled being arrested on June 2, being in Court on June 3, and then giving the statement the next day. The defence admitted that he had been in custody for 51 hours prior to giving the statement and that the statement was provided to the police voluntarily. He admitted that he was released from custody on the present charges subject to an electronic monitor and that his cousin cut off the monitor which resulted in his arrest. He has been in custody since that time. [21] He neglected to mention to the officer that he had watched T.V. in the basement. He admitted that he had flirted with C.A.S. at the trailer that night. At one point, he said that he could remember the whole evening but he said that he could not recall parts of the argument with C.Y.S. He recalled telling the police officer that he may have committed the alleged offence and that he did not know if he “did it” or not. He then said that he thought that he did not commit the offences because others said he did not go upstairs from the basement. There was no evidence provided to the Court as to the presence of any other persons (other than C.Y.S.) in the basement or at the house. No other persons testified for the defence. [22] At the end of his testimony, he told the Court that on the night of the alleged incident he had spent the night at his grandmother’s trailer. He identified that night as the night of February 28. He told the Court that on March 1, he had gone to Maple Creek where he drank with his cousin. The dates provided by the accused are not consistent with the other evidence provided at trial nor are they consistent with his earlier testimony in Court. [23] The accused is charged under the following provisions of the Criminal Code: 271. (1) Every one who commits sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for term not exceeding 10 years and, if the complainant is under the age of 16 years, to minimum punishment of imprisonment for term of one year and, 151. Every person who, for sexual purpose, touches, directly or indirectly, with part of the body or with an object, any part of the body of person under the age of 16 years; (a) is guilty of an indictable offence and liable to imprisonment for term not exceeding 10 years and to minimum punishment of imprisonment for term of one year. [24] The matter of consent is not live issue in this case and so consideration of section 150.1 is not necessary, however the credibility of the witnesses is the most significant issue and therefore an application of the instructions in R. v. W.D.[1] must be undertaken. This Court is the trier of fact and law so am obliged to decide the facts in this case by applying the same principles that jury would be required to apply. In W.D. the complainant testified and she told the Court about two sexual assaults that she said were committed by the accused. The defence tendered the evidence of the accused who denied that the incident had occurred. The case is similar to the case before me. [25] At paragraph 27 and 28, Mr. Justice Cory said this respecting the burden of proof on the Crown on the issue of credibility: In case where credibility is important the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as whole: see R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); approved in R. v. Morin, supra, at p. 357. Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused. If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle. Since the matter of credibility is frequently an issue in court, the instructions set out by the Supreme Court have been discussed in many cases. [26] significant effort has been made to determine with greater precision how the instructions are to be considered. It is clear that the trier of fact must apply the standard of proof beyond reasonable doubt to all of the evidence and it is inappropriate to do so in respect of the defence evidence without consideration of the Crown’s evidence. The instructions ought not to be applied to individual pieces of evidence but to all of the conflicting evidence and must be applied only to the elements of the offences charged by the Crown and the elements of the defences raised by the accused[2]. [27] jury may have the impression that even if the accused’s testimony is disbelieved it can raise reasonable doubt. In the case of R. v. S.(J.H.), Mr. Justice Binnie, in an effort to elaborate on the second instruction mentioned above, pointed out that additional instructions could be added[3]. He referred favorably to the dictim of Wood J.A. in R. v. H.(C.W.)[4] where the Court said: would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit”. When the evidence is examined in light of the direction, jury ought not to think of the case as contest between two sides thereby reducing the burden on the Crown and imposing burden on the accused. Rather, the fact finder may totally accept or totally reject the evidence or may conclude that the evidence falls in between the two positions[5]. It is entirely possible for the jury to disbelieve the evidence of the accused yet, in light of all of the evidence, conclude that they have reasonable doubt. The case was recently referred to by Ottenbreit J.A. in R. v. B.G.S. 2010 SKCA 24 (CanLII), [2010] S.J. No. 106 at paragraph when citing passage from the Court’s decision in R. v. McKenzie (P.N.)[6]. The Evidence of Child [28] It should be noted that the Supreme Court of Canada has spoken on the way in which court should deal with the evidence of children. [29] In the case of R. v. B.(G)[7], three young children were charged with sexually assaulting another student who was seven years of age at the time. At trial, the eight-year-old complainant testified about an incident that had occurred when she was seven years old and in grade one. The trial judge concluded that if the incident had occurred during the time suggested then it would have happened year earlier than alleged. While the case turned on whether the date of the offence was an essential element and whether an amendment should have been allowed, the Court, at paragraph 48, referred favorably to the dictum of Wakeling J.A. from the Court below who said: While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and believe that this is desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children. [30] The case was referred to in R. v. W.(R.)[8]- case in which the accused was charged with indecent assault, gross indecency and sexual assault against three girls one of whom was between two and four years old, another between nine and ten and the older girl who was ten at the time of the incident. They were 9, 12 and 16 years of age at the time of trial. The evidence of the oldest girl was uncontradicted except for the accused’s denial that anything untoward had occurred. The convictions were upheld and at paragraph 23, Madam Justice McLachlin said the following: The repeal of provisions creating legal requirement that children’s evidence be corroborated does not prevent the judge or jury from treating child’s evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children’s evidence is always less reliable than the evidence of adults. So if court proceeds to discount child’s evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error. She pointed out that it may be wrong to apply adult tests for credibility to the evidence of children. She went on to say at paragraph 25: As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require solid foundation for verdict of guilt, whether the complainant be an adult or child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called “common sense” basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case. Therefore, it cannot be assumed that the evidence of child is necessarily unreliable nor is it acceptable to measure the evidence of youth to that of an adult. Yet, just as the evidence of an adult must be carefully scrutinized so too must the evidence of young person. [31] There is evidence that, in general, there were bad feelings between the respective families and there is evidence that the complainant did not like the accused however, there was no evidence of any specific instances of ill-will between them and, in fact, they had been in contact with one another earlier in the day without incident and they visited and drank together that evening. Furthermore, each told the Court that he and she did not have any difficulties with the other on that day. In any event, even if people may dislike one another that, in itself, is not sufficient reason to disbelieve their evidence. While there is evidence that the complainant and the accused neglected to mention certain facts to the officer who took statement from each of them, neither person was specifically asked about the facts referred to and so find no reason to question the veracity of their evidence on that account. further examination of all the evidence is necessary. [32] It is of more significance that K.S., when describing what had occurred in her bedroom, told the Court that the accused had pulled the blanket away and that he removed his pants when she had earlier told the officer that she did not know if the blanket was removed and that she did not see him remove his pants. However, it is entirely likely that 15 year old would not consider those parts of the narrative as important given her focus at the time that she spoke to the officer and when she testified in Court. [33] It is curious that in the journal in which she kept her private thoughts, she would write that she thought that she had been raped or that she did not know if it was all dream however, her comments must be examined in the context of the rest of her journal entries, in which her emotions appear to range from anger at the accused to uncertainty about whether she was pregnant and how to deal with possible pregnancy. Given her age, her lack of experience in sexual matters and her explanation in Court that she could not believe that the incident had occurred, her comment is not entirely surprising. [34] At trial she was uncomfortable about answering some questions from defence counsel and she was reluctant to testify as to the details of the incident in the presence of her sister J.T.’s companion. It seems to me that her reaction was to be expected. It is not unusual for any person (especially sixteen-year-old girl) to be reluctant to testify in front of family, friends and the public generally about an incident that was clearly traumatic to her. Nor did it surprise me to see that she was upset when describing details of the incident in courtroom setting. [35] She had not consumed alcohol until she drank vodka in the trailer that evening but her recollection of what happened was detailed and her evidence was not shaken in cross examination. She shared the vodka with three other persons yet her description of her condition ranged from being sober when leaving the trailer to being “hammered”. In the circumstances, think that it is unlikely that she was heavily under the influence of alcohol when she returned to the house. J.T., however, was clearly under the influence of alcohol throughout the afternoon and evening. He testified with some considerable detail as to the times that certain events occurred yet he was confused as to the day in question. When speaking to the officer he was uncertain as to whether he had committed an offence relying instead upon what other persons may have seen him do. Peculiar evidence for someone who claimed in Court that he recalled the events of the entire day and who insisted that he did not commit the offences. He was clearly wrong when he told the Court that he was intoxicated when he gave his statement to the police on June 4, since he had been in custody for 51 hours prior to giving the statement. [36] After examining all of the evidence and viewing the demeanor of the complainant and the accused on the stand, conclude that cannot believe J.T.’s evidence when he told the Court that he remained in the basement of the house for most of the night in question, that he did not go to K.S.’s bedroom and that he did not have contact with her. I believe the testimony of K.S. as to what transpired in her bedroom during the early hours of March 1. Any inconsistencies in her evidence are not significant. Her evidence on material points was clear and consistent. do not believe that she was motivated by revenge against J.T. when giving her evidence and do not accept any suggestion that her testimony was given with the intention of falsely accusing J.T. of committing the offences in question. [37] The Crown seeks finding on each of the charges before the Court. The Crown has proven beyond a reasonable doubt that J.T. forced himself upon K.S. and committed a sexual assault upon her at a time when she was under the age of 16 years contrary to section 271(1) of the Code. The evidence similarly proves that J.T. touched K.S. for the purpose of having sexual intercourse with her contrary to section 151 of the Code. [38] We will now proceed to conclude the case. L.A. Matsalla, [1] (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). [2] R. v. B.D. 2011 ONCA 51 (CanLII) at para. 96. [3] 2008 SCC 30 (CanLII), [2008], S.C.J. No. 30 (S.C.C.) at para. 12. [4] (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.) at 155. [5] R. v. Challice, supra at 556-7. [6] (1996), 1996 CanLII 4976 (SK CA), 141 Sask. R. 221 (C.A.). [7] 1990 CanLII 7308 (SCC), [1990] [8] 1992 CanLII 56 (SCC), [1992]

HELD: The Court found that the accused was guilty of both charges. The Court believed the testimony of the complainant.

b_2013skpc213.txt

C.J.Q.B. 2002 SKQB 47 Q.B. A.D. 1992 No. 3244 J.C.S. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: MELODY KOZMENIUK and ZELLERS INC. DEFENDANT Orest Rosowsky, Q.C. for the plaintiff Bruce W. Wirth for the defendant FIAT February 6, 2002 KRUEGER J. [1] This is an application to determine the issue of costs that were reserved in my judgment dated March 5, 2001 [(2001) 2001 SKQB 114 (CanLII), 202 Sask. R. 273]. The defendant seeks to have the costs reduced because the plaintiff was unsuccessful in part of her claim. FACTS [2] On March 23, 1990, the plaintiff was injured when she fell after stepping on a metal plate bolted to the floor at the mall entrance of the defendant’s store. The trial did not commence until November 27, 2000. It lasted for parts of 12 days. On November 22, 2000, the defendant served an offer to settle for $75,000.00 plus taxable costs. The offer was not accepted by the plaintiff. The judgment obtained by the plaintiff was for $77,406.15 together with some additional special damages and pre-judgment interest for total judgment of $120,540.43. ISSUES [3] The issues to be resolved on this application include:1. Whether the success of each party affects the amount of costs to be awarded to either;2. What amount should be awarded for expert witnesses; and;3. The level at which a second counsel fee should be taxed or allowed. REDUCING TAXABLE COSTS [4] It is the position of counsel for the defendant that the plaintiff’s bill of costs should be taxed at 50 percent of the appropriate column of the Tariff. Defence counsel argues that the plaintiff only received about 13 1/3 percent of the amount claimed during the trial; that the costs are disproportionate to the judgment and that the offer to settle, made in good faith, was never formally responded to. Counsel for the plaintiff counters that more was obtained than set out in the offer to settle; extensive witness costs were incurred because the defendant declined to agree to the filing of medical reports and that the costs were proportionate to the claim advanced. [5] Taxable court costs should not be based on either hardship or the degree of success. The amount expended by party for investigating or in gathering evidence to either advance claim or defend it may actually exceed the value of the claim. Solely because recovery falls short of the amount claimed is not a reason to deprive a successful party of costs. See Zielinski v. Saskatchewan (Beef Stabilization Board), 1993 CanLII 9132 (SK CA), [1994] W.W.R. 44 (Sask. C.A.). [6] The plaintiff’s action was divided into two causes. She claimed damages for the ankle injury and for a pain disorder developed as a result of the ankle injury. Success was obtained only on the first cause. However, most of the evidence introduced at the trial on behalf of the plaintiff related to the second cause. At best, success was divided. The greater damages claimed related to the pain disorder. [7] Costs are in the discretion of the Court. See Guyer Oil Company Ltd. v. Fulton, 1973 CanLII 974 (SK QB), [1973] W.W.R. 613 (Sask. Q.B.). However, costs usually go to the successful party: Thomas v. Lafleche Union Hospital Board (1991), 1991 CanLII 8039 (SK CA), 93 Sask. R. 150 at 154 (C.A.). When defendant makes an offer to settle that is not accepted and the plaintiff does not recover as much as was contained in the offer Rule 184(B)(2)(a) applies. The defendant is entitled to double costs from the date of service of the offer to the date of judgment. Conversely, if the plaintiff recovers more than was set out in the offer, the Rule has no application, and unless otherwise ordered, costs are awarded to the plaintiff. [8] In Alvin’s Auto Service Ltd. v. Clew Holdings Ltd. (1998), 1997 CanLII 10891 (SK QB), 157 Sask. R. 278, Baynton J. reduced the successful plaintiff’s costs by 50 percent when the plaintiff sued on five separate causes of action but succeeded on only two. In Kim v. Dalrymple (1996), 1996 CanLII 6878 (SK QB), 138 Sask. R. 319 (Q. B.), Kyle J. reduced the plaintiff’s costs by 50 percent from the appropriate tariff when she overstated her claim. In Hassler v. Moose Mountain District Health Board, 2001 SKQB 437 (CanLII), [2001] S.J. No. 634, the plaintiff’s costs were reduced by 15 percent when failed claims for punitive and exemplary damages were treated as separate causes. Costs were reduced by Gerein C.J. because those issues marginally lengthened the trial time. In this case over half of the witnesses called to testify for the plaintiff and most of the trial time was dedicated to the pain disorder claim. That claim provided only minor non-pecuniary damages for the plaintiff. It is appropriate in this case to reduce by 50 percent the plaintiff’s costs taxable under Schedule 1"B”, Column 4. EXPERT WITNESSES [9] Counsel for the plaintiff referred to the guidelines laid down by the Court in Electronic Superstore Ltd. v. Geransky Brothers Construction Ltd. et al (1991), 1991 CanLII 7581 (SK QB), 90 Sask. R. 150 (Q.B.), for determining whether to allow all or part of expert witness charges: 1. The services of the expert were reasonably necessary as part of the case of the party at trial; 2. The services were incurred in procuring evidence, in preparation of report or in attending or preparing to attend at the trial; 3. The services were not incurred to assist counsel in the preparation or presentation of the case; 4. The attendance at trial by the expert was for no longer than reasonably necessary to give evidence (although if the presence of an expert at trial during other testimony will expedite the trial, such additional time may be considered); 5.The services of the expert were not otherwise duplicated at trial; 6.The charges (and disbursements such as travel costs) of the expert were reasonable and were not higher than necessary by reason of the over-qualification of the expert; 7. The cost of the services were not disproportionate to the economic value of the issue at risk; 8. The services were not incurred by the expert to increase his level of expertise; 9. The costs are such that it is equitable that the unsuccessful party is “saddled” with them. [10] The defendant would not permit the plaintiff to file medical practitioners’ reports without calling the doctors for cross-examination purposes. That requirement was reasonable in this case since the success of the claim for pain disorder depended on the medical evidence. Questions as to what effect pain disorder had on the plaintiff and when that pain disorder first occurred were major matters. [11] Following assurance by her orthopaedic surgeon, Dr. Kim, that she had fully recovered from the ankle injury, the plaintiff continued to experience pain in the ankle. Her family doctor referred her to number of specialists. At one time diagnosis of fibromyalgia was made. Ultimately the defendant obtained Court order to have the plaintiff examined by Dr. Pearce, an independent psychiatrist. That examination took place in January, 1996. Thereafter the plaintiff attended on number of other specialists, including Dr. Philbrick at the Mayo Clinic, Drs. Arnold, Menzies, and Kowbel. Finally the Court ordered that the plaintiff be examined by Dr. Clarke, an anaestheologist who specializes in chronic pain management. [12] A great deal of the expert medical evidence introduced by the plaintiff was of marginal value. That, however, does not mean that the plaintiff is not entitled to any costs; after all she may have felt obliged to produce witnesses she had not intended to call. Still expert witness expenses must be reasonable; the witness testimony contribution to the case and relevant to the issues. Great care must be taken by party who obtains leave to call more than five expert witnesses to ensure that their testimony will assist the case. The expert medical witness expenses of the plaintiff shall be examined separately. Dr. J. J. Van Sittert [13] The evidence of Dr. Van Sittert was of considerable assistance. He provided testimony relating to the removal of the metal fixation device used by Dr. Kim in attaching torn ligaments to the bone during reconstruction surgery. He also discovered neuroma on the peroneal nerve. His account came to $595.00 plus $250.00 for medical report. The charges of Dr. Van Sittert are reasonable and recoverable by the plaintiff from the defendant. Dr. Rudolph Klassen [14] Dr. Klassen, an orthopaedic surgeon with the Mayo Clinic, testified by telephone. His testimony lasted one hour and twenty minutes. Like Dr. Van Sittert, he observed the neuroma on the plaintiff’s foot. It resulted from cut nerve that in turn provided permanent injury and was source of the plaintiff’s pain. His evidence was helpful in general way. He charged $600 U.S. for telephone consultations and $1,000.00 for testifying. His $1,000.00 U.S. fee for testifying is not excessive and in the circumstances is recoverable from the defendant. The consultation fee is not. Dr. Kemuel Luke Philbrick [15] Dr. Philbrick is psychiatrist with the Mayo Clinic. He too testified by telephone. His testimony lasted one hour and forty minutes. His diagnosis was of pain disorder with probably medical and psychological contributions. He did not feel that the plaintiff’s symptoms were consciously or intentionally produced, but was not sufficiently aware of her medical history to be able to offer definite opinion as to whether the ankle injury was the sole contributor to her condition. His clinical findings tend to parallel those of Dr. Pearce. He was the first psychiatrist to testify at the trial and for that reason alone provided some valuable assistance to the Court. His total charges were $1,450.00 U.S. Considering the expertise he brought, the total fees are not unreasonable and are recoverable from the defendant. The Mayo Clinic report, part of which was entered at the trial, was also reasonable charge in the amount of $380.00 Canadian and is recoverable from the defendant. Dr. Michael A. Kowbel [16] An anaestheologist who practices chronic pain management, Dr. Kowbel testified by telephone for two and half hours. He stated that the results of 1987 injury suffered by the plaintiff would have completely diminished by 1990 and, therefore, her pain disorder was direct result of the fall in the defendant’s store. When advised of the symptoms experienced by the plaintiff immediately before the 1990 injury, Dr. Kowbel modified his opinion. was not impressed with this witness and did not find his evidence particularly helpful. That was particularly so when comparing his evidence to that of the later testimony of Dr. Clarke, also an anaestheologist. Dr. Kowbel was paid $3,376.96, including $1,500.00 for locum tenens and $640.00 for consultation that took place nine days after his testimony. He was also paid $1,485.00 for medical report. Notwithstanding payment of exorbitant fees in order to secure the testimony of an expert witness, only just and reasonable charges may be recovered from the opposite party. The plaintiff is entitled to recover $1,000.00 of the fees paid to Dr. Kowbel for testimony and consultations, but no part of the payment for the locum tenens or his medical report. Dr. William James Arnold [17] Dr. Arnold is Saskatoon psychologist who on November 3, 1998, found no personality, psychological or psychiatric disorders after examining the plaintiff. At that time he would have had the benefit of the findings of three psychiatrists, two of whom had found pain disorder. The amount paid to Dr. Arnold exclusively for his testimony was $825.00. He was on the stand for two hours and forty minutes. In relation to the time spent testifying, this witness provided little assistance to the Court and was not impressive. witness fee of $500.00 is recoverable from the defendant. The medical report charge in the sum of $2,070.00 is not recoverable. Dr. Robin Paul Dickson Menzies [18] This witness is Saskatoon resident psychiatrist. He was retained to comment on the report of Dr. Pearce. Following an examination of the plaintiff, his conclusion was that she did not suffer from any mental disorder. Her pain, in his opinion, could only be attributed to physical factors. Like Dr. Arnold, he was not aware of much pre-ankle injury history and usually does not make pain disorder diagnosis when the patient’s history reveals any physical injury. Because of his criteria for ruling out pain disorder, notwithstanding obtaining the same test results as Dr. Pearce, his testimony was discounted by the Court. [19] Dr. Menzies testified for two and three-quarter hours. Like the other expert witness accounts, very little detail was provided. He charged $1,000.00 to testify and had total of 13 hours of consultation and preparation time. His account came to $3,959.00. It too is exorbitant and cannot be justified. total fee of $1,000.00 is recoverable by the plaintiff from the defendant. No part of the medical report in the sum of $1,070.00 is recoverable from the defendant. Dr. Terry Nicholaichuk [20] The plaintiff was referred to Dr. Nicholaichuk, registered psychologist, by Dr. Menzies to have the MMPI-II test administered. That was one of the tests previously conducted on the plaintiff by Dr. Pearce. The same “Conversion V” results were obtained. Dr. Nicholaichuk felt, however, that such test should not be used to eliminate complaints that could as easily be explained by physical as psychological causes. He did not interpret the test results as evidence of pain disorder. The extent of the plaintiff’s medical history known to Dr. Nicholaichuk was not revealed and he did not explain his test results. The testimony of Dr. Nicholaichuk was of limited value. He charged $400.00 for testifying and $650.00 for medical report that was not entered into evidence. His testifying fee is not excessive and is payable by the defendant. The medical report charge is not allowed. SECOND COUNSEL FEE [21] A second counsel fee is in the discretion of the Court and is limited to two-thirds of the fee paid for first counsel. In this case the plaintiff’s second counsel was experienced and the plaintiff requests fee of two-thirds that of the first counsel. Maximum fees will not be granted to second counsel solely because that person is senior member of the Bar. Need, rather than experience, forms the basis for fixing the amount of the fee. The amount at risk and the complexity of the pain disorder claim justified second counsel in this case. As it turned out, there was considerable “down time” between many of the expert medical witnesses. One lawyer could have handled the trial without difficulty. That, however, could not have been known in advance. A second counsel fee is allowed at 50 percent of the first counsel fee. [22] The plaintiff also claims costs for four pre-trial conferences, an unspecified number of management pre-trial conferences, pre-trial brief, medical reports for doctors who were not called as witnesses, and transcripts of the medical evidence obtained prior to final argument. Those are matters for consideration by the taxing officer rather than the Court. Both counsel suggested that they are not adverse to having the Court provide some guidance. Without attempting to encroach upon the authority or jurisdiction of the taxing officer and in the hope that the parties may receive some benefit therefrom and come to some agreement, the following comments are offered. Settlement Pre-trial Conferences [23] Where all that takes place at pre-trial conference is an adjournment because the conference is premature, no fee should be considered. Where negotiations take place at pre-trial conference and that conference is adjourned to allow further investigation or action, full Tariff fee may be justified whether or not the action is ultimately settled at future pre-trial conference. Pre-trial Briefs [24] There is no Tariff item for pre-trial brief. The pre-trial conference attendance charge in most cases is intended to include brief. Management Pre-trial Attendances [25] Attendances at management pre-trials are provided for in item 13 (ii) of Schedule 1“B” where they are independent of the pre-trial conference. The management pre-trial conferences conducted before me in this case were all by telephone. They were intended to move the proceedings forward and provide time lines for compliance with Court directions. charge of $50.00 for each management pre-trial conference is recommended with total limit of $500.00 for all such conferences. (The 50 percent reduction of the Tariff has been factored in.) Medical Reports for Doctors Not Called [26] No fee is recommended for medical report not filed relating to doctor not called to testify. Transcripts of Evidence [27] From time to time during the course of trial counsel order transcripts of the evidence of witnesses who have testified. The purpose is to permit counsel to directly quote from the evidence of an important witness when making arguments to the Court or jury. In this case the transcripts proved to be of considerable value to the Court in reconciling and comparing the evidence of medical experts of similar qualifications relating to specialized field. It is recommended that the plaintiff’s expenses in having the transcripts provided to the Court be recovered from the defendant. [28] Costs payable by the plaintiff to the defendant on interlocutory applications may be deducted from the plaintiff’s Bill of Costs.

FIAT. The defendant sought to have costs reduced because the plaintiff was unsuccessful in part of her claim for damages for the injury to her ankle and resulting pain disorder when she fell after stepping on a metal plate bolted to the floor at the mall entrance of the defendant's store. The plaintiff was awarded $77,406.15 plus special damages and pre-judgment interest for a total of $120,540.43. The offer to settle for $75,000 plus taxable costs had been refused. The defendant argued the plaintiff's bill of costs should be taxed at 50% as she only received about 13 and 1/3% of the amount claimed; the costs were disproportionate to the judgment and the offer to settle, made in good faith, was never formally responded to. The plaintiff argued extensive witness costs were incurred because the defendant declined to agree to the filing of medical reports. At issue was whether the success of each affects the amount of costs to be awarded to either; the amount to be awarded for expert witnesses; and level at which a second counsel fee should be taxed or allowed. HELD: 1)Taxable costs should not be based on either hardship or the degree of success. Solely because recovery falls short of the amount claimed is not a reason to deprive a successful party of costs. Although costs are in the discretion of the Court, they usually go to the successful party. 2)It was appropriate in this case to reduce by 50% the plaintiff's costs taxable under column 4 since over half of the plaintiff's witnesses who were called to testify and most of the trial time was dedicated to the pain disorder claim, which proved only minor non-pecuniary damages. 3)A great deal of the plaintiff's expert medical evidence was of marginal value. Great care must be taken by a party who obtains leave to call more than five expert witnesses to ensure their testimony will assist the case. Expenses of each was examined separately. In some cases, medical report charges or consultation and preparation time were not recoverable from the defendant as not being of value or too exorbitant. 4)A second counsel fee was allowed at 50% of first counsel fee. A second counsel fee is in the discretion of the Court and is limited to two-thirds of the fee paid for first counsel. The amount at risk and complexity of the pain disorder claim justified second counsel in this case. Although one lawyer could have handled the trial without difficulty as there was considerable down time, that could not be known in advance. 5)Costs of the four pre-trial conferences, unspecified number of management pre-trial conferences, pre-trial brief, medical reports for doctors who were not called as witnesses are matters for consideration by the taxing officer rather than the Court. It was recommended that no fee should be considered when there is simply an adjournment because the pre-trial conference is premature; there is no tariff item for a pre-trial brief and in most cases is included in the attendance charge; a charge of $50 for each management pre-trial conference be allowed to a total limit of $500; costs of transcripts be recovered from the defendant. Costs payable by the plaintiff on an interlocutory application may be deducted from the plaintiff's Bill of Costs.

c_2002skqb47.txt

nan Q.B. A.D. 1994 No. 478 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN DAVID LUCAS and JOHANNA ERNA LUCAS and HER MAJESTY THE QUEEN, THE MINISTER OF JUSTICE FOR SASKATCHEWAN and THE MINISTER OF JUSTICE CANADA RESPONDENTS AND Q.B. A.D. 1994 No. 479 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN DAVID LUCAS and JOHANNA ERNA LUCAS and HER MAJESTY THE QUEEN RESPONDENTS R. Parker for the applicants W. K. Tucker, Q.C. for the Crown FIAT BARCLAY J. April 14, 1994 John David Lucas ("Lucas") has applied to quash theorder of Judge Albert Lavoie made at a preliminary hearing onFebruary 8, 1994 in the Provincial Court in Saskatoon,Saskatchewan, committing him to stand trial on a charge thathe committed a defamatory libel against [rank] [Police Officer]of the Q. City Police contrary to ss. 300 and 301 ofthe Criminal Code. The grounds of the application may be summarized as 1. Judge Albert Lavoie was biased. 2. Lucas did not receive proper disclosure from the prosecutor. In my view there is no merit to either of these grounds. I have read the preliminary and there is not ascintilla of evidence to suggest that either the ProvincialCourt judge was biased or that there was an apprehension ofbias. As to the complaint about disclosure Lucas appears toadmit that he received full disclosure with respect to thedefamatory libel charge and that his complaint is with respectto an ongoing investigation of another potential offence. Furthermore, in an application to quash committal for trial there is only one ground for action by the reviewing court and that is lack of jurisdiction. See Dubois v. R. (1986), 1986 CanLII 60 (SCC), 25 C.C.C. (3d) 221. This application stands dismissed. Lucas also applies for an order quashing certainconditions of a recognizance issued at the preliminary hearingof February 7, 1994, which conditions are as follows: A) PICKETING OF ANY KIND OR CARRYING PLACARDS OR POSTERS OF ANY KIND OR IN ANY MANNER PUBLICALLY COMMENTING IN ANY CASES OR INVESTIGATIONS INVOLVING CHILD SEXUAL ABUSE; B) CREATING ANY PLACARD, POSTER OR SIGN INSIDE OR OUTSIDE THE RESIDENCE OF THE ACCUSED OR ACCOMPANYING ANY PERSON CARRYING OR PICKETING WITH ANY POSTER, PLACARD OR SIGN COMMENTING ON ANY CASES OR INVESTIGATIONS INVOLVING CHILD SEXUAL ABUSE; C) PUBLIC COMMENT ON ANY CASES OR INVESTIGATIONS INVOLVING CHILD SEXUAL ABUSE OR CREATING ANY DOCUMENT FOR THE PURPOSE OF ASSISTING ANY OTHER PERSON TO PUBLICALLY COMMENT OR (SIC) CASES OR INVESTIGATIONS INVOLVING CHILD SEXUAL ABUSE; D) PERMITTING OR ALLOWING ANY PERSON TO USE ANY FAX MACHINE, WORD PROCESSOR, OR TYPEWRITER OR ANY ARTICLE IN THE HOUSE OF THE ACCUSED TO PRODUCE ANY DOCUMENTS, SIGN, PLACARD OR POSTER FOR THE PURPOSES OF PUBLICALLY COMMENTING ON CASES OR INVESTIGATION INVOLVING CHILD SEXUAL ABUSE; E) USE BY THE ACCUSED OR ANYONE ELSE OF THE FACSIMILE TELEPHONE MACHINE IN THE RESIDENCE OF THE ACCUSED TO SEND ANY MESSAGE REFERRING TO CHILD SEXUAL ABUSE CASES EXCEPT FOR THE PURPOSES OF THE ACCUSED COMMUNICATING WITH THE LAWYER OF THE ACCUSED. After reviewing the court proceedings and inparticular the transcript of the bail hearing I am satisfiedthat the conditions imposed by Nutting P.C.J. are justified. The learned Provincial Court judge, after hearing evidence and submissions exercised his discretion. In my view he did notmake an error in law or erred in his application of the factsand it would therefore be improper for this Court tosubstitute my discretion for the discretion exercised by thelearned Provincial Court judge. The application is alsodismissed.

FIAT Application (1)to quash committal to stand trial on a charge of defamatory libel and (2)to quash certain conditions of a recognizance issued at the preliminary hearing. HELD: (1)Application dismissed. The Provincial Court judge was not biased and the accused received full disclosure with respect to the charge. In an application to quash committal for trial there is only one ground for action by the reviewing court and that is lack of jurisdiction. (2)Application dismissed. The conditions imposed by the Provincial Court Judge were justified. He did not err in law or in his application of the facts.

e_1994canlii4938.txt

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. F. L., 2011 NSPC Date: February 24, 2011 Docket: 1912581, 1912582 Registry: Halifax Between: Her Majesty the Queen F. L. APPLICATION TO WITHDRAW GUILTY PLEA Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Judge Marc C. Chisholm Heard: July 8, 2010 January 21, 2011, in Halifax, Nova Scotia Decision: February 24, 2011 Charge: cc. 271(1)(a) Counsel: Christopher Nicholson, for the Crown Donald Murray, for the Defense By the Court: [1] This is an Application by the accused to set aside his guilty plea to count # 1, the sexual assault of his son. Factual Background [2] On May 28, 2008, the accused Mr. L. was arrested and charged that he between the 1st day of January 2006 and the 31st day of December 2007 did commit sexual assault on his son contrary to Section 271(1)(a) of the Criminal Code and further that he at the same time and place aforesaid, did for the sexual purpose touch his son, person under the age of fourteen years directly with part of his body, to wit., his hands, contrary to Section 151 of the Criminal Code. [3] The accused’s son was years old at the time of the alleged offences. [4] The Crown alleged that the offences occurred at the accused’s home on night when his wife, the complainant’s mother, was at work. It was alleged that the accused was watching pornography on the computer. That the child came out of his bedroom, dressed in his pajamas, wanting drink of water. That the accused ordered his son to stand beside him and remove his pajamas. That the boy did as he was told. That the accused, while continuing to watch pornography, masturbated himself with one hand and with his other hand twisted his son’s penis back and forth. That, later, he told his son to get dressed and go back to bed. [5] On July 14, 2008 the accused appeared in Court, without counsel or an interpreter and the matter was adjourned to July 31, 2008. The Crown elected to proceed by Indictment. [6] On July 31, 2008 the accused appeared with counsel, Mr. Andrew Pavey. There was not an interpreter present. On Defense motion the matter was adjourned to September 18, 2008 for election. [7] On September 18, 2008 the accused and his counsel Mr. Pavey were present. There was not an interpreter present. Defense request for further adjournment was granted. The case was adjourned for election to October 29, 2008. [8] On October 29, 2008 the accused was present with his lawyer Mr. Pavey. There was no interpreter present. further Defense request was granted. The accused’s election was adjourned to December 3, 2008. [9] On December 3, 2008 the accused was present with his lawyer Mr. Pavey. There was no interpreter. The case was again adjourned on Defense motion to January 2, 2009. [10] On January 2, 2009 the accused was present with his lawyer, Mr. Pavey. An interpreter was present. Crown motion to amend the date of the alleged offences was granted. The time period as amended alleging the offences were committed between January 1, 2006 and February 4, 2008. [11] The accused elected to be tried in the Provincial Court To count 1, as amended, the accused through his counsel tendered plea of guilty to the sexual assault of his son. [12] transcript of the relevant court proceedings of January 2, 2009 was prepared and submitted on this application. [13] The transcript indicates that: The Court, through the interpreter, asked Mr. L. if he wished to plead guilty to sexual assault. Mr. L. indicted that was his wish. Mr. L. acknowledged that he understood that by pleading guilty he was giving up his right to have trial. He acknowledged that his plea of guilty was voluntary. He acknowledged that he understood that the Court was not bound by the sentence submissions of counsel. There was no presentation of the facts of the offence by counsel and no inquiry by the Court regarding the facts. [14] On January 2, 2009, at the request of Defense counsel, the Court ordered the preparation of pre-sentence report (PSR). Sentencing on sexual assault was adjourned to April 6, 2009. [15] On April 6, 2009 the accused appeared with counsel. An interpreter was present. Sentencing had to be further adjourned because the PSR had not been completed. Sentencing was adjourned to May 25, 2009. [16] On May 25, 2009 the accused appeared with new counsel, Mr. Merrimen of Nova Scotia Legal Aid. An interpreter was present. Mr. Merrimen sought an adjournment to prepare for the sentence hearing. The motion was granted. Sentencing was adjourned to July 2, 2009. [17] From July 2, 2009 to July 8, 2010 there were series of adjournments on Defense motions to arrange for other counsel to represent Mr. L. on an application to withdraw his guilty plea. [18] hearing of the application finally began on July 8, 2010. The hearing was not completed on that day. After further series of delays due to the unavailability of Crown witness, the hearing was completed on January 21, 2011. [19] The lengthy delay, while regrettable, has no bearing on the Court’s decision on this application. [20] On January 21, 2011 the Court adjourned to consider it’s decision. [21] By letter dated February 2, 2011 the Court notified counsel that the accused’s application to withdraw his guilty plea would be dismissed. [22] On an application to set aside guilty plea the accused’s bears the burden of satisfying the Court that the plea was not valid. [23] The standard of proof is the civil burden. [24] In v. Nevin (2006) Carswell no. 239 the Nova Scotia Court of Appeal at para. cited, with approval, the decision of the Ontario Court of Appeal in R. v. R.T. (1992) Carswell Ont. 117 (Ont CA). “To constitute valid guilty plea, the plea must be voluntary and unequivocal. The plea must also be informed, that the accused must be aware of the nature of the allegations made against him, the effect of his plea, and the consequences of his plea.” [25] Although Nevin, supra, dealt with motion to withdraw guilty plea raised on appeal, the Court accepts this as the correct statement of the test to be applied on this application. Defense Position [26] The Defense position is multifaceted. It is submitted: 1) That the accused was not fully informed of the nature of the allegation: in part because of a communication issue, English not being the accused’s first language and he not being fluent in English; and in part because he had not, prior to plea, viewed the video of his son’s (the complainant’s) statement to the police although it had been disclosed to his lawyer; 2) That the accused, by his plea, did not accept the Crown version of the incident upon which the charge was based; and 3) That the accused did not fully understand the effect and consequences of his plea, specifically it’s effect on his ability to have contact with his son. The Evidence [27] The evidence on the application consisted of: 1) The transcript of the Court proceedings of January 2, 2009 when the accused entered guilty plea to count 1, sexual assault; 2) The affidavit of the applicant, F. L.; 3) The affidavit of Andrew Pavey, Mr. L.’s counsel prior to and at the time of his guilty plea; 4) The testimony of F. L.; and 5) The testimony of Phil Josey, Mr. L.’s probation officer who prepared the pre-sentence report. [28] The Court will begin with the affidavit and testimony of Mr. L.. At para. of his affidavit, in relation to 2007 incident, Mr. L. stated: “No charges were laid against me for physical assault of my son.” [30] However, in his testimony he admitted that he was sentenced in October of 2007 for assaulting his son and uttering threat to his wife. He was represented by Andrew Pavey on those charges. guilty plea and joint sentence recommendation of probation was negotiated by Mr. Pavey on his behalf. The joint sentence recommendation was accepted by the Court. The Accused’s knowledge of the factual allegation [31] In relation to what he knew about the factual allegation underlying the charge of sexual assault, Mr. L., in his affidavit stated: 8. know that Mr. Pavey worked out deal with the prosecutor which required me to plead guilty to one count of sexual assault, and to have both the prosecutor and Mr. Pavey recommend sentence that would not put me in jail. When pleaded guilty on April 6, 2009, expected that it would allow me to resume parental relationship with my son, since would not be going to jail, and since there would be no condition that would not be able to see him. At that time had not seen the videotaped interview of my son, and was not aware of the types of behaviour that he said that did to his body. only saw that videotape for the first time on December 29, 2009, in Mr. Donald Murray’s office. 9. remained of the beliefs that had at that time of plea when attended meeting for the preparation of pre-sentence report. attended the pre-sentence report meeting without any interpreter since neither nor the Probation Services had hired one. My lawyer had pointed out that the pre-sentence report reports me as saying that “accept responsibility for [my] actions and expressed great deal of remorse for [my] behaviour”. At the time did not know what my son was really accusing me of having done to him. What was trying to express was that was sorry that things turned out the way they did especially the break-up of my family. 11. As said above, did not see my son’s videotaped interview until December 29, 2009, in Mr. Murray’s office. On that date also had the assistance of an interpreter. Having heard my son’s allegations, most seriously deny that have touched him in any sexual part of his body, or had him participate in any sexual kind on activity with me. 12. also have come to the understanding over the course of the last year that because of the nature of the allegations, may not be permitted to resume parental relationship with my son even if there is no trial on the criminal charges. 13. did not understand the nature of the sexual allegations that were the basis of the sexual assault charge at the time that entered my guilty plea. should not have entered that plea. The mistake made in pleading guilty was caused partly by not watching the videotape of my son’s accusation before pleading guilty, and partly think by my trouble in understanding what was supposed to be pleading guilty to because everything has to be done in translation. [32] In his testimony Mr. L., initially, claimed limited knowledge of what the Crown alleged. At page 17 lines 4-20 he stated: Q. Okay. But you understood that this was pretty serious situation for you, an allegation of sexual assault and guilty plea to sexual assault? A. No. He didn’t understand the nature of the seriousness. The informations were not sufficient. He he understood only light sketch of what was what he was accused of, and he proceeded on that basis. Q. Well, sir, did you not appreciate that sexual assault is serious crime? A. No. His only consideration was his son. He had not seen the video proceedings, so he didn’t understand what what was going. He had no full understanding of it. Q. But you knew, did you not, that the plea was regarding one incident that involved your son? A. His understanding was, what the way he understood, is that that was one incident when he taught his son how to how to clean his penis and... [33] In his testimony Mr. L. said that on one occasion he touched his son’s penis for the purpose of showing him how to clean his penis. He thought that the criminal charges related to that incident (p. 18 line 8): “Since this this is since different country, different customs, he thought that this whole accusation was referring to that incident.” [34] This evidence regarding his knowledge and understanding of the nature of the charge to which he pled guilty led to the following questions and answers at page 23 lines 10-18: Q. The 2nd, he entered his guilty plea here in this court? A. qualified yes. He knew that he was pleading guilty in sexual assault but he thought that that was referring to that incident or it’s not even an incident, that case when he showed his son how to clean his private parts. That that’s what he thought. It wasn’t clear to him, okay, what the sexual assault was referring to. The content of the plea was not clear.” [35] And at page 23 lines 19 to page 26 line 15: Q. Okay, sir, but you were told by Mr. Pavey what the circumstances of the allegation were going to be in court? A. What circumstances? A. What circumstances Mr. Nicholson is referring to? Q. Okay. guess we'll just get right to that then. Concerning one incident, when your son was eight years old ‑‑ and I'll just ‑‑ I'll read part of it. I'll stop as go and then I'll ‑‑ it's going to take me few minutes. Okay. "That his mom was working night shift at the *, F. was in his bedroom and came out because he was thirsty, and he saw his father watching porn. His father saw him and told him to come out and watch." Ah... Q. "F." ‑‑ I'll just read it, right... A. Well, he said that's not true. He saw his son, he told him to come, make his ‑‑ have his drink and go back to his room because the following day was school day. Q. All right, but what I'm trying to do here is just read the entire incident and... THE INTERPRETER: So you require that there should be no interruption? MR. NICHOLSON: If could just finish it. MR. L. (Without Interpreter): Sorry. Sorry. BY MR. NICHOLSON: Q. Okay. Because what I'm asking, really, is was this incident told to Mr. L. by Mr. Pavey. Okay? So can just continue? A. Yes, he ‑‑ he already indicated that Mr. Pavey did tell him this. And he told Mr. Pavey the same thing as he just told the court, namely that this was not true. Q. Okay. So to be clear, Mr. Pavey did relate the incident to him? Q. Okay. And you know there's more to it? haven't finished it. You know there's more? Q. And what you're saying is, when he related that to you, you told him it was not true? Q. And you had an interpreter for that? Q. And then after telling him it was not true, you still went to court and pleaded guilty to that allegation? A. Yes, he did, because he asked Mr. Pavey advice, what's the best way for him to proceed, and he has ‑‑ he had no experience in courts, with court proceedings, so he relied on Mr. Pavey's advice as to, you know, what's the best way to proceed. He ‑‑ he wanted to close the case as soon as possible because he was unemployed and he was unable to pay his lawyer. He wanted to save for his son the whole court proceedings. He had no full understanding of what he was accused of, so that's why he made the wrong decision. He made mistake, it was the wrong decision, but that's due to his inexperience in court proceedings. Q. Sir, I'm going to suggest to you, you did know what the allegation was because Mr. Pavey read it to you. A. If he had known exactly, precisely, he would never have pleaded guilty. He's not sophisticated man. He ‑‑ if he has full grasp of he whole thing, then his decision would have been different. [36] At page 27 lines 10: Q. So did you not realize that to plead guilty in court you had to admit that the facts were true? A. Yes, he knew he was pleading guilty in something that was not true. [37] And page 31 line 19 to page 32 line 14: Q. Mr. L., the incident Mr. Nicholson was describing to you where your son came out to get drink of water, okay, Mr. Nicholson was about to go on, believe, and say that during that incident you were supposed to have been masturbating at the computer and touching your son's penis. MR. L. (Without Interpreter): No, absolutely not. THE INTERPRETER: No. MR. L. (Without Interpreter): No, absolutely. THE INTERPRETER: No. BY MR. MURRAY: Q. Did Mr. Pavey tell you that that was the accusation? A. Mr. Pavey said that, but he told Mr. Pavey that that wasn't true. Q. When you appeared in court on January 2nd, 2009, with Mr. Pavey, okay, were you admitting to ‑‑ did you understand you were admitting to that behaviour? MR. L. (Without Interpreter): No, absolutely. [38] In assessing the evidence of Mr. L. the Court has consciously considered whether Mr. L., by his answers, appears to have fully understood the questions posed and that the Court fully understands Mr. L.’s responses. [39] Mr. L.’s affidavit evidence that he was not charged with assaulting his son in 2007 is clearly contrary to his testimony that he plead guilty and was sentenced for assaulting his son in October 2007. No explanation was offered for this inconsistency. [40] Mr. L.’s evidence regarding his knowledge of the facts alleged by the Crown in relation to the sexual assault of his son was clearly inconsistent. [41] Mr. L., initially, claimed that he had but limited knowledge of the allegation of sexual assault made against him. [42] Mr. L. claimed that he thought the sexual assault related to his teaching his son how to clean his penis. [43] Yet Mr. L. later testified that his lawyer told him, in detail, what it was that the Crown alleged he had done to his son, i.e. masturbating his son while he masturbated himself while watching pornography on computer. He acknowledged that such discussion occurred with the benefit of an interpreter before he entered his plea of guilty. [44] And, Mr. L. testified that he knew what he was admitting to by his plea of guilty (page. 27 line 9). [45] These inconsistencies cause me to conclude that Mr. L.’s evidence was not credible. [46] The Court is not persuaded that Mr. L.’s not having seen the video of his son’s statement prevented his having a full understanding of the specific allegation of sexual assault; nor that a language/communication issue prevented him from having a full understanding of the specific allegation of sexual assault. [47] The Court is not persuaded that Mr. L. had any lack of knowledge or understanding of the specific allegation of sexual assault. [48] Mr. L., in his testimony, indicated that he told his lawyer, Mr. Andrew Pavey that the allegation that he masturbated his son while watching porn and masturbating himself was not true. He did not make such an assertion in his affidavit. [49] Mr. Pavey, in his affidavit, indicated: 7. THAT my client was told of all the allegations with translator before the negotiations were completed and before he entered his guilty plea to the charge. 8. THAT my client plead guilty to one incident of sexual assault between the dates January 1, 2006 and February 4, 2008. 9. THAT my client was advised of the facts to be relied upon at the sentencing as well as the joint submission to be made by the Crown and myself. 10. THAT, had full clear instructions from my client that he wished to enter guilty plea to the charge and did not believe there were language barriers as we had an interpreter throughout. understood that, in part, Mr. L. wished to enter guilty plea to avoid his son having to take the stand. 11. THAT had previously represented Mr. L. in matter before the Supreme Court (Family Division) in which he had chosen not to pursue having contact with his son. 12. THAT my client fully understood the plea of guilty was to one incident and that the joint submission was to include Sex Offender Assessment and counselling as needed, was for sentence of Conditional Sentence, Probation, 109 Firearm Order for 10 years, SOIRA order and DNA order. [50] The Defense chose not to cross-examine Mr. Pavey on his affidavit. [51] Mr. Pavey’s affidavit does not state that Mr. L. denied the specific act of sexual assault alleged. The Defense position is that Mr. Pavey participated in concluding plea and sentence negotiation and the entering of guilty plea knowing that the accused denied that he committed the act of sexual assault as alleged or any other sexual assault. For counsel to do so would be improper. The only evidence that this occurred was the evidence of Mr. L.. The interpreter who was present was not called to give evidence. Mr. L.’s evidence was not found credible by the Court. [52] The Court is not persuaded that Mr. L. told Mr. Pavey that he denied the specific act of sexual assault alleged by the Crown. [53] The accused in his affidavit and in his testimony stated that he by his plea of guilty, wanted to spare his son testifying. Mr. Pavey, in his affidavit corroborated this evidence of motive. The fact that this was part of the accused’s motivation for pleading guilty does not alter my view of his knowledge and understanding of the nature of the allegation to which he plead guilty nor his understanding that he, by his plea, was admitting to that allegation. [54] As matter of Court practice where guilty plea is entered and sentencing adjourned it may be preferable for the facts of the offence to which the plea of guilty relates be placed on the record at the time of the plea. Such practice may reduce the possibility of later dispute on the facts. However, where that hasn’t occurred, while it is factor to be considered, it is not determinative of an application to withdraw guilty plea. [55] The burden of establishing that the plea was invalid rests on the applicant, the accused. The argument that the accused was not fully aware of the nature of the allegation made against him relies mainly on his evidence. The Court did not find that his evidence, on key points, credible. The Court is not satisfied that Mr. L. lacked full knowledge of the nature of the allegation to which he plead guilty. The Accused’s knowledge of the effect of his guilty plea [56] The accused admitted that he understood that by his plea he was admitting to the offence alleged. The accused had previously been in court and pled guilty to criminal charge. [57] The Court is not persuaded that the accused did not understand that by pleading guilty he was admitting to the facts, as alleged, and giving up his right to have trial on the allegation. Mr. L. was aware of the joint sentence recommendation. Voluntariness of the Accused’s plea [58] The accused testified that his plea was voluntary. [59] There is nothing before this Court that raises concern regarding the voluntariness of Mr. L.’s plea. The Accused’s knowledge of the consequences of his guilty plea [60] Mr. L. claimed not to have appreciated the affect of his plea on his future contact with his son (see his affidavit s. 8). He stated, in paragraph 8, that there would be no condition that he would not be able to see his son. [61] In his testimony (page 21 line 19 to page 22 line 11) he indicated that he was aware that as part of the joint sentence recommendation he was agreeing to condition not to have contact with his son. [62] In his affidavit, Mr. Pavey indicated that Mr. L. was aware of the agreed condition of sentence that he not have contact with his son. Mr. Pavey also indicated that in relation to Supreme Court Family Division matter Mr. L. had decided not to pursue contact with his son. [63] The accused’s evidence regarding his awareness of the consequences of his plea to sexually assaulting his son on decision of the Supreme Court Family Division regarding access to the child was not credible. [64] The Court is not convinced that the test in Nevin, supra regarding awareness of the consequences of guilty plea extends to the impact of the plea on Supreme Court Family Division order regarding access to the child but, if it does, the Court is not persuaded that the accused was not aware of this consequence of his guilty plea to the sexual assault of his son. The Evidence of Phil Josey [65] Mr. Josey was the accused’s probation officer and author of the Pre-sentence Report (PSR). His evidence related to the accused’s ability to communicate in English and purported admission of the offence and an expression of remorse. The Court is conscious of the fact that no interpreter was present during their PSR meeting. [66] Mr. L. testified that he told Mr. Josey that he admitted to showing his son how to clean his penis as his father had shown him and his remorse was for the trouble brought to his family. [67] Mr. Josey testified that Mr. L. did not offer an explanation for the sexual assault. [68] Mr. Josey testified that he’d been probation officer for 25 years. If Mr. L. professed innocence of the crime or offered an innocent explanation such as his teaching his son to clean his penis as his father taught him such information would seem extremely relevant and worthy of inclusion in the PSR by the author thereof. [69] The Court is not persuaded that Mr. L. offered an innocent explanation of his guilty plea to Mr. Josey as he testified. [70] Mr. L.’s expression of remorse to Mr. Josey may, in part, have been motivated by the troubles he’d caused his family. If so it does not affect the Court’s view of his evidence, or the Court’s conclusions. [71] Taking all of the foregoing into consideration the Court has come to the conclusion that the test in Nevin, supra, has not been met and, therefore, the application of the accused to withdraw his guilty plea ought to be dismissed. [72] Application dismissed.

The defendant entered into a plea agreement to a charge of sexually assaulting his young son but, shortly before the sentencing hearing, he applied to withdraw his guilty plea on the basis that he had not been fully informed of the nature of the allegations, partly due to a communication issue (English was not his first language) and partly because he had not viewed the video of his son's statement to the police prior to the plea. He did not accept the Crown's version of the incident and had not fully understood the effect and consequences of his plea, especially its effect on his ability to have contact with his son. The defendant argued that he thought the charge was based upon an incident where he had touched his son's penis for the purpose of showing him how to clean it as opposed to the Crown's assertion that he had masturbated his son and himself while viewing pornography. Application to withdraw guilty plea dismissed; the defendant's evidence regarding his knowledge of the facts alleged by the Crown in relation to the sexual assault was inconsistent and the court was not convinced that either his failure to see the video of his son's statement or a language/communication issue had prevented him from having a full understanding of the specific allegation of the sexual assault. The defendant's motivation for pleading guilty did not alter his knowledge and understanding of the nature of the allegation nor his understanding that he was, by his plea, admitting to that allegation.

5_2011nspc8.txt

J. F. Y. No. 99BG0019 IN THE FAMILY COURT FOR THE PROVINCE OF NOVA SCOTIA [Cite as: K. J. S. v. M.T., 2001 N.S.F.C. 8] RESPONDENT HEARD BEFORE: The Honorable Judge John D. Comeau, Chief Judge of the Family Court for the Province of Nova Scotia DATE HEARD: April 28, 2000 Evidence taken in Cape Dorset, Nunavut, September 27/00 Received January 23/01 Final arguments by Counsel received April 23/01. DECISION DATE: May 14, 2001 PLACE HEARD: Barrington, Shelburne Co., NS COUNSEL: Timothy D. Landry Esq. On behalf of the Applicant Celia J. Melanson Esq. On behalf of the Respondent THE APPLICATION: This is an application for custody of the child, David Douglas Tunnillie, born August 28, 1992 in Cape Dorset, Nunavut and the parties are the natural parents of the child. On November 24, 1999 following written decision the Court issued an Order that it would take jurisdiction and hear the application under S. 18 of the Family Maintenance Act. There has been what may appear to be an unreasonable period of time from the date of the application to the decision of the Court. The problem has been with translation services and obtaining translator in Inuktitut, in Nova Scotia. Due to the unavailability of this service the Respondent has given evidence in Nunavut and translated transcript has been received. This took considerable time to arrange and complete and during this period of time the child has remained in Nova Scotia and although this status quo is consideration it is only one of number of factors to be considered in arriving at what is in David’s best interest. THE FACTS: The child David was born August 28, 1992, and prior to this in 1991 the parties resided together in Iqualuit. The Applicant is the father of the child and moved away from Nunavut before he knew the Respondent was pregnant with their child. In February of 1999, it was arranged with the assistance of social worker in Cape Dorset that letter of understanding between the parties confirmed the Respondent mother was not giving up her parental rights, but the child was to be sent to Nova Scotia to reside with his father. The agreement stated that this temporary arrangement was not to exceed year unless agreed upon by the Respondent mother. The reason for this move appears to be new relationship and the desire of the mother to have David know his father better. At the time she was also having baby and had problems with her older son (drug use). The father did not return the child but made an application to Family Court for custody. His reasons for doing this are that David was experiencing academic and behavioural problems when he arrived in Nova Scotia. He has received help and the Applicant father believes that he could have better life in Nova Scotia based on his experience in the north. In support of this, counsel on behalf of the Applicant called number of witnesses. Lori LeBlanc reading recovery teacher has been working with David and noted that he has made very good progress. Her school principal described academic and behavioural problems when he first arrived, but there were items being addressed and much had been accomplished. This is also confirmed by his home room teacher, Pamela Smith. David has and continues to participate in Summer Day Camp program, T-Ball, minor hockey and other sporting activities (i.e. wrestling). Photos of David’s residence and the family situation with the Applicant provide picture of very positive life there. review of the evidence received from Cape Dorset, Nunavut, shows mother who misses her son very much. She has not had what some may describe as an easy life. At the time the evidence was taken she did not have permanent residence and was on the waiting list from housing. She resided with her mother and this amounted to household of between ten and eleven people. This results in number of people sleeping in one bedroom or in the livingroom. She resided with boyfriend and slept on the sofa with her child. There was evidence she may be back in hers mother’s residence. The Respondent does not have regular income but has started carving again and sells her art. INUIT CULTURE: The Respondent describes some of the Inuit culture and her concern over her son David losing his language (Inuktitut): FOOD: Inuit food consists of caribou and fish and very few vegetables. LANGUAGE: The Respondent finds that David is speaking more English now when she speaks to him on the phone. An example of this is when she said to him “Qannuipit” and he guessed she was asking him to go play outside when in fact it meant “How old are you?” ACTIVITIES: These include hunting, fishing and learning how to make hunting implements. There are also sporting events and camping in the summer. EXTENDED FAMILY: The extended family is very important in the Inuit culture and the Respondent describes many aunts, uncles and cousins of David who he would and did have regular contact with. The evidence from Cape Dorset describe some negative things concerning the Respondent mother. Suicides have taken her nephew and niece and she knows of other families that have lost children to suicide. Counsel for the Applicant refers to an incident confirmed by the Applicant where she became very angry at David, took him outside, placed him on the ground and started kicking him in the head and stomach and then punching him until friends intervened. The Respondent admits to alcohol, drug and gambling abuse as problems she had in the past. her mother testified that this past spring she found the Respondent not to be very good mother, not with her youngest all the time and no permanent place to stay. There is no evidence that the Respondent is child protection concern for the Department of Community Services. Counsel for the Respondent asks the Court in considering the best interest of the child to take into account, “That the Inuit culture is not that of the Nova Scotia, white community and that the standards used to judge the care, likewise should not be based on the standards of the Nova Scotia white community, but include the standard and accepted lifestyle of the Inuit brought out through the evidence on behalf of the Respondent.” With this, the Court agrees. ISSUE: Which parent should have custody considering the best interests of the child. THE LAW: The relevant section of the Family Maintenance Act conferring jurisdiction on the Court to grant custody in Section 18. The Court has always found helpful, Justice Goodfellow’s decision in Foley v. Foley, 1993 CanLII 3400 (NS SC), 124 N.S.R (2d)198, which sets out seventeen factors the Court should consider in arriving at custody decision and taking into account the child’s best interest at page 201 and 202. 1. Statutory direction Divorce Act, SS. 16(8) and 16(9), 17(5) and 176(6); (Family Maintenance Act). 2. Physical environment; 3. Discipline; 4. Role model; 5. Wishes of the children if, at the time of the hearing such are ascertainable and, to the extent they are ascertainable and, to the extent they are ascertainable, such wishes are but one factor which may carry great deal of weight in some cases and little, if any, in others. The weight to be attached is to be determined in the context of answering the question with whom would the best interests and welfare of the child be most likely achieved. That question requires the weighing of all the relevant factors and an analysis of the circumstances in which there may have been some indication or, expression by the child of preference; 6. Religious and spiritual guidance; 7. Assistance of experts, such as social workers, psychologists, psychiatrists, etcetera; 8. Time availability of parent for child; 9. The cultural development of child; 10. The physical and character development of the child by such things as participation in sports; 11. The emotional support to assist in child developing self esteem and confidence; 12. The financial contribution to the welfare of child; 13. The support of an extended family, uncles, aunts, grandparents, etcetera; 14. The willingness of parent to facilitate contact with the other parent. This is recognition of the child’s entitlement to access to parents and each parent’s obligation to promote and encourage access to the other parent. The Divorce Act, S. 16(10) and S. 17(9); 15. The interim and long range plan for the welfare of the children. 16. The financial consequences of custody. Frequently the financial reality is the child must remain in the home or, perhaps alternate accommodations provided by member of the extended family, and other alternative requiring two residence expenses will often adversely and severely impact on the ability to adequately meet the child’s reasonable needs; and 17. Any other relevant factors. Counsel for the Applicant has referred the Court to Mercer v. Clark (1989) 90 N.S.R. (2d) p.4 decision of the late Judge Daley, which is particularly relevant to this case. One of the considerations, major consideration might add, is the question of moving the child from its present environment, which included removal from the current care giver. Briefly, if one accepts that child becomes attached to an environment with which the child fells comfortable and happy and with care giver who meets the needs of the child in nurturing, caring way, then it necessarily follows that to remove the child from such situation would be upsetting, at least initially and perhaps lastingly, for the child. Generally, the courts have taken the view that when everything is at least equal, the court will not risk change in custody and leave the child where it is. Sometimes the evidence is so overwhelming that in spite of the current upset which may be caused, the court may conclude that it is in the long-term interests of the child to change custody. CONCLUSION/DECISION: The application came before the Court in September of 1999, while the child David has resided with his father the Applicant since February of 1999. This delay is outside the control of either of the parties. Counsel for the Respondent submits that because of the problem the Court should not take this status quo existing over two years into account. The paramount consideration of what is in the best interest of the child would require the Court to consider this as one of the factors to determine custody. The Court is aware of the action of the Applicant in establishing and promoting this status quo. Considering those factors set out in Foley v. Foley supra, the Respondent’s physical environment does not compare to this of the Applicant, she does not have permanent residence (a concern of her mothers) nor does she have steady income, (means of support). These two items are necessities for parenting in the Inuit culture as well as the white Nova Scotia or any community (culture). On the other hand the Applicant has permanent residence and steady income. In answer to question concerning her wishes for David the Respondent mother indicated: “I want to see happen is to get David to be with me and to be with his father. To be with me sometime, to be with his father sometime. That’s what me and his father should have did long time. want to see David to come want wish for David to come home. wish for David to go to live with me and to share him with his father. That’s my wish.” There is no evidence concerning any problems at the Applicant’s home. There appears to be very positive atmosphere there with good and happy family environment. David is an Inuit and his long term parenting and life plan must include retaining his first language (Inuktitut) and the Inuit culture. This should be the duty of both parents. In the south as his mother describes Nova Scotia, he will be at times considered different and the consequences that flow from that. So far the community support, teachers and friends have helped him progress in the white Nova Scotian community, as counsel for the Respondent describes it. Particular help has come from his father and extended family and he has adapted well. His mother has reason for sending him to Nova Scotia, in additional to wanting him to know his father. She had her problems with her older child, with new male relationship and with housing and means of support. September 2000 evidence does not disclose any change. It may be without any Court application she may have had to agree to extend the parties original agreement beyond the agreed year. The Court has great sympathy for the Respondent mother and the situation she found herself in. She was concerned about her son’s welfare and sent him to Nova Scotia and her wish is that his parents share parenting of David which is always the ideal. The dilemma the Court finds itself is to balance environment, parenting and cultural considerations. Given the situation the solution is not perfect, the Applicant father can provide the financial and environmental factors more satisfactorily while the Respondent mother has the cultural aspects which include an Inuit extended family and physical environment to enhance this and the Inuktitut language. Considering all the evidence before the Court, it is in the best interests of the child David, that custody be granted to the Applicant, his father. He has to spend considerable time with his mother to retain ties with her and his Inuit culture. Access will be every summer from the second week in July until and including the third week in August which is seven full weeks. For the purpose of this Order week starts on Sunday and ends on Saturday and as further clarification access shall take place in the year 2001, starting July 8, 2001 (travel day) to August 25, 2001 (return travel day). Given the financial situation of the Respondent mother, it shall be the responsibility of the Applicant father to provide transportation costs both ways. Counsel for the Applicant shall prepare the Order and have counsel for the Respondent consent to it with form. Order accordingly, John D. Comeau Chief Judge of the Family Court For the Province of Nova Scotia

This was a hearing to determine the proper venue for a custody hearing. The parties resided together in 1991 and 1992 in the Territory of Nunavut. The first language of the respondent mother and the child is Inuktitut. The child, born in 1993, lived with the mother in Nunavut until 1999, when he moved to Nova Scotia to be with the father by agreement of both parties. This arrangement was not to exceed one year unless agreed to by the mother. Determining that the courts in both Nunavut and Nova Scotia have jurisdiction to deal with the issue of custody, that it was in the best interests of the child to remain in Nova Scotia and for the custody hearing to be held in Nova Scotia.

c_2001nsfc8.txt

J. U.F.C. A.D. 1993 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: GREG FEATHERSTONE PETITIONER (RESPONDENT BY COUNTER-PETITION) and CONNIE MAUREEN FEATHERSTONE RESPONDENT (PETITIONER BY COUNTER-PETITION) S. Whelanfor the petitioner (husband) P. Bitzfor the respondent (wife) JUDGMENT NOBLE J. (Supplementary to Judgment of November 19, 1993) June 3, 1994 In November 1993 following trial involving the divorce of the parties, including corollary relief on such questions as spousal maintenance and the division of the parties' matrimonial property, rendered judgment in which left the issue of the division of property until later date for reasons that outlined at that time. said as part of the order: If the husband shall resume livestock operation on the farm then the division of the balance of the property shall be postponed to determine whether or not the profits therefrom (if any) do lower the debts outstanding enough that it becomes, in the husband's opinion, viable farm operation which he wishes to continue. To facilitate this proposal would postpone the final division of property to May 15, 1994 at which time the whole issue can be reviewed. If the husband does not or cannot resume livestock operation on the farm once he takes possession then the entire farm assets save the Oldsmobile car shall be sold, the debts paid and the balance of the proceeds from such sale, if any, shall be divided between the parties. In this event then the share of the wife in any proceeds of the sale shall be reduced by the value of the 1990 Oldsmobile which fix for this purpose at $9,000.00 in order to achieve 50% split of the assets to each party in accordance with the Act. The petitioner (husband) did not pursue livestock operation on the farm for number of reasons, one of which being the fact that he required surgery on his back making it impossible for him to physically do the work. In addition his financial circumstances, which were dismal at the time of my judgment, became even worse in 1994 and as result he made voluntary assignment into bankruptcy on February 14, 1994. As a result a hearing date was set for May 13 atwhich I was asked in accordance with my prior judgment tocomplete the division of matrimonial property. In additionthe petitioner filed a motion seeking a variation of thespousal maintenance order I made in November in light of hisbankrupt financial situation and his inability to earn anyincome at this time. Maintenance Issues shall deal with the application to vary my previous maintenance order first. The petitioner did pay the respondent $2,300.00 by way of maintenance out of the proceeds of certain barley he sold privately. The respondent claims this was in violation of my original order prohibiting the sale of any assets of the marriage without consent of the other party or the Court. While view the petitioner's action as contrary to my order do not condemn him for it because it is clear did not consider at the time made the order the difference between income producing assets such as grain on hand and capital assets which were what really intended to prohibit the sale of when made the order. In my view the petitioner required income to live on and the barley fell into that category. In any event he paid one half the net proceeds to his wife which covered the maintenance payments ordered for November, December, January and $300.00 of the $1,100.00 payment which came due on February 1. He is now in arrears $800.00 for February and $1,100.00 for March, April and May for total of $4,100.00. The petitioner argues that for the foreseeable future he will be unable to make any maintenance payments to his former wife. The evidence supports this position so Ihereby order that there shall be a variation of the previousmaintenance order down to the nominal sum of $1.00 per monthpayable by the petitioner to the respondent commencing June 1,1994 and continuing thereafter until further order of theCourt. The respondent can renew her application for maintenance at such time as she concludes the petitioner's financial circumstances warrant. That leaves the question of what to do with the $4,100.00 arrears still owing. Counsel for the respondent seeks to have this amount set off against the petitioner's share of the matrimonial property as means of collecting it. The petitioner argues that his failure to pay relates to his physical disability at the moment and his bankrupt finances. am inclined to agree with the petitioner at least to the extent of the arrears which accumulated after he assigned into bankruptcy. There has been substantial change in his circumstances since my earlier judgment when the hope was that he could arrange to carry on livestock operation and revive the farm income. As result propose that he shall be required to pay the $800.00 arrears of maintenance for February but that the balance of $3,300.00 be cancelled. The sum of $800.00 shall be set off against his share of the matrimonial property division in favor of the respondent. Division of Matrimonial Property Issues This aspect of this dispute has seen some important changes take place since ordered equal division of the property in November 1993. The fact that the petitioner did not take up farming and his subsequent decision to assign into bankruptcy makes the calculation of what each party hopes to recover from the marriage assets problematic at best. Some assets such as the home quarter are clearly exempt although even there it is not possible to say how much would be left to divide between the parties after payment of the current encumbrances on the title. The farm machinery may be exempt to some degree although it is not clear how much the sale of the machinery and equipment will bring. The trustee in bankruptcy will sell it by auction and while he believes it will bring something close to the estimated value of $48,200.00, no one can be certain. The 1989 Ford truck in the possession of the petitioner is exempt and the parties accept the trustee's net value of $5,975.00. In addition two assets, the Oldsmobile car and the household furnishings became the property of the respondent by my order of November 19, 1993. The balance of the assets including the remaining farm lands, the parties equity in Saskatchewan Wheat Pool and grain on hand would normally go to satisfy the unsecured creditors of the respondent under his bankruptcy. As result of the bankruptcy it is simply not possible to determine at this point in time how much either of the parties can hope to recover from the equal division of the property pursuant to The Matrimonial Property Act, S.S. 1979, c. M-6.1. However, counsel for the respondent suggests that include all of the property in my order dividing the assets because he intends to take the position that the respondent's share of those assets may be subject to constructive trust and should he succeed in that contention then the trustee in bankruptcy would not be able to claim her share of those assets for distribution to the unsecured creditors of the petitioner. Since this is matter in issue between the respondent and the trustee shall base my calculations for division of property on all of it and take no position on those items which may or not be exempt under the bankruptcy proceedings. My approach will therefore be to make the division on the basis of the values indicated by the evidence including, in particular, the valuations determined by the trustee in bankruptcy (see Exhibit P-5). As see these assets that are available for division in whole or in part, they can be stated as follows (rounded to even numbers in recognition that they are estimates): Petitioner'sRespondent's AssetNet Value Share Share 1.Home and $34,500.00$17,250.00$17,250.00 residence 2.Household furniture$ 2,500.00$ 2,500.00* and effects 3.1989 Ford Truck$ 5,975.00$ 5,975.00* 4.Oldsmobile auto$ 9,000.00$ 9,000.00* 5.Farm machinery$29,600.00$14,800.00$14,800.00 6.Saskatchewan $12,800.00$ 6,400.00$ 6,400.00 Wheat Pool equity (estimated) 7.Grain and silage 2,630.00$ 1,315.00$ 1,315.00 on hand 8.Balance of farm nil nil nil lands leased or owned Totals$97,005.00$45,740.00$51,265.00 Indicates party that will retain possession of asset. Currently the respondent's share as have calculated it exceeds the petitioner's share by $5,500.00 (rounded). Equal division would give each approximately $48,500.00 which means that on the basis of the foregoing the respondent's share must increase by $2,750.00 and the petitioner's share must decrease by similar amount. However, counsel for the respondent claims certain set-offs accrue to the wife which must be taken into account. These include the following: (1)reimbursement for car payments she made on the Oldsmobile $1,082.00 (2)unpaid maintenance February to May included $4,100.00 (3)+ grain sold in November $2,300.00 (4)+ Canadian Wheat Board advance $4,487.00 (5)reimbursement of legal fees $6,600.00 shall deal with these items seriatim: (1)The car payments these are owing to the respondent since the petitioner admittedly defaulted after the November payment was made; (2)Unpaid maintenance have already dealt with this item and allow $800.00 being the balance of the February payment due. The rest is cancelled. (See above) (3)Grain sold in November As indicated above disallow this part of the claim; (4)+ of the Canadian Wheat Board advance have concluded based mostly on the petitioner's evidence that while this was matrimonial asset that the petitioner did not waste the proceeds of the advance. He indicates that he received almost $9,000.00. Some of it went to pay debts, some to legal fees, $1,100.00 to obtain Class truck driver's license and the balance to live on. note he had the two children to support and rent to pay. All in all cannot conclude he wasted this asset to the detriment of the wife and so decline to allow this aspect of her claim. (5)Reimbursement of legal fees In my opinion this part of the respondent's claim for set- off should be allowed. There is no doubt the petitioner used assets to pay his legal fees. The respondent should be granted the same privilege. (6)The respondent admitted selling cattle squeeze for $400.00. The wife is entitled to her share of that sale. Accordingly, the wife becomes entitled to the following set-off to be included in her share of the matrimonial property division: (1)Car payments made $1,082.00 (2)Unpaid maintenance 800.00 (3)Legal fees $6,600.00 (4)Share of cattle squeeze sold 200.00 Total $8,682.00 The division of property shall therefore be as follows: Total for division $97,000.00 (rounded) Respondent's share$48,500.00 Add set-off items$ 8,862.00 Total$57,362.00 Deduct respondent's asset currently held in excess of the half share of the petitioner's$ 2,750.00 $54,612.00 $54,600.00 (rounded to) Balance and share of the petitioner's $42,400.00 As have already stated this division is based on asset values which are at this stage problematical and indeed by including some assets which may not be exempt in whole or in part from the bankruptcy proceedings. On thebasis of the foregoing calculations I have granted therespondent wife 56% of the estimated asset value and therespondent husband 44%. When all of the assets have beenliquidated and it is determined what amount is actuallyavailable for division then I direct it shall be divided basedon the foregoing analysis 56% to the respondent and 44% to thewife. Each side shall bear their own costs.

This decision is supplementary to [1993]TWL QB93506. Applications to further divide matrimonial property and to vary spousal maintenance. The husband had declared personal bankruptcy since the date of the original orders obtained under the Matrimonial Property Act and Divorce Act. HELD: 1)The husband's obligation to pay maintenance was reduced to $1 per month and the arrears accruing after the date of his assignment into bankruptcy were cancelled. 2)The wife's counsel requested that the court value and divide all of the matrimonial property equally notwithstanding the bankruptcy, because she might pursue a constructive trust claim for her 1/2 share as against the husband's trustee. 3)The court valued all of the matrimonial property and determined that 56% of this value should be paid to the wife, and only 44% to the husband, given amounts he had spent since the separation. 4)The court left unresolved the issue of which matrimonial assets might be exempt under the Bankruptcy Act and therefore available to the wife.

9_1994canlii4844.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson COUNSEL: D. Rayner for the Crown, G. Josephson for the respondent. DISPOSITION: Appeal Heard November 10, 1994 Appeal Decided December 6, 1994 On Appeal From Youth Court Appeal File: 6451 Reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Chief Justice Bayda and The Honourable Mr. Justice Lane Jackson J.A. This case concerns another young offender who stole cars in Regina in the summer of 1994. J.M. pled guilty to 16 counts of auto theft, one count of possession of stolen auto and one count of dangerous driving. He spent 13 days on remand and approximately two months under strict parental control on house arrest under s. 7.1 of the Young Offenders Act prior to receiving a disposition of six months\' open custody and two years\' probation on September 7, 1994. The Crown appeals the disposition arguing it is not fit having regard for the number of offences and the need to maintain the public\'s confidence in the administration of justice. Several features appear in this case which did not appear in R. v. B. (S.) et al. The first new issue is that, in addition to the large number of theft offences, J.M. used stolen vehicle in high speed chase with the police resulting in extensive damage to the vehicle. (This incident occurred after his period of co-operation with the police.) second new issue is the extent to which the Court should be influenced by disparity in dispositions among young offenders. This is raised because J.M.'s principal partner in these auto thefts was [T.D.] who received eight months open custody for some 19 auto thefts and attempts. ([T.D.]'s appeal was heard as part of [S.B.] et al.) third factor to be weighed, over and above those considered in [S.B.] et al., is that the learned Youth Court judge counted the time J.M. spent under house arrest as secure custody. Finally, we must consider the extent to which J.M. assisted the police. He spent three days with them solving other crimes, placing himself in other crimes and implicating others for which actions he received threats. J.M. stole his first automobile on January 1, 1994. The steering column was smashed, the ignition "cheated" and the car's contents stolen. The amount paid by Saskatchewan Government Insurance for damage to the car was $3,250 and, for the items stolen from the vehicle, $4000. J.M. admitted to stealing the vehicle along with [T.D.] J.M. committed no further offences until April 30, 1994, when, again in the company of [T.D.], he stole vehicle with the keys in the ignition and then picked up three other boys. No damage was done to the vehicle. However, an oxygen tank valued at $220 was stolen and had to be immediately replaced at the owner's expense. That same date, J.M., again with [T.D.], stole another vehicle by breaking window and then the steering column and "cheating" the ignition. Deliberate damage was also done to this vehicle. The auto offences then followed in continuous succession causing various degrees of damage and loss of articles from the interior: (a) two offences on May 1; (b) one attempt on May 14, 1994; (c) another attempt on May 15; (d) another attempt on May 18 (on the same vehicle as on May 14); (e) three vehicles stolen on May 20; and (f) four vehicles stolen on May 21. The total amount of damage to all these vehicles was $21,062.71. The total value of all items stolen was $6,055. Some time during the evening of May 21 while J.M. was engaged in this last series of offences, J.M.'s father received information that led him to believe his son was stealing cars. After searching most of the night for his son, he found him and took him to the police station where J.M. provided lengthy statement admitting his involvement in all the previous offences. On May 24, 1994, J.M. again went to the police station and gave another lengthy statement. At the same time, he went through police files and helped the police solve other car thefts. He also accompanied the police on driving tour locating stolen and damaged vehicles. On May 25, 1994, J.M. gave third statement to the police. As result of these statements, the police were able to pursue number of individuals and solve number of other crimes. After assisting the police with their inquiries in this manner, J.M. was released to appear in court on June 22, 1994. Then during the evening of June 21, he and second youth stole 1993 vehicle. The police received report vehicle had been stolen, found it being driven by J.M. and pursued it. J.M. tried to get away and drove through three stop signs, two within city limits and one on busy highway, speeding all the while. It ended with J.M. crashing the car into power pole, causing $10,000 worth of damage to vehicle which had been valued at $20,000. No one was injured. As result of all this, J.M. was charged with theft over $1000, possession of property over $1000, dangerous driving and breaching condition of his undertaking. Once arrested on this second occasion, J.M. was not permitted bail. Thirteen days later, the Youth Court judge allowed an application pursuant to s. 7.1 of the Young Offenders Act and ordered J.M. placed in the care of his parents where he remained under their strict control until September 7, 1994 when he received the above disposition. J.M. was born September 11, 1979. He had no criminal record prior to these offences. His parents have two other children aged 12 and 10. The parents state, prior to these matters, they had encountered no behaviourial problems with their son, but school officials described him as being disruptive and that he possessed poor attitude toward teachers and classmates. The group of youths with whom J.M. had involved himself in these matters was, accordingto his parents, totally different peer group. J.M. was at the time registered in Grade 9. It does not appear that alcohol or drugs played any role in these offences. In his reasons for disposition, the learned Youth Court judge said that he considered as aggravating features: (i) the police chase; (ii) the deliberate damage done to number of vehicles; and (iii) the large number of charges before him. To be weighed against this, he considered J.M.\'s age, that he had no criminal record and that he had co-operated extensively with the police. He also took into account "the very responsible approach that his father has taken throughout this whole event". He saidthe father had acted as "a very strict jailer for couple of months.... while he has been held in remand". The father had informed the Court he had seen J.M. make great change during this period. The Youth Court judge then said this: want it clearly understood that there might not have been or there certainly wouldn't have been as much further custody and there might not have been any further custody other than what you've served on remand over the last three months or so had you not involved yourself in the police chase. By putting yourself in situation where you through the operation of motor vehicle endangered the lives of the public, you convince me and other judges that the public has to be protected firstly by making it clear to you that that won't be tolerated, but by also making it clear to others that where police chases are involved there will be very firm reaction. Accordingly, on the three offences which occurred after you had already been charged with the first large group of offences, that is the 21st of June theft, dangerous driving, and breach of your terms of release I'm sentencing you in addition to the time you've already served and want the time shown as part of his record as secure custody there'll be further six months of open custody. The Youth Court judge explained the secure custody covered the periods from June 21 to July 4, when J.M. was in the Paul Dojack centre, and from July to September 7, 1994, when J.M. was with his father. The Youth Court judge was correct when he considered that separate penalty was required for the dangerous driving offence. It must be clearly understood that if you steal motor vehicle and stop when apprehended, you will receive the penalty appropriate for stealing, which may, for first offender, be lenient one; but, if you try to escape, the law will deal with you severely. J.M. and the people of Regina were fortunate no one was hurt. The possibility of maiming or killing was great. Whether someone was hurt, and regardless of J.M.'s youth and his status as young offender, custodial offence was in order for the dangerous driving (see: R. v. C.(J.M.) (1994), 1994 CanLII 16621 (MB CA), 90 C.C.C. 385 (Man. C.A.). have also considered the fact this offence was committed while he was awaiting disposition resulting in an offence in and of itself and that the vehicle was yet again stolen. Accordingly, the disposition of six months' open custody imposed on J.M. for the offences committed on the night of June 21, 1994 was fit. That leaves for consideration the question of the fitness of the dispositions for the 15 auto theft and attempted auto theft offences that J.M. committed prior to June 21, 1994. recognize, as did the Youth Court judge, that J.M.'s father began to play significant role in his son's life and virtually imprisoned him for the months of July and August, but being controlled by one's parents without the intervention of an outside agent cannot be considered the same curtailment of one's liberty as secure custody. It is not possible to equate the two. I have also had regard for the disposition imposed on [T.D.] Uniformity of sentencing is not a factor to be given great weight in comparing dispositions of young offenders. The consideration of needs, circumstances and how best to rehabilitate, by necessity, will result in disparity. An exception to this general principle must be made in the case of youths who form part of the same enterprise and who are of the same age and circumstances. To give probation to one and eight months open custody to the other cannot be reconciled. Probation does not sufficiently recognize the multiple nature of the offences and the malicious damage caused to some of the vehicles. But to impose the same disposition as [T.D.] would not be appropriate for several reasons. Firstly, great credit must be given for J.M.'s co-operation with the police. Secondly, weight must be given to the control which J.M.'s father is now exerting in his life. Since June 21, 1994, J.M. has made excellent progress in changing his ways. The Court was informed that J.M. was given the opportunity to participate in the escape described in relation to [T.D.], but made the conscious decision not to do so. Finally, the Court notes that it was [T.D.] who showed J.M. how to breach vehicle's ignition. Taking these matters into account and weighing what was said in R. v. B. (S.) et al., fit disposition for the offences prior to June 21, 1994 would be four months open custody. Accordingly, leave to appeal is granted and the appeal is allowed. The dispositions for the auto offences which had occurred prior to June 21, 1994 will be set aside and disposition of four months open custody and 18 months probation substituted. The two dispositions will run consecutively so that his custodial disposition, in total, will be ten months open custody. The terms of the probation order will be as previously provided. DATED at the City of Regina, in the Province of Saskatchewan, this 6th day of December A.D. 1994. JACKSON J.A. concur BAYDA C.J.S.

The accused, a young offender, pleaded guilty to 16 counts of auto theft. He was sentenced to 6 months open custody and 2 years probation. Prior to being sentenced, he spent 13 days on remand and 2 months under house arrest under s.7.1 of the Young Offenders Act. The Crown appealed the sentence. HELD: Appeal allowed. 1)The accused was 15 years of age and had no record. He assisted the police once apprehended. 2)Although another young offender involved in these offences had received a sentence of 9 months open custody, uniformity of sentence was not a factor to be given great weight in comparing dispositions of young offenders. 3)The sentence was increased to 10 months open custody.

1994canlii3880.txt

J. _Q.B. A.D. 1994 No. 3760 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: DIANE SORON and ALBERT LAVOIE, R. LORNE JAMIESON, GREGORY N. BAINS, SHEILA P. WHELAN, DENNIS P. LOEWEN and BRIAN McHOLM, being partners in the practice of law under the firm name of JAMIESON BAINS DEFENDANTS Mr. Timothy E. Turple for the plaintiff (respondent) Mr. Thomas J. Schonhoffer for the defendants (applicants) FIAT WRIGHT J. August 11, 1995 have good deal of sympathy for the applicants in this case. The application raises number of problems. The plaintiff has not explained why she waited for five years after she attained majority before consulting counsel, except to say that she did not believe she could do anything as result of the original advice she and her mother received from Judge Lavoie. That very significant delay is factor that must consider, but only one. Undoubtedly there will be some prejudice to the applicants by virtue of having destroyed their files, the death of Dr. Leakos and the diminution of memories over period of 11 years. Those factors must be weighed, however, against the interests of the plaintiff. am influenced by number of factors. Firstly, the notes produced from SGI of conversations with Ms. Mak, solicitor in Judge Lavoie's office, indicate that the Lavoie firm was continuing to represent the plaintiff some six months after the initial consultation, and were preparing to file statement of claim. That evidence flies in the face of Judge Lavoie's statement that he refused to act. Perhaps he was unaware Ms. Mak continued the firm's involvement. The death of Dr. Leakos is matter beyond the control of the parties. But one would expect there would be hospital, patient and SHSP records of treatment. There is no indication as to who took over Dr. Leakos' files or whether he practised with others who may have his case histories and patient records. It is difficult to believe that there are not medical records available from some source which would outline the scope of the treatment and his diagnosis and prognosis for the plaintiff. The applicants' decision to destroy their office files is understandable, but do see merit in Mr. Turple's argument that the decision did not recognize the contingent element involved in the situation of an infant plaintiff. was particularly struck by the comments contained in Brosseau v. Children's Aid Society of the District of Sudbury Inc. et al (1986), C.P.C. (2d) 312. It repeats an earlier statementthat infants with bona fide causes are privileged suitors. So, an infant "should not be visited with the sins of the nextfriends and litigation guardians who preceded him in the sameaction." agree the plaintiff's claims face some serious obstacles: (1)The plaintiff was guest passenger; (2)The plaintiff's mother rear-ended slow- moving vehicle in very adverse weather conditions. It is not my duty, however, to pass on these issues. The application is dismissed, but costs arereserved to the trial judge.

FIAT The Defendants were consulted by the Plaintiff and her mother 11 years earlier with respect to commencing an action for personal injuries arising out of a motor vehicle accident. The Plaintiff was only 12 at the time. No action was commenced with the result that the original action was now statute-barred. She waited 5 years after she attained the age of majority before taking this action against the Defendants. The Defendants applied to stay the action on the basis that they had never been retained. HELD: Application dismissed. Infants with bona fide causes are privileged suitors. An infant 'should not be visited with the sins of the next friends and litigation guardians who preceded him/her in the same action'.

1995canlii6138.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 330 Date: 2010 09 14 Docket: Q.B.G. 1576/2010 Judicial Centre: Regina BETWEEN: JOSEPH KOBIALKO and KEITHA BITTERNOSE Counsel: Joseph Kobialko appearing on his own behalf No on appearing for the respondent JUDGMENT DAWSON J. September 14, 2010 [1] Joseph Kobialko (the "landlord"), appeals from a decision of a Hearing Officer of the Office of Residential Tenancies, which decision ordered the landlord to pay to Keitha Bitternose (the “tenant”) the sum of $787.13, of which $562.13 represents utilities that the Hearing Officer found the tenant had overpaid and $225.00 which was ordered to be paid as abatement of rent for the tenant’s inconvenience of having to deal with the caretaker’s threats of the water being turned off and for repeated notes from the caretakers. [2] The landlord’s ground of appeal is as follows: Me as the Landlord, not responsible to pay the utilities tenant is to pay the utilities; if on social assistance, social services to pay for it. If agreeded [sic] to pay the utilities, than it would have been added to the rent. had this property for about 30 years and haven’t paid the tenant’s utilities. [3] Section 72 of The Residential Tenancies Act, 2006, S.S. 2006, c. R-22.0001 provides the right of appeal from the decision of hearing officer. Section 72(1) states: 72(1) Any person who is aggrieved by decision or order of hearing officer may appeal the decision or order on question of law or of jurisdiction to judge of the Court of Queen's Bench within 30 days after the date of the decision or order. [4] In this type of appeal, the court is statutorily restricted to addressing questions of law or of jurisdiction. This Court may not revisit the questions or issues of fact determined by the Hearing Officer. This appellate function means that where there is some relevant evidence to support finding of fact, that finding may not be disturbed on appeal. Only when there is no relevant supporting evidence is the line between valid non-appealable finding of fact and invalid appealable finding crossed. (See Farm Credit Corp. v. Strelioff (1990), 1990 CanLII 7030 (SK CA), 87 Sask.R. 52 (Sask.C.A.) at para. 8-15, [1990] W.W.R. 742; Reich v. Lohse (1994), 1994 CanLII 4691 (SK CA), 123 Sask.R. 114 (Sask. C.A.), 117 D.L.R. (4th) 1; Rehaume v. Dodd 2003 SKQB 356 (Sask. Q.B.) (CanLII), [2003] S.J. No. 524 (QL); Jamieson v. Adams, 2004 SKQB 212 (CanLII), [2004] S.J. No. 433 (QL) (Sask. Q.B.)) [5] The grounds set out in the landlord's appeal relate to the findings of fact made by the Hearing Officer. The landlord's appeal relates to the Hearing Officer's finding of facts related to the tenant’s claim for reimbursement of one-half of the utilities. [6] The landlord asserts that the Hearing Officer was wrong in her decision on the facts. In essence, the landlord asserts that the Hearing Officer did not find the facts as he suggested that he should have. [7] It is open to the Hearing Officer to accept some of the evidence of particular witness and not other evidence of that witness. The Hearing Officer is not bound to accept all of the evidence told to her by any witness. As well, the Hearing Officer has the authority to determine what is credible and trustworthy evidence. It is open to the Hearing Officer to find facts and come to conclusions as long as there was evidence before her upon which she based those findings. [8] In this case, there was evidence to support the Hearing Officer's factual decision and all of her findings. It is not open to this Court to overturn those findings of fact. The appellant's grounds of appeal are based on wrongful factual conclusions, which are not questions of law and this Court has no jurisdiction to overturn those findings. [9] The appeal is therefore dismissed on these grounds. J. C. L. DAWSON

The applicant landlord appeals from a decision of the hearing officer of the Residential Tenancies Office, which ordered the landlord to pay the tenant $787.13. Of this amount, $562.13 represents utilities that the tenant had overpaid. The landlord states that he never agreed to pay the utilities.HELD: Pursuant to s. 72 of The residential Tenancies Act, the court is restricted to addressing questions of law or jurisdiction. The landlord's appeal relates to findings of fact made by the hearing officer. There was evidence to support the hearing officer's factual decision and all of her findings. It is not open to this court to overturn those findings of fact. The appeal is dismissed.

d_2010skqb330.txt

J. D.I.V. A.D.1993 No. 886 J.C. W. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF WEYBURN BETWEEN: PAULINE ANNIE MARSHALL and HAROLD BRUCE MARSHALL RESPONDENT Lora Bansley for the applicant Ian D. McKay, Q.C. for the respondent FIAT McLELLAN J. July 25, 1997 The applicant mother seeks to have the ongoing childsupport of $180.00 per month per child for the three childrenof the marriage increased. The respondent father filed copies of his last three income tax returns. The returns indicate that, after adjustments, he had an average gross taxable income of $28,000.00. However, the file also indicates that his net worth has increased substantially since the original order in 1993. His financial statement filed that year showed net worth of $105,744.00 after deducting debts of $352,655.00. The current financial statement discloses that he now has net worth of $484,684.00 after deducting debts of $342,000.00. The increase amounts to approximately $380,000.00. His 1996 tax return also indicates that he purchased stock in that year (which he claimed as an expense) totalling $202,061.00. It would appear that he did not do so with borrowed funds as his total debts were reduced by $10,000.00 since 1993. He must therefore have used income generated from the farm to pay the purchase price. The respondent claims that he cannot work full time in the oil field because he is involved in bison operation. He states in his affidavit that he is hopeful that his operation will generate funds in the future but that at present he is trying to build herd. The bison herd is shown in the current financial statement as now being worth $305,000.00. I am satisfied that the respondent's assets are notbeing reasonably utilized to generate income. In thecircumstances it is appropriate for me to impute income to therespondent. I therefore find that the respondent has a gross annualincome imputed at $56,000.00. He shall pay to the applicantthe sum of $957.00 for the support of the three children ofthe marriage payable on the first day of each and every monthcommencing as of the 1st day of August, 1997, as long as thechildren remain children of the marriage under the DivorceAct, R.S.C. 1985, c. 3 (2nd supp.). There will be no order as to costs.

FIAT. The mother sought to have the ongoing child support of $180 per month per child for the three children of the marriage increased. The last three income tax returns of the father indicated an average gross income of $28,000 after adjustments. His net worth had increased substantially since the original order in 1993 from a net worth of $105,744 after deducting debts of $352,655 to $484,684 after deducting debts of $342,000. He purchased stock totalling $202,061 in 1996 using income generated from the farm. He claimed he could not work full time in the oil field because he was involved in a bison operation. HELD: The respondent was to pay monthly child support of $957 for as long as the children remained children as defined by the Divorce Act. It was appropriate to impute income of $56,000 as the respondent's assets were not being reasonably utilized to generate income.

c_1997canlii11192.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 287 Date: 2008 07 21 Docket: F.S.M. No. 91 of 2003 Judicial Centre: SASKATOON, Family Law Division BETWEEN: IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT, AND IN THE MATTER OF “KATIE”, BORN APRIL 1, 1993 “HANNAH”, BORN JUNE 17, 1994 “BOBBY”, BORN JUNE 2, 1996 (The names of the children have been changed to pseudonyms) Counsel: P.L. Tallis and Jack Hillson for the Minister D. J. Mullord, Q.C. for the mother JUDGMENT WILSON J. July 21, 2008 [1] Katie, now 15 years old, Hannah, now 14 years old, and Bobby, now 12 years old, were apprehended from their mother, S.D., (the “mother”), on March 2, 2006. The Minister seeks an order pursuant to s. 37(3) of The Child and Family Services Act, S.S. 1989-90, c. C-7.2 (the “Act”), placing the children in the care of the Minister until each child turns the age of 18 years. The mother is opposed to the Minister’s request for long term orders for the three children. The mother takes the position that the children are not “children in need of protection” pursuant to s. 11 of the Act and that the children should be immediately returned to her care. If, however, determine that the children are children in need of protection, the mother proposes that make short term supervisory order under s. 37(1)(a) of the Act, returning the children to the mother’s care under supervision and conditions. THE ISSUES [2] The questions I must answer are as follows:1. Are the children, Katie, Hannah and Bobby, or any of them, children in need of protection pursuant to s. 11 of The Child and Family Services Act?2. If so, what is the appropriate order to be made, respecting each of the children, pursuant to s. 37 of the Act? LEGISLATIVE FRAMEWORK [3] As set out above, the Minister seeks an order under s. 11 of the Act declaring Katie, Hannah and Bobby to be children in need of protection. Subsections (a) and (b) of s. 11 are the relevant subsections in this matter. Those subsections read as follows: 11 child is in need of protection where: (a) as result of action or omission by the child’s parent: (i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by duly qualified medical practitioner has not been or is not likely to be provided to the child; (v) the child’s development is likely to be seriously impaired by failure to remedy mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur ... [4] In the event that find Katie, Hannah and Bobby to be children in need of protection, must then make an appropriate order under s. 37 of the Act. The relevant subsections of s. 37 read as follows: 37(1) Subject to subsection (2), if the court determines that child is in need of protection, the court shall make an order that the child: (a) remain with, be returned to or placed in the custody of his or her parent; (b) be placed in the custody of person having sufficient interest in the child; or (c) remain in or be placed in the custody of the minister for temporary period not exceeding six months. (2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister. (3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (a) child is in need of protection; and (b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years. [5] In making an order under s. 37, am directed by subsection 37(4) to consider the best interests of the child. In addition, may consider the recommendations of “the officer” which, in the case before me, is the Minister of Social Services. [6] Section of the Act sets out the factors that must consider when determining the best interests of child. Section reads as follows: Where person or court is required by any provision of this Act other than subsection 49(2) to determine the best interests of child, the person or court shall take into account: (a) the quality of the relationship that the child has with any person who may have close connection with the child; (b) the child’s physical, mental and emotional level of development; (c) the child’s emotional, cultural, physical, psychological and spiritual needs; (d) the home environment proposed to be provided for the child; (e) the plans for the care of the child of the person to whom it is proposed that the custody of the child be entrusted; (f) where practicable, the child’s wishes, having regard to the age and level of the child’s development; (g) the importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; and (h) the effect on the child of delay in making decision. [7] With this legislative framework in mind, now turn to consideration of the evidence in this matter. EVIDENCE AT TRIAL [8] The trial in this matter commenced on January 7, 2008 and heard evidence over period of two weeks. The mother of the children was represented by counsel and presented case at trial. The father of Katie and Hannah, S.T., did not appear at trial. On the first morning of trial, the child protection worker was in contact with S.T., by telephone, as it was anticipated that he would appear for trial. The worker, Ms. Wall, advised the court that S.T. indicated he was unable to attend the trial as he was ill. S.T. advised Ms. Wall that he did not wish to be part of the proceedings and was not taking any position in the proceedings. The father of Bobby, J.W., did not appear, and was not involved in these proceedings prior to trial. [9] During the trial of this matter, the Minister called 18 witnesses including one expert witness. For the mother, five witnesses testified, including two experts and the mother herself. do not intend to repeat the evidence of each witness and will, instead, refer to testimony of the witnesses on the relevant factual matters under consideration. [10] The mother is the mother of three children, all of whom are in the care of the Minister, having been apprehended on March 2, 2006. The child, Katie, born April 1, 1993, and the child Hannah, born June 17, 1994, are residing in the foster home of Annette Saccucci. The child, Bobby, born June 12, 1996, resides in therapeutic foster home with Margaret Claypool. [11] The father of Katie and Hannah is S.T. As said above, he did not attend trial because he is ill. S.T. has terminal cancer. S.T. currently resides in Leask, Saskatchewan and has not had much contact with the children since the apprehension in March, 2006. However, during certain periods of the children’s lives, S.T. was very involved parent. S.T. and the mother lived together in common-law relationship from 1989 to 1994. They then resumed cohabitation, as “roommates”, in 2005 in the mother’s home in Saskatoon. S.T. was at the home when the children were apprehended and, as set out later in my judgment, S.T.’s behaviour, and the mother’s acquiescence of his behaviour, was one of the reasons the children were apprehended. [12] The father of Bobby is J.W. The mother and J.W. were together for short period of time in and around 1994/1995. At the time Bobby was born, J.W. was incarcerated. According to the mother, her relationship with J.W. was abusive. J. W. has had little, if any, involvement with his son, Bobby, since his son’s birth. [13] The mother was born on April 18, 1975 and is now 33 years old. The mother has two siblings, namely Will and Joe. The mother’s parents separated when the mother was in grade and in early 1992, her father died. The mother has fairly close relationship with her mother, the children’s maternal grandmother. The maternal grandmother lives in Saskatoon with her son, Will. [14] The mother met S.T. while living in Grande Prairie, Alberta. When the mother was 16 years old, she left with S.T., then 23 years old, and moved to Edmonton, Alberta. S.T. became involved in criminal activity and was arrested in Calgary. The mother then returned to Grande Prairie to live with her mother. However, in January of 1991, the mother moved with S.T. to Saskatoon. [15] The first child of the mother and S.T., Katie, was born on April 1, 1993. Katie was born with severe disabilities. Doctor Jo Nanson, an expert in clinical psychology with particular expertise in neuro-psychology, provided the court with information respecting Katie’s difficulties. In addition, heard from Katie’s family doctor, Dr. Anne McKenna, who has worked with the mother and Katie since Katie’s birth. [16] Katie was born with Goldenhar Syndrome, disorder characterized by anomalies of the face, ears, eyes and vertebrae. Katie was born with no outer ears and no lips. After birth, Katie underwent surgery for cleft lip and palate. Katie has severe hearing loss and has bone conduction hearing aids which she wears as headband. In Dr. Nanson’s report dated September 9, 2006, reference is made to the various specialists who have been involved with Katie since her birth. Dr. Gordon, psychologist at the Alvin Buchwold Child Development Program, has determined that Katie functions at approximately 1/2 to year level. Katie has no speech, requires constant supervision, is not toilet trained, has mild cerebral palsy, and walks with spastic gait. Dr. McKenna testified that Katie is not likely to live past her early twenties as renal failure is significant risk for child with Goldenhar Syndrome. [17] The mother herself has some medical problems. The mother was diagnosed with Type diabetes at the age of 13. Unfortunately, according to Dr. McKenna, the mother does not monitor her diabetes closely. As result, during pregnancy, the mother had to be admitted to hospital number of times. The mother admitted to Dr. Nanson that she does not check her blood sugar on regular basis, nor does she strictly follow diet. Further, the mother disclosed that she does not have regular family doctor and simply uses walk-in clinic if she is not feeling well. The mother told Dr. Nanson that she does not believe that she needs any medical help to manage her diabetes. [18] The Ministry became involved with the mother and Katie the day after Katie was born. Katie’s maternal grandmother, who had moved from Alberta to Saskatoon to assist the mother, was available as resource. However, the Ministry believed the mother could use some additional support. The mother was hostile to workers from the Ministry, an attitude the mother has maintained since 1993. The mother was prepared to accept parent aid and the mother signed number of parent aid contracts over the period from November, 1993 to April, 1995. She was not, however, happy to have the Ministry involved, and never has been. [19] The mother and S.T. had their second child, Hannah, on June 17, 1994. Shortly thereafter, S.T. left the mother’s home. The mother testified she was glad he was gone. According to the mother, the mother’s relationship with S.T. was an emotionally abusive relationship and the mother was stressed out as result of the constant fighting. [20] After S.T. left the mother’s home, the maternal grandmother moved into the home to help assist with the care of Katie and Hannah. Later that fall, the mother commenced relationship with J.W. This relationship was short-lived, ending in November, 1995, and was marked by violence. The mother became pregnant and the child of the mother and J.W., Bobby, was born June 12, 1996. [21] Prior to Bobby’s birth, the Minister became concerned about the mother’s ability to care for Katie and Hannah. The Ministry was in contact with Dr. McKenna and asked Dr. McKenna to encourage the mother to work with parent aid. Dr. McKenna did advise the mother that the mother should voluntarily work with parent aid or it was likely the children would be apprehended. Dr. McKenna testified at trial that she thought the mother was coping fairly well and was not neglecting the children. Dr. McKenna acknowledged that Katie had very special needs and challenges which would be even more difficult for teenaged mother. [22] After Bobby was born, the Minister had some concerns regarding possible failure to thrive. According to Dr. McKenna, Bobby was not experiencing difficulties and was growing well. [23] Dr. McKenna continued to provide medical services to the mother and the children throughout the time period from 1997 to 2003. The Ministry had concern in January, 1999 as result of Katie having injuries to her face. It was determined that Katie’s injuries were as result of self-harm but the Ministry believed the mother was not always on top of the children’s medical needs. The mother used parental aid services in the spring and summer of 2003. The mother’s file at the Minister’s office was closed on June 24, 2003. It appears she was managing to care for the three children with the assistance of the maternal grandmother. [24] The Minister’s file was re-opened in the late fall of 2003. Katie was placed on apprehended status on November 13, 2003. Hannah and Bobby were placed on apprehended status on November 17, 2003. Katie was found to have significant injuries, including bite marks on her face which, of course, could not have been self-inflicted. [25] The mother had commenced relationship with man by the name of J.M. in the summer of 2002. The mother testified she married J.M. and, at the time of trial, remained legally married to him. J.M. was suspected of assaulting Katie. Alternatively, there remains possibility that the bite marks were as result of Hannah biting her sister. [26] An order was made by Wright J., December 23, 2003, directing pre-trial conference be held in early January, 2004. Wright J. ordered that the mother was to have access with the children for minimum of three times per week for minimum of four hours. Wright J. allowed the access to occur at the mother’s home on the condition that the children not be left unsupervised in the presence of J.M. at any time during the access. [27] On January 6, 2004, the pre-trial did not proceed as an agreement was reached. The three children were returned to the mother’s care pursuant to s. 37(1)(a) of The Child and Family Services Act. The supervision of the mother was ordered to take place for period of six months and conditions were placed on the mother for the six month period. The mother and J.M. were ordered to attend anger management and parenting classes, allow parent aid into their home, work cooperatively with the Minister, and ensure all of the children’s medical needs were being met. [28] In and around the late fall of 2003, Bobby was diagnosed with attention deficit disorder. According to Dr. McKenna, she did not originally prescribe medication for Bobby because the mother did not want any street drugs in her home. However, by March of 2004, Dr. McKenna made determination that Bobby should take Ritalin for his condition. As set out in Dr. McKenna’s letter of March 8, 2004, to worker for the Ministry, the type of Ritalin prescribed was Concerta, type of drug that cannot be used on the street. will deal with the issue of Bobby’s medications, and the mother’s attitude towards the same, later in this judgment. [29] When the children were returned to the mother in early 2004, parent aid worked with the mother until the fall of 2004. The Ministry continued to stay involved with this family through the execution of number of Parental Services Agreements (“PSA’s”). After the father of Katie and Hannah, S.T., returned to live with the mother in November, 2005, concern arose regarding S.T. According to Christine Kelleher, the child protection worker assigned to this file, the Ministry had the mother and father agree that S.T. would have no unsupervised time with the children. [30] Ms. Kelleher testified that this condition, regarding S.T., formed part of the PSA because of S.T.’s conviction for physical abuse of another child. have evidence before me that S.T. was involved in relationship with another woman, namely Emma, and it was child of Emma’s that S.T. assaulted. It is not disputed that S.T. breached the condition of the PSA allowing only supervised time with the children, Katie, Hannah and Bobby. According to Ms. Kelleher, when the workers learned that S.T. was transporting Katie to school with no supervision, and upon getting reports from S.T.’s parole officer, neighbors and the children, all confirming that S.T. spent time alone with Katie, the Minister determined an apprehension was appropriate. [31] This court proceeding was launched by the Minister by way of notice of protection hearing. The Minister sought three month order pursuant to s. 37(1)(c) of the Act. The mother objected and the matter was set for pre-trial on May 16, 2006. The pre-trial did not proceed. Smith J. made an unusual fiat indicating that in light of the “unfounded, unreasonable, and unbelievable allegations advanced by the mother”, this matter should proceed directly to trial. He did not say what the mother had alleged. On June 5, 2007, Smith J. granted consent order regarding disclosure by the Minister to the mother’s lawyer. management pre-trial conference was then held on October 30, 2007. Trial dates, for January, 2008, were set. The Children [32] As set out above, Katie was born with Goldenhar’s Syndrome and has significant physical and mental disabilities. The nature of those disabilities was described above as provided through the testimony of Dr. Nanson and Dr. McKenna. [33] When Katie was born, the mother and Katie’s father, S.T., were residing in an apartment on 22nd Street in Saskatoon. The maternal grandmother lived approximately block away and provided assistance to the mother to take care of Katie. The maternal grandmother acknowledged that it was difficult to care for Katie given her many problems. However, she testified that the mother learned how to deal with feeding plate required because of Katie’s cleft palate and essentially took full responsibility for Katie’s care. [34] Jean Berndt, who was the principal at Mayfair School in Saskatoon from 1998 to 2002, testified regarding Katie’s attendance at Mayfair School for two year period from 2001 to 2003. also heard testimony from Mindy Waldner, the teacher aid assigned to Katie. Ms. Berndt testified that Katie was in special program at Mayfair School but was in normal classroom with full-time teacher’s aid. Katie had significant needs as Katie could not speak and was not bathroom trained. Sign language communication and some toilet training was part of Katie’s regular programming while Katie was at the Mayfair School. [35] Ms. Berndt described Katie as being happy some days, and very unhappy on other days. On her difficult days, Katie would hit and bite herself, scream and could lash out and hurt her teacher assistants. [36] Ms. Berndt had some difficult times with Katie’s mother during this period. According to Ms. Berndt, the mother would call, use bad language, yell at Ms. Berndt and threaten to sue the school. Ms. Berndt testified that she advised the mother she would not deal with her unless it was in respectful manner. The mother was able to alter her behaviour and deal appropriately with Ms. Berndt. [37] Ms. Berndt had some concerns over the mother’s care of Katie. Specifically, Ms. Berndt was concerned that, despite the school’s several requests to the mother, the mother did not proceed to get new batteries for Katie’s hearing apparatus, nor did the mother recognize that Katie’s leg splints were no longer fitting and required readjustment. Eventually, Ms. Berndt handled the hearing aid issue and took Katie to physiotherapist where Katie was measured for new leg splints. The mother was not present. [38] Ms. Berndt acknowledged that, during this period of time, the mother was attempting to complete course at SIAST. Ms. Berndt testified that she most often dealt with J.M., the mother’s common-law partner, regarding issues relating to Katie. If Katie was sick, it would be J.M. who would attend at the school to bring her home. According to Ms. Berndt, the mother asked the school not to call the mother at SIAST, Kelsey Campus, as she didn’t want to be disturbed. [39] Ms. Waldner, Katie’s teacher aid for the time period Katie was at Mayfair School, testified that she worked with Katie all day doing modified work. Although Ms. Waldner did see some development during the time she worked with Katie, it was quite minimal. Katie’s behaviour remained self-abusive and difficult to control. Katie lashed out at Ms. Waldner, leaving her bruised. [40] Ms. Waldner testified that, on occasion, Ms. Berndt, Ms. Waldner and others would have group meeting with the mother to discuss Katie’s progress. It was Ms. Waldner’s view that the mother was reluctant to admit Katie had any limitations and that the mother was often “short” or “rude”. When the mother was told that Katie walked on her tiptoes, and that they should try to work on this issue, the mother’s response was that Katie could be model. Ms. Waldner knew the mother was joking but felt the mother truly didn’t understand how limited Katie was and how difficult it was for the school to cope with Katie’s needs. [41] Ms. Waldner said Katie’s hygiene was an issue. Ms. Waldner said that on some days, Katie smelled strongly of urine and had diaper rash. On occasion, the batteries in her hearing aid had gone dead and, clearly, the mother had either not noticed or failed to replace the batteries. Ms. Waldner testified that she was able to teach Katie to wash her hands after going to the washroom. Katie was very excited when her hands smelled like soap. [42] Ms. Waldner was shown series of photographs of Katie dated November 12, 2003. The photographs depict bruising on Katie’s cheekbone and bite marks on her cheek, ear and nose. It was after this day that Katie was apprehended and the order of Wright J. was made December 23, 2003. Unfortunately, this was not the first time that Katie had arrived at school with significant injuries. [43] Ms. Waldner testified that in February, 2003, Katie arrived at school with severe black eye. Ms. Waldner was of the view that Katie didn’t have the strength or accuracy to self-inflict the injury on her face. When the mother testified, she said that J.M. told her the injury must have occurred at school. [44] Under intense cross-examination regarding the February, 2003 and November, 2003 injuries suffered by Katie, the mother acknowledged that J.M. had been violent with the mother. However, the mother testified that she had never seen J.M. hit any of the children. The mother admitted that it was likely J.M. was responsible for Katie’s injuries and that the mother was endangering the children by not dealing with J.M. appropriately. According to the mother, she has changed. She testified she would no longer put the interests of man before her children. [45] After Katie was apprehended in early March, 2006, Katie, along with her sister, Hannah, were placed with foster family in Rosthern, Saskatchewan, approximately 60 kilometers north of Saskatoon. The foster mother and father, Annette and Rick Saccucci, live on farm, seven miles outside of Rosthern. They have horses, cattle and hay land. [46] Ms. Saccucci testified that she was overwhelmed when Katie first came into her home. Katie was very agitated and was hitting both Ms. Saccucci and her husband, Rick. For the first three months that Katie was in the care of the Saccuccis, she had temper tantrums, broke chairs, bit and punched at both foster parents. Ms. Saccucci testified that Katie required medication to soothe her and that her sister, Hannah, was fully aware of what medications Katie required. [47] Katie had severe lice when she first moved into the home of the Saccuccis. Ms. Saccucci testified that the nits were six inches down each hair shaft which meant the lice had been problem for over year. Ms. Saccucci spent hours picking the nits and it was close to month before Katie’s head was clear. [48] Ms. Saccucci testified that in the two years Katie has been in her home, she has seen great improvement. Katie is, according to Ms. Saccucci, no longer having temper tantrums and outbursts and appears to be comfortable with both Ms. and Mr. Saccucci. Katie shows affection and “asks” permission to hug them by using her limited sign language. Although Ms. Saccucci says she tried initially to potty train Katie, it simply hasn’t worked. Katie will come to Ms. Saccucci if she has dirty or wet diaper, but has been unable to learn how to approach Ms. Saccucci prior to using her diaper. [49] Ms. Saccucci describes Katie as very obedient child who asks permission for food, water or to play outside. Ms. Saccucci believes the placement of Katie in her care has been highly successful and testified that she would be willing to continue to care for Katie until Katie reaches the age of 21 years. Ms. Saccucci explained that although most foster care arrangements end when child reaches the age of 18, in light of Katie’s special needs, she can stay with foster family until the age of 21. Further, an application can be made for further assistance, when Katie is 21 years old, and it may be possible for Katie to stay in the Saccucci household for as long as she lives. [50] After Katie moved to the home of the Saccuccis, she commenced school in Hague. Katie’s special education resource teacher from March, 2006 until the end of June, 2007 was Andrea Woods-Fehr. Ms. Woods-Fehr said Katie was confused on her first day at the school and, initially, often came to school upset. Katie would “tantrum”, hitting her own face or others. Over time, Katie settled in at the school and began learning more sign language. Ms. Woods-Fehr indicated that Katie can sign for her needs like food, drink or the bathroom but must point to pictures for feelings and emotions. [51] Ms. Woods-Fehr said that Katie no longer has tantrums but still will self-harm on occasion. On the positive side, Katie has become interested in her own appearance. Katie likes her nails painted, new clothes and looking pretty. [52] Ms. Woods-Fehr indicates that Katie is in physical therapy program which has improved her balance and core strength. Katie’s gross motor skills have improved although her fine motor skills remain an issue. [53] Ms. Woods-Fehr testified that there is both junior and senior program at the Hague school. Katie is now with students of her own age group in the senior program. Katie can sort bottles and cans as part of the program through Valley Action. According to Ms. Woods-Fehr, Katie can stay at the Hague school until she is 21 years old. [54] Under cross-examination, Ms. Woods-Fehr gave evidence that there is similar program for child with Katie’s needs at Hugh Cairns school in Saskatoon. [55] Hannah is, as set out previously, now 14 years old. Of the three children, Hannah is the only child without any medical problems. Although there is some testing being undertaken regarding Hannah’s hearing, there is no evidence before the court that Hannah suffers from any other medical disabilities. At the time the children were apprehended in March, 2006, Hannah was attending Caswell school in Saskatoon. Hannah was in grade 5/6 class. According to her teacher, Jana Scott-Lindsay, Hannah worked very hard in class, had lots of friends and was very nice girl. Unfortunately, Hannah struggled little with her school work and, particularly, with language arts. [56] Hannah and her younger sibling, Bobby, both attended Caswell school. According to Ms. Scott-Lindsay, Hannah took care of Bobby. For example, Bobby would, on occasion, come to Hannah’s class and ask for her. Hannah always helped him and, in fact, on one occasion gave him his medication for ADHD. [57] When Hannah was apprehended in March, 2006, she was placed, with Katie, in the home of Annette and Rick Saccucci. Ms. Saccucci testified that Hannah was upset at first and didn’t have an understanding of why the three children were apprehended from the care of their mother. It became clear to Ms. Saccucci immediately that Hannah was more concerned about her sister Katie than she was herself. Hannah would get upset at Ms. Saccucci for not looking after Katie’s needs before any of the other children in the home were looked after. On one occasion, Hannah told Ms. Saccucci, that Katie needs to be fed first before anyone. [58] When Hannah arrived at the Saccucci home, like Katie, her hair was full of lice. When Ms. Saccucci had Hannah checked out at the community centre, they indicated it was likely the lice had been in her hair for over year. When asked if it bothered her, Hannah said “no, you get used to it”. [59] Ms. Saccucci testified that Hannah really hated the Ministry and felt the Ministry was to blame for her mother not getting an education. Hannah told Ms. Saccucci that the Ministry just rips families apart and called her worker, Christine Kelleher, “family destroyer”. [60] The tension between Ms. Saccucci and Hannah continued for few months regarding Ms. Saccucci’s care of Katie. Hannah wanted to parent Katie and was concerned about the level of care Ms. Saccucci was providing for Katie. Finally, Ms. Saccucci testified she told Hannah she was the adult and the parent and it was her job to look after Katie, not Hannah’s. [61] Ms. Saccucci testified that after Hannah was with her for awhile, she warmed up. It appeared to Ms. Saccucci that Hannah began to accept that Katie was not Hannah’s responsibility. Ms. Saccucci believes that Hannah no longer feels need to be mother to Katie and is now being child. [62] Ms. Saccucci testified that Hannah loves spending time outdoors doing chores and being with the animals. Hannah loves horseback riding and being with the cats and dogs. When Ms. Saccucci asked Hannah about the future, Hannah expressed desire to be vet assistant. Hannah told Ms. Saccucci that she loves school and never had chance to stay in one school long enough to care about school. It was clear to Ms. Saccucci that Hannah does know about the court proceedings. Hannah told Ms. Saccucci that part of her wants to go home to her mother, and part of her wants to stay forever with the Saccuccis. [63] Ms. Saccucci testified that when Hannah talks of her birth family, she mostly talks about her younger sibling, Bobby. Hannah is worried about Bobby because Bobby doesn’t live in the same home as Katie and Hannah. Ms. Saccucci said that Hannah sees Bobby once per month and is aware that she can call the foster home where Bobby is living, at any time, to talk to Bobby. [64] Ms. Saccucci says that Hannah sometimes comes away depressed from her visits with her mother. Hannah has told Ms. Saccucci that she is very mixed up and just wants everyone to be happy. She has also told Ms. Saccucci that she doesn’t want to go to soup kitchens anymore like she did when she lived with her mother. [65] Ms. Saccucci testified that she is not opposed to Katie and Hannah’s mother coming to visit at the farm. Further, she indicated she would be willing to take Bobby overnight for visit if she felt Hannah needed to spend some time with him. Finally, Ms. Saccucci testified that she would be willing to assist with Hannah seeing her father, S.T. Ms. Saccucci was aware that S.T. was ill and, if appropriate, was willing to assist with visit for Hannah with her father. [66] With respect to Hannah’s schooling in the Rosthern district, Hannah was provided with special education resource teacher at the Rosthern school. Brenda Epp began working with Hannah in March of 2006. At the time of trial, Ms. Epp had worked with Hannah for almost two years. Ms. Epp said that Hannah initially kept to herself, was scared, cried easily and was reluctant to try new things. Ms. Epp has noticed significant change in Hannah. Hannah now has more friends, is more confident academically, plays basketball, sings, and gets along well with the other children at school. [67] Similar to the evidence received from Ms. Saccucci, Ms. Epp said Hannah appears very concerned about her brother, Bobby. She expressed worry about his care in his foster home. After Hannah was given the opportunity of meeting Bobby’s foster mother, she felt better and told Ms. Epp that Bobby was in good home. [68] Mary Middleton is counsellor/social worker employed by the Saskatoon Health Region. She has counselled Hannah, seeing her approximately once every four to six weeks. According to Ms. Middleton, Hannah is delightful, intelligent child. Unfortunately, Ms. Middleton also testified that Hannah was highly parentified. According to Ms. Middleton, Hannah has all the adult skills of caretaking for other children, making meals, cleaning and generally taking on an adult role. [69] Ms. Middleton says Hannah has changed over the course of the year Ms. Middleton has worked with Hannah. Hannah is more confident, and now has belief that she will graduate high school. Ms. Middleton testified that when she first started working with Hannah, it was all about who Hannah could please as opposed to what Hannah wanted for herself. Hannah has told Ms. Middleton that she would prefer to remain with the Saccucci family but wants to have lots of visits with her mom. She has expressed great love for her mom but expresses desire for the Saccucci home. [70] Hannah has told Ms. Middleton that her life with her mother was difficult. Hannah told Ms. Middleton about moving constantly from house to house and school to school. She described homes where there were rats and mice and the fact that she had to sleep on the floor. [71] During cross-examination of Ms. Middleton, Ms. Middleton was shown number of cards, drawings and other writing that Hannah prepared while living in the foster home. The drawings show Hannah saying how much she loves her mom and dad and wishing she could go home. These drawings were done when Hannah was first moved into foster care. It appears Hannah has stopped expressing desire to go home. [72] According to Ms. Middleton, Hannah has expressed concern that her mother has new boyfriend. Hannah didn’t give Ms. Middleton his name but mentioned his existence number of times to Ms. Middleton. [73] heard testimony from Lucille Spriggs, Hannah’s teacher for the school term September, 2007 to June, 2008 and from Lisa Hryciuk, the school counsellor at Rosthern High who runs self-esteem group for girls. Both Ms. Spriggs and Ms. Hryciuk testified that, for the most part, Hannah is doing well. [74] Ms. Spriggs described Hannah as friendly girl, who fits in well, and has many friends. Ms. Hryciuk also testified that Hannah has good social group and seems to fit in well at school. Ms. Spriggs says that Hannah does require some extra help with her schooling but it is realistic for Hannah to believe that she will complete high school and be able to proceed on to SIAST or other post-secondary education. [75] Both Ms. Spriggs and Mrs. Hryciuk testified that Hannah talks about her foster parents and the farm and doesn’t, very often, talk about her birth home. Ms. Hryciuk did say, however, that when Hannah does talk about her birth home, there are good things about the home just like there are about her foster home. Hannah told Mrs. Hryciuk that she wanted to talk to the judge by herself because she didn’t want to hurt her mother’s feelings if she said she didn’t want to go back to her birth home. For period of time, Hannah felt she really needed to see judge. According to Ms. Hryciuk, by the time of trial, Hannah was comfortable with letting judge decide for her. [76] As set out previously, Bobby was diagnosed as having ADHD by Dr. McKenna and has had some difficulties as result. Bobby was attending school at Caswell school in Saskatoon when the initial testing for ADHD was done. Bobby was in grade at the time. There is evidence before me that Bobby had less problems at school or, as the mother stated, fewer “meltdowns” when he was on his medications. There is also evidence, however, that the mother was uncomfortable with the side- effects of Ritalin stating that “Bobby was just not Bobby”. The mother testified that she would stop providing the medication as she didn’t like to see Bobby “flat”. [77] heard testimony from Brent Wachs, Bobby’s teacher at Caswell, for the 2006 calendar year. Mr. Wachs described Bobby as “great guy”, nice boy, who was nice to teach. Mr. Wachs testified that prior to Bobby being apprehended in March, 2006, he had many more meltdowns. It was Mr. Wachs’ belief that Bobby’s mother was not providing the prescribed Ritalin. After Bobby’s apprehension, Mr. Wachs said Bobby was totally different student. He was able to concentrate in class and seemed more settled and happy. Mr. Wachs testified that he was aware Bobby’s foster parents were providing Bobby’s medication. [78] Mr. Wachs only had one meeting with Bobby’s mother which was not pleasant meeting. The mother accused Mr. Wachs of having called Social Services. Mr. Wachs testified that he did not contact Social Services about Bobby. Mr. Wachs testified that after some discussion, the mother did calm down and they had successful meeting. [79] During Bobby’s time at Caswell school, school social worker, Lori Alderson, was assigned to assist with Bobby. Ms. Alderson became involved in January, 2006. It was Ms. Alderson that initially dealt with the issue of Bobby’s medication. Ms. Alderson testified that the school believed medication was required because of Bobby’s extreme behaviour. Ms. Alderson testified Bobby was crying easily, was aggressive with other children, was easily frustrated and reacted violently to direction. [80] Ms. Alderson testified that she was only able to work with Bobby with the consent of the mother. Ms. Alderson said that, initially, the mother objected to any involvement of social worker, advising Ms. Alderson that she wasn’t comfortable. Eventually, Ms. Alderson did assist and was instrumental in having Bobby commence his Ritalin prescription. [81] Shelly McConnel-Harder is teacher at River Heights School in Saskatoon. Bobby was registered for school at River Heights for the fall of 2007. At the time, Bobby was in the care of Margaret Claypool where he had resided since his apprehension in March, 2006. [82] Ms. McConnell-Harder testified that Bobby was struggling with his school work although Bobby was trying very hard. According to Ms. McConnell-Harder, Bobby was in grade class but was doing modified program including reading at grade 2-3 level and math at grade 3-4 level. With regard to Bobby’s behaviour, Ms. McConnell-Harder noted no behavioural concerns stating that Bobby was cooperative and respectful. Ms. McConnell-Harder described Bobby as being quiet child, much more of follower than leader. Ms. McConnell-Harder advised that due to Bobby’s academic difficulties, an educational assistant was assigned to work with Bobby. [83] As set out above, Bobby has been in the home of Margaret Claypool since his apprehension in March 2006. Ms. Claypool’s home is therapeutic foster home located in Saskatoon. [84] Ms. Claypool advised that Bobby adjusted well to her home and, with the exception of one “meltdown”, in the first couple of days at her home, Bobby has not had behavioural problems. Ms. Claypool provides Bobby with slow release Ritalin to assist with his ADHD. [85] Ms. Claypool testified that Bobby talks great deal about his sister Hannah. According to Ms. Claypool, Bobby really missed Hannah when he first came to Ms. Claypool’s home. He told Ms. Claypool that it was Hannah who always said goodnight and got him up in the morning for breakfast. Bobby also told Ms. Claypool that Hannah gave him his medications. Bobby also disclosed to Ms. Claypool that he had broken into home, on the west side of Saskatoon, and got caught. heard evidence regarding this criminal activity from number of witnesses. [86] In late August 2005, when the mother was attending school full time, Bobby got into some trouble with another boy. Apparently, Bobby broke into woman’s home and vandalized the home. It appears the mother dealt appropriately with Bobby’s behaviour. The mother had meeting with the police and insisted that Bobby apologize to the woman whose home he entered. According to the mother, she also applied for counsellor at mental health but couldn’t get an appointment until the spring of 2006. Bobby was apprehended prior to proceeding with counselling at mental health. [87] Ms. Claypool testified that Bobby was not, now, running with bad crowd and he understands that stealing is wrong. Bobby is respectful of the other children’s rooms and never takes anything from the other children. Ms. Claypool fosters five children in total. With respect to the Ritalin, Ms. Claypool testified that she does not maintain Bobby on the Ritalin during summers or week-ends as he seems to have enough activity during those times. Ms. Claypool utilizes the Ritalin for school days. [88] Ms. Claypool testified that she would be willing to care for Bobby on long-term basis. Ms. Claypool testified that Bobby has become an important member of the family and that Ms. Claypool would not request any change with respect to Bobby’s residency. The Experts [89] The Ministry referred the mother to Dr. Jo Nanson, registered doctoral psychologist, for psychological assessment. Dr. Nanson prepared the assessment, dated September 9, 2006, as well as an updated report dated January 2, 2008. At the time Dr. Nanson prepared her first report, the mother was continuing to live with the father of Katie and Hannah, S.T. By the time Dr. Nanson completed her second report in January of 2008, the mother was involved in new relationship with man by the name of P.Y. The mother and P.Y. started dating in November 2006 and commenced common-law cohabitation relationship in January 2007. [90] Dr. Nanson was qualified as an expert without objection from the mother’s counsel. Dr. Nanson was qualified to give opinion evidence in the area of parenting assessments and clinical psychology. Her report, and more specifically, her recommendations therein, were arrived at after Dr. Nanson met and tested the mother and observed supervised visit with the children, the mother and S.T. Dr. Nanson also reviewed the investigation record of the Minister regarding this family. [91] Dr. Nanson administered the Personality Assessment Inventory (“PAI”) and indicated that the mother provided valid profile. To clarify, there was no evidence that the mother was responding randomly or appeared to be creating an inflated impression of herself. According to the clinical scales, the mother has high level of paranoia and borderline features. The mother has poor control over her emotions and has intense angry outbursts. The mother is angry and suspicious and, at the same time, anxious and needy. Unfortunately, the mother blames her children for being in foster care, feeling that they have abandoned her. Dr. Nanson testified that her reading of the PAI is that the mother’s profile belongs in the category of borderline personality disorder. Such disorder, according to Dr. Nanson, is not treatable with medication and is difficult to treat in psychotherapy. Dr. Nanson’s report indicates that psychotherapy requires long-term skilled therapy and the client needs to be open to change. At the time of her first report, Dr. Nanson reported that the mother was not willing to change, nor did the mother see any need to change. [92] Dr. Nanson reported that the complexity of the parenting that the mother’s children require needs to be understood. Dr. Nanson states, at p. 11 of her report, dated September 9, 2006 as follows: .. [Katie] requires constant supervision and cannot be left unattended for minute, while awake. She has no awareness of danger and no hearing. She requires help with all activities of daily living; dressing diapering, feeding etc., just like toddler. She is likely to remain at this level for the remainder of her life. [Hannah] and [Bobby] are emotionally needy and also demand great deal from [the mother]. [The mother] has few emotional resources of her own, and has little experience from her own childhood of adequate parenting. She has complex health needs of her own, which she does not accept or understand. According to Ms. Raczynuski, [the mother] has difficulty establishing and maintaining household routine, with regular meals, bedtimes, etc. Both she and her children need this level of structure. suspect that [the mother] has only experienced this type of structure when she was in foster care, and therefore reacts negatively to any attempt to re-create the conditions of foster care. [93] Dr. Nanson further concludes that the mother appears locked into an angry rebellious state of development that most people leave behind in their mid to late teens. According to Dr. Nanson, the mother lacks the insight to understand that she is the author of much of her own misfortune. Further, and importantly, the mother depends on Hannah for emotional support and to act as co-parent for the other children. [94] According to Dr. Nanson, the mother made it clear to Dr. Nanson that she would not accept either the Minister or court limiting her access to S.T. The mother did not see S.T. as risk to the children. This is no longer an issue as S.T. is no longer in the mother’s or the children’s lives. [95] Dr. Nanson concludes her September 2006 report with the following recommendation: would recommend that the three children remain in care, until [S.T.’s] health status is clearer. If [the mother] chooses to remain with him once he is well again, then her contact with her own children should be limited to supervised visits. If she can establish home without him and remain out of another violent abusive relationship for period of six months, then consideration could be given to returning the children to her gradually; [Hannah] first for period of no less than three months, then [Katie] for another three months, and finally [Bobby] if she is coping with the other two adequately. Independent assessment of the children and close monitoring of their school placements will be needed during this time. [Bobby] is the highest risk child in the family because of his acting out behaviour, and the fact that he is the product of violent abusive relationship. [96] It is clear that Dr. Nanson believed re-unification of the children with their mother was possible. However, certain steps would need to be taken by the mother before re-unification commenced. Dr. Nanson’s recommendations changed somewhat after her review of this matter in early 2008. [97] In early 2008, Dr. Nanson again asked the mother to complete the PAI. The mother’s profile showed considerably less psycho-pathology than on the previous assessment. However, Dr. Nanson’s report indicates that the mother’s highest clinical evaluation continued to be on the borderline scale. The mother continued to show clinically significant elevations on subscales for negative relationships and self-harm. In addition, her treatment scales indicate the mother has high levels of aggression with irritability and quick-temperedness. [98] Dr. Nanson summarized the mother’s status in January 2008 as being one of continuing to struggle with authority figures and lack of insight into her own contributions to her current situations. Dr. Nanson concluded, at p. 11 of her report, as follows: do not feel that [the mother] is ready to resume full time parenting of any of her children at the present time. would concur with the recommendations of Dr. Farthing’s report that she has individual psychotherapy with therapist experienced in treating personality disorders. This would have to be individual psychotherapy, rather than the generic group programs which [the mother] has attended in the past and plans to attend in the future. While concur that the family therapy would be useful for [the mother] and her two younger children, this in and of itself would not be sufficient psychotherapy for Sarah to modify some of her personality traits, which continue to get her into difficulties as parent, and in her relationship with the Department of Social Services. continue to be concerned about [the mother’s] physical health and her cavalier attitude towards the management of her Type diabetes. Contrary to what she told Dr. Farthing, there was objective evidence during my assessment that she was not monitoring her blood sugars on regular basis and was not making an effort to change her behaviour in response to abnormal blood sugar levels. She remains at high risk for adverse consequences of Type diabetes. would recommend that [the mother] have minimum of one year individual psychotherapy with therapist experienced in treating personality disorders before consideration is given to returning her children to her. [99] In her conclusions as set out above, Dr. Nanson refers to Dr. Farthing’s report, report submitted into evidence by the mother. deal with Dr. Farthing’s report later in this judgment. [100] While testifying at trial, Dr. Nanson said that she was delighted to find out that the mother’s three children were continuing in the same foster homes where they were initially placed when apprehended in March, 2006. Dr. Nanson talked about stability for the children and stressed that there should be no attempt to move any of the children back into the care of the mother until the mother had participated in intensive therapy for period of at least one year. It was Dr. Nanson’s opinion, however, that given the age of the three children, and all the circumstances of this matter, the recommendation of the Minister for long-term order for each of the three children is preferable choice for the children. [101] Under cross-examination, Dr. Nanson indicated that she had real concerns about Hannah going back into the home of the mother as she believed that Hannah would revert to parenting Katie and Bobby. Further, Dr. Nanson testified that supervised visits should continue for the mother but that unsupervised visits could be considered in the future. Dr. Nanson remained concerned about the mother’s anger and the possibility that the mother may promise the children future that may not come true. Thus, her recommendation is for continued supervision, for now. With regard to the two children of S.T. having contact with S.T., Dr. Nanson believed it was very important for Hannah to see S.T. before he dies. Dr. Nanson recommended that any visitation be supervised and set up appropriately so that Hannah understands more about S.T.’s illness and could handle the visit. Dr. Nanson did not think it was as important for Katie to see S.T. [102] Dr. Gerry Farthing prepared psychological report regarding the mother and noted that, as result of psychologically assessing the mother, he was able to make specific recommendations about her psychological functioning as it pertains to the capacity to parent the three children. Dr. Farthing’s report was prepared between April 20 and May 30, 2007. Counsel for the mother requested the report. In preparing his report, Dr. Farthing reviewed affidavits previously filed by the worker, Christine Kelleher (formerly Raczynski). In addition, he met with the mother, her current common-law partner, P.Y., and attended supervised visit. Like Dr. Nanson, he administered psychological tests including the PAI administered by Dr. Nanson. [103] During his interview of the mother, he spent some time discussing with the mother her current relationship with P.Y. As set out on page 10 of his report, Dr. Fathering relates that the mother stated she likes P.Y. because they like to use marijuana together and he is not abusive. The mother advised Dr. Farthing that she is now comfortable with the men in her life because they are not violent or abusive whereas the men in her past, Bobby’s father, J.W., and her husband, J.M., were both abusive. [104] The mother told Dr. Farthing that she had hopes to complete an automotive mechanic’s course at Kelsey. The mother says she was in the course but her schooling was interrupted by the apprehension of the children. The mother believes she was trying to better herself by taking automotive training and was so interested in her course that she let some complaints regarding the children slip by her without attending to them. The mother told Dr. Farthing that she was angry that her plan to better herself was interrupted by the Ministry. [105] Dr. Farthing interpreted the various tests he conducted with the specifics of the results being set out on pages 15 to 21 of his report. He summarized the test data by stating that the mother demonstrated her personality functioning is characterized by difficulties. According to Dr. Farthing, there are indicators of Axis II diagnosable personality problems. From the MMPI-II, Dr. Farthing states that the mother may show impulsive behaviour, rebelliousness and poor relationships with authority figures. From the MCMI-II, the interpretation is that she has histrionic-like disorder or at least strong personality traits. Dr. Farthing states that her anti-social outlook makes her unwilling to trust others. [106] Dr. Farthing recommends the mother attend therapy before the mother’s children be returned to her care. He was also of the view that she should commence school immediately and not wait until she has completed therapy and the children are moved back into her care. It was Dr. Farthing’s belief that it would be valuable for the mother to complete schooling so as to provide her with more confidence and become better role model for the children. He did not agree with the mother’s plan that she should stay at home, undertake therapy, start parenting the children, then proceed on to school. [107] According to Dr. Farthing, and as set out on page 31 of his report, the ideal scenario for the mother is as follows: The ideal scenario for [the mother’s] current functioning is as follows. She should be enrolled full time in her automotive course with proper child care in specialized settings for after-school programming. She should have stable consistent relationship with no violence. She should be trained in the areas of current parenting deficits identified in the observations of he [sic] visits with the children and she should accept that she has deficits in personality functioning. She should have at least one weekend night of respite care, preferably by her mother if her mother’s health permits. She should have Parent Aid for Saturdays. She should recognize her tendency to be flippant with authority and work on her ‘my way of [sic] the highway attitude. She needs to accept that her children may have been helped considerable [sic] by the foster parents and that domestic violence is very bad for them. She should be assisted to obtain her treaty status if that, indeed, is her birthright. Many of the problems she has encountered with violent men are likely poverty related in that she does not have resources other than her own home to pursue her sexual interests and that has lead her to take risks by bringing men into her home early in her assessment of them. And of course, there is the history of “saving money” if “friends” live together. [108] In his testimony at trial, Dr. Farthing testified that he was somewhat more optimistic about the mother’s ability to change than Dr. Nanson. He did, however, acknowledge that if the Minister, or this Court, had any doubt, it should be resolved in favour of the children. He acknowledged that, as far as he was aware, the children had progressed well in foster care. It was Dr. Farthing’s view that if was to order re-integration of the children into the mother’s home, the integration should be monitored with the Ministry having the ability to make quick decisions about the children remaining in the mother’s care. Dr. Farthing suggested that he would not immediately move the children into the mother’s care. Although he might move them into her home somewhat quicker than recommended by Dr. Nanson, he would still want to see that the mother has started intensive therapy before slow integration is attempted. [109] Dr. Farthing also prepared psychological assessment of S.T. The assessment, dated December 16, 2007, was submitted into evidence. However, there was little testimony regarding S.T. given he is no longer in the picture. do not intend on reviewing the report on S.T. other than to note that Dr. Farthing had concerns regarding S.T.’s possible abusive behaviour to children. Although Dr. Farthing did not conclude that S.T. would be abusive to children, he noted that S.T. demonstrated past “overdoing” of punishment for which S.T. was adamant he did nothing wrong. Dr. Farthing concluded that S.T., if he was going to be involved in the children’s lives, should receive assistance around anger control and impulsive behaviour. The Mother and her Family [110] Some information about the mother’s early childhood and family of origin has already been included in the facts as set out above. However, the mother provided significant evidence during her time on the witness stand regarding her feelings about the Minister and about her plans for the future. In addition, heard from the maternal grandmother and from the mother’s current common-law partner, P.Y. [111] It is clear that the mother has strong dislike of the Ministry and that her dislike of the Ministry goes back to her own mother’s feelings about government involvement in family life. The maternal grandmother had very difficult childhood. The grandmother was apprehended and placed in foster care when she was approximately two years old and was both physically and sexually abused in various foster homes. She was adopted at the age of 10 and later became involved with drugs and alcohol. The grandmother has been clean since 1974, year prior to the birth of her first child, the mother in the matter before me. Given the grandmother’s past involvement with Social Services, it is not surprising that the grandmother has strong dislike of the Ministry. Further, the grandmother acknowledged that it was possible her hatred of the Ministry has flowed to her daughter. [112] The mother was of the view that there was no reason for the Ministry to apprehend the children in March, 2006. The mother admitted that S.T. came back into the children’s lives in the summer of 2005 and that she allowed him to move in with her and the children. She further acknowledged that S.T. breached condition of his release from jail, on the charge of assaulting child, and was re-arrested and jailed again. When he was released in late January, early February, 2006, the mother says she let him come back into the home partly because Hannah wanted him to live with the family. According to the mother, she told Hannah that S.T. might not be around much as he might be in jail sometimes. The mother explained she was simply preparing Hannah for possible disappointment in the future. [113] The mother admits that she signed an agreement with the Ministry that S.T. could have supervised access only with the three children. The mother says she fully intended to follow through with that agreement but admits she didn’t do so. The mother didn’t see S.T. as threat to the children as S.T. was never physically abusive to the mother nor was he physically abusive to Katie, Hannah or Bobby. It appears the mother knew that S.T. was spending time with the children unsupervised but didn’t feel it was concern so she didn’t feel it was necessary for the Ministry to apprehend the children. The mother testified that after the children were apprehended in March, 2006, she initially had visits once per week which increased to two visits per week for two hours at time. The mother acknowledged that the visits were decreased to once per month for period of two hours because the mother threatened to physically harm the worker, Ms. Arcand. [114] As set out in my discussion of the expert testimony in this matter, the mother was attending an automotive mechanic’s course in the fall of 2003 when the three children were first apprehended due to the injuries to Katie. It was during this period of time that the mother was residing with J.M. The mother quit attending the course as result of the children’s apprehension. The mother started the automotive mechanic’s course, once again, in September, 2005. During this period of time, she was living with S.T. The mother stopped attending the course in March, 2006 when the children were apprehended for the second time. At the time the mother stopped attending, she had completed seven months of 10 month course. [115] On the evidence before me, it is clear that the mother believed that the two apprehensions, both occurring while she was in school, were an attempt by the Ministry to ensure that the mother never completed her schooling. The mother told number of people, including Hannah, that the Ministry had plan to stop the mother from getting an education. The mother accepts, now, that there was no such plan. However, the mother remains of the view that the apprehension in March, 2006 was not necessary. [116] The mother says that she wants to complete the Kelsey course and, in fact, she was registered for the fall 2006/spring 2007 session. The mother says she didn’t attend because she was in and out of court regarding the apprehension of the children. However, the mother went on to testify that she can’t return to school until she has paid back both student loans outstanding from her two attempts at completing the automotive mechanic’s course. [117] With respect to where the mother would live, if the three children were returned to her care, the mother isn’t sure. The mother says she does not want to live at the grandmother’s home as her brother, Will, has temper problem and it simply wouldn’t work to reside with him. The mother acknowledges that she has moved constantly since the children were apprehended, having lived in eight different places from December, 2007 to January, 2008. Further, there is evidence before me that, while raising for the children, the mother and the children moved from home to home necessitating move from school to school for the children. [118] In addition to unstable living arrangements, the mother has had numerous relationships, most of which have been abusive. The mother was with S.T. for five years and then again for approximately six months before the children were last apprehended. The mother had relationship with J.W., Bobby’s father, for short period of time. The mother admits that J.W. was physically abusive. The mother then had relationships with two other men, P. and T. According to the mother, T. was verbally abusive. The mother then had relationship with J.M. for three years. The mother characterized this relationship as abusive. Finally, the mother is now living with P.Y. The mother says that P.Y. is not abusive and that he would be good care giver for the children if they were returned to the mother’s care. [119] P.Y. testified and seemed like nice man, although nice man with problems. P.Y. has criminal record for break/enter/theft dating back to 1996 and fraud conviction in early 2007. P.Y. testified that he has children from previous relationships, two of whom he sees and one he doesn’t. His two oldest boys live with his parents and have lived with them for approximately 12 years. P.Y. said he would be willing to assist the mother with the care of the children and he is willing to take whatever classes or courses the Ministry may suggest be taken. [120] The mother was questioned about her care of Katie, Hannah and Bobby. With respect to Katie, the mother said Katie was hard to look after but after Katie started on the drug, Risperdal, her behaviour seemed to get better. The mother appeared to brush off questions regarding her inattention to Katie’s hearing aid and leg splints, saying the hearing aid didn’t work lot of the time and was frustrating for everyone. As regards the lice in Katie’s hair, accept the mother’s evidence that she tried to deal with the lice on number of occasions. Unfortunately, the mother found it difficult because Katie would fight her when she was attempting to pick out the nits. The mother testified that she wasn’t aware of any nits in Katie’s hair in and around the time of Katie’s apprehension. [121] With respect to Hannah, the mother admitted that Hannah assisted the mother with the care of both Katie and Bobby. The mother suggested that it was nothing more than helping out and that Hannah had good social life away from the home. The mother admitted that Hannah did “good portion” of changing Katie’s diaper and did assist in the mornings by getting breakfast ready or helping Katie dress. [122] With respect to Bobby, the mother admitted that she didn’t like having Bobby on Ritalin and, for long time, she would simply stop giving the medication to him. The mother acknowledged that in February, 2006, she was contacted by the school social worker about Bobby’s Ritalin. The mother acknowledged she had “let it go” as she felt that she just wanted “Bobby to be Bobby”. [123] The mother said she was surprised to find out that Bobby was in trouble with the law. The mother did, however, acknowledge that Bobby roamed the streets when he was approximately nine years old because the mother was attending school and couldn’t keep full track of him. As stated earlier, the mother did behave appropriately when the break and enter was brought to her attention. [124] The mother has taken some steps since the children were apprehended to become better parent. have evidence that the mother completed 10 week course of anger management from Mid-October to Mid-November, 2007. It is important to note that the mother took this course without being directed to do by the Minister. In addition, the mother completed Boundaries course from September, 2007 to the end of November, 2007. The mother said that this course taught her how to create healthy relationship with someone and that you shouldn’t trust anyone until you have known them at least one year. [125] In addition to the courses as set out above, the mother made an appointment at mental health and saw Nancy Jones once. The mother expressed interest in attending for psychotherapy, as recommended by both Dr. Nanson and Dr. Farthing. The mother said she didn’t know where to go for the psychotherapy and hadn’t really looked into it. [126] The mother said that if the children were to come back into her care, she would not go to school for awhile but would take therapy and look after the children. It was the mother’s view that Katie could be moved into school in Saskatoon, as could Hannah. The mother felt it would be best for Katie to come home first even though both Dr. Nanson and Dr. Farthing thought it might be best for Hannah to come home first. [127] The mother ended her testimony by telling me that she would do whatever it took to get her children back. When asked what she would do regarding visiting the children if left them in the care of the Minister, she said she would never abandon her children. She testified she would continue to visit regularly. As to when she believed the children should be returned to her, the mother wanted the children back immediately. She then said she knew it wouldn’t happen overnight because she had work to do. [128] The grandmother also testified that she would never abandon the children. It was the grandmother’s testimony that, even if were to leave the children in foster care, the grandmother would always visit and would always be there for the children. THE INTERIM ORDER [129] After hearing argument on January 18, 2008, made an interim order, pursuant to s. 35 of the Act. My interim order reads as follows: am reserving my decision in this matter. However, am making the following interim order, pursuant to s. 35, which interim order shall remain in place until my final decision is rendered: 1. The children, [Katie] and [Hannah], shall remain in the care of the Minister of Social Services, and in their current foster home; 2. The child, [Bobby] shall remain in the care of the Minister of Social Services, and in his current foster home; 3. The mother [S.D.], will continue to have supervised access with all three children. However, the mother’s access shall be increased to every second week, with each visit being for period of two hours. The maternal grandmother, [S.D.,Sr.], may attend the visits, as well as the mother’s brothers, [W.] and [J.], as long as these visits remain in the best interests of the three children. During the visits, no one is to discuss this trial, or the possible future living arrangements of the children, with the children, or in front of the children. 4. Arrangements shall be made for the child, [Hannah], to have one supervised access visit with her father, [S.T.], which visit shall take place as soon as reasonably possible, given [S.T.’s] precarious health situation. 5. In the event any of the above becomes unworkable, prior to my final decision being rendered, leave is granted to return this matter to me by telephone conference call. [130] determined, after hearing all the evidence at trial, that the mother should have increased access to the children. As set out above, ordered the mother’s access to be increased to every second week for period of two hours. In addition, determined that Hannah should have supervised access visit with her father, S.T. was persuaded by the evidence that Hannah should see her father before his death. As set out in my interim order, advised that the matter could be brought back before me if any of the access became unworkable. did not hear anything further from counsel for the Ministry or counsel for the mother. am, therefore, assuming that the increased access for the mother commenced and that arrangements were made for Hannah to see her father. LAW AND ANALYSIS [131] It is well established that child protection proceedings involve two step process. As stated by McIntyre J. in Saskatchewan (Minister of Social Services) v. E.K.S, D.W. and C.S (1997), 1996 CanLII 7131 (SK QB), 146 Sask. R. 46, (QB) at para. 40: [40] ... First, there must be a determination pursuant to s. 36(1) as to whether the child is in need of protection as that term is defined in s. 11. If it is determined that a child is in need of protection the next step is to determine the appropriate order among the options contained in s. 37. [132] The mother argues that none of the children were in need of protection, pursuant to s. 11 of the Act, at the time of their apprehension on March 2, 2006. The mother says that the Ministry did not have adequate evidence that any of the children had suffered, or were likely to suffer, physical harm if they remained in the care of their mother and S.T. disagree. The Minister became aware that S.T. had resumed cohabitation in the home of the mother and the children. The Ministry then became aware of S.T.’s criminal conviction for assaulting the child of his previous common-law partner. The Minister reviewed the circumstances of the assault, which was essentially an “over correction” of child while the child was in S.T.’s care. S.T. was incarcerated for period of time as result of his conviction and subsequently breached his release conditions such that he served more time. Based on this information, the Ministry had legitimate concern that S.T. may pose risk to Katie, Hannah and Bobby. The Ministry acted appropriately by requesting the execution of PSA with condition therein that S.T. not have any unsupervised time with Katie, Hannah or Bobby. [133] The Ministry had evidence that S.T., and the mother, breached the terms of the PSA. They received information from the school, neighbours, the children, and importantly, the mother herself, that S.T. was having unsupervised contact with the children. The Ministry then proceeded to apprehend the children in light of their concern regarding possible harm to the children at the hands of S.T. I find that the Ministry made an appropriate determination that the children were in need of protection as a result of the failure of S.T. and the mother to comply with the PSA. The Minister had evidence that it was “likely” the children may suffer physical harm. [134] If I am wrong in my determination that s. 11(a)(i) is applicable in the matter before me, I find that all three children were in need of protection pursuant to s. 11(v), (vi) and s. 11(b) of the Act. Those subsections read as follows: 11 child is in need of protection where: (a) as result of action or omission by the child’s parent: ... (v) the child’s development is likely to be seriously impaired by failure to remedy mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur ... [135] Although the Ministry proceeded to apprehend when they discovered that S.T. was having unsupervised time with the children, there were other problems in the mother’s home. The Ministry had been involved with the mother on and off for years. The Ministry had evidence that the mother was having difficulties caring for the two children, Katie and Bobby, who had special needs. The mother’s actions could have, and likely did, impair the development of the children. Further, with respect to domestic violence, the mother herself characterized her relationship with S.T. as emotionally abusive. She testified that when she separated from S.T. shortly after the birth of Hannah, she was pleased that he was leaving as he was emotionally and verbally abusive and she couldn’t stand the arguing anymore. There is no dispute that the children had been exposed to this domestic disharmony between the mother and S.T. and the Minister had legitimate concern about S.T. reappearing in the mother and children’s lives. Finally, having reached conclusions that there was risk to the children, the Ministry determined that there was no other adult person able or willing to provide for the children’s needs as set out in s. 11(b) of the Act. [136] The mother argues that if conclude the children were in need of protection in March, 2006, should, on all of the evidence before me, conclude that the children are no longer in need of protection. The mother argues that she is no longer in relationship with S.T., has managed to stay out of any violent relationships for considerable period of time, and has taken some classes to better her parenting skills. Again, disagree. [137] acknowledge that the mother is no longer with S.T. and that any risk associated with S.T. no longer exists and will not exist in the future. S.T. has been taken out of the picture by his diagnosis of terminal cancer. note that the mother did not make conscious decision to remove S.T. from the children’s lives. In fact, in her initial sessions with Dr. Jo Nanson, the mother attempted to convince Dr. Nanson that S.T. did not pose risk to the children. The mother was still of the belief that S.T. could remain living with her and the children. It is S.T.’s illness, not the mother, who has taken S.T. out of the picture. [138] also acknowledge that the mother appears to be in relationship with man who is not abusive to the mother. Further, after having heard the testimony of both the mother and P.Y., believe the mother and P.Y. have strong relationship that is likely to last into the future. However, P.Y. has not been “tested”. P.Y. has not experienced the difficulties of parenting the mother’s three children, two of whom have severe problems. Further, P.Y.’s own history of parenting is not positive. P.Y. chose to have his parents look after his oldest two children and P.Y. has no contact with his youngest child. [139] I must determine whether there has been sufficient change since March, 2006 so as to conclude that the children are no longer in need of protection and can immediately be returned to the mother’s care. Unfortunately, cannot reach that conclusion. Indeed, the mother herself acknowledged that it would be a slow process regarding unification of the children into her home. [140] Although commend the mother for having taken the two courses, namely, anger management and Boundaries, in the fall of 2007, the mother has more work to do. The mother has not yet commenced psychotherapy which has been recommended by both Dr. Nanson and Dr. Farthing, the mother’s own expert witness. must question why the mother did not commence therapy at some point after receiving Dr. Nanson’s report, and why she waited until just before trial to take any parenting classes. It is my view that the mother continues to object to suggestions made by the Ministry to improve her parenting abilities. Although the mother appears to have come some distance in understanding she has problems, the mother continues to resist recommendations for change. She continues to fight the Ministry as opposed to cooperating with the Ministry. For these reasons, and the reasons set out above, I find that Katie, Hannah and Bobby continue to be children in need of protection pursuant to s. 11 of the Act. [141] Having concluded that the three children continue to be children in need of protection, now turn to consideration of s. 37 of the Act. The Ministry seeks an order pursuant to s. 37(3) that the three children be placed in the custody of the Minister until each child attains the age of 18 years. The mother says that more appropriate order would be short term supervisory order pursuant to s. 37(1)(a) of the Act. [142] While considering which option under s. 37 of the Act is appropriate, adopt the principles as set out by McIntyre J. in Saskatchewan (Minister of Social Services) v. L.P., [1998] S.J. No. 387 (QL Sask. QB) where he states, at para. 38 In determining whether any of the options in s. 37(1) are appropriate, the question is whether there is reasonable prospect of change within reasonable length of time and reasonable use of resources. ... [143] have had the advantage of expert evidence in the matter before me. Both Dr. Nanson and Dr. Farthing provided excellent reports for my consideration. Although Dr. Farthing is somewhat more positive about the mother’s ability to change and, therefore, appropriately parent, both experts conclude that significant work needs to be done by the mother prior to the children being returned to the mother’s care. Both Dr. Nanson and Dr. Farthing testified that the mother requires intensive therapy. In Dr. Nanson’s opinion, full year of intensive psychotherapy is required before the Ministry should consider reintegration of the children into the mother’s home. Dr. Farthing didn’t provide an exact time line but he, too, provided the opinion that some therapy must occur before we start to do staged integration of the three children to the mother’s home. [144] Dr. Farthing is of the opinion that the mother is ready to undertake the required therapy and will be open to change. Dr. Nanson is not so confident that the mother will follow through with the therapy plan or, if she does so, be able to make the necessary changes in order to effectively parent. Given the overwhelming evidence that the mother has been resistant to change in the past, and her past extreme dislike of Ministry involvement, to the point of threatening workers, have some doubts as to whether the mother can succeed. This is not to say that the mother is being dishonest when she says she will do anything possible in order to have her children returned to her. The mother loves Katie, Hannah and Bobby and she has been, and continues to be, devastated as result of the children’s apprehension. Unlike some parents, the mother has not missed access visits with the children and has remained an integral part of the children’s lives. have evidence before me that all three children love their mother and want to continue to spend time with their mother. However, I also have evidence that the children are doing extremely well in their current foster placements. [145] fear that Katie will regress if she is returned to the mother’s care. Since Katie has been in the Saccucci home, she has shown huge improvement in her behaviour. also have evidence that Katie’s medical and hygienic needs are now being met. With respect to Hannah, Hannah is now, according to all the evidence, confident child, with emphasis on the word “child”. conclude on all of the evidence that Hannah was, in fact, parentified in the home of the mother. It was Hannah that provided much of the care for Katie and Bobby which is an inappropriate role for Hannah to have played. have concerns that if place Hannah back in the care of her mother, Hannah will once again assume the role of parent to Katie and Bobby as opposed to playing the role of sibling. It is my view that Hannah is finally, for the first time in her life, focusing on Hannah as opposed to her mother or her siblings. Finally, with respect to Bobby, it is clear that Bobby is doing very well in the home of Ms. Claypool and, while not excelling at school, is doing much better than he has in the past. Further, Bobby has adequate supervision and has not been in any trouble with the law since his apprehension. have concerns that placing Bobby back in the home of the mother would de-stabilize child who requires stability and consistency. [146] In this case, the age of the three children is a critical factor. The children are now 15, 14 and 12 years old. There is not much time for the mother to take all the necessary steps she needs to take before the children are returned to her and the time the children will be reaching the age of 18 years. [147] The mother has argued that the principles as set out by Baynton J. in M.A.C. v. Saskatchewan (Minister of Social Services) (1993), 1993 CanLII 9025 (SK QB), 110 Sask. R. 81 (QB) are applicable to the case before me. was referred to paragraphs 38 and 39 of Baynton J.’s decision which read as follows: [38] Section 37 sets out the kinds of orders that can be made by the court once it has been determined that the child is in need of protection. It is obvious that they are designed with ss. and in mind. Wimmer, J., in D.S. v. Saskatchewan (Minister of Social Services) (1993), 1993 CanLII 8947 (SK QB), 108 Sask. R. 107 (Q.B.), reviewed the purpose of the Act and in particular s. 37. He states: “It is evident from s. 37 that only as last resort should parent be permanently displaced.” He also states: “Within all of this lies the quest for what will serve the best interests of the child.” [39] An order granting custody of the child to the Minister for another nine years is relatively permanent one, even though it can be reviewed under s. 39. am not satisfied that the child’s well-being will be seriously prejudiced by granting the appellant one more chance to establish meaningful and responsible mother-daughter relationship. There is no apparent risk of physical abuse. Although there is the potential for further disruption as has occurred in the past, there is also the potential for salvaging the relationship to the substantial benefit of the child. [148] While agree with Baynton J.’s view that long term order is often permanent order, and that should resort to such orders only as last resort, the factual circumstances in M.A.C., supra, can be distinguished from the case before me. In the matter before me, Katie and Hannah have only few years before they will each reach the age of 18 years. Further, although Bobby is 12, and long term order would leave him in the care of the Minister for further six years, his current placement, in therapeutic home, will continue. It is in Bobby’s best interests that he stay in his current stable environment given his ADHD and need for consistency and stability. [149] The M.A.C., supra, decision can also be distinguished on the basis that the mother in the M.A.C. case was regularly attending counselling sessions, was attending Narcotics Anonymous, taking life skills and upgrading courses, and establishing network of friends within her church. The mother in the case before me has said she will take therapy and will take steps to change her life. However, the children were apprehended in March of 2006 and the mother has not progressed very far in her pursuit of change. [150] The Ministry has not pursued permanent order under s. 37(2) of the Act. The Minister takes the position that permanent order would be inappropriate as it would effectively preclude the mother from ongoing involvement with Katie, Hannah and Bobby. agree with the Minister’s position that permanent order is not appropriate in this case. There is ample evidence before me that the mother, and the grandmother, should continue to play substantial role in the lives of Katie, Hannah and Bobby. The mother and grandmother have close bond with the children and it would be harmful for the children to no longer have contact with the mother and grandmother. accept the evidence before me that Hannah has strong need to see her mother frequently, as well as spend time with both Katie and Bobby. In fact, all three children require time with their mother whom they love dearly. [151] I have reached the conclusion that an order pursuant to s. 37(3) of the Act, placing the children in the custody of the Minister until each child reaches the age of 18 years, is the appropriate order in this case. As pointed out to the mother, the mother will, with long term order, have the ability to make the necessary changes in her life and, if she does so, apply for variation of this order in the future. am hopeful the mother will immediately commence the extensive psychotherapy which has been recommended. Further, encourage the mother to complete her schooling as believe she is fully capable of obtaining diploma and full time employment. The mother is very strong person with strong views, but she presents as very intelligent and capable of, as he puts it, “bettering herself”. If the mother is able to satisfactorily progress, it may be possible for the mother to, at some time in the future, make an appropriate application for variation of my order. [152] The Ministry must continue to work with the mother with regards to the mother’s ongoing contact with the children. Although am not willing to alter my interim access order at the present time encourage the Minister to expand the mother’s access if the mother is progressing. would like to see the mother have visit with Katie and Hannah at the Saccucci’s home. would also encourage the Ministry to consider access for the mother with the three children, at the home of the mother on an unsupervised basis, at some point in the future. Finally, would encourage the Minister to make arrangements for Bobby to have an overnight visit, approximately once per month, at the home of the Saccuccis, so that the three siblings can spend time together. Hannah, in particular, requires more contact with her brother. CONCLUSIONS AND ORDERS [153] I have determined that Katie, Hannah and Bobby are children in need of protection pursuant to s. 11(a)(i),(v), (vi) and 11(b) of the Act. I am making an order pursuant to s. 37(3) of the Act that the children be placed in the custody of the Minister until each child attains the age of 18 years. With respect to access, order as follows: The mother, S.D., will have supervised access with all three children every second week for period of two hours. The maternal grandmother may attend the visits, as well as the mother’s brothers, as long as these visits remain in the best interests of the three children. The mother’s access to the children will continue to be supervised for the present time. However, assuming it is in the best interests of the children, the Minister shall proceed to some unsupervised access at an appropriate time in the future. [154] wish to express my thanks to counsel for the Ministry and counsel for the mother for their presentation of this case at trial and their helpful argument in this matter. also wish to thank the mother for her calm and respectful testimony in what realize was very stressful and emotional matter. Again, encourage the mother to proceed with the recommended therapy immediately. J. D. L. Wilson

The eldest daughter, 15 years old, her sister, 14 years old, and their brother, 12 years old, were apprehended from their mother on 2 March 2006. The Minister sought an order pursuant to s. 37(3) of The Child and Family Services Act placing the children in the care of the Minister until each child turned the age of 18 years. The mother opposed the Minister's request for long term orders for the three children, taking the position that the children were not 'children in need of protection' pursuant to s. 11 of the Act, and that the children should be immediately returned to her care. In the alternative, the mother proposed that the court make a short term supervisory order under s. 37(1)(a) of the Act, returning the children to the mother's care under supervision and conditions. The issues were: 1) whether the children were children in need of protection pursuant to s. 11 of The Child and Family Services Act; and 2) if so, the appropriate order to be made, respecting each of the children, pursuant to s. 37 of the Act. HELD: The children are children in need of protection pursuant to s. 11(a)(i),(v), (vi) and 11(b) of the Act. There shall be an order pursuant to s. 37(3) of the Act that the children be placed in the custody of the Minister until each child attains the age of 18 years. There shall also be an order with respect to access. It is well established that child protection proceedings involve a two step process. First, there must be a determination pursuant to s. 36(1) as to whether the child is in need of protection as that term is defined in s. 11. If it is determined that a child is in need of protection the next step is to determine the appropriate order among the options contained in s. 37.The Ministry had a legitimate concern that, based on a prior conviction for assaulting the child of a previous common-law partner, the mother's common-law partner posed a risk to the children. The Ministry acted appropriately by requesting the execution of a parental services agreement (PSA) with a condition therein that her partner should not have any unsupervised time with them. The Ministry had evidence that the partner and the mother breached the terms of the PSA. They received information from the school, neighbours, the children and, importantly, the mother herself, that the partner was having unsupervised contact with the children. The Ministry then proceeded to apprehend the children in light of its concern regarding possible harm to the children at his hands. The Ministry made an appropriate determination that the children were in need of protection as a result. If the court is wrong in the determination that s. 11(a)(i) is applicable, it finds that all three children were in any event in need of protection pursuant to s. 11(v), (vi) and s. 11(b) of the Act. The Ministry had evidence that the mother was having difficulties caring for the two children with special needs. The mother's actions could have, and likely did, impair the development of the children. Further, with respect to domestic violence, the mother herself characterized her relationship with the partner as emotionally abusive. Finally, having reached conclusions that there was risk to the children, the Ministry determined that there was no other adult person able or willing to provide for the children's needs as set out in s. 11(b) of the Act. The mother argues, in addition, that the children are no longer in need of protection. Thus, the court has to determine whether there has been sufficient change since March 2006 so as to conclude that the children are no longer in need of protection and can immediately be returned to the mother's care. Unfortunately, the court cannot reach that conclusion. Indeed, the mother herself acknowledged that it would be a slow process regarding unification of the children into her home. The mother continues to object to suggestions made by the Ministry to improve her parenting abilities. Although the mother appears to have come some distance in understanding she has problems, she continues to resist recommendations for change. She continues to fight the Ministry as opposed to cooperating with it. For these reasons, and the reasons set out above, the children continue to be children in need of protection pursuant to s. 11 of the Act. The Ministry seeks an order pursuant to s. 37(3) that the three children be placed in the custody of the Minister until each child attains the age of 18 years. The mother says that a more appropriate order would be a short term supervisory order pursuant to s. 37(1)(a) of the Act. All three children love their mother and want to continue to spend time with their mother. However, they are doing extremely well in their current foster placements. In this case, the age of the three children is a critical factor. The children are now 15, 14 and 12 years old. There is not much time for the mother to take all the necessary steps she needs to take before the children are returned to her and the time the children will be reaching the age of 18 years. The Ministry has not pursued a permanent order under s. 37(2) of the Act. Indeed, the mother and the grandmother should continue to play a substantial role in the children's lives. An order pursuant to s. 37(3) of the Act, placing the children in the custody of the Minister until each child reaches the age of 18 years is the appropriate order in this case. The mother will, with a long term order, have the ability to make the necessary changes in her life and, if she does so, apply for a variation of this order in the future.

2008skqb287.txt

SUPREME COURT OF NOVA SCOTIA Citation: Shea v. Bowser, 2012 NSSC 10 Date: 20120109 Docket: Hfx. No. 348548 Registry: Halifax Between: James David Shea, Linda Shea v. Loyal F. Bowser, Wendy Lynn Bowser Respondents Judge: The Honourable Justice Peter P. Rosinski. Heard: October 18, 20, 2011, in Halifax, Nova Scotia Counsel: D. Mark Gardiner, for the Applicants Myra Jerome, for the Respondents By the Court: Introduction [1] The Bowsers were successful as Respondents in Chambers application which was heard for full day on October 18, and half day on October 20, 2011 see 2011 NSSC 450 (CanLII). They claim solicitor client costs, or in the alternative costs under Tariff “C” of $3000 to which they say a multiplier of four should be applied for a total of $12,000 costs plus disbursements of $302.75. The Sheas in response argue this is not an exceptional case warranting solicitor client costs, yet agree that Tariff “C” should apply to an amount of $2750 to which multiplier of two should be applied for total of $5500 plus disbursements. [2] On May 12, 2011, the Sheas filed Notice of Application in Chambers. Included therewith was the Affidavit of the Sheas sworn November 23, 2010, comprising twenty-three paragraphs and Exhibits “A” through to “U”. Mr. Gardiner indicated that “one full day” would be required to hear the matter. review of the file confirms that the Bowsers received advice from the scheduling office of this court on May 16 that the hearing had been set for June 23, 2011. Ms. Jerome advised scheduling on May 20, that she would be leaving the country for most of the summer beginning June 24, 2011 and that the hearing would take longer than just one day. By June 6, an email from Mr. Gardiner confirmed he and Ms. Jerome had agreed that two days should be sufficient. Ultimately, they agreed to have the matters heard on August 23 and 25, 2011. Ms. Jerome’s June 22 email suggested that Mr. Gardiner was “willing to wait for our Notice of Objection until July 29, 2011". [3] Those dates were then adjourned to September 20 and 21, 2011, and further adjourned to October 18 and 20, 2011. [4] On September 14, 2011, the Bowsers faxed Notice of Contest and their Affidavit sworn September 13, 2011 to the court and filed hard copies thereof on September 16, 2011. Those were initially rejected by court staff and were re-filed on October 5, 2011. Notably, the Sheas did not object to the late filing of the Bowsers’ Notice of Contest consistent with their earlier indications. On October 13, the Sheas filed Rebuttal Affidavit sworn on October 12, 2011. [5] At the hearing, aerial photographs were introduced as exhibits covering the years 1964, 1974, 1980 to 1992 and 2001. Survey plans dated September 8, 1962, September 5, 1966 and August 3, 1972 as well as September 4, 1991 were introduced. An LRIS form 6A dated June 26, 2007 was also introduced as an exhibit being correction to the parcel register respecting PID 40058349 the Bowser property. [6] Both Mr. and Mrs. Shea and Mr. and Mrs. Bowser were cross examined on their affidavits. Pre-hearing written submissions and post hearing written submissions were received by the court. [7] In their Notice of Application in Chambers, the Sheas requested declaration that there were entitled to right-of-way across the land of the Bowsers and were seeking mandatory injunction and permanent injunction as well as damages for the loss of use and enjoyment of their properties and were seeking costs on solicitor client basis. [8] In their Notice of Contest, the Bowsers argued that the application should be dismissed because, while the Sheas may have an express grant of right-of-way, “its location is not defined in such deeds or subdivision plan of [Nova Scotia Land Surveyor] Wedlock”. They contested that the right-of-way was ever located on their property. They suggested that the Sheas express right-of-way may actually be located over an adjacent property. In their affidavit they concluded at paras. 29 and 30: We are asking for an award of general damages for loss of enjoyment of our property and stress to Wendy Bowser’s health due to the harassment by the Applicants from 1995 to the present, in the amount of $5000. We are asking for an award of costs and any other remedy this Honourable Court finds appropriate in this matter. [9] “Costs” are covered in Civil Procedure Rule 77. Solicitor Client Costs [10] Rule 77.01(1) reads: 77.01 (1) The court deals with each of the following kinds of costs: ... (b) solicitor and client costs, which may be awarded in exceptional circumstances to compensate party fully for the expenses of litigation; [11] Rule 77.03(2) reads: (2) judge may order party to pay solicitor and client costs to another party in exceptional circumstances recognized by law. [12] In very recent decision, Justice LeBlanc of this Court in Ackermann v. Kings Mutual Insurance Company 2012 NSSC (CanLII), in the context of trial, discussed the principles associated with the awarding of solicitor client costs at paras. [13] Such costs are intended to disassociate the court from party’s conduct, and cross from the usual purpose of partial indemnification into the realm where the circumstances require costs be assessed as punishment to one of the parties. As the Supreme Court of Canada has indicated such costs “are generally awarded only when there has been reprehensible scandalous or outrageous conduct” Young v. Young 1993 CanLII 34 (SCC), [1993] SCR at para. 251. [14] In their submissions, the Bowsers suggest such costs are appropriate here because of: ...the undisputed facts that the Applicants have been harassing the Respondents for over 16 years, including using quasi-criminal means during civil law negotiations, that the Applicants purposefully omitted certain critical information in their claim, and that they started this action with no colour of right, no preparation of an Abstract of Title, and no attempt to rectify their claimed rights while Gladys Bowser was alive... P. of December 8, 2011 letter constituting post hearing submissions. [15] It is true that this dispute has been acrimonious, and that the Sheas omitted some important information in making their claim [for example there were no certified copies of the deeds from the Conrods into the Sheas, or from Gladys Bowser to Lester Smiley, nor was the correction to the parcel register entered by Mr. Kent Rogers in 2007 acting for the Sheas expressly brought to the attention of the court nor was there an abstract of title or survey plan undertaken to determine the nature and extent of any right-of-way over the property of the Bowsers]. [16] On the other hand, note that the litigation herein started in May 2011, was generally conducted in civil fashion as evidenced for example, by the Sheas’ consent to late filing of the Notice of Contest by the Bowsers, and the Bowsers’ consent of the late filing of the Rebuttal Affidavit of the Sheas. Ultimately, the Sheas, by omitting some important information in making their claim, undermined the strength of their claim. This should not be seen as outrageous, scandalous or reprehensible conduct. [17] This is not one of those rare cases where solicitor client costs should be awarded. Party and Party Costs [18] Rule 77.01(1)(a) and 77.02(1) and 77.03(3) make it clear that the winning party in the litigation is presumptively entitled to partial compensation of their expenses of litigation. Customarily this has been viewed as substantial, but not complete, indemnification of their expenses of litigation. As in many other cases, the dispute in this case concerns to what extent there should be partial compensation. [19] The Bowsers suggest $12,000 plus disbursements whereas the Sheas suggest $5500 plus disbursements. [20] agree that Tariff “C” is the appropriate guideline see Rule 77.06(3). keep in mind Justice Murphy’s observations in MGL Consulting and Investments Limited v. Perks Coffee Limited 2010 NSSC 426 (CanLII), that the Tariff “C” chambers scale must be appreciated as having had its origin under the Old Rules [pre-January 1, 2009]. Those amounts relate back to September 1, 2004. Moreover, at the time of his decision, the new Rules did not distinguish between applications in chambers and applications in court as they do now. Generally, he noted at the time that applications in chambers should attract an award under Tariff “C”, and that where the main issue is not an identifiable monetary claim, it is best only as last resort to consider trying to assess monetary amount for such hearings in order to use that amount as basis to calculate cost award. [21] Tariff “C” (para. 3), reminds the court to “award costs that are just and appropriate in the circumstances of the application”. find that this Chambers application was determinative of the entire matter at issue in the proceeding, and consequently it is appropriate for me to consider multiplier of the maximum amounts in the range of costs set out in Tariff “C”. [22] In this case, the application consumed one full day on October 18 and effectively the morning of October 20, 2011 by ending at 10:45 a.m. conclude that effectively the hearing consumed days. Therefore find $3000 is the appropriate base amount. [23] conclude that the matter was sufficiently complex and important to the parties that it required significant amount of effort to prepare for, conduct the hearing and to review the evidence to be able to provide briefs to the court post hearing. Without attaching undue weight to the statement of account dated December 7, 2011 of Ms. Jerome, it does seem to be reasonable reflection of the effort involved. [24] In my view, as appropriate partial compensation toward the Bowsers’ expenses of litigation, and to do justice between the parties here, I should apply a multiplier of two for a total of $6000 in costs. Rule 77.10 allows me to include “necessary and reasonable disbursements”, and there having been no apparent dispute about those, will allow the claimed amount $302.75 plus HST as the disbursements amount. [25] would request that the Bowsers prepare draft order for my signature.

Rule 77.03 – Liability for costsThe court found in favor of the respondents after a half-day chambers hearing. They sought solicitor-client costs or costs under Tariff C, with a multiplier of four for a total of $12,000 given the applicants' conduct and their failure to include important information in their claim. Held, party-and-party costs of $6,000 awarded to the respondents, using Tariff C and a multiplier of two. This matter was sufficiently complex and important to the parties that it required significant preparation and effort to prepare/review the evidence and conduct the hearing. While they did omit relevant information, the applicants' conduct wasn't so outrageous, scandalous or reprehensible that it warranted an award of solicitor-client costs. The dispute was acrimonious, but the litigation was generally conducted in a civil manner.

2_2012nssc10.txt

THE COURT OF APPEAL FOR SASKATCHEWAN WASCANA ENERGY INC. and THE RURAL MUNICIPALITY OF GULL LAKE NO. 139 SASKATCHEWAN ASSESSMENT MANAGEMENT AGENCY RESPONDENTS CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff COUNSEL: Mr. Patrick N. McDonald for the appellant Mr. R. Allen McLash for the respondent DISPOSITION: Appeal Heard: February 12, 1998 Appeal Allowed: May 11, 1998 On Appeal From: The Saskatchewan Municipal Board Appeal File: 2836 Reasons by: The Honourable Mr. Justice Cameron for the Court CAMERON J.A. [1] The question in this case is whether the right of appeal to a board of revision against a municipal tax assessment was exercised properly, or at least effectively, having regard for the governing provisions of the statute and the fact of how and when notice of appeal was given. [2] The governing provisions of the statute are those contained in subsection 303(1) of The Rural Municipality Act, 1989, S.S 1989-90, c. R-26.1. This subsection empowers person to appeal against an assessment thought to have been made in error: 303(1) If any person thinks that an error has been made... he or she, within 20 days after the day on which the notice of assessment is mailed to the person or, if no notice is mailed to the person, within 20 days of the publications of the notice mentioned in section 301, may give notice in writing in form approved by the minister to the administrator that he or she appeals to the board of revision to correct the error.. [3] The facts are these. On May 27, 1994 the assessor for the R. M. of Gull Lake published notice of assessment in the Saskatchewan Gazette in accordance with section 301 of the Act, notifying property owners of their 1994 assessments. This included Wascana Energy Ltd., the owner of gas compressor station situated in the municipality. Based upon the assessment, the company was called upon to pay taxes of $214,100.00 in connection with the station. [4] Thinking the assessment had been made in error, the company decided to appeal to the board of revision. To that end, it prepared notice of appeal in approved form and sent it by registered mail to the administrator of the R.M. The company posted the notice on Wednesday, June 15, 1994, the day before the expiration of the 20 day appeal period. The notice arrived in the Gull Lake Post Office on Friday, June 17, the day after the expiration of the period. The administrator picked it up on the following Monday, and then wrote Wascana Energy, informing the company that its appeal would not be entertained by the board of revision because of the late receipt of the notice of appeal. [5] Those are the basic facts. What followed was this. On receipt of the administrator's letter the company turned to the Appeals Committee of the Saskatchewan Municipal Board, asking the Committee to direct the board of revision to hear the appeal. The Committee declined to do so, for in its opinion the company had failed to give notice of appeal to the administrator within the period prescribed by subsection 303(1) and the board did not have the power to extend the period. With an eye to the decision of this Court in Regina (City) v. Newell Smelski Ltd. (1997), 1996 CanLII 5084 (SK CA), 152 Sask. R. 44, which noted that substantial compliance with statutory requirements of this nature can be sufficient, the Committee said this was not so in this instance, adding that the failure to give notice to the administrator in time nullified the purported exercise of the right of appeal, leaving the board without jurisdiction. [6] The company then appealed to this Court, having first obtained leave to do so, contending the Committee had erred in law in holding that the company had failed to exercise its right of appeal properly, in keeping with the terms of subsection 303(1) or, alternatively, in deciding that the notice of appeal was ineffective and the board of revision bereft of jurisdiction in consequence of the late receipt of the notice of appeal by the administrator. [7] This much is clear. The Committee did not err in deciding that the prescribed period during which an appeal may be taken is incapable of extension. The Act does not confer any power of enlargement, and in the absence of such power statutory appeal period cannot be extended: Jordan v. Saskatchewan Securities Commission (1968), 1968 CanLII 519 (SK CA), 64 W.W.R. 121 (Sask.C.A.). [8] In Jordan's case the notice was sent after the statutory appeal period had expired, with nothing having been done beforehand. In other words, there was complete failure to exercise the right of appeal within the prescribed period. That being so, and since the period could not be extended in the absence of power of enlargement in the statute, the Court held that the appeal could not be entertained. [9] Unlike the situation in Jordan's case, the notice of appeal in this case had been sent but not received within the prescribed period. In other words, some steps in exercise of the right of appeal had been taken before the expiration of the period, including the mailing of the notice of appeal by registered mail. If the enactment allows for giving notice by registered mail, then this case gives rise to different set of issues, for in that event the question is whether Wascana Energy, in giving notice of appeal as it did, exercised its right of appeal either properly, which is to say in compliance with the terms of the subsection, or effectively, which is to say in sufficient compliance therewith to render the notice of appeal effective and empower the board to hear the appeal. Only if subsection 303(1) of the Act does not contemplate giving notice of appeal by registered mail is this case indistinguishable from Jordan's case, for only then could there have been complete failure to exercise the right of appeal within the prescribed period. [10] Subsection 303(1), the sole provision bearing upon the matter, does not specify how notice of appeal might be given. It says only that person "may give notice in writing ...to the administrator." Whether this allows for giving notice by means of registered mail is an issue of pure statutory interpretation and therefore depends in short upon what the legislature most probably intended, given the wording, purpose, and objectives of the provisions of the subsection when viewed in the light of the scheme of the enactment. [11] With this in mind, the phrase "may give notice in writing" must be taken by implication to allow for notice to be given by means of registered mail. Were it otherwise, an administrator, having received notice of appeal by registered mail within the allotted time, could lawfully decline to act upon it on the footing the property owner had failed to give notice. That would be absurd, and the legislature cannot be taken to have so intended, having regard for the language of the subsection and the commonplace matter with which it was dealing. [12] The subsection empowers persons to give notice to, as distinct from requiring them to serve notice upon, the administrator. This is less formal expression suggesting less exacting term. Moreover, and more importantly, this is an Act of such commonplace application as to strongly suggest notice might be given by registered mail, applying as it does to almost everyone in every corner of the rural areas of the Province, and falling as it does to be applied by local people with no special training, except for the administrators. Indeed this is suggestive, generally, of an appeal process intended to operate along ordinary lines, consistent with everyday practice and expectation. [13] And so in addition to enabling person to give notice to the administrator in the most obvious way, which is to say by simply handing it to the administrator at the municipal office, the subsection is to be interpreted as enabling person to give notice by way of registered mail. [14] Of course, giving notice by way of registered mail, unlike giving notice by way of handing it to the administrator, does not entail single act occurring at fixed moment in time. It entails series of acts occurring over span of time, beginning with posting, continuing with delivery, and ending with receipt. And so subsection 303(1) can give rise to uncertainty in its application, as it did here, raising further issues of interpretation. [15] Can person who posts such notice during the 20 day period be said to have satisfied the term of the subsection that calls upon persons wishing to appeal to give notice to the administrator within this period? Or must the notice first be received? [16] With the parties at odds over this, the Committee decided that the administrator must be in receipt thereof before the notice can be said to have been given in compliance with the subsection. What counts, the committee observed, was "giving the notice of appeal to the Administrator, not giving notice of appeal to the postal system." While this observation compares the requirement to give notice with the means by which it might be given, there remains much to be said for the comparative significance of the posting of notice of appeal and of the receipt of the notice within the prescribed period. [17] In the context of ascribing precise meaning to the word give, receipt might be seen as necessary component thereof. This is especially so if by give the legislature meant serve legal term of art signifying formal delivery and actual or constructive receipt. In that event, the subsection, in calling for written notice to be given to the administrator, would call for both the posting and the receipt of the notice within the prescribed time. On the other hand, in using the ordinary word give instead of the legal term serve, the legislature might be seen as having intended less formal requirement, one satisfied by the posting of notice within the prescribed period, consistent with the commonplace application of this enactment. [18] In any event, this is comparatively narrow context, concerned as it is with the meaning of the word give in virtual isolation, removed from the purpose of the subsection and the objectives of its terms. The principal purpose of the subsection is to confer upon local taxpayers the right to dispute the validity of local government tax assessments, an important individual right closely associated with one of the fundamental taxing requirements of the statute, namely the relatively fair and equitable distribution among taxpayers of the burden of property taxes. To achieve the principal purpose of the subsection, the legislature established simple set of terms, found in section 303, prescribing the manner and time in which this right may be exercised. It also constituted the rural municipal councils as boards of revision, empowering them to hear and determine such appeals, all as provided for in sections 305 through to 313. [19] According to the terms of subsection 303(1), written notice in approved form is to be given to the administrator, as the clerk and secretary to the board of revision according to section 305(5), within 20 days of the mailing or publication of the disputed assessment. These terms have two-fold objective: first, to enable the taxpayer to exercise the right of appeal by simply notifying the administrator, in approved form and within the prescribed period, of the intention to appeal; and second, to enable the board of revision to determine the appeal in keeping with the taxing scheme of the enactment. [20] In this scheme of things, the assessor is required by sections 294 and 301 to prepare an annual assessment roll no later than May 31st and to publish or mail notice thereof within two weeks thereafter. The 20 day appeal period begins to run with this publication or mailing, as the case may be. In the event of an appeal the administrator, as clerk and secretary to the board of revision, is required by section 304 to immediately notify everyone affected thereby of the time and place of the sittings of the board. The board, in turn, is required by section 312 to hear and determine the appeal by August 1st, the deadline for concluding this appeal process. The conclusion of the appeal process paves the way for the Saskatchewan Assessment Management Agency to then confirm the assessment roll for the year. [21] Ordinarily the assessment rolls are prepared, and the notices of assessment published, well in advance of May 31st. Indeed the bulk of these notices appear in the Gazette in late March and early April, allowing for considerably more time for this process to work in practice. But the fact remains that it is the date of August 1st of each year that drives the several time requirements found in these provisions, including the 20 day appeal period prescribed by subsection 303(1). [22] similar scheme appears in The Urban Municipality Act, 1984, S.S. 1983-84, c. U-11, referred to in Regina (City) v. Newell Smelski Ltd., cited earlier. In delivering judgment in Smelski's case we remarked upon the significance of time requirements of this sort, suggesting that the essential significance of each of them lay in the ultimate goal of all of them: The scheme is concerned with assessment, preparation of an annual assessment roll, appeals against assessment, confirmation of the annual roll, and so on, which are mapped out with series of timing marks. But the marks are more significant in their cumulative than in their individual effect, for they are designed on the whole to meet an ultimate annual objective in timely fashion.[p.52]. [23] Hence, the fundamental significance of the term of subsection 303(1) requiring that notice of appeal be given within 20 days of the mailing or publication of the notice of assessment lies in the goal of section 312, namely in the disposition of such appeal by the deadline of August 1st. And so the undoubted objective of this term is to afford the board of revision sufficient time to determine an appeal by this date. [24] This suggests that rural taxpayer who posts notice of appeal by registered mail within the prescribed period will have satisfied the time requirement of the subsection, for ordinarily such posting will satisfy each of the objectives of subsection 303(1), as well as the goal of section 312. In other words, such notice may be expected in the ordinary course to reach the administrator within few days of its mailing and to enable the board of revision to take up the appeal and determine it by August 1st. [25] Unlike its urban counterpart, this Act does not reduce these ordinary expectations to certainties by deeming notice given by means of registered mail to have been received on specified day the fifth day following the date of its mailing in the case of section 330 of The Urban Municipality Act, 1984. This makes it more difficult, when necessary, to determine if and when the exercise of this right of appeal gives rise to the corresponding duty in the board of revision to entertain the appeal. That is different matter, however, going not to the manner but to the effect of the exercise of the right in one way or another. [26] In the light of all this, including the ambiguity associated with the use of the word give instead of the term serve, coupled with the indications of the purpose of the subsection and its objectives, one might reasonably interpret the statutory terms governing the exercise of the right of appeal as calling for no more, necessarily, than the posting of the requisite notice by registered mail before the expiration of the 20 day period. Such posting could not, in itself, raise any duty in the administrator or the board, for their corresponding statutory duties can only arise on receipt of notice of appeal. But this is not of much significance, for the administrator and the board would be bound on timely receipt of such notice to act upon it, if by timely receipt was understood to mean receipt in sufficient time to enable them to perform their duties, having regard especially for the August 1st deadline. [27] Although this interpretation would leave the resolution of such matters to principle, rather than rule, often more difficult matter, virtually all of the indications of legislative intent point in this direction. [28] The alternative is to treat the word give as importing the necessity of receipt, just as the Committee did. From the point of view of the administrator and the board of revision, this would add desirable measure of bureaucratic certainty to the appeal process: notice of appeal could then be acted upon only if received before the 20 day period expires, not otherwise, not even if received in sufficient time to enable the board to regularly hear and determine the appeal. From the point of view of the taxpayer exercising the right of appeal by means of registered mail, however, this would add distinctly undesirable measure of individual uncertainty: The notice of appeal would only be effective if posted early enough to be received by the administrator before the 20 day period runs out, not otherwise, not even if posted ten days beforehand, or four or five, or whatever. [29] Having regard for this uncertainty, and bearing in mind the need to approach the construction and application of the provisions of subsection 303(1) from the perspective of the exercise of the right conferred by the subsection, ascribing this meaning to the word give is troublesome. Indeed, it is difficult to think that the proper exercise of the right of appeal, when notice of appeal be given by means of registered mail, should be made to depend not upon the posting of the notice within the 20 day period, something that lies within the power of the person exercising this right, but upon the receipt of the notice by the administrator within the period, something that is beyond the power of the person in the absence of provision deeming notice to be received within so many days of its mailing. [30] On the whole, then, the preferable view is that person who posts written notice in approved form by registered mail before the expiration of the 20 day period will have exercised the right of appeal in accordance with the terms of the subsection. [31] On that view of the matter, Wascana Energy is to be taken as having properly exercised the right of appeal. And since its notice of appeal was received in sufficient time to enable the board of revision to have heard and determined the appeal in keeping with the requirements of the enactment, the administrator was bound to act upon the notice and the board was bound to entertain the appeal. [32] Even if it were otherwise, even if the company had failed to exercise the right of appeal in full compliance with all of the terms of the subsection, the effect would not necessarily have been fatal, as noted in Regina (City) v. Newell Smelski Ltd.: To have had that effect an ultimate effect such imperfect compliance would have to have had the effect, first, of nullifying the act of service or the notice of intention to appeal or both, and hence of extinguishing the company’s right of appeal. But not every failure to observe statutory requirements of procedural nature [as they were there characterized by the statute] carries with it such effects. If the legislature does not expressly provide for the effect of imperfect compliance or noncompliance with requirement of this nature, the matter becomes one of implication, having regard for the subject matter of the enactment; the purposes of the requirement; the prejudice caused by the failure; the potential consequences of finding of nullity; and so on.[p. 51]. In support of this proposition we referred to Secretary of State for Trade and Industry v. Langridge; [1991] All E.R. 591 (C.A.) and Cote: The Interpretation of Legislation in Canada (2nd. Ed.) at pp.202 to 207. (One might also refer to Board of Education of Dysart School District et al v. Board of Education of Cupar School Division No 28 (1996), 1996 CanLII 5042 (SK CA), 148 Sask R. 41 (Sask.C.A.) and Howard v. Secretary of State for the Environment, [1974] All E.R. 644 (C.A.), per Lord Denning M. R. in particular). [33] Since the legislature said nothing of the possible effects of timely posting but untimely receipt of subsection 303(1) notice of appeal given by means of registered mail, the matter is one of implication, having regard for the considerations mentioned in Newell Smelski. In the light of what has already been said of the subject-matter and purpose of the subsection, together with the objectives of its provisions and the scheme of which it forms part, it is difficult to think the legislature intended that the effect should be fatal when the notice of appeal is posted within the prescribed time and arrives within sufficient time to allow for the hearing and determination of the appeal in keeping with the scheme of the enactment. [34] At worst, this amounts to substantial compliance of near perfect sort, as was the case here, where notice was mailed on the day before the period expired, was being delivered on the day of expiry, and was delivered the day after. As might have been expected, nothing turned on the fact the notice did not arrive day or two earlier, for the administrator and the board were still able to act upon it in accordance with the requirements of the statute. This was especially so in the circumstances, for the assessment had not only been completed well in advance of May 31st but had been published several days beforehand, leaving ample time for the performance of these duties. Nor did any other form of prejudice arise. [35] In conclusion, we are of the opinion that Wascana Energy exercised its right of appeal properly, or at least effectively, requiring the board of revision to entertain the appeal. And so the appeal from the decision of the Committee will be allowed, with costs as usual, and there will be an order directing the board of revision to hear and determine the company's assessment appeal. DATED at the City of Regina in the Province of Saskatchewan this ll th day of May 1998. Cameron J.A. concur .......................................................................... Bayda C.J.S. concur ............................................................................ Sherstobitoff J.A.

At issue was whether the right of appeal to a board of revision against a municipal tax assessment was exercised properly having regard for s303(1) of the Rural Municipality Act and how and when notice was given. The company posted the notice of appeal by registered mail the day before the expiration of the 20 day appeal period. The notice arrived at the post office on a Friday, the day after the period expired and was picked up by the administrator the following Monday. The Appeals Committee refused to direct the board of revision to hear the appeal on the basis the company failed to give notice within the period prescribed by s303(1) and concluded that the board did not have the power to extend the time. HELD: The appeal was allowed. The board of revision was directed to hear and determine the assessment appeal. 1)The Committee did not err in deciding the prescribed time period for an appeal could not be extended. 2)The less formal expression 'to give notice to' as used in the Act is a less exacting term than 'to serve notice upon'. Wascana Energy exercised its right of appeal properly, or at least effectively, requiring the board of revision to entertain the appeal.

c_1998canlii12344.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Nova Scotia Turkey Producer’s Marketing Board v. Nova Scotia (Attorney General), 2008 NSSC 18 Date: January 15, 2008 Docket: S.K. No. 276502 277508 Registry: Kentville Between: Nova Scotia Turkey Producer’s Marketing Board Respondent/Plaintiff v. Attorney General of Nova Scotia and Nova Scotia Natural Products Marketing Council and John Merks and Andre Merks Applicants/Defendants Judge: The Honourable Justice Charles E. Haliburton Heard: January 15, 2008, in Kentville, Nova Scotia Written Decision: January 21, 2008 Counsel: Byron G. Balcom, for the Respondent/Plaintiff, Nova Scotia Turkey Producer’s Marketing Board Dale A. Darling, for the Applicants/Defendants, Attorney General of Nova Scotia and Natural Products Marketing Council Andrew N. Montgomery for the Applicants/Defendants, John Merks and Andre Merks By the Court: [1] This application Inter Partes is brought by The Attorney General of Nova Scotia pursuant to an Interlocutory Notice, filed January 11th , 2008 seeking,“. . . an order pursuant to Civil Procedure Rules 14.25(1) and 38.11 to strike the affidavits of Ms. Sonya Lorette, dated January 22nd , 2007 and February 9th, 2007.” [2] The issue is procedural, it is being argued that the reception of the two affidavits into evidence would be inappropriate and contrary to case precedent. [3] This is the second Interlocutory Application seeking to have these affidavits struck. The earlier application taken by Andre and John Merks was dismissed by Warner, J. by order dated August 8th, 2007. understand the focus of that inquiry was the relevance and general propriety of the drafting of the content of the affidavits and evidentiary issues of the nature raised in Waverley (Village Commissioners) et al v. Nova Scotia (Minister of Municipal Affairs) 1993 CanLII 3403 (NS SC), [1993], 123 N.S.R. (2d) 46 (SC). [4] Perhaps brief history of this proceeding would be helpful in placing this application and the issues in context. The dispute between the parties has arisen under the Natural Products Marketing Act, chapter 308, R.S.N.S. 1989 and its regulations and its administration. This Statute which authorizes the regulating of production and marketing of particular natural products in Nova Scotia is administered by the Natural Products Marketing Council, one of the Respondents, represented on this interlocutory matter by The Attorney General. The Plaintiff, The Nova Scotia Turkey Producers’ Marketing Board, is one of the “commodity boards” constituted under the plan. While the “Council” is charged with the general oversight and administration of matters governing the production of various products pursuant to the Act, certain authority is delegated to the various boards, specifically, The Turkey Marketing Board. [5] It appears that the “Board” had made decision that the “license” of the Merks brothers to produce turkeys had been contravened and that their license should be suspended. The Board requested the Council to hold “show cause” hearing. After making that request there was procedural breakdown between the Board and the Council with respect to how that hearing would proceed, with the Board seeking and being denied, an adjournment. The hearing then was held as scheduled, without the participation of the Board, with the result that the Merks license was not suspended. [6] Flowing from that decision and the differing conceptions of the Board and the Council regarding their respective roles and or jurisdiction in the process, the Board initiated this proceeding. In its original application (S.K. No. 276502) the Board sought declaratory judgment raising these questions: 1. Does the Natural Products Marketing Council have jurisdiction to hold “show cause hearing” pursuant to section 10 of the Natural Products Act, R.S.N.S. 1989, c. 308, as amended between the parties, having already delegated to The Turkey Producers Marketing Board the power to issue, refuse, revoke or suspend licenses pursuant to section of the Natural Products Act, R.S.N.S. 1989, c. 308, as amended, and regulations 9(1)(b) and (e) and (4) and further under sub-regulation 12(4)? 2. If the answer to question (1) above is in the affirmative, does Section 10 of the Natural Products Act, R.S.N.S. 1989, c. 308, as amended, confine the jurisdiction of the Natural Products Marketing Council to that of an Appellant function? 3. Who is the applicant as defined under section 10 of the Natural Products Act, R.S.N.S. 1989, c. 308, as amended? [7] The Board made a further application Inter Partes (S.K. 277508) seeking writs of certiorari and mandamus requiring the Council to hold a new hearing. [8] In support of its applications the Board filed two affidavits of Ms. Sonya Lorette which provide some detail and background to the reasoning of the Board for its failure to attend the hearing before the Council and for their differing positions regarding their respective roles in the application of the management plan. [9] The Attorney General, in its brief, describes the current application in these terms (it) is being made by The Attorney General and the Council. The Applicants seek to have the affidavits of Sonya Lorette, dated January 22nd, 2007 (in aid of SK 276502) and February 9th, 2007 (in aid of SK 277508), struck out as an attempt to put evidence to the Court on matters not in or forming part of the Record of the Council Panel in its adjudicative setting. [10] The Applicants put forth the proposition that it is improper to introduce “facts” by way of affidavit evidence in “judicial review” proceeding (certiorari). It is argued that the Court ought to restrict itself to considering the record as produced by the tribunal. It is further submitted that surrounding circumstances and background facts are not to be admitted if not contained in “the Record”. Similarly with the application involving the interpretation of the law (The Statutes and Regulations) the positions taken by the parties over the past number of years (an issue raised in the imputed affidavits) are said to be irrelevant. [11] All this material was before Warner, J. when he made his decision on May 10th, 2007. He seems to have accepted the information contained in the affidavits as factual. It seems apparent that the essential accuracy of the contents were not challenged on that application and he made findings of fact about the past relationship of the two bodies. [12] Warner, J., presumably reviewed all the materials in the file including the imputed affidavits as well as, would assume, affidavits of Merks, also in the file and not having been raised as an issue. He reviewed various factors supporting his conclusion that the applications by the Board should not be struck on the alleged basis that no cause of action had been disclosed. At page 178 of his decision, “I recognize that in order for the Court to undertake an application, as application is which deals solely with the request for determination of rights, that there must in fact be real dispute. And to my mind, the Council’s record shows an ongoing and clear dispute with respect to the authority of the Board to suspend and deal with licenses, and the authority of the Council to be the exclusive administrative body to cancel or revoke or suspend licenses....from looking at Tab of the Council’s record, (there appears to be) clear ongoing running dispute... it’s not hypothetical issue. It is real issue.” At page 179, (the questions relating to), “declaratory relief deal directly with the issue of the right of the Board pursuant to Section 10 of the Act to have exclusive or sole authority to suspend and revoke producers’ licenses and the procedure and definition contained in paragraph 10 of what the procedure is, if they do have that authority.” At page 180, “It’s clear that the Council has told the (Turkey) Board on prior occasions that the Council has the sole authority to suspend”. (with respect to the timing of the dispute vis vis the decision the Board sought to challenge) The application for declaration...was obviously prepared before January 22nd...prepared in response to January 18th conference call...(when the Board) was refused the adjournment.” At page 182, “The fact that there was real dispute, dispute that apparently is repetitive dispute in terms that it’s not the only time that the Board and the Council have clashed, gives it more credibility and credence and more reason for Court to intervene.” Page 188, quoting from letter attached to one of the imputed affidavits, “The Council has made clear on previous correspondence that the authority to cancel or revoke licenses rests solely with the Council...that is not true voluntary waiver of any claim to dispute jurisdiction.” “It’s clear as matter of common sense, if not on the record itself, that on January 18th when the Board asked for an adjournment and were refused that they reverted to their position.” And page 192, (The affidavits), “were setting out matters of fact and not of opinion. They were setting out as matters of fact the positions of the respective parties contained in letters attached to the affidavit, sworn to by the manager of the Board who either wrote or received as part of her duties as general manager the documents of which she spoke...it’s just simply saying that the two parties respectively said (what) their positions were over period of time, and agree with that characterization.” [13] The issue, as reflected in the quote in the brief of The Attorney General, noted above, question whether or not it is appropriate to introduce evidence by way of affidavit on “judicial review” and or, in an application for certiorari. [14] Briefly, it seems to me that reason and fairness in the present circumstances militate against ruling the affidavits inadmissible. As mentioned above, there is an affidavit filed by Andre Merks, which has not been challenged. Both the affidavit of Merks and the affidavits of Lorette provide some historical background and in particular, the circumstances leading up to the request for an adjournment by the Board and the materials which were placed before the Council at the hearing of January 22nd. Furthermore, and think it somewhat important, that the record does not disclose any indication whatsoever that evidence was either taken before the Council or considered by them, with respect to the suspension of license which had been the reason for convening the hearing. Indeed, the first reason appearing in the record for their decision and arguably the Council’s primary consideration, reads as follows: “Without the presence of The Turkey Marketing Board at the oral hearing, the panel was unable to assess the recommendations of The Turkey Board regarding action on the licenses of John and Andre Merks.” It seems evident that The Turkey Board having refused to appear at the hearing because their request for adjournment had been denied, left council with no decision to make. The merits of the case and the reasons for holding the “show cause” were apparently never before the Council. [15] The Applicant proposes highly restrictive view of what the Court may take into consideration on the two applications brought by the Board. It is argued that affidavit evidence is only admissible if the record does not provide enough information regarding the issues in dispute. [16] frankly have some difficulty with the exact characterization of the Board’s two applications and whether they raise jurisdictional issues or whether they complain of an error in law. Circumstances surrounding the initial application, S.K. 277502, are obviously not reflected in the “Record” because the application was commenced before the hearing. The application made subsequent to the hearing raised questions of jurisdiction. [17] In this context the following quotation from R. v. Northumberland Compensation Appeal Tribunal [1952] All E.R. 122, page 131, Decision of Lord Denning is not all that helpful, to the Applicant. It is quoted as authority at page four of the Crown’s brief, “The next question that arises is whether affidavit evidence is admissible on an application for certiorari. When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as rule, necessary. When it is granted on the ground of error of law on the face of the record, affidavit evidence is not, as rule, admissible, for the simple reason that the error must appear on the face of the record. [authority omitted] Affidavits were, however, always admissible to show that the record was incomplete, as for instance, that conviction omitted the evidence of one of the witnesses .” [18] If I review this present application as a jurisdictional dispute (which seems to be the position of all parties). This quotation does not form authority for denying the parties the use of affidavits. On the other hand, if it is to be denied on the basis of error of law on the face of the record, then in my view the affidavits are admissable to complete the records. The fairness of doing so is underscored by the fact that on the hearing of the Board’s application the court will have before it the affidavit of Merks which is to much the same effect. [19] Our rules of Court do not preclude the admission of affidavits on an “application”. As described in Rule 37, all parties are entitled to prosecute an application with the aid of affidavits. Obviously, the extent of affidavit evidence which will be admissible is, in any event, governed by the Court which will hear the matter. Let me return to R. v. Northumberland Compensation Appeal Tribunal [1952] All E.R. 122, the head note relating to the Denning decision, says: “Affidavit evidence is admissible on an application for certiorari to show that the record is incomplete. When certiorari is granted on the ground of want of jurisdiction or bias or fraud, affidavit evidence is not only admissible but it is as rule, necessary.” (my emphasis) Lord Denning, in his decision, reviewed the authority of the Court of King’s Bench to review decisions made by tribunals noting that they, “are often made the judges of both fact and law with no appeal to the High Court”. .The Court of King’s Bench (as with the Supreme Court of Nova Scotia) has an inherent jurisdiction to control all inferior tribunals, not in an appellate capacity but in supervisory capacity. This control extends not only to seeing that the inferior tribunals keep within their jurisdiction, but also to seeing that they observe the law. The control is exercised by means of power to quash any determination by the tribunal, which on the face of it, offends against the law. The King’s Bench does not substitute its own views for those of the tribunal, as the Court of Appeal would do. It leaves it to the tribunal to hear the case again and in proper case, may command it to do so.” later, quoting Chitty, “GENERAL PRACTICE”, “As an essential mode of exercising control over all inferior courts, (this Court) has most extensive power to bring before it their proceedings, and fully to inform itself upon every subject essential to decide upon the propriety of the proceedings below. This is effected by writ called certiorari. The writ issues in civil as well as criminal cases. .” In his Decision following the paragraph quoted by The Attorney General, Lord Denning observed at page 131, tab 1, Attorney General’s submissions; “Affidavits were, however, always admissible to show that the record was incomplete, as for instance, that conviction omitted the evidence of one of the witnesses.” And later he observed, affidavits were likewise always admissible by agreement of the parties and “treated by consent as if they were part of the record”...it is often very nice question whether an error which does not appear on the record is one that goes to jurisdiction or is only an error of law within the jurisdiction. If it goes to jurisdiction, affidavits are admissible but otherwise not. Continuing to refer specifically to the case, then before his Court, he concludes, “we have here simple case of error of law by tribunal...so long as the erroneous decision stands (the Applicant cannot be paid the money to which he is entitled) it would be quite intolerable if in such case there were no means of correcting the error.” [20] will not inquire further into the law. It is the duty of this Court to strive, to ensure that fairness and equity prevail in the proceedings before any tribunal or other authority over which we may be privileged to have the power of review. The issues which to my mind arise, in the present circumstance, with respect The Marketing Council and The Turkey Board may also arise in the context of the Council and other commodity boards. The Council is charged with enabling and authorizing system for controlling and limiting the production of various natural products. The Board is charged with the responsibility to see that fairness and equity prevail among the various licensed producers of that commodity. The contest represented by the application here is not contest between the Merks brothers and The Turkey Board as such, it is contest between the Merks brothers as turkey producers and all the other licensed producers in The Province of Nova Scotia who are represented by the Board. marketing scheme as intended by the Legislature cannot survive without the assurance that fairness and equity will prevail among the producers and that the rules which are set in place will be applied to all producers equitably. [21] As all parties have observed, this is not an appeal process. The result of these proceedings, will be that the decision taken by the Council will be validated, or the decision will be quashed and new hearing will be ordered. All the relevant materials with respect to the statute and regulations, the practices of the Council and the Board, will assist in determining the jurisdictional questions, likewise the circumstances relating to procedural fairness demand adjudication. It is to be hoped that the decision of this Court, when made will assist these two bodies in understanding their respective roles, their respective authority and assuring the rules of natural justice, with respect to adjournments or otherwise, are honoured. [22] The application to strike the two affidavits is denied for all the above reasons. Haliburton, J.

The defendant council, charged with the general oversight and administration of matters under the Natural Products Marketing Act, delegated certain authority to commodity boards such as the plaintiff. The plaintiff requested that the defendant hold a show cause hearing to determine whether certain producers had contravened their licence but when a procedural breakdown occurred as to how that hearing would be conducted, with the plaintiff seeking and being denied an adjournment, the hearing was held without the plaintiff's participation. The plaintiff brought an application for mandamus to compel the defendant to hold a new hearing and filed two affidavits providing some detail and background information as to its reasoning for its failure to attend the hearing and the parties' differing positions regarding their respective roles in the application of the management plan. The defendant brought an application to strike certain of the affidavits filed by the plaintiff on the basis that they were an attempt to put evidence to the court on matters not forming part of the record. Application to strike affidavits dismissed; the Rules do not preclude the admission of affidavits on an application and, in the present circumstances, reason and fairness militated against ruling the affidavits inadmissible. There was no authority for denying the parties the use of affidavits should this application proceed as a jurisdictional dispute and, should it proceed by way of an error of law on the face of the record, the affidavits were also admissible to complete the record.

9_2008nssc18.txt

J. Dated: 19971119 Docket: 2808 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Tallis, Cameron and Wakeling JJ.A. JUDY MARGARET SJOGREN and THEODORE GEORGE PIPCHUK COUNSEL: Ms. P. Cuelenaere for the appellant Mr. S. Eisner for the respondent DISPOSITION: On Appeal From: QB 513/93 and 1037/92 J.C. Prince Albert Appeal Heard: 19 November 1997 Appeal Dismissed: 19 November 1997 (oral) Written Reasons: 26 November 1997 Reasons By: The Honourable Mr. Justice T.C. Wakeling In Concurrence: The Honourable Mr. Justice C.F. Tallis and The Honourable Mr. Justice S.J. Cameron WAKELING J.A. (oral) [1] The appellant seeks to have the support payments ordered by the chamber judge increased on the basis the income of the respondent was incorrectly estimated and should have been found to be much greater. [2] The respondent’s income is largely the product of the operation of relatively small farm, augmented by some outside earnings. The appellant seeks to have the respondent’s income increased by adding the value of unsold grain on hand and 100 percent of his capital cost allowance. [3] There is clearly no basis for adding the value of the grain on hand to the income of the respondent. There is no indication of any underhanded or inappropriate action on the part of the respondent and this grain is therefore to be viewed as part of the gross income of the respondent in the year in which it is sold. [4] The respondent agreed to include 20 percent of his capital cost allowance as part of his income and this was accepted by the trial judge who recognized that commercial realities require the replacement of farm equipment. What, if any, portion of the capital cost allowance should be added to establish available income must be based on the facts of each case and we see no reversible error in the acceptance of this figure by the chamber judge in this instance. [5] The appeal is dismissed with the usual costs on double Column V.

The appellant sought to have the support payments ordered by the chambers judge increased on the basis the income of the respondent was incorrectly estimated and should have been increased by adding the value of unsold grain on hand and 100 percent of his capital cost allowance. HELD: The appeal was dismissed with costs. 1)There was clearly no basis for adding the value of the grain on hand to the income of the respondent. There was no indication of any underhanded or inappropriate action on the part of the respondent and the grain was to be viewed as part of his gross income in the year in which it was sold. 2)There was no reversible error by the chamber judge in accepting the respondent's agreement to include 20 percent of his capital cost allowance as part of his income. What if any portion should be added must be based on the facts of each case.

1997canlii9808.txt

J. NOVA SCOTIA COURT OF APPEAL Citation: Garth v. Halifax (Regional Municipality), 89 Date: 20060720 Docket: CA 259105 Registry: Halifax Between: Christopher Robin Garth v. The Halifax Regional Municipality carrying on business as Metro Transit Respondent Judges: Bateman, Cromwell and Oland, JJ.A. Appeal Heard: May 26, 2006, in Halifax, Nova Scotia Held: Leave to appeal granted and appeal allowed per reasons for judgment of Cromwell, J.A.; Bateman and Oland, JJ.A. concurring. Counsel: John Rafferty, Q.C., agent solicitor for the appellant Sarah L. Harris, for the appellant E. Roxanne MacLaurin, for the respondent Reasons for judgment: I. INTRODUCTION: [1] Mr. Garth sued the Halifax Regional Municipality for negligence. Years later, he decided he should amend his action to add new claim against new defendant. By then, the new claim was barred by limitation period. He applied in Supreme Court chambers for permission to make the amendment. Kennedy, C.J.S.C. held that he did not have authority under the Civil Procedure Rules to grant it and dismissed Mr. Garth’s application. [2] Mr. Garth appeals. He says, first, that the Rules gave the judge discretion to grant the amendment; and second, that the judge should have granted it. [3] In my view, the Rules gave the judge a discretion to grant the amendment. I, therefore, conclude that he erred in thinking that he had no authority to do so. That leaves the question of whether the amendment should be granted. I would permit the appellant to renew its amendment application in the Supreme Court rather than have us decide now whether the amendment should be granted. The proposed defendant was not given notice of the application to add it as party. do not think we should deal with the amendment application on its merits without giving the proposed new defendant an opportunity to be heard. II. FACTS AND DECISION UNDER APPEAL: [4] Mr. Garth says he was hurt when the Metro Transit bus on which he was passenger came to very sudden stop. He sued the municipality which operates Metro Transit. The bus driver, he claimed, had been negligent when she “slammed on” the brakes to avoid collision with “little red car” which suddenly turned left in front of the bus. [5] The municipality denied negligence. The bus driver, it said, had simply reacted reasonably to the emergency situation created by the unidentified driver of the little red car. That unidentified driver, in the municipality’s view, had been completely to blame. [6] Six years after he started his lawsuit, Mr. Garth decided he should claim against the driver of the little red car as well as against the municipality. He applied to Supreme Court chambers to amend his claim accordingly. This involved making claim against an unidentified driver. The way for him to do that was to claim against the municipality’s insurer which, in turn, involved Section of the municipality’s insurance policy. [7] Section of the policy provides coverage for passengers in this case, Mr. Garth for amounts they are entitled to recover for bodily injuries resulting from an automobile accident. Where, as here, the driver alleged to be at fault is unidentified in this case, the driver of the little red car the amount the passenger is entitled to recover may be determined by the Supreme Court of Nova Scotia in an action brought against the insurer. That is why Mr. Garth asked to amend his claim in order to sue the municipality’s insurer, Lombard Canada Limited, with respect to the alleged negligence of the unidentified driver. [8] There were two problems with Mr. Garth’s application, only one of which was recognized by the parties at the time. [9] The first was that there is two year limitation period in relation to Mr. Garth’s claim against the unidentified driver: Section of the Policy, s. 9(2). Mr. Garth’s amendment, if granted, would effectively circumvent that limitation period. (There was no dispute before us that the amendment would relate back to when the statement of claim had been issued and that the limitation period had not expired at that time.) [10] This limitation problem was the focus of the debate before the chambers judge. The respondent argued that, as the limitation period had expired, the Rules did not permit the amendment in the circumstances of this case. The judge accepted this submission and held that his hands were tied by the Rules. He dismissed the application to amend. [11] The second problem that no notice had been given to the proposed new party was not addressed by the parties or the judge. will return to it later in my reasons. [12] As noted earlier, there are two issues: first, did the judge err in finding that he had no discretion to grant the amendment; and, second, if so, what order ought we to make on appeal. will address each in turn after saying word about the standard of appellate review. A. Standard of Review: [13] Although this is an interlocutory appeal, the issue involves the correct interpretation of the Civil Procedure Rules. An error in this regard is an error in principle which should be corrected by this Court on appeal: Minkoff v. Poole (1991), 1991 CanLII 2516 (NS CA), 101 N.S.R. (2d) 143; MacKenzie v. Kutcher (2004), 2004 NSCA (CanLII), 220 N.S.R. (2d) 285; N.S.J. No. (Q.L.)(C.A.). B. Discretion to Amend: [14] The judge found that he had no authority to grant the amendment because this case does not fall into any of the specific powers to amend in the Civil Procedure Rules. Respectfully, he erred in so finding. The Rules grant broad powers to authorize amendments and the judge had discretion to permit the amendment which Mr. Garth asked for in this case. [15] Both Rules 5.04 and 15 are relevant. Rule 5.04(2)(b) permits the court to order any party who ought to have been joined to be added. It provides: (2) At any stage of proceeding the court may, on such terms as it thinks just and either of its own motion or on application, ... (b) order any person, who ought to have been joined as party or whose participation in the proceeding is necessary to ensure that all matters in the proceeding may be effectually adjudicated upon, be added as party; [16] Rule 15 deals with amendments generally, and, as well, specifically addresses certain situations in which an amendment is sought after limitation has expired. Rules 15.01(c) and 15.02 are most directly relevant here. They provide: 15.01. party may amend any document filed by him in proceeding, other than an order, ... (c) at any time with the leave of the court; (1) The court may grant an amendment under rule 15.01 at any time, in such manner, and on such terms as it thinks just. (2) Notwithstanding the expiry of any relevant period of limitation, the court may allow an amendment under paragraph (1), (a) to correct the name of party, notwithstanding it is alleged that the effect of the amendment will be to substitute new party if the court is satisfied that the mistake was genuine and not misleading or such as to cause any reasonable doubt as to identity of the party intending to bring or oppose the proceeding; (b) to alter the capacity in which party brings or opposes proceeding if the capacity, after the amendment is made, is one in which at the date of issue of the originating notice, third party notice, or the making of the counterclaim, the party might have brought or opposed the proceeding. (3) The court may allow an amendment under paragraph (2) notwithstanding the effect of the amendment will be to add or substitute new cause of action, if the new cause of action arises out of the same or substantially the same facts as the original cause of action. [17] The problem that arises here is whether the specific language about cases involving limitation periods in Rule 15.02(2) and 15.02(3) limits the general language about amendments in Rule 15.01(c) and 15.02(1). Rule 15.01(c) and 15.02(1)) confer broad, general power to amend which does not refer to the limitation period issue. However, Rule 15.02(2) and 15.02(3) specifically address the situation of amendments sought after limitation period has intervened. The question before the judge was whether these specific provisions in relation to limitation periods narrow the general power to amend set out earlier in the Rule. [18] The judge held they did: when faced with the intervention of limitation period, the court may only amend if the case falls in the specific examples set out in Rules 15.02(2). As the judge put it: ... When analyze that Section 15.02(2), agree that the Court’s power to add new defendants, after the six-year period, has got to be pursuant to Section 15.02(2). That’s where the power is created. That’s where it lies. So you’ve got to comply with that. Your scenario has to come under the permissive provisions of that, of that Rule. And agree further that that section does not cover, does not cover this particular request to amend. The effect of this application would not be the correcting of the name of the, of the defendant. It’s not under that (a), or the altering of the capacity in which the defendant appears in the action, the, the (b), it simply doesn’t come under those provisions. No Rule that am aware of allows me to add an entirely new party to an action after the six-year limitation period has expired, in an attempt to account for possible factual circumstance. [19] agree with the judge that this case does not fall within any of the specific cases set out in Rule 15.02(2)(a) or (b). However, do not agree with him that those specific powers limit the general amendment power set out in Rules 15.01 and 15.02(1). [20] The issue the judge faced about how the specific and general powers to amend interact has long and contentious history. Some background will be helpful. [21] In 1887, the Court of Appeal in England decided Weldon v. Neal (1887), 19 Q.B.D. 394 (C.A.). It held that, where limitation period had intervened, party generally should not be permitted to amend pleading to set up new cause of action. The basis of this general rule was that limitation period gave the defendant vested right not to be sued. It followed that by permitting the amendment, the court was, in effect, “depriving” the defendant of the limitation defence and taking away an “existing right”: at 395. [22] While Weldon v. Neal was concerned with amendments to add new causes of action, the same principle was applied to amendments to add new parties: see, for example, Hudson v. Fernyhough (1889) 61 L.T. 722; Mabro v. Eagle, Star and British Dominions Insurance Co., [1932] K.B. 485. However, the rigidity of this approach and the injustice to which it led resulted in the courts developing certain categories of cases in which the amendments could be granted. So, for example, it might be permissible to add new cause of action where it arose out of essentially the same facts as those originally pleaded or to change the name of party to correct “misnomer” or alter the capacity in which named party sued: see review of the cases in Garry D. Watson, “Amendment of Proceedings After Limitation Periods” (1975), 53 Can. Bar Rev. 237 and Graeme Mew, The Law of Limitations (2nd ed., 2004) at 71 ff. [23] The Rules of the Supreme Court in England were amended to address this issue. Some of the situations in which courts had granted amendments were set out in provisions similar to our Rules 15.02(2) and 15.03. Unfortunately, however, the impact of the new rule was controversial. That controversy bears directly on the issue we face in this case, because our Rule is modelled on the amended English rule. [24] One line of English authority took the view that, where limitation period had intervened, the change in the Rule only permitted amendments to be made in the specified circumstances: see, e.g., Heaven v. Road and Rail Wagons, Ltd., [1965] All E.R. 409 (Q.B.D..); Braniff v. Holland Hannen and Cubitts (Southern) Ltd. and Another, [1969] All E.R. 959 (C.A.). Another line of authority took broader view that the specific provisions did not limit the general power to amend and were simply examples of situations in which amendments were permitted: Chatsworth Investments, Ltd. v. Cussins (Contractors) Ltd., [1969] All E.R. 143 at 143; Sterman v. Moore Ltd., [1970] All E.R. 581 (C.A.), at 585; Brickfield Properties Ltd. v. Newton, [1971] All E.R. 328 at 338.S [25] The text of the English rule explains how this divergence of view developed. The opening words of Order 20, Rule 5(1) conferred broad power to amend “... on such terms ... or otherwise as may be just ...”. However, that broad power was said to be “subject to ... the following provisions of this rule ..”. Rule 5(2) then specifically addressed amendments sought “after any relevant period of limitation current at the date of issue of the writ had expired and referred to the specific circumstances set out in Rules 5(3), (4) and (5), that is, to amendments to correct name, to alter the capacity of party and to substitute new cause of action if it arises out of the same (or substantially the same) facts as the original claim. reading of the text of Order 20, Rule leaves one uncertain as to whether the specific provisions relating to amendments after limitation period has expired qualify or limit the general power to amend set out in Rule 5(1). (For convenience, have set out the full text of RSC Order 20 Rule in appendix A). [26] The Nova Scotia rule is modelled on the English one, but with subtle, although important, changes of wording. Rule 15.02 sets out broad power of amendment, but unlike the English rule, this broad power is not subject to the more specific subsequent provisions. This difference in wording seems to me to put to rest the controversy which arose under the English rule. On its plain reading, our Rule 15.02(1) does not contain any limit or qualification on the court’s broad power to “grant an amendment ... at any time, in such manner, and on such terms as it thinks just.” [27] In any case, our Court has followed the line of authority in England which took broad approach to the interpretation of the English rule. In Re Eisnor Estate (1984), 60 N.S.R. (2d) 186 (S.C.A.D.), this Court approved the judgment of Sachs, L.J. in the English Court of Appeal in Brickfield Properties Ltd., supra. One of the issues in Brickfield was whether the Court had the power to grant an amendment under Order 20, Rule 5(1) even though limitation period had expired and the case did not fall within the specific provisions of Rule 5(2) (5). Sachs, L.J., relying on Sterman, supra, held that it did. His reasons for doing so were quoted with approval by Jones, J.A., writing for this Court in Eisnor at para. 9. It is worth setting out part of the quoted passage from Brickfield: [10] In Brickfield Properties Ltd. v. Newton, [1971] W.L.R. 862, Sachs, L.J., stated at p. 874: Reference has already been made in this judgment to the manifest and known intention of those who framed the new Ord. 20, r. 5, to break away from the old rigid practice which derived from the decision in Weldon v. Neal 19 Q.B.D. 394. It is now apposite first to cite what was said on this point in Sterman’s case [1970] Q.B. 596 by Lord Denning MR at 604: ‘The new rules, it is said, have cut down the power to amend. You can only amend writ, it is said, so as to avoid the Statute of Limitations, if the case can be brought expressly within Ord. 20, r. 5, sub-rr. (2), (3), (4) and (5): and that otherwise it is strict rule of the court that no amendment can be allowed which would deprive defendant of the benefit of the Statute of Limitations. Support for this interpretation of Ord. 20, r. 5, is given by the recent case in this court of Braniff v. Holland Hannen and Cubitts (Southern) Ltd., [1969] W.L.R. 1533. But must say that cannot agree with it. If this restrictive interpretation were given to Ord. 20, r. 5, we should be once again allowing genuine claims to be defeated by technical defects. think we should give full effect to the wide [sic] words of Ord. 20, r. 5(1). We should not cut them down by reference to sub-rules 5(2), (3), (4) and (5) .’ With those views find myself respectfully in agreement. [11] While there was an issue in the Brickfield Properties case as to the interpretation of the English rule comparable to our r. 15, am satisfied that the passage sets forth the object of the Rule. (See also Martin Construction v. Penhorn Mall (1975), 12 N.S.R. (2d) 331 (S.C.A.D.) at para. 77 ff.) [28] Both the text of our Rule and the Eisnor decision support the view that the broad power to amend conferred by Rule 15 is not limited by the specific instances set out in Rule 15.02(2) and (3). Rule 15.02(2) and 15.02(3) preserve the various situations in which the courts had been prepared to grant amendments after a limitation expired, while 15.02(1) made it clear that the court had an overriding discretion to amend in all situations. [29] This interpretation is also more consistent with the current approach to the effect of limitation periods. As we saw in Weldon v. Neal, limitation periods at one time were viewed as giving the defendant “right” not to be sued. It followed that permitting amendments after limitation period had expired was in effect taking away that “right”. However, our Court has recognized that this approach is circular. In Martin Construction, supra, at para. 43, the court agreed that to argue that the defendant has an existing right which will be defeated by amendment is to argue in circle since there is only an existing right if the court does not use its power to amend. Another example of this approach is found in the reasons of Hallett, J. (as he then was) in Gallant v. Oickle (1977), 21 N.S.R. (2d) 260 (S.C.T.D.). At para. 9, he quoted with approval the English Court of Appeal in Pontin v. Wood, [1962] All E.R. 294 to the effect that if an amendment is granted, the change relates back to the time the pleading was filed. It follows that the amendment is not depriving the defendant of any defence he or she would have had if the action had been formulated in that way in the first place. The question is not whether the expiry of the limitation period trumps the power to amend, but whether it is just to grant the amendment even though the limitation period has expired. [30] The discretion to amend must, of course, be exercised judicially in order to do justice between the parties. Generally, amendments should be granted if they do not occasion prejudice which cannot be compensated in costs: Baumhour v. Williams (1977), 22 N.S.R. (2d) 564 (S.C.A.D.); Stacey v. Consolidated Foods, [1986] N.S.J. No. 356 (S.C.A.D.); White v. Pellerine, [1988] N.S.J. No. 191 (S.C.A.D.); P.A. Wournell Contracting Ltd. v. Allen (1980), 1980 CanLII 2720 (NS CA), 37 N.S.R. (2d) 125 (S.C.A.D.). However, the expiry of the limitation period is strong signal of the risk of injustice to the defendant if the amendment is granted. The court must consider all relevant matters which may include, but are not limited to, the length of the delay in asserting the claim and the reasons for it, how closely the new claim is connected to the claim originally pleaded and the nature and extent of any prejudice resulting from the claim being asserted now as opposed to before the limitation period expired. [31] conclude that the chambers judge erred in holding that he did not have authority under Rules 15.01 and 15.02 to grant leave to the appellant to amend his statement of claim to add Lombard as party and to assert the Section cause of action against it. The judge’s order dismissing the application should be set aside. C. What Order Should Be Made on Appeal? [32] Normally in case like this one, it would be appropriate for this Court to make whatever order we think the judge ought to have made. However, do not think we should do so in this case. [33] critical question in relation to any amendment is whether it will occasion any prejudice which cannot be compensated in costs. In the circumstances of this case, the issue of prejudice relates not only to the existing defendant but also in fact, primarily to the proposed defendant. Prejudice to the existing defendant, the municipality, was not the focus of the submissions in this case either before the chambers judge or in this Court. Counsel for the municipality conceded that there was no evidence that the proposed amendment caused it any prejudice that could not be compensated in costs. The more pertinent question is whether the addition of the proposed new defendant would prejudice its defence of the new claim. In my view, it is not appropriate in the circumstances of this case to answer that question without giving the proposed new defendant an opportunity to be heard. [34] Lombard is the municipality’s insurer. In many instances, it would be safe to assume that the insurer was conducting the municipality’s defence and, therefore, would have had actual notice of the proposed amendment even though no formal notice had been given. However, in this case, the municipality is conducting the defence in-house and we have no assurance that Lombard has notice of the proposed amendment. In my view, therefore, the better course for us to follow is to permit the appellant to renew his amendment application in Supreme Court chambers, but this time with notice to both the existing and the proposed defendant. [35] am not suggesting that notice to proposed defendant is necessary in all applications to add parties to an existing action. Generally speaking, it is not necessary to give notice of the intention to start an action against someone. It follows that there should generally be no obligation to give notice to proposed new party of the intention to add that party to an existing suit. However, in this case, an important aspect of the question of whether the new party should be added is whether that party has been prejudiced in its defence by the appellant’s long delay in asserting his claim against it. The proposed defendant is in the best position to provide evidence and submissions on that point and it would be unfair not to give it that opportunity. [36] There are two main views about how the new defendant may be given that opportunity. One is to require notice of the application to amend to be given to the proposed new defendant: see, for example, Gawthrop v. Boulton and Others, [1978] All E.R. 615 (Ch.D.) At 620; Canadian Private Copying Collective v. Amico Imaging Services Inc. (2005), 2005 FC 1228 (CanLII), 42 C.P.R. (4th) 426 (F.C.); Lee v. Rowan, [2002] A.J. No. 335 (Q.L.) (Master); Hartoft v. Bell, [2005] B.C.J. No. 2663 (Q.L.)(S.C. Master), aff’d [2006] B.C.J. No. 551 (Q.L.)(S.C.); Fullowka v. Royal Oak Mines Inc. (1995), 42 C.P.C. (3d) 22 (N.T.S.C.). The second is not to require notice but leave the proposed defendant to challenge the order if it is made, presumably under rule such as our Rule 37.13: see, for example, Liff v. Peasley and Another, [1980] All E.R. 623 (C.A.). [37] Although would not want to lay down any firm rule on this point, my view is that generally the applicant should give notice to the proposed defendant (as well as the existing parties) where it is apparent from the circumstances that the proposed defendant likely has reasonable basis to oppose being joined. Of course, whether notice should be given in particular case is ultimately matter for the judge from whom the amendment is sought. [38] The issue in this case is whether we should exercise the discretion to grant or refuse the amendment in the absence of notice to Lombard. limitation period has intervened and an important consideration relates to whether the appellant’s delay has prejudiced Lombard’s defence. Lombard, in my view, should receive notice in these circumstances. I would, therefore, permit the appellant to renew his amendment application in a timely way in the Supreme Court on notice to both the existing and proposed defendants. IV. DISPOSITION: [39] I would grant leave to appeal, allow the appeal, set aside the order of the chambers judge and order that the appellant be at liberty to renew the application to add Lombard as a party on notice to it and the existing defendant. Given the long delays evident in this matter, the renewed application shall be filed and served within 60 days of today’s date and, if not filed within that time, theapplication to add Lombard will be deemed to have been abandoned. would direct that there should be no costs either before the chambers judge or in this Court and that any costs paid be refunded. The costs of the renewed application will be in the discretion of the presiding judge. Cromwell, J.A. Concurred in: Bateman, J.A. Oland, J.A. Appendix “A” RSC Ord 20, 5: (I) Subject to Order 15, rules 6, and and the following provisions of this rule, the Court may at any stage of the proceedings allow the plaintiff to amend his write, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct. (2) Where an application to the Court for leave to make the amendment mentioned in paragraph (3), (4) or (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in the circumstances mentioned in that paragraph if it thinks it just to do so. (3) An amendment to correct the name of party may be allowed under paragraph (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute new party if the Court is satisfied that the mistake sought to be corrected was genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or, as the case may be, intended to be sued. (4) An amendment to alter the capacity in which party sues (whether as plaintiff or as defendant by counterclaim) may be allowed under paragraph (2) if the capacity in which, if the amendment is made, the party will sue is one in which at the date of issue of the write or the making of the counterclaim, as the case may be, he might have sued. (5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute new cause of action if the new cause of action arises out of the same facts or substantially the same facts as cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

Six years after the action was commenced, the plaintiff applied to add the defendant's Section D insurer in order to add a cause of action against an unidentified driver. The limitation period for suing under Section D had expired and no notice of the application had been given to the insurer. The chambers judge held that he had no discretion to grant the amendment and dismissed the application. The plaintiff appealed. Appeal allowed; the plaintiff is entitled to renew the application for the amendment in Supreme Court chambers on notice to the proposed, as well as the existing, defendant within sixty days of today's date; if not filed within that time, the application to add the insurer will be deemed to have been abandoned. The court had a discretion to grant the amendment even though the case did not fall within any of the specific situations set out in Rule 15.02 as the broad power to amend conferred by Rule 15 is not limited to the specific instances set out the Rule. Although there was no firm rule that notice to a proposed defendant was necessary in all such applications, generally the applicant should give notice to the proposed defendant (as well as the existing parties) where it is apparent from the circumstances that the proposed defendant likely has a reasonable basis to oppose being joined, such as being prejudiced in its defence by the plaintiff's long delay in asserting his claim.

6_2006nsca89.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 177 Date: 2014 06 18 Docket: Q.B.G. No. 455 of 2014 Judicial Centre: Saskatoon BETWEEN: DEAN BRENT BELL, LARRY BOOTH, and GRAHAM SCOTT FEDORWICK PLAINTIFFS (RESPONDENTS) and XTREME MINING DEMOLITION INC., and LEONARD BANGA DEFENDANTS (APPLICANTS) and POTASH CORPORATION OF SASKATCHEWAN INC. Counsel: Scott D. Giroux for the applicants/defendants Gary J. Caroline for the respondents/plaintiffs Shaunt Parthev, Q.C. appearing for Potash Corporation JUDGMENT ALLBRIGHT J. June 18, 2014 [1] On April 4, 2014 the plaintiffs commenced an action against the defendants Xtreme Mining & Demolition Inc., Leonard Banga and the Potash Corporation of Saskatchewan Inc. The statement of claim contains 87 paragraphs and advances fundamental causes of action. [2] The first claim, wrongful dismissal, is advanced by the plaintiffs against the defendants, Xtreme Mining & Demolition Inc. and Leonard Banga. The second cause of action is a claim for defamation brought against the defendant Leonard Banga, and the third cause of action, inducing breach of contract, is brought against the defendant Potash Corporation of Saskatchewan Inc. [3] An extensive list of items sought in relief accompanies each of the three causes of action, and in every instance, damages over and above what might be referred to as normal damages are sought. [4] The application before me engages Rules 13-8, 7-9(1) and 7-9(2) of The Queen’s Bench Rules. Rule 13-8 provides in part as follows: 13‑8(1) Every pleading must: ... (c) contain only statement in summary form of the material facts on which the party pleading relies for the party’s claim or defence, but not the evidence by which the facts are to be proved; and ... This Rule is very similar to former Rule 139(1) of the former Queen’s Bench Rules which reads as follows: 139(1) Every pleading shall contain and contain only statement in summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which the facts are to be proved. pleading shall be as brief as the nature of the case will permit. [5] Rule 7-9 of The Queen’s Bench Rules provides as follows: 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: ... (c) is immaterial, redundant or unnecessarily lengthy; (d) may prejudice or delay the fair trial or hearing of the proceeding; or ... The new Rule 7-9 is also similar to former Rule 173 which provides in part 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: ... (b) it is immaterial, redundant or unnecessarily prolix; ... (d) it may prejudice, embarrass or delay the fair trial of the action; [6] While there are some differences in the wording of the relevant new rules from the prior rules, am satisfied that the essence and spirit of the current rules do not materially differ from the former rules. [7] The applicants amended notice of application seeks the following relief: 1. The Defendants, XTREME MINING & DEMOLITION INC. (“Xtreme”) and LEONARD BANGA (“Banga”), request the following relief: a. An Order pursuant to Queen’s Bench Rule 7-9(1) striking out portions of the Plaintiffs’ Statement of Claim; b. Costs of this application. [8] The grounds for making the application are set forth in the amended notice of application in the following form: 2. The Claim contains paragraphs which are not limited to material facts but rather plead matters of evidence and/or are immaterial. Specifically, a. Paragraphs 14, 15, and 16 regarding details of the motorcycle shop, employees and the ownership of the business and real property, is are immaterial. b. Paragraph 22, concerning the health condition of the Plaintiff, DEAN BRENT BELL, is immaterial; c. Paragraphs 35 through 41 and 46 are not limited to material facts as each contains matters of evidence and/or immaterial facts; d. Paragraph 50 pleads evidentiary matters, which matters are inadmissible in any event as the meeting referred to therein was conducted on Without Prejudice basis; e. Paragraph 55 contains immaterial and/or evidentiary matters concerning the health condition of the Plaintiff, DEAN BRENT BELL; f. Paragraph 67 a), c), and d) are matters of evidence as they contain statements made by the media outlets involved, not limited to statements attributable to the defendants themselves, and as such are evidentiary in nature and/or are immaterial; and g. Paragraph 68 is not limited to material facts, as it pleads matters of evidence and immaterial facts. [9] The parties are in agreement that the materials to be considered by me on this application are the pleadings alone. That, of course, involves simply the statement of claim, as no statements of defence have yet been filed. THE IMPUGNED PARAGRAPHS OF THE STATEMENT OF CLAIM [10] The relevant (impugned) pleadings in the statement of claim are the following: (a) Paragraphs 14, 15 and 16. [11] Paragraphs 14, 15 and 16 of the statement of claim read as follows: 14. From 2003 to 2011, Mr. BELL owned and operated motorcycle shop in Regina, Saskatchewan which at all times employed between and people (the “Motorcycle Shop”). Mr. BELL also owned the land on which the Motorcycle Shop was situated. 15. In 2010, XTREME and Mr. BANGA induced Mr. BELL to close the Motorcycle Shop to work for XTREME on full-time, permanent basis. In order to convince Mr. BELL to accept full-time, permanent employment, XTREME and Mr. BANGA made representations that Mr. BELL could work for XTREME until Mr. BELL chose to retire. 16. In 2011, in reliance upon XTREME’s and Mr. BANGA’s representations which reliance was reasonable in the circumstances, Mr. BELL closed the Motorcycle Shop, sold the land it was situated on and accepted the offer of full-time, permanent employment with XTREME and Mr. BANGA. (b) Paragraphs 22 and 55 [12] Paragraphs 22 and 55 of the statement of claim read as follows: 22. In or about October 2012, Mr. BELL was diagnosed with prostate cancer. XTREME and Mr. BANGA were aware of Mr. BELL’s medical condition. 55. The conduct of XTREME and Mr. BANGA in terminating Mr. BELL’s employment while Mr. BELL was suffering from prostate cancer was callous and showed wanton disregard for Mr. BELL’s dignity, feelings and well-being. (c) Paragraphs 35 to 41 and 46 [13] Paragraphs 35 to 41 and 46 in the statement of claim read as follows: 35. On or about January 15, 2013, Leonard BANGA summoned XTREME employees at PCS Cory, including the Plaintiffs, to mandatory meeting. At this meeting Mr. BANGA stated that Jesse Bitz, former XTREME employee and then-member of the Hells Angels Motorcycle Club, had threatened and intimidated other employees during the course of his employment with XTREME. Mr. BANGA said that as result of Mr. Bitz’s conduct XTREME was instituting new policy regarding violence and harassment in the workplace. Mr. BANGA then distributed copies of the new policy to those present. 36. Mr. Bitz had been employed by XTREME at PCS Cory until the summer of 2012 when he was laid off. XTREME later hired Mr. Bitz to work as supervisor at the Agrium company’s Vanscoy mine site (“Agrium Vanscoy”). XTREME dismissed Mr. Bitz in or about December 2012 after Mr. Bitz allegedly threatened worker at Agrium Vanscoy. 37. In or about December 2012, shortly after XTREME dismissed Mr. Bitz, Mr. BANGA asked Mr. Bitz to meet him at gas station on the outskirts of Saskatoon. At this meeting, Mr. BANGA said words to the effect that Mr. Bitz’s career in the mining industry was finished. Mr. BANGA and Mr. Bitz then had brief physical altercation. Mr. BANGA clandestinely made an audio recording of the encounter (the “Recording”). 38. In or about December 2012, Mr. BANGA presented the Recording to Mr. BOOTH and asked Mr. BOOTH to make efforts to have Mr. Bitz expelled from the Hells Angels Motorcycle Club. Mr. BOOTH advised Mr. BANGA that it was not within Mr. BOOTH’s power to have Mr. Bitz expelled. Mr. BANGA was displeased with this answer. 39. On or about January 15, 2013 Mr. BANGA sent letter regarding Mr. Bitz to the Chief Mines Inspector at the Saskatchewan Ministry of Labour Relations and Workplace Safety (the “Ministry”). The letter included the following passages. am writing you this letter as my official statement regarding Jesse Bitz. Jesse Threatened to Kill me off site and we had fight off the mine site. Once was informed of other death threats (By Jesse) by my workers we all had confidential documented conversation. [...] Jesse Bitz has been terminated due to his actions. Jesse also stated that “the whole Hells Angels club was going to get me”. feel this is one man trying to use the Hells Angels club to his advantage. At NO time did the Hells Angels club ever threaten me or anyone else at work. This is an isolated case of just ONE worker making threats and not the Hells Angels club. Many workers that belong to the Hells Angels club have done lot of great work for XMD for many years. 40. In or about January 2013, Mines Inspector with the Ministry interviewed numerous XTREME employees at PCS Cory and Agrium Vanscoy about the conduct of Mr. Bitz. Shortly after the Mines Inspector’s investigation, the Ministry revoked Mr. Bitz’s underground mining supervisor certificate. 41. On numerous occasions between December 2012 and June 2013, Mr. BANGA asked the Plaintiffs to make efforts to have Mr. Bitz expelled from the Hells Angels Motorcycle Club. Each time, the Plaintiffs responded that it was not within their power to have Mr. Bitz expelled. Mr. BANGA was consistently displeased with this answer. 46. In or about July 2013, most former XTREME employees who re‑applied to XTREME were rehired to work at PCS Cory. Several of those who were rehired had criminal records. At least one of those rehired was on parole. Messrs. BELL and FEDORWICK were not rehired. (d) Paragraph 50 [14] Paragraph 50 of the statement of claim pleads the following: 50. On or about September 6, 2013 Messrs. BOOTH and FEDORWICK attended meeting at the Saskatoon office of Mr. BANGA’s legal counsel. Present were Messrs. BANGA, BOOTH and FEDORWICK; Mr. BANGA’s legal counsel; and member of the Hells Angels Motorcycle Club who was not employed by XTREME. At this meeting, Mr. BANGA stated words to the effect that the Mosiac company had compelled XTREME to institute hiring process similar to that described by Mr. BANGA at the June 26, 2013 meeting of PCS Cory employees. Mr. BANGA stated that all XTREME employees at Mosiac Esterhazy had consequently been laid off and that XTREME would only rehire those who successfully completed vetting process that involved criminal record check and third-party screening. (e) Paragraph 67(a), (c) and (d) [15] Paragraph 67(a), (c) and (d) plead the following: 67. At various times in 2013 and 2014, the particulars of which are described below, the defendant LEONARD BANGA falsely and maliciously communicated to various individuals, including to members of the news media, words to the effect that the Plaintiffs had perpetrated acts of violence and intimidation while working for XTREME. The substance of the words can be reasonably inferred from the content of numerous media reports, including the following, each of which was posted on the respective outlet’s website and became widely available. (a) On August 24, 2013, the StarPhoenix published an article titled “Mine firm ousts Hells Angels” which contained the following passages. [...] The Hells Angels were purged from Xtreme’s ranks following multiple death threats and other intimidation, as well as attacks on Banga and an employee. [...] Five men some with Hells Angels connections, some with troubling criminal records, and some with both were not hired back last month Banga said he’s not against the Hells Angels he remains personal friends with several of them. But as an employer who awards cash bonuses for performance, safety and attitude, he said he is against employees who create an unsafe workplace. This story was republished on December 28, 2013 as top story in the StarPhoenix’s “Year in Review”. (c) On January 29, 2014, the CBC News published an online article titled “Mining firms watch case of Hells Angels at Xtreme Mining” that included the following passage. Until last year, Hells Angels from the Saskatoon chapter worked at the Agrium potash mine near Vanscoy and at the Potash Corp. mine at Cory. They lost those high-paying jobs when Leonard Banga at Xtreme Mining and Demolition decided he didn’t want Hells Angels in his company. This decision has triggered alleged death threats and potential lawsuit. [...] “If you’re applying for job and you’re member of group or club that’s considered to be an organized crime group, if you’re part of that and you can’t find work well, guess what? Maybe change your life,” [Mr. BANGA] said in an interview. Banga said he introduced the questionnaire because of complaints from other workers of threats and intimidation from the Hells Angels. (d) On January 29, 2014, Radio-Canada published French-language online article that referred to Mr. BANGA as saying that unnamed members of the Hells Angels Motorcycle Club brought handguns to XTREME worksites, threatened to kill other employees and engaged in violence and intimidation that prevented other staff from doing their jobs. The relevant portions of that article read as follows. En août 2013, Leonard Banga licencié tous les employés de Xtreme Mining qui faisaient partie du groupe de motards. Selon lui, la violence qu’ils causaient empêchait le personnel de faire son travail. Aujourd’hui, l’homme d’affaires précise que des membres des Hells, qu’il refuse de nommer, ont apporté des armes de poing au travail et menacé de mort des employés. Il veut maintenant s’assurer qu’aucun membre du club ne puisse travailler de nouveau chez Xtreme Mining. Il mis en place un nouveau code de conduite qui empêche ses nouveaux employés d’être liés au crime organisé. (f) Paragraph 68 [16] Paragraph 68 in the statement of claim provides as follows: 68. From February 2013 to June 26, 2013, the Plaintiffs were the only members of the Hells Angels Motorcycle Club employed by XTREME at PCS Cory. No members of the Hells Angels Motorcycle Club were employed by XTREME at PCS Cory after June 26, 2013. Therefore, Mr. BANGA’s references to members of the Hells Angels Motorcycle Club in paragraph 67 would lead reasonable people to believe that Mr. BANGA was referring to the Plaintiffs. THE POSITION OF THE APPLICANTS AND RESPONDENTS RELATING TO THE IMPUGNED PORTIONS OF THE STATEMENT OF CLAIM (a) Paragraphs 14, 15 and 16. [17] The applicants assert that while they accept the proposition that these paragraphs may be relevant to determination of the notice that an employer induced an employee away from previous position of employment, whether or not the plaintiff Bell owned land in Regina, employed three to seven people at his motorcycle shop and sold the land in 2011 are wholly irrelevant to the issue of any such inducement and whether or not he was terminated without cause and without reasonable notice. Further, the issue is the inducement of Bell, not whether Bell employed other individuals or Bell’s land holdings. In short, the applicants suggest that these particular aspects of the claim do not assist in determining what the defendants did and do not offer assistance as to why the plaintiff says it legally matters. [18] The respondents (plaintiffs) counter this proposition by noting that the size and nature of Mr. Bell’s business and his interest in the underlying real property are material facts going to the question of whether Mr. Bell is entitled to an extended notice period on the ground that the applicants (defendants) induced him to abandon his previous secure employment and that such proposition is well-established employment law principle. (b) Paragraphs 22 and 55 [19] The applicants assert that this paragraph does not relate to any particular allegation that Mr. Bell’s employment was terminated because of his medical condition or that his medical condition played any role whatsoever in the termination. Mr. Bell was diagnosed with prostate cancer nine months prior to the termination of his employment. Accordingly, the applicants assert that these pleadings are irrelevant. If such were permitted to remain in the claim, they would only serve to delay and prejudice the action, as the parties would be required to fully traverse all of the medical evidence and circumstances pertaining to the medical condition. The respondents contend that the health condition of an employee at the time of dismissal is plainly material for claim for moral damages. Again, it is suggested that this is well-established employment law principle recognized and endorsed by Canadian courts. (c) Paragraphs 35 to 41 and 46 [20] It is the position of the applicants that within the overall claim, each of the plaintiffs have alleged that they performed their duties competently, faithfully and diligently. Following from this, they have alleged that their employment was terminated without cause or reasonable notice. The applicants’ position continues to the effect that none of the matters pertaining to the “employment of Jesse Bitz”, who is not party to the lawsuit, and the termination of that employment have any bearing upon the germane issues in this action, nor do such inform them in any way. If the issues between Banga and Bitz, non-party, are to be traversed during the course of the lawsuit, such would prejudice and delay the trial of the action. Continuing, it is the position of the applicants that the allegations in para. 46 with respect to other employees being hired back, that some had criminal records and that one of the individuals who was rehired was on parole are similarly irrelevant. This is so for the fact there is no attempt to connect these averments to the causes of action set forth in the statement of claim. [21] The plaintiffs submit that paras. 35 through 41 plead facts which, if proven, would establish that the defendants were fully aware that the plaintiffs were in no way responsible for any acts of intimidation and harassment and that the defendants dismissed the plaintiffs for an improper and malicious purpose. The submission continues that these facts are material to the issue of wrongful dismissal and any resulting moral damages. Further, these facts are material to the issue of defamation in that, if proven, they would establish that Mr. Banga willfully impugned the plaintiffs’ characters by falsely linking them to acts of intimidation and harassment that Mr. Banga knew the plaintiffs had no part in. [22] The respondents assert in relation to para. 46 that it pleads facts which, if proven, would establish that the defendants’ rehiring procedure was indeed designed for an inappropriate purpose. As such, it is clearly material to the issues of wrongful dismissal and any damages, including moral damages, flowing therefrom. (d) Paragraph 50 [23] The applicants assert that regardless of the ultimate admissibility of the evidence in this respect, this paragraph pleads evidence that should be struck. The allegation is that the defendants acted unfairly or in bad faith by being dishonest as to the reasons for the dismissal, and the applicants suggest an alternative pleading in language which would be appropriate in the following fashion: The Defendants acted unfairly or in bad faith in terminating the Plaintiffs as the Defendants represented to the Plaintiffs that Mosaic had adopted and implemented policy to exclude members of the Hells Angels from the workplace. That representation was false. [24] The applicants also impugn this particular paragraph on the basis that the plaintiffs by pleading that there was meeting and the words that Banga is alleged to have said at such meeting, they are pleading how they intend to prove the material facts as opposed to actually pleading those material facts. The applicants contend they as defendants should not have to plead what their recall was of any meeting and the matters that transpired at any meeting in response to such an improper pleading and that they would be prejudiced by being required to plead evidence as that would be tantamount to providing discovery at the pleading stage. [25] The plaintiffs in response contend that the facts pleaded in para. 50 are material in that, if proven, they establish pattern of behaviour on the part of Mr. Banga that raises the presence of bad faith in the defendants’ dismissal of the plaintiffs. As such, these facts are material to the issue of wrongful dismissal and to any moral damages flowing from it. In addition, the plaintiffs assert that the meeting described in para. 50 was neither expressly nor impliedly conducted on without prejudice basis. The plaintiffs were not represented by counsel at that meeting and were at no time advised that the meeting was being conducted on without prejudice basis. In essence, the plaintiffs respond with the proposition that if the defendants choose to allege that the meeting was conducted on without prejudice basis, they are free to plead that specifically in their statement of defence. (e) Paragraph 67(a), (c) and (d) [26] The applicants assert that these excerpts from para. 67 pertain to matters of evidence rather than fact. The applicants are of the view that the specific wording of these pleadings confirms that the plaintiffs are using the excerpts as evidence to support their allegation that the defendant Banga made defamatory comments about the plaintiffs to various individuals and that such evidentiary facts should be struck out. To that end, the applicants assert that plaintiff in defamation action must establish that the words complained of are defamatory in their natural and ordinary meaning or, alternatively, by their innuendo meaning. If the words are not defamatory in their natural and ordinary meaning, plaintiff must allege and prove innuendo from extrinsic evidence. The applicants ask that these paragraphs be struck in their entirety, however, alternatively submit that the court should at least strike out portions of the impugned provisions. The plaintiffs have not alleged defamatory innuendo, and extrinsic evidence is wholly irrelevant and impermissible to the determination of whether the words alleged to have been published are defamatory. The specific portions of the paragraphs identified by the applicants are submitted to be simply extrinsic evidence, and as the claim is not based upon innuendo, they are immaterial to the plaintiffs’ actions in defamation and that traversing them will only engage the parties in issues that are unrelated to the real issues at stake. Finally, the significant portions of the paragraphs are extrinsic evidence reported on by news agencies and are not statements directly attributable to the defendant Banga and do not refer to actual statements that Banga is alleged to have made. As consequence, as it is statements that are the subject of claim in defamation, these portions are irrelevant. [27] The plaintiffs in response submit that these statements are plainly material to the issue of defamation because they contain indirect quotes attributable to the defendant Banga. As the courts have long ago abandoned the “severe” approach to pleading defamation which required the pleading of the impugned words verbatim, somewhat more relaxed standard ought to be applied. To that end, counsel for the plaintiffs references the comments of Zarzeczny J. of this court in Duke v. Puts, 1997 CanLII 11015 (SK QB), [1998] W.W.R. 510, 161 Sask.R. 299 (Sask. Q.B.). [28] Further, the statements of media outlets reproduced at para. 67(a), (c) and (d) of the statement of claim describe the alleged defamatory statements with sufficient certainty, clarity and precision that the defendants ought to be fully equipped to respond. The content of the impugned words is clear and unambiguous, and it is equally clear that such words were very likely spoken by Mr. Banga to or in the presence of the respective journalists on or shortly before the respective dates of publication. In essence, the plaintiffs have provided “sufficient facts surrounding the incidents to identify the incidents to the defendant”. These “incidents’ are fundamentally material to the plaintiffs’ case as they are necessary to adequately define the nature of the action and the issues to be tried. (f) Paragraph 68 [29] It is the applicants’ position that this entire paragraph is evidentiary in nature and the whole paragraph should be struck. The information contained in the paragraph, namely the number of Hells Angels employed by Xtreme and the dates of their employment are ostensibly pled by the plaintiffs as evidence in support of their claim that Banga defamed them individually by allegedly making statements regarding the Hells Angels generally. The applicants contend that the plaintiffs are using the contents of this paragraph in an attempt to prove their allegation that the defendant Banga defamed them and their evidentiary facts contrary to prevailing Canadian jurisprudence. [30] The plaintiffs in response submit that these facts go to the question of whether Mr. Banga’s statements would be viewed by reasonable persons as implicating the plaintiffs, and, as such, they are plainly material to the issue of defamation. The purpose of paragraph 68 is to establish that Mr. Banga’s impugned statements related to the plaintiffs, and, as such, the facts pleaded, are clearly material and ought not to be struck. [31] In 1996 had occasion to comment in fashion upon “appropriate pleadings”. In Bush v. Saskatchewan (Minister of Environment and Resource Management), [1996] S.J. No. 534 (QL) (Sask. Q.B.), commented at para. 21 as follows: 21 The perfectly drafted pleading has probably never occurred, or in any event, is rarity. Indeed, most pleadings, particularly in hindsight, admit of deficiencies, some more serious than others. While there are alternatives that could have been chosen in drafting various portions of this Statement of Claim, there is no precise standard against which Statement of Claim may be measured to ascertain its adequacy. There will always be personal element in the drafting of pleadings and each application such as that before me must be examined in light of the specific facts and circumstances in the pleadings being examined. While the years have passed, remain of the view that this observation is still relevant. Each instance of questioned or impugned pleadings must be examined on its own merit, bearing in mind the particular nature of the cause of action or causes of action being advanced. [32] am also in agreement with Laing J. and his comments in Ceapro Inc. v. Saskatchewan, 2003 SKQB 221 (CanLII), 237 Sask.R. 94. In Ceapro Inc. at para. 19 he comments: 19 ... It is not the role of the court to fine tune the pleadings offered by the parties to an action or to suggest wording for the pleadings. The court’s role is simply to determine if the pleading meets the minimum requirements. [33] In Ducharme v. Davies, 1983 CanLII 2310 (SK CA), [1984] W.W.R. 699, 29 Sask.R. 54, the Saskatchewan Court of Appeal in the words of Cameron J.A. comments at para. 15 in the following fashion in addressing the fundamental purpose of pleadings: 15 While pleadings are no longer subject to the precise, complex, and occasionally oppressive requirements they once were, nevertheless they remain an important aspect of every law suit and must be framed with care. The following passage taken from The Law of Civil Procedure‑‑Williston and Rolls (vol page 636) illustrates why careful pleading is still important: 16 The function of pleadings is fourfold: 1. To define with clarity and precision the question in controversy between litigants. 2. To give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issues disclosed by them. defendant is entitled to know what it is that the plaintiff asserts against him; the plaintiff is entitled to know the nature of the defence raised in answer to his claim. 3. To assist the court in its investigation of the truth of the allegations made by the litigants. 4. To constitute record of the issues involved in the action so as to prevent future litigation upon the matter adjudicated between the parties. [34] It is against this canvass of judicial commentary that propose to address the various impugned provisions contained in the statement of claim giving rise to the applicants’ motion. am also mindful of the oft reiterated proposition by courts, and certainly including courts in Saskatchewan, that pleading is to be taken as meaning stating material facts which are the constituent elements of any cause of action. Ball J. noted in Country Plaza Motors Ltd. v. Indian Head (Town), 2005 SKQB 442 (CanLII), 272 Sask.R. 198 at para. 8: ...In the simplest terms, statement of claim must describe what the defendant did, and why the plaintiff says it legally matters‑that is, why the defendant's conduct is actionable. [35] In variation of this theme, Gabrielson J. in Kaukinen v. Saskatchewan Water Corp., 2006 SKQB 199 (CanLII), 281 Sask.R. 113, observed at para. 15 In this case, while the plaintiffs have pleaded number of facts, they have failed to relate the facts pleaded to any specific cause of action. find therefore that the applicants have established that the plaintiffs’ claim could be struck in its entirety. However, rather than strike the statement of claim at this time, which could work an injustice to the plaintiffs, am prepared to grant them period of time within which to file proper pleadings. [36] Lastly, in addressing the impugned portions of the statement of claim dealing with the “defamation” cause of action, am mindful of the comments of Zarzeczny J. in Duke v. Puts, supra, at paras. 16-18. Zarzeczny J. observed: 16 On the other hand the applicants contend that even in the Berry case [1924 CanLII 182 (SK CA), [1924] W.W.R. 1279] Haultain C.J.S. at pp. 1281 and 1282 considered passage from Odger on Libel and Slander, [citation omitted] concluding that: “... If the plaintiff does not know the exact words uttered, and cannot obtain leave to interrogate before statement of claim, he must draft his pleadings as best he can and subsequently apply for leave to administer interrogatories, and after obtaining answers amend his statement of claim, if necessary”. Haultain C.J.S. concludes in this regard: ... What Mr. Odger evidently means is, that, if the exact words are not known, some words alleged to be the exact words must be set forth verbatim. These words would necessarily be words having meaning consistent with the information available to the plaintiff at the time ... 17 MacLeod J. in Eashappie et al. v. Miller (1995), 1995 CanLII 5725 (SK QB), 133 Sask. R. 175, adopted the statement contained in C.E.D. (West.), Vol. 11A, Title 47, paragraph 220, as follows: 220. As general rule, the precise words complained of must be set out verbatim in the statement of claim so that the court may judge whether or not there is good cause of action. It is not sufficient to merely give the substance or purport of the alleged defamatory words. Just exactly how much should be quoted of an article that contains defamatory imputation is not, however, always easy to resolve. It has recently been stated that rule of common sense is to be followed in deciding this: the question is simply whether the plaintiff’s claim is clear enough for the defendant to be able to plead to it ... 18 similar conclusion was reached by the High Court of Ontario in the case of Magnotta Winery Ltd. v. Ziraldo (1995), 1995 CanLII 7122 (ON SC), 25 O.R. (3d) 575. At p. 583, the following summary of the “common sense approach” is made: ... [I]t is open to the court in limited set of circumstances to permit plaintiff to proceed with defamation action in spite of an inability to state with certainty at the pleading stage the precise words published by the defendant. The plaintiff must show: that he has pleaded all of the particulars available to him with the exercise of reasonable diligence; that he is proceeding in good faith with prima facie case and is not on “fishing expedition”; normally this will require at least the pleading of coherent body of fact surrounding the incident such as time, place, speaker and audience; that the coherent body of fact of which he does have knowledge shows not only that there was an utterance or writing emanating from the defendant, but also that the emanation contained defamatory material of defined character of and concerning the plaintiff; that the exact words are not in his knowledge, but are known to the defendant and will become available to be pleaded by discovery of the defendant, production of document or by other defined means, pending which the plaintiff has pleaded words consistent with the information then at his disposal. [37] These comments were echoed by Barclay J. in R.E.L. v. J.G., 2000 SKQB 74 (CanLII), 191 Sask.R. 204, wherein he adopts the common sense approach to the pleading of defamation and notes the following requirements at para. 42: 42 accept that the Court may allow some leniency in the pleading of defamation where the exact words are not known to the plaintiff and are within the knowledge of the defendant. However in any case, the plaintiff must plead all of the particulars available to him, some words consistent with the allegation and then show that the words have defamatory character. Further, the plaintiff must provide sufficient facts surrounding the incident, such as time, place, speaker and audience, to identify the incident to the defendant. [38] In considering The Queen’s Bench Rules and comparing or contrasting them to the former Queen’s Bench Rules, am satisfied that the fundamental principles underlying former Rule 139(1) are applicable to the new Rule 13-8. In similar fashion, am satisfied that the jurisprudence and interpretation surrounding former Rule 173 is relevant and applicable when considering and applying the new Rule 7-9. [39] In considering the applicants’ amended notice of application, observed that in the catalogue of impugned pleadings, the consistent theme is that the specific pleadings in question are immaterial and on secondary basis that some plead evidentiary matters or combination of both. This chronicle reflects the wording of Rule 7-9(2) where the Rule references pleading or pleadings that is or are immaterial, redundant or unnecessarily lengthy or such as “may prejudice or delay the fair trial or hearing of the proceeding”. This Rule is to be considered in conjunction with Rule 13-8(1) which provides in part that every pleading must “contain only statement in summary form of the material facts on which the party pleading relies for the party’s claim or defence, but not the evidence by which the facts are to be proved”. THE IMPUGNED PLEADINGS [40] do not propose to reiterate the well-reasoned submissions of counsel for both the applicants and the respondents, as have set them forth in my recitation of the respective positions of the parties on the series of impugned pleadings. propose to set forth what my views are on each of the paragraphs in question in summary fashion. (a) Paragraphs 14, 15 and 16 [41] In considering these paragraphs am in agreement with the submission of the plaintiffs. To that end, agree that “The size and nature of Mr. Bell’s business and his interest in the underlying real property are material facts going to the question of whether Mr. Bell is entitled to an extended notice on the ground that the Defendants induced him to abandon his previous secure employment”. In light of the relief being sought by the plaintiffs, am certainly unable to say that these paragraphs are immaterial. Accordingly decline to strike paragraphs 14, 15 and 16. (b) Paragraphs 22 and 55 [42] In considering para. 22, am also in agreement with the submission of the plaintiffs. The start point in this particular analysis is to inquire as to whether the health condition of an employee at the time of his dismissal is material to claim for moral damages. am of the view that it is. agree that it has been recognized as such. (See Altman v. Steve’s Music Store Inc., 2011 ONSC 1480 (CanLII), [2011] O.J. No. 1136 (QL)). As I am satisfied that there is a basis for this pleading, I am unable to conclude that it is immaterial, and accordingly I decline to strike para. 22. [43] In similar fashion, am of the view that the allegations set forth in para. 55 have not been demonstrated to be immaterial. Again, the nature of the plaintiffs’ claim under the heading “moral damages” generates relevance on the issue of the health condition of an employee at the time of the dismissal. As it has this relevance, it cannot be said to be immaterial and, therefore, is not to be struck. While it may fairly be argued that it has the potential to be considered to be possessed of some “evidentiary” component, in my view it is limited and does not warrant the paragraph being struck. (c) Paragraphs 35 to 41 and 46 [44] In considering these matters, more particularly paras. 35 through 41, find that am in agreement with the fundamental position of the defendants. At the heart of my conclusion is the proposition that the matters being referenced as being relevant to the cause of action of wrongful dismissal are in fact not relevant. The claim by the plaintiffs for wrongful dismissal does not require these paragraphs, and in my view they are extraneous. agree with the defendants when they suggest that allowing these extraneous, irrelevant or immaterial provisions to remain in the statement of claim will require the defendants to respond on basis which would in the normal course be outside of what would be required in responding to claim of wrongful dismissal. At trial the plaintiffs may well be in position to adduce evidence to the effect underlying these provisions in the statement of claim in an attempt to demonstrate wrongful dismissal, but they are not in my view appropriate to be contained in the statement of claim, and direct that paras. 35 through 41 are to be struck. [45] The same criticism cannot fairly be leveled at para. 46 by the defendants. In my view this paragraph has an apparent nexus or relevance to the cause of action of wrongful dismissal and is, therefore, material, and as it is material, decline to strike the paragraph from the statement of claim. (d) Paragraph 50 [46] have considered with some care the position of the defendants that para. 50 pleads evidentiary matters which the defendants suggest are inadmissible in any event, as the meeting referred to was conducted on without prejudice basis. am not satisfied that it has been demonstrated from the pleadings that this was “without prejudice” meeting. The trappings which would be required to suggest such designation are absent. While there is an element of some evidentiary matters being set forth, it is obvious to me why the plaintiffs consider it necessary to set these forth within the context of para. 50. am also in agreement with the suggestion by the plaintiffs that if the defendants wish to pursue the suggestion that the meeting was on without prejudice basis and, therefore, should not be relied upon, they are at liberty to do so in an appropriate pleading in the statement of defence. Accordingly, I am not persuaded that para. 50 should be struck, and I decline to do so. (e) Paragraph 67(a), (c) and (d) [47] am mindful of the rationale of Zarzeczny J. in Duke v. Puts, supra. While an isolated interpretation of these pleadings may suggest that matters of evidence are being pled, essentially for the reason that they contain statements made by the media outlets involved, they appear to me to be legitimate attempt on the part of the plaintiffs to draft the pleadings in the best possible form, the plaintiffs being unable at this stage to know with certainty the exact words uttered by the defendant and having no current mechanism to ascertain such. As noted, this was echoed by Barclay J. in R.E.L. v. J.G., supra, wherein again he fairly concluded: ... accept that the Court may allow some leniency in the pleading of defamation where the exact words are not known to the plaintiff and are within the knowledge of the defendant. ... In this instance have asked myself if there is some impediment to the defendants drafting an appropriate statement of defence to deal with these particular pleadings, and have concluded that no such impediment is apparent to me. Accordingly, while there is obviously some lack of attribution of direct quotations to the defendant Banga, again am satisfied that the plaintiffs have pled the matter in way which is not offensive to the general principles of pleading. For these reasons decline to strike para. 67(a), (c) and (d). (f) Paragraph 68 [48] While I have considered the very able comments of Mr. Caroline on behalf of the plaintiffs, I am simply struck by the fact that para. 68 is both irrelevant and immaterial. It has to my mind no direct or even inferential nexus to the claim by the plaintiffs for wrongful dismissal. Accordingly, as this is my view of the paragraph, I direct that it is to be struck from the statement of claim. [49] am appreciative of the efforts of both Mr. Giroux and Mr. Caroline in addressing this matter orally and through their briefs. [50] am of the view that no costs should be ordered at this time, but rather direct that the costs in this matter as between the applicants and the respondents (not including the defendant Potash Corporation of Saskatchewan Inc.) are to be costs in the cause. No costs of this motion are to, in any event, be granted to Potash Corporation of Saskatchewan Inc. or against Potash Corporation of Saskatchewan Inc. Order accordingly. J. G.N. ALLBRIGHT

Civil Procedure – Pleadings – Statement of Claim – Striking OutCivil Procedure – Queen’s Bench Rule 7-9 The plaintiffs commenced an action against the defendants that included three causes of action: a claim against Xtreme Mining and Banga for wrongful dismissal; a claim for defamation brought against Banga; and for inducing breach of contract against Potash Corp. The defendants, Xtreme and Banga, brought an application pursuant to Queen’s Bench rules 7-9(1), (2), and 13-8 for an order that portions of the statement of claim be struck out as immaterial. The plaintiffs included in their pleadings regarding the first cause of action paragraphs that described the details of the plaintiff Bell’s business and real property, which he owned before he was hired by the applicants. Regarding the plaintiff’s pleadings respecting the second cause of action, they included details of the plaintiff Bell’s health condition at the time he was dismissed from employment. The plaintiffs pleaded a description of the contents of a meeting between them, Banga and his legal counsel in connection with the second cause, which, if proven, would establish that the plaintiffs were not responsible for acts of intimidation and that the defendants dismissed the plaintiffs for an improper and malicious purpose. The facts were material to the issue of wrongful dismissal and defamation. The other paragraphs that were considered immaterial by the applicants dealt with remarks made by Banga to the media. HELD: The court dismissed the application with respect to the plaintiffs’ pleadings about the plaintiff’s prior business and health condition. Similarly, the plaintiffs’ pleadings with regards to the meeting were not struck, nor were the paragraphs related to the reporting in the media as the plaintiffs were not certain of the exact words used by the defendant, and therefore could not draft anything at that time. It allowed the application respecting the pleadings that related to an individual who was not a party and struck the paragraphs in question as irrelevant and immaterial.

4_2014skqb177.txt

R.W. ELSON QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 81 Date: 2017 03 22 Docket: QBG 3200 of 2016 Judicial Centre: Regina BETWEEN: THE DIRECTOR UNDER THE SEIZURE OF CRIMINAL PROPERTY ACT, 2009 and WILLIAM ROSS BUTLER (ALSO KNOWN AS ROSS BUTLER) AND THE CHIEF OF POLICE OF THE REGINA POLICE SERVICE Counsel: Meghan McAvoy for the plaintiff Ian McKay, Q.C. for the defendant JUDGMENT SCHWANN J. March 22, 2017 [1] This is an application by the Director under the The Seizure of Criminal Property Act, 2009, SS 2009, c S-46.002 [2009 Act] for an order directing the forfeiture of $10,475.00 [property] to the Crown in right of Saskatchewan. The property had been seized by the Regina Police Service [RPS] from William Ross Butler in 2008. [2] In support of this application, the Director filed the affidavits of Sgt. Guy Criddle, Cst. Ahren Strueby, Sgt. Darren Fikeldey, Sgt. Caroline Houston, Sgt. Darcy McDonald, Kim Calfas and Cpl. Springinatic. [3] The Director’s application was preceded by administrative forfeiture proceedings in relation to the property pursuant to Part II.1 of the 2009 Act. Since Mr. Butler filed notice of dispute in response to those proceedings, the Director applied to this Court for forfeiture order pursuant to Part II. Circumstances and Summary of the Evidence The Director’s Evidence [4] The RPS executed search warrant at 839 Pasqua Street, Regina, Saskatchewan on July 24, 2008. This was Mr. Butler’s place of residence at the time. [5] On their approach to the residence the police encountered male by the name of Kirk Florek. Mr. Florek was questioned by the police. He admitted to having just purchased three grams of cocaine for $140.00. The cocaine found on his person was seized by the police. [6] The police were forced to use ram to open the steel frame front door. After it was utilized twice, Mr. Butler yelled out that he would open the door for the police, but he did not. The door was breached on the third attempt and the police entered. [7] Once inside the house, Sgt. McDonald heard toilet running as if it had just been flushed. Sgt. McDonald also observed Motorola cell phone in the living room which rang an estimated 20 times while the police were executing the search warrant. Sgt. McDonald answered four of the calls. All were from individuals who wanted to stop by to pick up product. One of the callers, Rob, requested “4”. [8] Three of the callers subsequently showed up at the residence within minutes with cash in hand. Each admitted to the police that they were there to purchase drugs. Sgt. McDonald also noticed approximately ten vehicles approaching the house but each drove off upon noticing the police presence. [9] The police found the following items in execution of the search warrant: a) $240.00 seized by Cst. Slater from Butler’s front right jeans pocket b) $140.00 seized by Cst. Slater from Butler’s front left jeans pocket c) $1,015.00 seized by Cst. Slater from Butler’s left jeans pocket d) $100.00 seized by Cst. Slater from the basement rafters e) $480.00 seized by Cst. Steinke from under the living room table f) $8,500.00 seized by Cst. Slater from safe in the basement of the residence g) $275.00 seized from Nicholson’s person [10] The following items were also located and seized: a) three gram packages of cocaine seized by Cst. Strueby from Kirk Florek b) black digital scale from the living room end table seized by Cst. Steinke c) Ativan mg pill bottle from the living room table seized by Cst. Steinke d) two cell phones from the living room table seized by Cst. Steinke. [11] The police also seized numerous items believed to have been stolen including plasma TV and various PlayStation games. [12] The cash located in the safe ($8,500.00) was held together in three elasticized bundles of $1,500.00 and four elasticized bundles of $1,000.00. The $1,500.00 bundles were each folded in half. [13] Sgt. Houston, who has 26 years’ experience in drug enforcement, surmised the cash recovered from the safe had cocaine residue on it based on its smell and feel. Subsequent ION testing was done on 19 random samples of cash. All 19 tested positive for cocaine with 17 manifesting high level of cocaine. [14] The majority (93%) of cash seized from the residence was in $20.00 denominations. The Evidence of the Respondent [15] Terry Metz swore an affidavit on January 9, 2017 in support of Mr. Butler. Mr. Metz is Mr. Butler’s former co-worker. He deposed to having purchased 1985 GMC Bison five ton truck from Mr. Butler in 2007 for $16,000.00. After paying the down payment, Mr. Metz claims he repaid the balance ($11,000.00) in cash periodically over the course of the ensuing years in lump sums of $1,000.00 to $1,500.00. [16] Mr. Butler swore an affidavit on January 24, 2017. He claims Mr. Metz purchased five ton Chevrolet truck from Bell’s Moving and Storage. Mr. Butler also claims he lent Mr. Metz the money to purchase this truck. At para. of his affidavit, he says: 8. THAT Mr. Metz had been paying me back for the money that lent him to purchase the truck and do not know why Mr. Calfas would suggest that the vehicle was never registered in any of our names. [17] With regard to the search of his residence, Mr. Butler denies any of the individuals present at that time of the search were there to purchase drugs of any sort. [18] Mr. Butler says the police evidence about Mr. Florek is not to be believed because Mr. Florek subsequently gave statement to the police denying he had purchased or received cocaine from Mr. Butler. This statement was not filed in these proceedings. [19] Finally, Mr. Butler indicates that although the police seized number of items which were allegedly stolen, it was subsequently established that none of these items were in fact stolen and all were returned to him. With regard to the toilet flushing incident, Mr. Butler points out that no drug residue was ever found around the toilet nor were any drugs or traces of drugs found elsewhere in the home. Mr. Butler also says no drug residue was found on his hands or clothes. Qualifying Mr. Henry as an Expert Witness [20] The Director offered opinion evidence from J. David Henry. [21] Defence counsel did not challenge Mr. Henry’s qualifications as an expert witness nor was voir dire sought for such purposes. [22] In the circumstances, accept Mr. Henry as an expert qualified to express an opinion in the area of controlled drugs and substances, trafficking in controlled drugs and substances and matters relating to that field. Mr. Henry provided detailed affidavit setting out his experience and level of expertise acquired over 30.5 years as an RCMP officer and his work in various drug enforcement capacities. His expertise is based on job related experience, investigative courses taken and articles and publications read. [23] Mr. Henry has been previously qualified as an expert in similar applications. In fact, his expertise has never been challenged (see Saskatchewan (Seizure of Criminal Property Act 2009 Director) Nagy, 2016 SKQB 332 (CanLII) [Nagy], The Director Shercliffe, QB 1854 of 2014 dated February 18, 2015 (unreported) and Saskatchewan (Seizure of Criminal Property Act 2009 Director) Dickinson, 2016 SKQB 82 (CanLII)). In Nagy, Brown J. stated: 29 Expert evidence was provided through J. David Henry, former RCMP member of some 30 years. He spent much time with the Integrated Drug Unit in Regina as well as other units associated with drug awareness and organized crime. He is an expert and is qualified to provide opinion evidence regarding the distribution, trafficking, usage, language (including code and jargon), packaging, accoutrements and paraphernalia associated with substances addressed in the CDSA. His affidavit, which accept, confirmed that, when all the facts and circumstances were viewed as whole, including those set out earlier in this decision, the activities of Nagy were consistent with the purchase and sale of controlled substances, contrary to the CDSA. The cash seized was also, in the opinion of officer Henry, an instrument of unlawful activity as recognized by the Act. While this expert evidence was impugned, find his evidence to be relevant, necessary, his knowledge to be established through training and experience and of assistance here. [24] find Mr. Henry’s opinion evidence to be relevant and necessary. There is no exclusionary rule which would bar the receipt of his evidence. Mr. Henry is therefore qualified to provide opinion evidence regarding the distribution, trafficking, usage, language (including code and jargon), packaging, accoutrements and paraphernalia associated with substances addressed by the Controlled Drugs and Substances Act, SC 1996, 19. [25] There are three issues before this Court: 1. Is the Director’s application statute barred? Does it have retroactive effect? 2. On balance of probabilities, is the property proceeds of unlawful activity? 3. Has the “interests of justice” exception been established? 1. Is the Director’s application statute barred? Does it have retroactive effect? [26] It is common ground that the property for which forfeiture is sought was seized from Mr. Butler by the RPS on July 24, 2008. The governing legislation in 2008 was The Seizure of Criminal Property Act, SS 2005, S-46.001 (Repealed) [former Act]. This statute was subsequently repealed and replaced with the 2009 Act, and it is pursuant to the 2009 Act that the Director’s application was brought on December 16, 2016. [27] Since Mr. Butler’s argument is based on the expiration of limitation period, s. 35.1 comes into play. This section was added to the 2009 Act by way of amendment in 2013. [28] It is Mr. Butler’s submission that because the property in question was seized from him in 2008, the Director should have acted pursuant to the legislation in place at that time. As mentioned, the governing legislation in 2008 was the former Act. Had she done so, he argues, the application would have been statute barred because The Limitations Act, SS 2004, L-16.1 bars commencement of proceedings two years after the date of discoverability. The date of seizure, he argues, is the date of discovery. [29] Secondarily, Mr. Butler argues that the current legislative mandate reflected in the 2009 Act is prospective in operational effect and not retroactive. Consequentially, it is his position that no order can issue with respect to property seized before the 2009 Act came into effect. Mr. Butler draws support for this argument from Gustavson Drilling (1964) Ltd. Minister of National Revenue, 1975 CanLII (SCC), [1977] SCR 271 [Gustavson] and his contention the legislation was not made expressly retroactive. [30] In my view, it serves no useful purpose to analyse the limitations issue from the perspective of whether the Director’s application would have been statute barred had it been brought under the former Act. The reality is that the Director commenced proceedings under the 2009 Act thus the Director’s authority to pursue a forfeiture order must be assessed from that perspective alone. Viewed in this light, the issues posed by Mr. Butler boil down to: 1. Whether the Director’s forfeiture proceedings were commenced after the limitation period expired; and 2. Whether an order granted under the 2009 Act in relation to property seized before this legislation came into force is retroactive in effect. If it is retroactive in its application, whether the 2009 Act expressly allows for retroactive effect. The Limitations Issue [31] Section 35.1 of the 2009 Act prohibits the commencement of forfeiture applications or administrative proceedings under this Act two years after the Director becomes satisfied the property sought to be forfeited is proceeds of unlawful activity or an instrument of unlawful activity. The section reads: 35.1 Notwithstanding The Limitations Act, no application or administrative forfeiture proceeding pursuant to this Act may be commenced after two years from the day on which the director becomes satisfied that property is proceeds of unlawful activity or an instrument of unlawful activity. [32] The language employed by s. 35.1 is significant in two respects. [33] First, the limitations rule expressed in s. 35.1 is preceded by the words “Notwithstanding The Limitations Act…”. These words are not superfluous. They operate as preface to the rule itself and as such hold interpretative significance. Pierre-André Côté in The Interpretation of Legislation in Canada, 3d ed (Scarborough: Carswell, 2000) at 355-6 [Legislation in Canada] discussed the concept of legislative harmony and the ordering of rules where conflicts exist between statutes. Normally, conflicts between statutes are resolved by recognizing hierarchy between them, that is primacy or paramountcy of one text over the other. The paramount text will apply, the other will be without effect… The way to determine which law has precedence is to seek the intent of the legislature. This intent can be expressed formally… [34] One way in which to resolve legislative or operational conflict is to express paramountcy between conflicting statutes by inserting an explicit word or phrase into the statute. The word “notwithstanding”, for instance, has recognized and acknowledged meaning for statutory interpretation purposes. As Pierre-André Côté in Legislation in Canada explains at 356: variety of well-known terms is used. The statute will declare that it applies “notwithstanding” provisions to the contrary. If, on the other hand, precedence is to be given to another provision, the statute will operate “subject to” that enactment. [Emphasis Added] [35] Thus, by prefacing s. 35.1 with the phrase “Notwithstanding The Limitations Act”, the Legislature signaled an intention to prioritize or give legal effect to the content of s. 35.1 over what may otherwise be provided for in The Limitations Act. [36] This brings me to the substantive content of s. 35.1. What does this provision say about limitation of proceedings? Is it in operational conflict with The Limitations Act? [37] In general terms, The Limitations Act provides that no proceedings with respect to claim may be commenced after two years from the day on which the claim is discovered (s. 5). Subject to limited exceptions, claim is discovered on the day on which the claimant first knew or ought to have known about the injury, loss or damage (s. 6(1)). claimant is presumed to have known of these matters on the day on which the act or omission on which the claim is based took place unless the contrary is proved (s. 6(2)). [38] Section 35.1, in contrast, charts different course. In clear and unambiguous language, the legislation prescribes starting point for when the limitation period begins to run. Significantly, it is not the day on which the act or omission took place but “the day on which the director becomes satisfied that property is proceeds of unlawful activity...” [emphasis added]. By inserting the word “notwithstanding” in s. 35.1 it can be presumed that the Legislature was alive to potential limitation of actions issues associated with forfeiture matters and intended to adopt different frame of reference for when the limitation period begins to run. [39] This legislative intent or purpose was explained in Saskatchewan, Legislative Assembly, Standing Committee on Intergovernmental Affairs and Justice (Hansard), 27th Leg, (May 14, 2013) at 418. Speaking on behalf of the Minister of Justice, the explanation provided to the Standing Committee on Intergovernmental Affairs and Justice was this: Mr. McGovern Mr. Chair, there’s provision that’s being added regarding the limitation period commencing when the director is satisfied that the property is proceeds of unlawful activity or an instrument of unlawful activity, rather than two years from the point of discovery, which probably is the provision that the member’s referring to. And that arises in two ways. One is now that statements of claim may be used to bring this forward and that’s one of the changes that is being made that was identified by our team in this area as an important alternative to have now that it can be commenced by statement of claim, of course it then attracts the provisions in The Limitations Act. And what this provision does is say that discoverability isn’t as relevant for limitation period in this context as is saying the director can be satisfied that the property is proceeds of unlawful activity or an instrument of unlawful activity. And so that’s why that new provision comes in: (1) because it’s statement of claim; and then (2) to recognize the process of when that clock should start. [40] Thus, in accordance with the language adopted by the Legislature for s. 35.1, the starting point for the commencement of the limitation period is not the date of seizure as contended by Mr. Butler but the date when the director became satisfied that the property constitutes proceeds of unlawful activity. [41] The evidence on when the Director “became satisfied” the seized property constituted proceeds of unlawful activity is found in the Affidavit of Tammy Pryznyk sworn December 15, 2016. She deposed to the following: 3. became aware of the Property (and the circumstances of its seizure), when the RPS referred the file to my office in August 2016. subsequently became satisfied, pursuant to the requirements of section of the [2009] Act, that the Property is an instrument of unlawful activity in that it has been used to engage in unlawful activity that resulted in or was likely to result in or was intended to result in the acquisition of property (more particularly, obtaining more controlled substances for the purpose of trafficking them). am also satisfied that the Property is an instrument of unlawful activity in that it is likely to be used to engage in unlawful activity that would be likely to or is intended to result in the acquisition or production of property. 4. In addition, am satisfied that the Property is proceeds of unlawful activity in that it was acquired directly or indirectly, in whole or in part, as result of unlawful activity, specifically the trafficking in controlled substances. [42] Mr. Butler did not challenge the admissibility of Ms. Pryznyk’s affidavit, cross-examine her on the affidavit, or offer any evidence to the contrary. Thus, on the unchallenged evidence of Ms. Pryznzk, the only finding of fact which can rationally be made is that Ms. Pryznyk in her capacity as Director was satisfied in August 2016 that the $10,475.00 previously seized by the police constituted proceeds of unlawful activity. The Director’s application was brought four months later and fell comfortably within the two year limitation window prescribed by s. 35.1. [43] The Director’s application is therefore not statute barred and there is no limitations issue. The Retroactivity Issue [44] Mr. Butler submits the presumption against retroactive application of statutes prevents the Director from reaching back to forfeit goods seized prior to the coming into force of the 2009 Act. [45] There is distinction to be made between the temporal operation of statutes insofar as legislation has either retroactive or prospective effect. As general principle of law, statutes are not to be construed as having retroactive effect and operation unless such construction is expressly or by necessary implication mandated by the language of the statute. Gustavson is cited as the leading authority on this point. At 267, the Supreme Court of Canada said: The general rule is that statutes are not to be construed as having retrospective operation unless such construction is expressly or by necessary implication required by the language of the Act. An amending enactment may provide that it shall be deemed to have come into force on date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to its enactment. In those instances the statute operates retrospectively. [46] This basic principle of construction is easy to state, however defining retroactivity, retrospectivity and prospectivity, let alone assessing when they occur in the context of repealed and amended law has proven to be difficult because of the confusing and often times inconsistent body of law which has evolved (by Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed (Markham: Butterworths Canada Ltd., 2002) at 543 [Construction of Statutes]). [47] In very general terms it can be said legislation receives retroactive application when the effect of applying it to particular facts is to deem the law to have been different from what it actually was when the facts occurred (Construction of Statutes at 553). The Supreme Court in Gustavson explained this concept but went on to touch upon when statute is not retroactive. At 267-8: Superficially the present case may seem akin to the second instance but think the true view to be that the repealing enactment in the present case, although undoubtedly affecting past transactions, does not operate retrospectively in the sense that it alters rights as of past time. The section as amended by the repeal does not purport to deal with taxation years prior to the date of the amendment; it does not reach into the past and declare that the law or the rights of parties as of an earlier date shall be taken to be something other than they were as of that earlier date. The effect, so far as appellant is concerned, is to deny for the future right to deduct enjoyed in the past but the right is not affected as of time prior to enactment of the amending statute. [Emphasis Added] (See also Paton The Queen, 1968 CanLII 102 (SCC), [1968] SCR 341) [48] The Director submits the legal effect vis-a-vis Mr. Butler has not changed with passage of the 2009 Act. agree. Both the former Act and the 2009 Act authorize the commencement of court application for forfeiture of proceeds of unlawful activity. The only meaningful difference between the two statutes is the party empowered to seek the remedy. Under the former Act it was police chief and in the current statute it is statutory designate. [49] The 2009 Act did not change the state of the law or Mr. Butler’s rights from what it was before the new law came into effect. Under both regimes the terms “property” and “proceeds of unlawful activity” were defined in the same manner. Both statutes contemplate an application to this Court for forfeiture of such property. Both apply the same legal test and standard of proof. [50] There is no obvious or identified unfairness attached to the legislative change in relation to the triggering events or definitions, nor to the ultimate consequence. Thus, it can hardly be said that Mr. Butler was caught off guard by the new law, lost vested rights or that the basic rules were either unknown or changed. Finally, the consequences attaching to prior factual event do not result in new penalty, disability or prejudice in any way to Mr. Butler. His legal position was the same and he faced the same jeopardy. [51] Even if am wrong such that the temporal effect of the 2009 Act is retroactive in nature, find the underlined portion of the definition of “proceeds of unlawful activity” expressly authorizes reaching back to fact pattern which existed before the statute came into effect. The definition provides: 2(p) “proceeds of unlawful activity” means: (i) property acquired directly or indirectly, in whole or in part, as result of unlawful activity, whether the property was acquired before or after the coming into force of this Act;… [52] As explained in Legislation in Canada at 150: Retroactivity may also be accomplished by mentioning clearly that the state [sic] applies to certain specific events. The judge is bound to give retroactive effect to the statute if this is expressed clearly, whatever the technique. [53] Similarly, as Ruth Sullivan observed in Construction of Statutes at 772: §25.53 Retroactive legislation often states that it is deemed to have come into force or effect on day before the day of enactment. Or it may state that it applies to designated facts occurring from or being particular date or time. The following provisions from legislation amending Ontario’s (former) Residential Rent Regulation Act illustrate the latter approach: 99.2.-(1)…this Part applies to every rent increase that takes effect on or after the 1st day of October, 1990 99.14.-(1) This section applies to an order made…under Part VI…even if made before the 1st day of October, 1990.58 Because the presumption against the retroactive application of legislation is strong, express provisions of this sort often are included in legislation. They do not follow any fixed pattern. [54] Finally, Mr. Butler suggests the definition should be parsed and interpreted to mean that while property can be acquired before the coming into force of the 2009 Act, the “unlawful” element part of the definition must have occurred after the 2009 Act came into force. [55] do not accept this interpretation. The property which comprises the subject matter of the forfeiture action only becomes “proceeds of unlawful activity” because of the unlawful activity. Furthermore, Mr. Butler’s argument largely focusses on the individual charged with the criminal offence as opposed to the property derived from unlawful activity. His approach ignores several key features of the 2009 Act notably, that the legislation is civil not criminal in nature, and that it is an in rem remedy. Furthermore, it provides that person does not have to be charged with criminal offence for the Director to pursue civil remedies under this statute. The date of charges is irrelevant as is the need for finding of criminal culpability. [56] For the reasons given, there is no retroactivity problem. 2. On balance of probabilities, is the property proceeds of unlawful activity? [57] Section of the 2009 Act sets out the test the court must apply in determining whether to order forfeiture of seized property. 7(1) Subject to section 8, and unless it clearly would not be in the interests of justice, the court shall make an order forfeiting property to the Crown if the court finds that the property is proceeds of unlawful activity or an instrument of unlawful activity. [Emphasis Added] (2) In order to make forfeiture order in an application for forfeiture of property that is alleged to be proceeds of unlawful activity, the court: (a) is not required to be satisfied that the property was acquired in connection with specific unlawful act; and (b) is not required to be satisfied that an increase in the value of property or decrease in debt obligation secured against the property arose as the result of specific unlawful act. [58] The terms “proceeds of unlawful activity” and “unlawful activity” are defined by s. of the 2009 Act in the following manner. To repeat: (p) “proceeds of unlawful activity” means: (i) property acquired directly or indirectly, in whole or in part, as result of unlawful activity, whether the property was acquired before or after the coming into force of this Act; and (ii) an increase in the value of property, or decrease in debt obligation secured against property, if the increase or decrease resulted directly or indirectly from unlawful activity; (u) “unlawful activity” means an act or omission that is an offence pursuant to: (i) an Act, an Act of any province or territory of Canada or an Act of the Parliament of Canada; or (ii) an Act of jurisdiction outside Canada, if similar act or omission would be an offence pursuant to an Act or an Act of the Parliament of Canada if it were committed in Saskatchewan; [59] Section 11 is also relevant to this application as it prescribes the balance of probabilities as the applicable standard of proof. In examining what this standard means and how to apply it, the Court of Appeal in Saskatchewan (Seizure of Criminal Property Act, 2009, Director) Kotyk, 2013 SKCA 140 (CanLII), 427 Sask 193, adopted the standard applied in F.H. McDougall, 2008 SCC 53 (CanLII), [2008] SCR 41: whether the allegation is more likely than not, and whether proposition is inherently probable or improbable is matter of common sense (para. 29). The court expanded upon this concept and the onus in para. 33: 33 …The question was whether, on common sense view of the situation, it was more likely than not the money was proceeds of, or an instrument of, unlawful activity. Suspicious circumstances constitute evidence. finding of no evidence in this case indicates the Chambers judge either applied the wrong standard, or misconceived the nature of the onus, or was looking for more direct evidence of unlawful activity than was necessary. [60] Mr. Henry has identified the following evidence as supportive of an inference of drug trafficking: a. The departure of Mr. Florek from the residence with three grams of cocaine and his admission to having just purchased the cocaine; b. The modified metal frame door and the flushing toilet noticed upon police entry; c. The numerous telephone calls to the Motorola cell phone including four calls from apparent customers; d. The subsequent attendance of three individuals at the door seeking to purchase drugs; e. The numerous vehicles observed passing by the residence; f. The presence of digital scale; g. The presence of stolen property; h. The amount of bundling and the composition of the cash found at the residence; and i. The use of safe to store much of the cash. [61] I accept Mr. Henry’s evidence with regard to the significance of these various factors and how they are common to the drug trafficking trade. [62] Mr. Henry’s evidence about bundling and the composition of cash is particularly illuminating. In his opinion, it is typical for those in the drug trade to possess large sums of cash and quite common for the cash to principally be in $20.00 denominations. Bills of this nature are common in street level trafficking. In Mr. Butler’s situation, 93% of the bills were in $20.00 denomination. Mr. Henry further explained that the manner in which the cash from the safe ($8,500.00) was bundled was consistent with drug trafficking. It was his opinion drug dealers often bundle their money with elastic bands and use different bundling techniques as means of quick accounting. [63] Mr. Henry explained the significance of the location of where the cash was found and how drug traffickers often conceal their cash in elaborate ways. [64] The flurry of activity from both the cell phone and subsequent visitors looking to buy drugs, as well as the numerous drive-by vehicles, all support clear inference of an ongoing drug operation at work according to Mr. Henry. [65] There is also the evidence of Sgt. Houston. She observed the cash to bear the smell and feel of cocaine. She is familiar with the smell and feel of cocaine based on numerous cocaine investigations she has participated in over the past 20 years. Nineteen random swabs were taken with at least one bill swabbed from each cash exhibit. These swabs were sent to the Canada Border Services Agency for ION scan testing. [66] Cst. Houston’s suspicions were well founded as all 19 swabs tested positive for cocaine with 17 of the 19 recording high levels of cocaine. [67] With that turn to the respondent’s evidence, much of which find to be inconsistent with the supplemental affidavits of Kim Calfas and Tammy Pryznyk, notably: In his capacity as supervisor with Saskatchewan Government Insurance [SGI], Mr. Calfas queried the Chevrolet truck referenced in Mr. Butler’s January 24, 2017 affidavit. Search results revealed that the Chevrolet truck was 1984 model truck which had been purchased by Legend Transport Ltd. for $8,000.00 and first registered by Legend Transport on July 5, 2005; SGI’s database shows that Legend Transport Ltd. had purchased the truck from Bell’s Moving Systems in July 2005 with declared value of $8,000.00; and In his notice of dispute filed in the earlier administrative forfeiture proceedings Mr. Butler gave the following reasons for objecting to the Director’s actions: The subject property was not proceeds of any unlawful activity nor an instrument of unlawful activity. The funds were monies that received from Mr. Terry Metz of Legend Transport. drove for Legend Transport for period of time and had 1985 GMC Bison Straight 5-ton truck which sold to Mr. Metz for approximately $15,000.00 and received payments from Mr. Metz totalling that amount which was using to pay my expenses. The 1985 GMC Bison was delivered to Mr. Metz, which believe he utilized in his business it has been used for moving contracts prior to my sale. [68] Based on the aforesaid evidence, the following inconsistencies in Mr. Butler’s evidence emerge: The SGI records refer to 1984 Chevrolet truck and not 1985 GMC model which Mr. Metz claims to have purchased; The Chevrolet truck was purchased by Legend Transport Ltd. in 2005 not 2007; While the truck appears to have been purchased from Bell’s Moving Systems, the records show it was purchased by Legend Transport Ltd. and not Terry Metz; and The SGI records show value of $8,000.00 for the truck and not $16,000.00 as deposed to by Mr. Metz. [69] With regard to Mr. Florek, Mr. Butler claims he gave second statement to the police effectively denying the statement had given at the time of the search. Mr. Butler did not file Mr. Florek’s police statement with this Court and as such his allegation is hearsay. In any event, the unchallenged evidence of Sgt. Criddle and Cst. Strueby clearly establishes that the police seized cocaine from Mr. Florek’s person at Mr. Butler’s residence and that Mr. Florek admitted he bought cocaine from Mr. Butler on regular basis. [70] On a common sense view of the evidence before me, I find it more likely than not the money was proceeds of unlawful activity. 3. Has the “interests of justice” exception been established? [71] Where the court is satisfied that the subject property constitutes proceeds of unlawful activity, s. directs the court to grant the forfeiture order unless the order is clearly not in the interests of justice. In Saskatchewan (Seizure of Criminal Property Act, 2009, Director) Mihalyko, 2012 SKCA 44 (CanLII), 393 Sask 117 the Court of Appeal established the principle that the party relying on the “interests of justice” exception bears the burden of proving this exception. [72] Mr. Butler bears the onus of establishing, on a balance of probabilities, that forfeiture would clearly not be in the interests of justice. As he put forth no such evidence or argument to support the application of this exception to his circumstances, it has not been established. CONCLUSION [73] The seized property is proceeds of unlawful activity. The forfeiture order proposed by the Director shall issue. J. L.M. SCHWANN

HELD: The issues were determined as follows: 1) the applicant applied pursuant to The Seizure of Criminal Property Act, 2009, as that version of the Act was in place at the time of the seizure. The respondent argued that s. 35.1 did not apply at the time of seizure, because it was not in the Act at the time of seizure. The respondent argued that the two-year limitation period pursuant to The Limitations Act applied to the application with the date of seizure being the date of discoverability. The respondent also argued that the 2009 Act did not have retrospective application. The court found that the applicant applied pursuant to the 2009 Act and therefore the matter was assessed from that perspective. Section 35.1 of the 2009 Act required applications for forfeiture to be made within two years from the director becoming satisfied that the property sought to be forfeited was proceeds of unlawful activity or an instrument of unlawful activity. The court found that the words “Notwithstanding The Limitations Act” at the beginning of s. 35.1 served to provide an intention to prioritize the content of s. 35.1 over The Limitations Act. An affidavit filed by the applicant indicated that the director became satisfied that the property was an instrument of unlawful activity after August 2016. The director’s application was brought four months later, well within the two-year limitation period. The court then considered whether the 2009 Act had retrospective application and found that B. had the same legal position and faced the same jeopardy regardless of the version of the legislation, and therefore, there was no retrospective problem; 2) s. 7 outlined the test to apply. The court accepted the expert’s evidence with regards to the significance of the factors evidencing drug trafficking and how common they were to the drug trafficking trade. The applicant’s evidence also showed that the person alleging to purchase the truck from the respondent was not the purchaser and the purchase price was $8,000, not $16,000. The court found it more likely than not that the money was proceeds of unlawful activity; and 3) B. did not provide evidence or argument to support the exception that forfeiture would clearly not be in the interests of justice. The property was found to be proceeds of unlawful activity and the forfeiture order was granted.

b_2017skqb81.txt

nan IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 035 Date: June 5, 2014 Information: 44333890 Location: Saskatoon Between: Her Majesty the Queen and Tyler Hoover Appearing: Barbara Herder For the Crown Ron Piché For the Accused JUDGMENT M.L. GRAY, [1] Mr. Hoover was charged on December 4, 2013 with driving while disqualified, contrary to s. 259(4) of the Criminal Code. [2] The evidence is straightforward and uncontradicted. Constable Travis Chomyn has two years experience as police officer and on December 4, 2013, was on routine patrol in Saskatoon, Saskatchewan when he ran check on the licence plate on red Chrysler. That check revealed that Tyler Hoover was the registered owner of the vehicle and that he was disqualified from driving anywhere in Canada. As result of this information, he did traffic stop. [3] He approached the driver, and asked for driver’s licence and registration. The driver said that: (i) he did not have driver’s licence; (ii) the vehicle belonged to Chad Thompson; (iii) he was Chad Thompson; and (iv) his birthday was September 24, 1990, Tyler Hoover’s date of birth. The officer warned him that if he lied about his identity, he could be charged with obstructing peace officer. The driver then asked permission to step out of his car to speak to the officer. [4] Outside the car, the operator of the vehicle identified himself as Tyler Hoover and admitted that he knew that he was prohibited from driving. Counsel for the accused took no issue with the voluntariness of this statement, nor was any Charter violation asserted. [5] Constable Chomyn searched SGI driver records, obtained photograph of an individual named Tyler Hoover and concluded that this was the person with whom he was dealing. As result, the accused was arrested and read his rights to counsel. Subsequently, he was released on an Appearance Notice that forms part of the court record. [6] Counsel for the Crown tendered Certificate of Disqualification and Notice of Intention to Tender Certificate and this was marked Exhibit P-1 for identification. Similarly, letter from SGI directed to Tyler Hoover was marked as Exhibit P-2 for identification. [7] In cross-examination, Constable Chomyn acknowledged that he was not asked to serve either of those exhibits. This concluded the case for the Crown and the accused elected to call no evidence. [8] Counsel for the accused argues that: 1. identity of the accused has not been proven beyond reasonable doubt; 2. there is no evidence that proper notice had been given of the two documents tendered by the Crown; and 3. service on lawyer may not satisfy the notice requirement if counsel never agreed to accept service. [9] The Court was referred, by counsel for the accused, to the following authorities: R. v. Babatunde O. Cole and Wan Loong Ma, 2011 ABPC 131 (CanLII), R. v. Ahmed Assowe Yonis, 2009 ABCA 336 (CanLII), R. v. Arsenault, [1975] N.B.J. No. 279 (N.B. County Court), R. v. Kavanaugh, 2011 ABPC 288 (CanLII) and R. v. Keenan, 2012 QBCA No. 28 (Sask. Q.B.). [10] In response, the Crown argues that an in-court identification of the accused is not necessary; it is sufficient that the individual with whom the police officer dealt has surrendered to the Court as demonstrated through the Appearance Notice. [11] With respect to service, the Crown relies on s. 260(6) of the Criminal Code which states: Subsection (5) does not apply to any proceedings unless at least seven days notice in writing is given to the accused that it is intended to tender the Certificate in evidence. [12] Subsection (5) of s. 260 states: In proceedings under s. 259, Certificate setting out with reasonable particularity that person is disqualified from (a) driving motor vehicle in province, purporting to be signed by the Registrar of Motor Vehicles for that province is evidence of the facts alleged therein without proof of the signature or official character of the person by whom it purports to be signed. In support of this position the Crown relies on R. v. Vollman, 1989 CanLII 4798 (SK CA), 79 Sask. R. 270, decision of the Saskatchewan Court of Appeal. The position of the Crown is that proof of service is not required as notice simply needs to be provided to counsel. The consent of counsel of record, based on instructions from the client, is not necessary. APPLICATION Has identity of the accused been established beyond reasonable doubt? [13] This question arises as there was no “dock identification” evidence. Rather, the Crown relies on the fact that the officer satisfied himself of the identity of the driver by reference to photograph maintained by government agency. Defence argues that this is not admissible evidence as the voluntariness of the statement made by the driver as to his name and date of birth was not established; this, in spite of his initial advice and subsequent written acknowledgement to the Court that voluntariness of statements made by the accused were not in issue. Perhaps the suggestion from this is that the Court should have insisted on voir dire despite the admission, but that is not particularly clear. Defence relies on R. v. Keenan, 2012 QBCA 28, where the accused provided his name and address to the police officer by way of driver’s licence and the Court held that evidence was inadmissible without proof of voluntariness. However, that case is distinguishable from the matter before this Court as Justice Currie clearly indicated that the officer did not request identification pursuant to provincial legislation, nor did he have reason to suspect that the accused had committed an offence. In the matter before this Court, the officer was clearly empowered by s. 209.1(2)(a) of The Traffic Safety Act S.S. c. T-18.1 to require the operator of a motor vehicle to provide his name, address and date of birth and the voluntariness of these statements are not in issue. [14] Although there was no identification of the accused in court, I find that identity of the accused has been established. Constable Chomyn saw an individual operating a motor vehicle and properly obtained his name and date of birth. That person was arrested and released by Constable Chomyn on an Appearance Notice. On the date scheduled for court, counsel for the accused appeared, entered a not guilty plea, and set the matter for trial. On the trial date, the same counsel appeared and the accused was noted to be present in court. [15] In R. v. Nicholson (1984), 1984 ABCA 88 (CanLII), 12 C.C.C. (3d) 228 (Alta. C.A.) leave to appeal to the SCC refused [1984] S.C.C.A. No. 176, the Court found that where an accused is issued an Appearance Notice, and appears in court in answer to that Appearance Notice, the circle of identification is completed and there is no necessity for an in-court identification. [16] The Nicholson decision was considered by Nightingale J. in R. v. Chief, [2006] S.J. No. 710. In that case, police were directed to an individual identified as being responsible for mischief to property. He was arrested and provided, on request of the police officer, name, date of birth and phone number. No verification of this information was conducted. The individual arrested was detained until sober, then released on Promise to Appear, which was confirmed before justice. person responded to that Promise to Appear on the date scheduled and on subsequent adjourned dates. At trial, defence argued that the evidence did not establish that the person who repeatedly attended court was the individual arrested on the offence date and that court cannot rely on its own process to establish identity. [17] In detailed decision, Nightingale J. sets forth the two sides of judicial opinion that have evolved on this issue. The first is that by coming to court to answer to charge, person acknowledges that they are the person named in the Appearance Notice or Promise to Appear, whether or not they are guilty of the offence alleged. To submit to the jurisdiction of the court in this fashion and to argue at the conclusion of trial that there is no proof that they are the person charged puts an unreasonable burden of identification on the Crown. [18] The other view is that an accused person admits nothing by coming to court and the burden falls to the Crown to prove both that the person sitting in court is the person who committed the offence and the person to whom release documents were issued. [19] In Chief (supra), the Court followed the reasoning in Nicholson (supra) and am persuaded that this is the correct view. adopt the analysis set out by Judge Nightingale in Chief at para. 18: The Parliamentary scheme by which someone suspected of crime is arrested, detained and released upon promise to come to court is complicated one, revealed in the interplay among number of sections of the Criminal Code. It is central to the process, however, that from the moment of detention to the conclusion of the trial, the accused must be accurately identified. As Kerans J. observed in the passage from Nicholson, supra, quoted above, the provisions of the Identification of Criminals Act also contribute to the ensuring of this accuracy. person who is being arrested and charged with crime, however, is also required by law to participate and contribute to the process by honestly and accurately identifying herself to the peace officer who is entitled to ask. To answer the officer untruthfully about who you are is to commit the offence of obstruction of justice, created by section 129 of the Code. It is thus not accurate to view the role of an accused person in the criminal process as entirely passive. Being detained for, charged with and released for court in connection with the commission of crime imposes variety of positive obligations on the accused: to be truthful about identity to the arresting officer, to participate in being photographed and fingerprinted pursuant to the Identification of Criminals Act to reinforce the accuracy of that identity, to promise to attend court in answer to the charge and to actually attend court. The entire process is predicated on honesty and the performance by the accused of those various obligations. If for every court appearance by every accused the state was required to prove that the same person who promised the police or justice that he would appear is the same person who stands before the court, the criminal justice system would founder under the cumbersome burden. If the person who attends court, rises in response when the accused’s name is called and speaks to the court in answer to the charge is thereby asserting only, “I’m here but do not concede that am the person who promised to come” the Parliamentary scheme is defeated and the earlier promise upon which the accused was released is rendered meaningless. would go further and observe that if person who is not the accused rises in court when the accused’s name is called, pretends to be the accused and purports to deal in any way with the charge, that person would also be liable to prosecution for obstruction of justice. No obstruction would, of course, be committed by person answering the charge on behalf of the accused who clearly identifies herself as properly instructed agent of the accused. [20] In the case at hand, a person was lawfully arrested, detained and released on an Appearance Notice by the arresting officer. That Appearance Notice forms part of the court record and purports to be signed by the accused. On the date specified on that notice, the accused was not present but his counsel appeared, waived reading of the allegation, entered a not guilty plea and scheduled a date for trial. The accused was present on the day of trial with the same counsel. This constitutes prima facie proof of identity, and I have no doubt whatsoever that the Tyler D. Hoover named on the Appearance Notice is the same person who has stood trial. As stated by Kerans J.A. at para. 29 of Nicholson (supra): The person, therefore, to whom he gave the appearance is the person whom we call the accused. And, on Beach’s eyewitness testimony, the person to whom he gave the appearance notice was the offender! The circle of identification is complete: the accused is the offender. With respect, this is the only inference available in these circumstances. This is so, might add, whether the accused is or ever was called John Robert Nicholson. Is the Certificate of Disqualification or Prohibition admissible? [21] prerequisite to admission of such certificate is that notice be provided to the accused that the Crown intends to tender the certificate at the trial of the matter: see s. 260(6) of the Criminal Code. am satisfied that such notice can be given to counsel of record without proof that counsel is consenting to the receipt of such notice: see R. v. Vollman, 1989 CarswellSask 17 (Sask. C.A.). In Vollman, letter was sent to counsel of record setting out the intention to tender certificate, copy of which was enclosed with the letter, as evidence at trial. The sole issue was whether letter to counsel constituted proper notice within the meaning of s. 260(6) of the Criminal Code. Although not explicitly stated in the decision, it appears to have been acknowledged that counsel did receive the letter, but argued that it did not amount to “notice in writing...given to the accused”. The Court of Appeal held that notice to counsel was proper notice. [22] In the case at hand, the Notice of Intention appears beneath the Certificate of Disqualification or Prohibition (P-1) and states as follows: Notice of Intention to Tender Certificate: To: Ron Piché of Saskatoon, SK. Take notice that, pursuant to sections 260(5) and (6) of The Criminal Code Canada, the prosecution intends to tender in evidence certificate, copy of which appears above. DATED this 7th day of April, A.D. 2014. “Signature of the person serving the Notice for the Prosecution.” [23] On Exhibit P-1 signature appears on the signature line but there is no indication as to whom the signature belongs. There is no affidavit or viva voce evidence before the Court about who signed this notice or whether it was actually provided to Mr. Piché. Unlike Vollman (supra), counsel has not acknowledged receipt of the notice, nor was there any inquiry as to whether he was prepared to admit receiving such notice. Counsel for the Crown asserted in argument that defence counsel was provided notice in the usual way and noted that counsel for the accused is not denying that it was received. However, in order to rely on s. 260(5), the onus remains with the Crown to establish that proper notice was given either to the accused or his counsel. This might take the form of viva voce or affidavit evidence from the person effecting the service, or an admission of service from counsel. However, without any such proof, the Court cannot be satisfied that the notice requirement has been fulfilled. Without compliance with s. 260(6), the certificate is not admissible in evidence. [24] The Crown also tendered letter from SGI setting out the fact of disqualification for driving and the dates on which Tyler Donald Hoover might again become eligible to obtain driver’s licence. This would be admissible pursuant to s. 30 of the Canada Evidence Act provided notice has been given in accordance with s. 30(7) of the Act. Again, there is no proof that such notice was given. [25] The only other evidence of disqualification comes from the statement made by the accused to Constable Chomyn. However, although the accused admitted knowledge of his licence disqualification, there is no evidence before the Court as to the nature of that disqualification and no basis from which the Court can conclude that a s. 259 offence had been committed as opposed to a violation of The Traffic Safety Act. [26] Accordingly, the Crown has failed to establish that the accused was disqualified or prohibited from driving and therefore, the accused is found not guilty.

The Crown found the accused not guilty. With respect to the issue of identification, it held that the officer was empowered by s. 209.1(2)(a) of The Traffic Safety Act to require an operator of a motor vehicle to provide his name and address. The accused had admitted that the statement given was voluntary. Although there had been no identification in Court, the officer had seen the accused operating a motor vehicle and had properly obtained his name and date of birth. That person was arrested and released on an appearance notice. Counsel for the accused appeared on the scheduled date and entered a guilty plea and then appeared on the trial date and the accused was noted as present. All of these facts constituted prima facie proof of identity. Regarding the other issues, the Court held that notice under s. 260(6) of the Code can be given to counsel of record without proof that counsel consented to the receipt of such notice. However, the Crown had not established that proper notice was given either to the accused or his counsel as required by s. 260(5), either by way of viva voce or affidavit evidence from the person effecting service or an admission of counsel. Without such compliance with s. 260(6), the certificate was not admissible in evidence. There was no other evidence of disqualification and no evidence as to the nature of the disqualification on which the Court could conclude that a s. 259 offence had been committed.

e_2014skpc35.txt

.../4 SUPREME COURT OF NOVA SCOTIA Citation: R. v. Carvery, 2011 NSSC 500 Date: 20110915 Docket: CRH 343275 Registry: Halifax Between: Her Majesty the Queen v. Tirrell Shane Carvery LIBRARY HEADING Judge: The Honourable Justice M. Heather Robertson Heard: June 15 and 20, September 12 14 and 15 2011, in Halifax, Nova Scotia Written Release of Decision: January 18, 2012 (Verdict September 15, 2011) Subject: Trafficking crack cocaine s. (1) and s. 5(2) CDSA. Summary: Accused sold one 20 tab stashed balance 22 tabs near transaction site. Police officers observed transaction. Issue: Observation post privilege constructive possession drugs stashed in rock wall near transaction area. Result: Accused found guilty on both counts. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA Citation: R. v. Carvery, 2011 NSSC 500 Date: 20110915 Docket: CRH 343275 Registry: Halifax Between: Her Majesty the Queen v. Tirrell Shane Carvery Judge: The Honourable Justice M. Heather Robertson Heard: June 15 and 20, September 12, 14 and 15, 2011, in Halifax, Nova Scotia Written Release of Decision: January 18, 2012 (Verdict September 15, 2011) Counsel: Shaun O’Leary, for the Crown Lee Seshagiri, for the accused Robertson J.: (Orally) [1] Mr. Tirrell Shane Carvery is charged with two counts under the Controlled Drugs and Substances Act, s. 5(1) and s. 5(2) that on April 7th, 2010, he did traffic in cocaine and on that date had possession of cocaine for the purpose of trafficking as defined by s. 4(3)(a)(ii) of the Canadian Criminal Code. [2] This trial turns very much on the facts of the case that the Court will find having regard to all of the evidence and, in particular, whether Constable Marriott’s evidence concerning what he observed of this alleged street level drug transaction constitutes proof beyond reasonable doubt that the accused, Mr. Carvery, committed these offences with which he has been charged. [3] This alleged drug transaction took place in the north end of Halifax, in an area well known for street level drug trafficking, where crack cocaine users approach dealers on the public street and arrange to purchase single stone or rock of crack cocaine in transaction that takes mere seconds to complete for the consideration of single $20 bill. [4] On April 7th, 2010, Mr. Carvery, the alleged trafficker, and Mr. Burke, the individual who purchased one stone of cocaine, were both arrested within minutes of the alleged events near and at the trafficking location. They were observed by two undercover police constables, Constable Cooke and Constable Marriott, who say they observed the events from an observation post less than 130 feet from the incident and from position of some elevation. Constable Marriott had the use of expensive binoculars to view the encounter. [5] In an earlier ruling, determined that the Crown’s motion for observation post privilege was valid (see 2011 NSSC 283 (CanLII)). Upon subsequent motion made by defence counsel during the continuation of this trial on September 12, 2011, to waive the privilege, upheld my earlier decision and denied any waiver finding that the accused was able to make full answer and defence despite not knowing the exact address from which the police officers observed the alleged transaction. [6] In aide of the motion for waiver, defence counsel had earlier placed in evidence series of photographs of the neighbourhood and the transaction location that were taken 14 months after the event in June, 2011. These photographs were very helpful to the defence in having an opportunity to challenge the observations of Constable Cooke and Constable Marriott and were also useful to the Court in understanding the precise locations referenced in evidence. [7] There are many aspects of this case that are not in issue. They are the identification of the accused, the nature of the substance seized, the matter of jurisdiction and the date of the alleged events. None of these matters are challenged by the defence. [8] The defence does say, however, that the Court has insufficient evidence of the alleged drug transaction, in that neither police officer could see stone of crack cocaine pass into the palm of the hand of Mr. Burke, nor did they see an exchange of cash at the time of these events. [9] Further, defence counsel argues that their challenge to the credibility of Constable Marriott, the Crown’s primary witness, should raise reasonable doubt in my mind that these events did not unfold as he testified. [10] Constable Cooke testified that he and Constable Marriott were at an observation point for some of the drug activities in the area when at approximately 9:30 p.m. on April 7th, 2010, they watched white male, later identified as Mr. Burke, roaming in the area, first calling at apartment 20 of 2388 Gottingen Street and then with apparently no answer proceeding down Uniacke Street to townhouse, civic number 5418, where he was on the doorstep for minute or so. Constable Cooke testified that his exact observation of the accused at this time was obscured by “little wall at the entry to these doorways.” Both constables testified they observed the white male walk back up Uniacke Street to the corner of Gottingen where he encountered black male, one of the Carvery twins, in the crosswalk at Uniacke and Gottingen. Constable Cooke testified that there appeared to be conversation that was not audible. He testified that Mr. Carvery continued to walk northward on Gottingen Street but turned and motioned with his hand into the area of 2388 Gottingen Street. [11] This is an address that is comprised of two actual buildings, one at the front of the lot and one at the rear of the lot, but both joined by stairwell system that served entries on the back of the front building and the front of the rear building. This can be clearly seen on the exhibit book of photographs marked P-1, more particularly photographs 7, and 9. [12] As Mr. Carvery motioned, both gentlemen, he and Mr. Burke, both proceeded by different routes to meet at the northwest rear corner of 2388 Gottingen Street on little pathway between fence and the building that Constable Cooke described as dimly lit, although with his naked eye, he could see the gentlemen and also described the presence of shopping cart and garbage bin. Constable Cooke testified: If were walking with them and they’re walking north along the little path, they would have taken left or gone west, and would ball park it to be 10-15 feet or whatever in width, and would suggest in around the halfway point that they were at that time facing each other, at which point saw Mr. Burke’s left hand extended, there was no exchange, no handshake or anything like that. At that point, had attempted to make transition from my observation point to make better observation and while doing so was unable to capture the event in the next three to four or five seconds... [13] Constable Cooke testified that he continued to talk back and forth with Constable Marriott who continued to monitor the event. [14] Constable Marriott’s evidence is that from his position he was able to observe the five second encounter between Mr. Carvery and Mr. Burke. He testified: It was at that time that observed Mr. Carvery produce from his right side, as said, unknown if it was from his pants pockets, or jacket pocket, but on his right side small plastic bag. It appeared to be pink or reddish in colour. He placed it into his left hand. It was at that time that he took something from the bag, and placed it into Mr. Burke’s his hand was already out, left hand out facing palm up, facing up; placed something in it. The encounter was brief; maybe five to ten seconds. [15] Constable Marriott then testified: didn’t recall if any money was handed towards him, or to Mr. Carvery. [16] Next, Constable Marriott testified: Mr. Burke proceeded back out to Gottingen Street the same path that he came in through The Cut, and then made his way southbound on Gottingen. Mr. Carvery stayed near the corner, the northwest corner of 2388, in the rear. It was at that time that don’t know if it was myself or Constable Cooke advised that Mr. Burke was arrestable for possession, and Mr. Carvery was arrestable for trafficking. [17] And thus the officers notified other units in the area known as the “Quick Response Team” who then effected the arrest of the two gentlemen within few minutes of the alleged transaction. [18] The Court heard the evidence of Constable Todd Stephenson who arrested Mr. Burke at the corner of Buddy Daye and Gottingen Streets short distance from the transaction site and testified that back at the police station he seized one ball of crack cocaine from Mr. Burke’s pocket. [19] The Court also heard the testimony of Constable Justin Sheppard and Constable Gena Hill who described their arrest of Mr. Carvery at the rear of 2388 Gottingen. [20] Constable Sheppard had arrived first from one direction, the north, and Constables Hill and Carter arrived from the south, establishing that there was no one else at the rear of 2388 Gottingen except for Mr. Carvery. Having searched him and found no drugs on his person, these officers did seize two $20 bills, one from his right pant’s pocket, one from his left breast pocket, $5 bill from his jacket pocket, as well as an ID card and LG cell phone. [21] Constable Paul Jessen, the dog master, was called to the scene with his dog who found the location in the rock wall where pink baggy of drugs had been stashed in rock wall approximately one foot off the ground and five to six feet away from the rear corner of 2388 Gottingen Street. [22] note that with respect to the evidence of Constable Peddle, that two samples of the crack cocaine were analyzed in Winnipeg, Manitoba, one the stone seized from Mr. Burke and the second, stone seized from the pink baggy of 22 stones from the rock wall at 2388 Gottingen Street. The latter being Exhibit #3 in this trial. [23] The stone in Mr. Burke’s possession in the Health Canada Exhibit envelope and report were subsequently destroyed on April 20th, 2011, when charges against Mr. Burke were resolved and disposition order #H294770 was received by the police holding the evidence. Remaining as Exhibit #6 in this trial is copy of the Certificate of Analysis of the Burke stone which tested positive for cocaine. [24] The stone from which the pink baggy was analyzed and reported to have been cut with benedryl, in contrast with the Burke stone that was not cut. [25] The Court heard the evidence of Constable David Lane who was qualified as an expert to provide expert evidence with respect to jargon, use, availability, paraphernalia, distribution, packaging, sale, price and value of crack cocaine, as well as methods of avoiding police detection and stashing of drugs. [26] Constable Lane testified that it was not uncommon for the individual stones from the same source to be analyzed and to be found with different substances used for cutting the crack cocaine. He testified that more than one substance could be used to cut the cocaine and could appear in different samples, or that sample might not reveal any cut substance within it. [27] Constable Peddle also testified that in the cooking process of crack cocaine, making it into stones, the cut substance is often boiled off and disappears and will not be found in analysis. [28] Defence counsel has argued that the Burke stone could have come from another source, not as alleged from Mr. Carvery and could have been purchased earlier in the evening and had been in his possession before he met Mr. Carvery on Gottingen Street. will address that suggestion in due course. [29] But let me now address the various challenges the defence has made upon the Crown’s case. [30] While the defence agrees that the amount of cocaine involved, four grams in baggy of 22 stones, constitutes enough cocaine for possession for the purposes of trafficking, they deny that the coke belonged to Mr. Carvery and say that the Crown cannot demonstrate constructive possession of the baggy in the wall at the rear of 2388 Gottingen Street. [31] The defence asks the Court, in light of the disadvantage they suffer not knowing the exact location of the observation post, to assess the weight that ought to be given to Constable Marriott’s testimony and his credibility because of three specific areas of evidence that raise reasonable doubt: 1. Constable Marriott’s testimony about what he could observe at 5418 Uniacke Street, as Mr. Burke was allegedly roaming about looking for drugs; 2. His evidence on cross-examination about the lighting in the transaction location; and 3. Discrepancies in his notes and earlier testimony at the preliminary inquiry where he failed to note that the baggy was pink or pinkish in colour. [32] Respecting Mr. Burke’s encounter at 5418 Uniacke Street where Constable Marriott testified, Mr. Burke went to this door and: Spoke to someone briefly at the door there, and then returned up towards the corner of Gottingen and Uniacke again. [33] When asked on direct if Mr. Burke had any physical contact with the person at the door, he testified: It didn’t appear to me that there was any. [34] On cross-examination, Constable Marriott testified that he had an unobstructed view of 5418 Uniacke Street. Defence counsel then proceeded to cross-examine Constable Marriott with reference to photographs 24-28 of P-1 which show the door scapes and the street scapes of 5418 Uniacke Street, with the presence of mature trees. [35] The defence acknowledges that the photographs shown at P-1 were taken in June, 2011, 14 months after these events, when foliage would obscure that which could have been seen more clearly on April 7th, 2010. [36] Constable Marriott explained on cross-examination that the presence of the trees in the street did not obscure his vision and that even if Mr. Burke had been standing near one of those trees or in front of it, his profile was much bigger than the thickness of the trees and that in that sense he has full view of Mr. Burke on the street outside of 5418. [37] Defence counsel urges the Court to consider Constable Cooke’s testimony in contrast. When asked if he could see the door at 5418 Uniacke Street, he replied no, but earlier in his testimony on cross he is more equivocal about his view of this area. Q. Okay. Did you observe Mr. Burke speaking to anyone on the patio at that location? At 5418? Q. At 5418 Uniacke Street. A. No. There would be front step but no it’s not patio. No, didn’t observe it one way or the other. Q. Okay. Were you able to observe the front of the patio of 5418 Uniacke? A. Not in its entirety. It was quite dark there. [38] He then went on to testify that he was “ballparking too”– “I said in and around 5418.” He was also at different location than Constable Marriott, at the observation post for at least some of the time of these events. [39] The other area of challenge is the issue of lighting at 2388 Gottingen Street and 2406 Gottingen Street, which is called Sunrise Manor, the high-rise building next door to 2388 Gottingen Street which also had some exterior lights affixed to the building. Defence counsel prepared one-page summary of references to the evidence given by Constable Marriott and Constable Cooke on the issue of lighting. [40] On direct examination, Constable Marriott said he could see the transaction location and, in particular, referenced lights in the area. He testified there was light on the rear end of the front building at 2388 Gottingen that would have assisted in the illumination of the transaction and also one half-way up the side of the rear of the building. The light on the rear of the front building can be seen in P-1 photograph and is two-headed spotlight facing in two directions up and down the alley way. In photograph of P-1, the west side of the rear building, does not reveal light 10-12 feet off the ground and one half-way up the west side of the rear wall of this building as Constable Marriott testified, but the photograph was taken when tree in foliage obscures full view of this western wall. Constable Marriott testified that such light at this location helped illuminate the transaction location. [41] have reviewed each reference that defence counsel specifically showed me and then re-visited all of the evidence of these officers with respect to the available light at the transaction location. [42] With the assistance of the photographs he took, defence counsel was able to conduct very full cross-examination of the issue of lighting, in contrast to the more general comments made in direct examination about the light available to assist in their observation. [43] The evidence of Constable Cooke does contradict Constable Marriott in that Constable Cooke, in particular, did not believe there was any light from the 2388 buildings in the transaction area that night, but that he could testify that there was ambient illumination because he could clearly describe the accused, his clothing, his path of travel, his ultimate encounter with Mr. Burke at the transaction location and Mr. Burke turning up his palm and the presence of the grocery cart and garbage container. [44] Constable Marriott was the constant observer with his binoculars who never lost sight of Mr. Carvery and Mr. Burke from the observation post once they proceeded along the path toward the northwest corner of the rear building at 2388 Gottingen. [45] He testified that the lights on two sides of the Sunrise Manor assisted in illuminating the area, but agreed that the presence of the fence between the two properties meant that the light would not shine directly on the transaction location. He was certain in his testimony that the light shown in photograph at 2388 was lit and helped illuminate the site and also that light nearest the transaction location, the one unable to be seen in photograph 7, as present, lit and provided illumination. [46] Although cannot reconcile this contradiction between the two officers’ testimony, am not of the view that Constable Marriott has lied about what he saw and described that evening. Indeed, as far as Constable Cooke’s observations went up to the point of Mr. Burke’s palm up, both officers could both see the transaction location and testified so, either by ambient or direct light as is obvious from their testimony. [47] So in the context of Constable Marriott’s evidence as whole, do not believe that the rigorous cross-examination on lighting impacted on his credibility and Constable Marriott had the binoculars to assist in his observations. [48] With respect to the colour of the baggy, not mentioned in his notes or at the preliminary inquiry, find that otherwise his description of the event as it relates to the baggy is consistent. The colour issue does not, in my view, impact on Constable Marriott’s credibility. He describes the baggy with particularity, “not sandwich bag, but portion or corner of another bag.” [49] Constable David Lane’s evidence was significant in that he testified as to the nature of low level street trafficking, buyers searching out drugs on the street to meet their immediate needs, the brief and direct contact between the seller and the buyer of crack cocaine stones, the passing communication and the gesture to go to another place to do the deal to avoid police scrutiny and observation in this high drug trafficking area and the frequent disposal of the remaining drugs by stashing so that the dealer will not be caught in possession of the drugs. He also testified to the payment by $20 bills as the regular price and the habit dealers have of separating the bills on their person, profit versus the funds required for re-up or restocking when the supply of stones are sold and the dealer must then return to his mid level contact to purchase more crack cocaine. [50] I accept his evidence on these practices and find the encounters between Mr. Burke and Mr. Carvery are consistent with these drug trafficking practices and not consistent with any other possible explanations. [51] accept the evidence of Constable Marriott and find that the elements of this offence were matter of his direct observation as he testified. [52] find that the Crown has proved beyond reasonable doubt that the contact between Mr. Burke, as buyer, and Mr. Carvery, as seller, was trafficking offence contrary to s. 5(1) of the Controlled Drugs and Substances Act. [53] On the issue of Mr. Carvery’s possession pursuant to s. 5(2) as further defined by s. 4(3) of the Canadian Criminal Code, Mr. Carvery was not in possession of the drugs when arrested, but moments after being observed taking something out of the pink baggy and handing it to Mr. Burke, who then left the alley, he went around the back of 2388 and his silhouette could be seen by Constable Marriott a few feet behind the building in the area where the drugs were stashed in the wall. [54] This is not public hidy hole, but one chosen so it could not easily be seen one foot off the ground pushed into the rock wall just inside the corner of the building. [55] I am satisfied beyond a reasonable doubt that Mr. Carvery stashed these drugs in the rock wall after the transaction and did so minutes before his arrest. His possession is constructive, done knowingly by him for his use and benefit so he could return to the stash for his next transaction. am satisfied that he had control of these drugs and that they were not accessible to any other individual but to him. It was his stash that he placed in the rock wall in the minute following the transaction with Mr. Burke. [56] Lastly, should say that was not troubled by what defence counsel calls the unanswered questions. [57] accept that the gesturing to another place for the deal to take place is common practice to avoid detection. [58] accept that not all the street level drug dealers carry weapons, although some do as Constable Lane testified. [59] accept that although there was no evidence that Mr. Carvery might have known he was under observation this could be expected in this high drug trafficking area of town and stashing one’s supply is common practice in street level drug trafficking. [60] do not view the stash location as being very public, nor do think it is likely explanation that Mr. Carvery merely went behind the building to relieve himself, particularly as minutes before his meeting with Mr. Burke, he had just left residence on Gottingen Street. [61] accept Constable Lane and Constable Peddle’s evidence respecting the cutting substances in crack cocaine as an explanation for the absence of the agent benedryl in the Burke stone. [62] also accept Constable Lane’s testimony that in the circumstances of this street level drug arrest, analysis of tin foil or finger print analysis of baggies would not usually be conducted. [63] Although it is unfortunate that the Burke exhibit of one crack stone was destroyed, accept that Exhibit #6 is helpful as an analysis report. note also that the suggestion that Mr. Burke could have made an earlier purchase from someone else, not Mr. Carvery, does not seem very plausible as am satisfied he initiated communication with Mr. Carvery to purchase drugs and completed the transaction at the rear of 2388 Gottingen Street. [64] Constable Lane also testified as to the immediacy of the need of the buyer and the usual practice of going directly to place to smoke crack cocaine undetected from view as soon as the purchase is made. [65] Mr. Burke’s conduct was consistent with that pattern, complete the purchase and make quick retreat. [66] And should say that have considered the weight of Constable Marriott’s evidence in light of the Hernandez case. (R. v. Hernandez, 2010 BCCA 514 (CanLII), [2010] B.C.J. No. 2275) In its totality, find his evidence to be credible. [67] In the result, find that the Crown has proved its case. Mr. Carvery is guilty of the offences with which he is charged. Justice M. Heather Robertson

The accused was charged with trafficking in cocaine and possession of cocaine for the purposes of trafficking. He was arrested within minutes of two officers observing what they believed to be a drug transaction. After watching the accused roam the street, they had observed him meet up and speak briefly with another person, whom he motioned to follow him and they proceeded by different routes, meeting up at the rear corner of a building. Although the area was dimly lit, one of the officers saw the accused remove something from a small pink plastic bag, which he then placed in the other person's hand. The encounter was very brief and neither officer observed any money exchanged. A ball of crack cocaine was later seized from the other person's jacket pocket. Although no drugs were found on the accused, a search of the area located a pink baggy of drugs stashed in a rock wall close to ground level. The defence argued that the drugs seized from the other person could have come from anywhere and constructive possession had not been proven with respect to the baggy located in the wall. Accused found guilty on both counts; the court accepted that the drugs found in the wall belonged to him and his possession was constructive, done knowingly for his use and benefit so he could return to the stash for his next transaction. The encounter described was consistent with low level street trafficking (brief and direct contact between buyer and seller, the passing communication and gesture to go to another place to avoid police scrutiny and the frequent disposal of the remaining drugs by stashing) and inconsistent with any other possible explanation. Moments after handing something to the other person, the accused's silhouette was observed in the area where the drugs were stashed and the court was satisfied that he had placed the drugs in the wall minutes before his arrest.

2_2011nssc500.txt

J. 2002 SKQB 72 Q.B. A.D. 1990 No. 011887 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: SHIRLEY ANN McCONNELL and KENNETH BRENT McCONNELL RESPONDENT J.T. Schuck for the petitioner G.B. Heinrichs for the respondent JUDGMENT McINTYRE J. February 28, 2002 [1] Both parties seek to vary the existing child support order of June 30, 1999. They have two children, Luke, age 21 and Amanda, age 18. Under the terms of the order of June 30, 1999 the respondent was paying child support in the amount of $987.00 per month on the basis of an income of $80,278.00. [2] The respondent paid the child support due under the order of June 30, 1999, for the months of July and August, 1999. Luke decided not to go to university that fall and the respondent ceased paying child support for Luke. Luke worked in Regina at Canadian Tire until November, 1999 when he moved to Banff, Alberta where he had employment. In 1999 Luke earned $9,784.56 and in 2000 he earned $18,760.27. Luke earned $11,177.69 in 2001 in Banff prior to his return to Regina at the end of June. Luke worked during July and August at Canadian Tire in Regina. He returned to his mother’s home in August and commenced full time studies at the University of Regina in September. He continues to work part time. [3] Luke was approved for $3,543.00 in student loans. When he was approximately $450.00 short of the amount required for his books and other university costs when school commenced in September, 2001, the respondent paid that shortfall. Luke has also been approved for $5,000.00 student line of credit with the Bank of Montreal. The respondent arranged for the line of credit and is guarantor on that loan. [4] It is the respondent’s position that Luke is not child of the marriage inasmuch as he is not dependent upon his parents for the necessaries of life. It is the respondent’s position that Luke’s tuition and books have been covered by his student loan and the contribution from his father. Luke receives $203.00 per month as living allowance from his student loan and earns approximately $475.00 per month from his part time employment. He also has $5,000.00 line of credit which he can draw upon. [5] From September 1999 to and including June 2001, the respondent paid the petitioner $611.00 per month being the child support due for one child based upon his income. He has paid no child support since then. [6] Amanda graduated from Grade XII in June 2001. She worked over the summer at Canadian Tire, saving approximately $940.00. In September 2001 Amanda commenced studies at the University of Calgary. Amanda was approved for Canada and Saskatchewan Student Loans totalling $8,784.00 for the school year. This consisted of monthly living allowance of $504.00 and $5,270.00 for tuition, books and dormitory fees. The respondent says the funds advanced to his daughter in September were not sufficient to cover her actual startup costs and that he paid the shortfall. [7] Subsequent to these applications being brought the parties acknowledge that Amanda has decided to return to Regina. She will be attending the University of Regina commencing January 2002 and will be residing with the petitioner. Given that Amanda has returned to Saskatchewan and is living at home, one assumes her student loan entitlement is not the same as when she was attending the University of Calgary but no particulars were provided to the court. Given that Luke receives $203.00 per month as living allowance it is assumed that Amanda may be entitled to similar amount. [8] It is the respondent's position that there is no child support due for Amanda for the period September to December, 2001, given that she was living in Calgary and all her costs were covered through student loans and payments made directly to her by the respondent. The respondent says he should pay child support for Amanda commencing January 1, 2002, based upon the Table amount for one child, reduced by the living allowance received by Amanda under her student loan. [9] The petitioner says that both children remain children of the marriage as contemplated by the Divorce Act, R.S.C. 1985, c. (2nd Supp.) and unable to withdraw from their parents' charge by reason of their attendance at university: Jackson v. Jackson, 1972 CanLII 141 (SCC), [1973] S.C.R. 205. It is argued that under the Federal Child Support Guidelines [SOR-97/175, as am.] (the "Guidelines") s. 3(2)(a) amounts to presumption that child support is to be determined as if the children were under the age of majority and the presumption can only be rebutted by the respondent discharging an onus of establishing that such approach is inappropriate. The petitioner further says that when the June 30, 1999, order was made Luke was 18 and had recently graduated from high school. It is said the order was made with the understanding Luke would be attending university and any s. expenses would be determined at later date. As such it is argued that all that has changed is the fact the respondent's income has increased. The petitioner says that she has substantial expenses given that she is providing shelter and sustenance. [10] The petitioner acknowledges that the children are assuming responsibility for most of their education costs by taking student loans. It is argued that Luke's income in 2000 and 2001 was expended on his own living expenses and any part-time income that the children may have will reduce their entitlement to living allowance under their student loans. Given that the respondent will be relieved from contributing to much of their education expenses it is argued that it would be unfair that he should also receive full advantage of their employment earnings. It is the petitioner's position the respondent should pay the Table amount of support for both children and his proportionate share of post-secondary expenses not covered by student loans. The petitioner also seeks payment of arrears for the period July to December 2001. [11] Pertinent provisions of the Divorce Act and the Guidelines include: Divorce Act 2.(1) In this Act: "child of the marriage" means child of two spouses or former spouses who, at the material time, (a) is under the age of majority and who has not withdrawn from their charge, or (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. 1. The objectives of these Guidelines are (a) to establish fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation; (b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective; (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and (d) to ensure consistent treatment of spouses and children who are in similar circumstances. 3.(1) Unless otherwise provided under these Guidelines, the amount of child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. (2) Unless otherwise provided under these Guidelines, where child to whom child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. [12] In the case of children of the age of majority or over attending post- secondary educational program, the determination of child support obligations often remains point of contention between parents despite the existence of the Guidelines and the effort to make the calculation of child support orders more objective. In order that there be an obligation to pay support for such child the applicant must demonstrate that the child, by virtue of the pursuit of post-secondary education is unable to withdraw from the charge of his or her parents or obtain the necessaries of life without support from parents. [13] Courts have tended to regard child over the age of majority who is in full-time attendance at an educational institution and engaged in reasonable pursuit of further education or training to be "child of the marriage" and entitled to support. While there may be presumption of entitlement in such circumstances it does not entirely discharge the onus on the applicant as it must be demonstrated that the child, by reason of such pursuit of education, is unable to withdraw from the charge of parents or to obtain the necessaries of life: Wahl v. Wahl (2000), 2000 ABQB 10 (CanLII), R.F.L. (5th) 307 (Alta. Q.B.). Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. Master) is oft quoted for the following list of relevant circumstances to be considered by the court, at p. 64: (1) whether the child is, in fact, enrolled in course of studies and whether it is full-time or part time[sic] course of studies; (2) whether or not the child has applied for, or is eligible for, student loans or other financial assistance; (3) the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do; (4) the ability of the child to contribute to his own support through part-time employment; (5) the age of the child; (6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies; (7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation; (8) at least in the case of mature child who has reached the age of majority, whether or not the child has unilaterally terminated relationship from the parent from whom support is sought. [14] Our Court of Appeal in Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 similarly observed that in determining whether an "adult child" in attendance at university qualifies as "child" under the Act and, if so, the extent of the obligation of parents to support their child: [10] requires the court to consider many factors including: whether the child is eligible for student loans or other financial assistance, whether the chid has reasonable career plans, the ability of the child to contribute to his or her own support through part-time employment, parental plans for the child's education, particularly those made during cohabitation, and at least in the case of mature child who has reached the age of majority, whether or not the child has unilaterally terminated his or her relationship with the parent from whom child support is sought. further consideration is whether the child could have reasonably expected one or both of the parents to have continued to furnish support if the marriage had not broken down. [15] While it would appear beyond debate that an adult child must make reasonable efforts to contribute to his or her support and education, it is not so clear how this is to be applied in an individual circumstance. James G. McLeod, in an annotation to Wahl, supra, observed at p. 310: What investment must child make in his or her future? Does family's historical value system affect whether child should be required to apply for loan? Should taxpayers' money be used to provide an education for child whose family is able to do so? Why should separated family lose access to government funds that are available to non-separated families? [16] To these questions may be added others. If the family had not separated and if the child would not have been entitled to student loan on account of the parents' resources, to what extent should the fact of separation entitle the payor to eliminate or reduce child support obligation by requiring the child to obtain student loan because the child now qualifies given the resources of only the "custodial" parent? To what extent should an adult child be expected to graduate with substantial debt load if one or both of the parents have the resources to contribute? If the family unit had remained in tact and the child living at home while attending university, one assumes that in most cases the child would be provided with food and shelter even if the child had the resources through combination of earnings and student loans to cover his or her direct education expenses and personal expenditures. If that family is separated to what extent ought the student's earnings reduce payor's obligation to contribute to the expenses of food and shelter? When the child was in Grade XII the payor's contribution to food and shelter is quantified by the Guidelines as falling within the Table amount of support. Does the quantification of this obligation change few months later? [17] The Court of Appeal in couple of recent decisions have dealt with applications involving the support of adult children. Hagen v. Rankin 2002 SKCA 13 (CanLII); [2002] S.J. No. 15 involved an 18 year old residing with his mother while attending university. The child earned in excess of $9,000 in 2000 and was expected to earn in excess of $11,000 in 2001. He worked full-time during the summer and part-time during the academic year. He had access to an education fund which contributed $2,000 towards his tuition and books. The payor had an income of $79,300 and had been ordered to pay Table support of $605 per month. It was argued on appeal the chambers judge erred in failing to determine child support pursuant to s. 3(2)(b) in light of the income earned by his son. The Court of Appeal observed: ¶8 In considering whether, in light of these circumstances, the chamber judge misapplied the provisions of subsection 3(2) of the Guidelines, we had regard for two lines of principle bearing upon the matter. The first derives from Zaba v. Bradley, cited earlier, and goes to the obligation of the child. The second derives from Dergousoff v. Dergousoff, 1999 CanLII 12250 (SK CA), [1999] 10 W.W.R. 633 (Sask. C.A.), and goes to the obligation of the parents. ¶9 In Zaba, this Court held that in determining whether child, who has reached the age of majority and is attending university, continues to be "child of the marriage" and, if so, the extent of the legal obligation of each of the parents to contribute to the support of the child, the court should have regard, among other considerations, for the ability of the child to contribute to his or her own support through part-time employment. As this clearly implies, and as the Court of Queen's Bench has occasionally held, such children are expected to contribute to their own support to the extent reasonably possible before looking to their parents and their parents' exceptional legal obligation to continue to provide support while adult children attend university and are, for that reason alone, unable to get by on their own. (See, for example, Simpson v. Palma (1998), 1998 CanLII 13976 (SK QB), 171 Sask. R. 89 (Sask. Q.B., per Zarzeczny J.) and Meyers v. Meyers, [1998] S.J. No. 265 (Sask. Q.B., per Dovell J.)). ¶10 In Dergousoff, this Court held that provisions similar to those found in subsections 3(2)(a) and (b) of the Guidelines fall to be applied having regard not only for the presumed needs of the children, as reflected in the table amounts, but for their actual means and needs, as demonstrated by the evidence. The Court was there concerned with subsection 4(b)(ii) the[sic] Guidelines, which is cast in much the same language and is intended to achieve much the same purpose as subsection 3(2)(b). [18] In Dergousoff v. Dergousoff, 1999 CanLII 12250 (SK CA), [1999] 10 W.W.R. 633 (Sask. C.A.), the Court of Appeal determined that for the purposes of s. 4(b)(ii) the Table amount of support would be inappropriate if it falls short or exceeds the amount required for the intended purpose. In Hagen, supra, the court followed the same approach, observing: ¶14 The same reasoning applies in relation to subsection 3(2)(b) of the Guidelines. Hence, the presumption of subsection 3(1)(a), which is engaged by subsection 3(2)(a), is rebuttable, having regard for the actual needs of the children and respective means of the parents. ¶15 Turning to the case at hand with the principles of Zaba and Dergousoff in mind, and having regard for the circumstances, we are satisfied the chamber judge misapplied subsection 3(2) of the Guidelines by failing to have resort to the provisions of subsection 3(2)(b). In our respectful opinion, he ought to have determined the amount of support payable by the father in accordance with those provisions, which is to say he ought to have determined the amount having regard for the actual means and needs of Landon and the financial ability of each[sic] his parents to contribute toward his support. ¶16 That Landon is meeting his obligation to contribute to his own support is clear. He works as he can and earns something in the order of $11,000 year. This serves at once to reduce the extent of the legal obligation of his parents and to rebut the operative presumption. Still, the chamber judge awarded the table amount, an amount based on the full extent of the father's obligation and determined presumptively, irrespective of Landon's actual needs. ¶17 At best, Landon's actual needs do not extend beyond some assistance, perhaps, with his room and board. His father was prepared to pay $200 per month toward this end, which amounts to third of the table amount, given the father's annual income. Were Landon's mother prepared to do likewise, she would contribute $100 per month, being one third of the table amount, given her annual income. The total of $300, according to the evidence, would provide adequately for his need, especially when viewed in light of Landon's own financial resources. [19] Hamel v. Hamel, 2001 SKCA 115 (CanLII), [2001] S.J. No. 692 (Sask. C.A.) involved 19 year old in her first year of university after having taken one year off and worked. The payor had an income of approximately $50,000. The daughter had earned approximately $9,000 and had student loan of $3,700. The chamber judge concluded: The respondent resists any obligation to pay support to the petitioner on behalf of Christine. He says that the petitioner has not met the onus of demonstrating that Christine is unable to withdraw from her charge having regard to the factors enumerated in Bradley v. Zaba (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (C.A.). disagree. Christine is not in position to be self-sufficient and to provide herself with the necessaries of life while in full-time attendance at university. Her part-time earnings are sufficient only to meet her incidental expenses and her student loan only to cover her tuition and books. Christine remains "child of the marriage" as defined by the Divorce Act, R.S.C. 1985, c. (2nd Supp.) and the petitioner is entitled to receive support on her behalf. In the circumstances of this case, it is not inappropriate to award the amount prescribed by the applicable Table. The majority of the court declined to find the chamber judge in error. [20] Francis v. Baker (1999), 1999 CanLII 659 (SCC), 50 R.F.L. (4th) 228 (S.C.C.) came down after Dergousoff, supra. While the issue was s. 4(b) of the Guidelines, the principles are equally applicable to s. 3(2)(b) because of the similarity in wording. Recasting the principles enunciated in Francis, supra, in the context of s. 3(2) the following may be said in the context of children of the age of majority or over. There is presumption that the appropriate measure of support is to be determined as if the child were under the age of majority that is to say the Table amount and s. if appropriate. In determining whether the presumptive rule is inappropriate the objectives of predictability, consistency and efficiency reflected in the presumptive rule must be balanced with those of fairness, flexibility and recognition of the actual condition, means, needs and other circumstances of the child and financial ability of each spouse to contribute. To establish inappropriateness there must be clear and compelling reasons to depart from the presumptive rule. The amount of support which the appropriate table would require cannot prima facie render it inappropriate. The factors relevant to determining inappropriateness include condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute. In considering child's needs the burden on the payor to establish inappropriateness is to demonstrate that they are so high as to "exceed the generous ambit within which reasonable disagreement is possible". The onus on person claiming that support calculated in accordance with s. 3(2)(a) is inappropriate is to establish that it is clearly inadequate or excessive. similar summary, albeit with respect to applications under s. is found in Metzner v. Metzner (2000), 2000 BCCA 474 (CanLII), R.F.L. (5th) 162, (B.C.C.A.) as reiterated in MacDonald v. MacDonald, 2002 BCCA 46 (CanLII), [2002] B.C.J. No. 121 (C.A.). It is clear from Francis that determining inappropriateness is not matter of the court determining what the budget ought to be and whether Table amount exceeds that budget. To revert to such an approach is to undermine the presumptive rule and the legislated objectives of predictability, consistency and efficiency. To be inappropriate, the Table amount must "exceed the generous ambit within which reasonable disagreement is possible" or "clearly inadequate or excessive". [21] Turning to the case at hand, find the respondent to have an income of $96,300. The petitioner's income is somewhat indeterminate. Due to health reasons she cannot work full time. Her employment income was $1,330 in 1999, $4,050 in 2000, and estimated at $7,200 in 2001. She assumed her earnings in 2002 would average $500 to $600 per month. She receives spousal support from her second spouse of $1,500 per month for January to November of 2002. attribute to her an income of $24,000 for Guideline purposes which is close to the average of her last three years' income (which included spousal support). [22] While Luke worked for two years and lived away from home for most of that time, his earnings were not substantial. At present he has student loan which covers most of his direct education expense. He has modest monthly income from part-time employment while attending school. He also receives $203 per month as living allowance from his student loan. It is assumed he will have full-time employment during summer months. The respondent also relies on the fact he arranged $5,000 student line of credit for which the respondent is the guarantor. am not prepared, in the circumstances, to consider the line of credit as part of Luke's means available to him to meet his needs. The respondent has reasonably substantial income and cannot seek to reduce or avoid child support obligation by guaranteeing loan which Luke will have to repay. [23] Amanda has student loan which should cover most of her direct education expense. She has no part-time income at present while attending school. It is assumed she will receive approximately $200 per month as living allowance from her student loan. It is also assumed she will have employment during the summer. [24] There is no evidence as to the needs of the children with respect to their personal expenses but there is no doubt that university students have an expense in this regard. It must be observed that the Table amount of support for children does not increase with their age. There is no doubt that the needs of university student are significantly different from an elementary school student. It is logical conclusion that Table support is not intended to cover all of university student's personal expenditures. [25] The petitioner's financial statement indicates food and shelter related expenses of $18,000 per annum out of total living expenses, exclusive of source deductions, of approximately $30,000 per annum. [26] I have concluded, based on the criteria set forth in Farden and Zaba, supra, both Luke and Amanda are children of the marriage as contemplated by the Act. They are involved in the reasonable pursuit of post-secondary education and neither is able to withdraw from the charge of their parents. have also concluded that it is not inappropriate to determine the respondent's child support obligation in accordance with s. 3(2)(a). [27] Luke and Amanda are both able to cover most of their direct education expense through student loans. Luke is able to cover his personal expenditures and may have small amount to contribute to his food and shelter and other expenses. Amanda has no means of contributing to her food and shelter and other expenses and has only modest amount to cover personal expenses. [28] The petitioner's direct food and shelter expenses are $18,000 per annum. As noted, the overall household expenditures are greater. When determining the actual cost of raising children played more significant role in determining child support obligation, the Court of Appeal in Wright v. Wright, [1996] S.J. No. 69 observed at paragraphs 48 to 57 that the children's portion of shared expenses had been set by various courts at between one-third and one-half of the expenses incurred. The Court of Appeal in that instance settled upon 40 percent. [29] It is clear that the cost of maintaining the home for Luke and Amanda is not minor expense. Amanda has no ability as present to contribute to this. Luke may have small ability to contribute. The Table amount of support based upon the respondent's income would be $1,153 per month. This amount is not so high as to "exceed the generous ambit within which reasonable disagreement is possible". It is not clearly excessive given the cost of maintaining the home for the children. [30] am satisfied that in the circumstance at hand and the demonstrated ability of the children to obtain reasonably remunerative summertime employment that they are not dependent upon their parents during the summer months and have the ability to contribute adequately to their food, shelter and related expenses when not in attendance at school. [31] There will be an order that the respondent, based upon an income of $96,300, shall pay to the petitioner, for the support of their two children, the sum of $1,153 per month during the months of September to April, inclusive, commencing January 1, 2002, and payable on the first of each month thereafter, pursuant to ss. 3(2)(a) and 3(1)(a) of the Guidelines. [32] The petitioner seeks arrears of child support for July to December, 2001, covering both children. I have determined that in the circumstances at hand it would be appropriate to calculate arrears only for the support of Luke during the months of September to December. Amanda was attending the University of Calgary and all her needs were met. The arrears are fixed at $718 per month X four months, or $2,872. The arrears will be paid by the respondent paying to the petitioner the sum of $718 per month during each of the months of May to August, 2002, inclusive, commencing May 1, 2002, and on the first of each month thereafter. [33] In terms of s. 7 expenses, the respondent's proportionate share is 80 percent. The evidence indicates that Luke and Amanda's student loans cover most if not all of their direct education expense of tuition, books and fees. With respect to any expenses in this regard not covered by student loans, the respondent shall pay his proportionate share of such expense within 30 days of such funds being due. Section 7(3) of the Guidelines requires that any tax deduction or credit relating to covered expense be taken into account. In this instance, the issue is the education tax credit available to the children. Any unused portion can be transferred to parent. This only becomes an issue if the respondent is required to contribute to his children's education expense pursuant to s. 7. If the respondent is required to so contribute and if there is any unused tax credit available to either child, such credit should be transferred to the parents in proportion to their respective incomes. If the parties are unable to work out an adjustment, an application may be made to the court for adjustment. [34] The petitioner shall have her costs of the application fixed in the amount of $750.00.

Both sought to vary the June 30, 1999 child support order under which the father was to pay monthly child support of $987 based on an income of $80,278. He ceased paying when the children did not attend school full-time. The 21 year old worked for several years before returning to his mother's home in August 2001 and commencing full-time studies. He continued to work part-time and obtained student loans and a student line of credit. The daughter resumed living with her mother in January 2002 and was attending university full-time. Both adult children were assuming responsibility for most of their education costs by taking student loans. The mother's position was the father should pay the table amount of support for both children and his proportionate share of post-secondary expenses not covered by student loans. At issue also was payment of arrears for July to December 2001. HELD: 1)The father was to pay $1,153 per month for support for the adult children for the months of September to April inclusive, pursuant to s.3(2)(a) and 3(1)(a) of the Guidelines. Based on the criteria set forth in Farden and Zaba, both children were children of the marriage as contemplated by the Act. They were involved in the reasonable pursuit of post-secondary education and neither was able to withdraw from the charge of their parents. It was appropriate to determine the obligation in accordance with s.3(2)(a). The student loans covered most direct education expenses of tuition, books and fees. The line of credit was not considered a part of the son's means available to meet his needs. The father has a reasonably substantial income ($96,300) and cannot seek to reduce or avoid a child support obligation by guaranteeing a loan, which the child will have to repay. Child support arrears for July to December 2001 for the son to a total of $2,872 were payable at a rate of $718 per month. The daughter's needs were met while attending university in Alberta. 3)While it would appear beyond debate that an adult child must make reasonable efforts to contribute to his or her support and education, it is not so clear how this is to be applied to an individual circumstance. The principles enunciated in Francis were recast in the context of s.3(2). A similar summary, albeit with respect to an application under s.4, is found in Metzner as reiterated in MacDonald. It is clear from Francis that determining inappropriateness is not a matter of the court determining what the budget ought to be and whether a Table amount exceeds that budget. To revert to such an approach is to undermine the presumptive rule and legislated objectives of predictability, consistency and efficiency. 4)The father was to pay his proportionate share (80%) of any expenses not covered within 30 days of such funds being due. If the parties were unable to work out an adjustment for any unused education tax credit, an application may be brought to court. 5)The mother was awarded her costs of the application fixed at $750.

b_2002skqb72.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 002 Date: 2013-01-07 Between: Docket: CACR2011 Her Majesty the Queen and Chisum Log Homes and Lumber Ltd. Corp. #309621 and Garry Varga Coram: Cameron, Caldwell and Herauf JJ.A. Counsel: Anthony B. Gerein for the appellant Robert Kennedy, Q.C. for the respondent Appeal: From: 2011 SKQB 155 (CanLII) Heard: January 7, 2013 Disposition: Appeal Allowed Reasons By: The Honourable Mr. Justice Cameron for the Court CAMERON J.A. [1] Chisum Log Homes and Lumber Ltd. manufactures log-home packages near Weyakwin, Saskatchewan, under the direction of Garry Varga, the sole director of the company. As a result of what the manufacture of these packages entails, both the company and Mr. Varga were convicted in Provincial Court of operating a forest products processing facility without a licence, contrary to s.18.1 of The Forest Resources Management Act, S.S. 1996, c. F-19.1. In consequence, each was fined and ordered to pay surcharge. [2] They then appealed to the Court of Queen’s Bench. The judge who heard their appeal allowed it and set aside the convictions. He did so on the basis the steps taken in connection with the manufacture of the log-home packages by the company and Mr. Varga were not such as to engage the licensing provisions of the Act. With that, the Attorney General applied to this Court for leave to appeal on the ground the judge misconstrued the licensing provisions of the Act and hence misapplied them. [3] We are of the opinion this is an appropriate case in which to grant leave to appeal. For the reasons that follow, we are also of the opinion the appeal should be allowed and the convictions restored. [4] The charges stemmed from the manufacture of log-home packages by the company under the direction of Mr. Varga. The two operated facility near Weyakwin for that purpose. The manufacture of these packages entailed the following steps, beginning with the purchase of felled trees harvested by others from Crown lands; felled trees, that is, of certain length, girth, and trueness, with their tops lopped and limbs removed by the others. Upon being delivered to the Weyakwin facility, the company and Mr Varga sawed these rough logs, so to speak, into various lengths, removed the bark from them, and turned them into uniform girth on large lathe. They then cut each of them along the top and bottom surfaces in double tongue and groove pattern. They also notched each at the extremity with saddle-like notches. Next, they marked each for ease of home construction and assembled them into log-home packages, packages that were sold directly to consumers in Canada and elsewhere. The packages contained only the finished logs, so to speak, ready for assembly, with the roofs and floors being extra. [5] The question throughout has been, and continues to be, whether the steps taken by the company and Mr. Varga in the course of operating the Weyakwin facility for the purpose of manufacturing these log-home packages were such as to bring the operation of the facility within the meaning and scope of the licensing requirements of The Forest Resources Management Act, beginning with s. 18.1. [6] Section 18.1 states that that “no person shall operate processing facility without licence.” The term “processing facility” is defied by s. 2(1)(w) of the Act as follows: (w) “processing facility” means pulp mill, sawmill, plywood mill, fibre or strand board mill, post plant or any other facility, fixed or mobile, designed for manufacturing forest products and includes slasher, chipper, debarker, fuelwood processor or any other mechanized equipment, fixed or mobile or any component of the equipment, designed for manufacturing forest products; [7] number of the terms found within this definition of processing facility, including terms such as “forest products” and “manufacturing” are also defined in s. 2(1) of the Act. The former is defined in s. 21(1)(k) to mean, among other things “vegetation on or from forest land…whether alive, dead, or cut, and includes trees…” The latter is defined in s. 21(r) to mean this: (r) “manufacture” means any step taken to prepare forest product for market, and includes the sawing, peeling, chipping, debarking, preserving, cleaning, drying, extracting and packaging of forest products, but does not include harvesting. [8] Having regard for these provisions, and for the steps entailed in the manufacture of the log-home packages in question, we are of the opinion the operation of the Weyakwin facility by the company and Mr. Varga without a processing facility licence was unlawful as being contrary to s. 18.1 of the Act. Indeed, we are of the opinion the operation of the facility fell squarely with the meaning and scope of these provisions. Hence, we agree with the conclusion arrived by the judge of the Provincial Court, who convicted, and disagree with the judge of the Court of Queen’s Bench, who set aside the convictions. [9] With respect, we are of the view the judge of the Court of Queen’s Bench misconstrued these provisions and in consequence misapplied them. As we see it, he was too much concerned in the abstract with the potential scope of these provisions, fearing, as he did, that as one moved from the meaning of them at the centre to their potential meaning at the periphery, they reached beyond the contemplation of the legislature, especially in the context of the commission of an offence. In consequence he so restricted the meaning of these provisions, and others associated with them, as to narrow the scope of the licensing provisions well beyond that which, in our respectful opinion, was clearly intended by the legislature in light of the Act as whole, including the overall purpose, the licensing scheme and its objects, and the cast of the provisions in question. [10] As we say, the circumstances in this case are such as to bring the case squarely within these provisions. That being so, what might be made of these provisions in another case, featuring different circumstances and engaging the meaning of the provisions at their periphery, is matter for another day. With the greatest of respect, the matter need not, and should not, have been taken up in the context of this case, at least not to the extent and to the effect the judge of the Court of Queen’s Bench thought appropriate. In our respectful judgment this went quite beyond what the case called for. [11] We should add that Mr. Varga was assumed throughout to have been responsible, along with Chisum Log Home and Lumber Ltd, for the operation of the Weyakwin facility. Hence, he was convicted alongside the company. Nothing was made of his liability, as distinct form that of the company, either in this Court or in the courts below, so nothing we have said is to be taken as having any bearing on whether he, too, needed license. [12] For these reasons, then, we have decided to allow the appeal, set aside the decision in the Court of Queen’s Bench, and restore the decision of the trial judge. It follows that the convictions must stand. As for the fines and surcharges, there is nothing in the case to suggest we might interfere with the decision of the trial judge, so they too must stand.

The Crown applied for leave to appeal a Queen's Bench decision that set aside the convictions of the respondents, Chisum Log Homes and Lumber Ltd. and its sole director, Varga, for operating a forest products processing facility without a licence, contrary to s. 18.1 of The Forest Resources Management Act. The charges had stemmed from the manufacture of log-home packages by the company under the direction of Varga. The manufacture of these packages entailed the purchase of felled trees harvested by others from Crown lands. The logs were then cut at the respondents' facility into various lengths and notched, marked for construction and assembled into log-home packages. In the appeal to Queen's Bench of the convictions, the judge found that these steps in the manufacture of the packages did not engage the licencing provisions of the Act. HELD: The Court gave leave to appeal and allowed the appeal. Based on the definitions provided in s. 2 of the Act with respect to the words 'processing facility', 'forest products', and 'manufacture', it found that the operation of the facility by the company and Varga without a processing facility licence was unlawful as being contrary to s. 18.1. As the Provincial Court judge's conclusion was correct, the Court held that the convictions must stand and did not interfere with the fines and surcharges imposed upon the respondents.

6_2013skca2.txt

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Jeffrey Jeffrey, 2009 NSSC 180 Date: 20090615 Docket: S.H. No. 1201-062019 (SFHD-054616) Registry: Halifax Between: Deborah Lorraine Jeffrey v. Roy Edmond Jeffrey Respondent Judge: The Honourable Associate Chief Justice Robert F. Ferguson Heard: August 12 and September 16, 2008 Written Decision: June 16, 2009 Counsel: Mary E. Meisner, Q.C., for the applicant Jodi MacDonald, for the respondent By the Court: [1] Deborah and Roy Jeffrey are the parents of Ryan Arthur Roy Jeffrey, born August 11, 1993. The couple married in July of 1976 and ceased living together around the end of August of 2001. Since the separation, Ryan has continued to live with his mother. [2] In October of 2007, Ms. Jeffrey made an application under the Maintenance and Custody Act. She sought an order that would provide: a) parenting provisions as to their son; and b) child maintenance payable to her in accordance with the Child Support Guidelines in the form of table amount and contribution to special or extraordinary expenses, and that the order would be retroactive to the date of the couple’s separation. [3] In January of 2009, Consent Order was issued which dealt with most of the issues. As a result, the only remaining issue was, as acknowledged in the Consent Order, the retroactivity of child maintenance (table and section 7 expenses) for the period from August, 2001, to and including December, 2007. [4] As previously noted, the parties separated in August of 2001. Prior to the Consent Order issued in January of 2009, there was no written agreement or court order dealing with child maintenance. [5] In September of 2001 little over month after their separation Mr. Jeffrey began providing Ms. Jeffrey with monthly child maintenance which continues to the date of this hearing. In September of 2001, the amount of such payment was $300.00 per month. [6] month later, and continuing to November of 2006, the amount was $350.00. In November of 2006, the amount was increased to $400.00 and continued as such until January of 2008. Beginning in January of 2008, the amount was increased to $660.00. The current order requires payment of $687.00 month commencing on the first day of January, 2008. SUBMISSIONS [7] Ms. Jeffrey submits that Mr. Jeffrey controlled the amount of child maintenance provided since the separation; that Mr. Jeffrey obtained legal advice prior to making the child maintenance payment and informed her that the amount of such payment was in accordance with his income and the corresponding Guideline responsibility; that, on beginning this current application, she became aware of Mr. Jeffrey’s income for the years since their separation and, as result of obtaining this information, it is obvious Mr. Jeffrey has been, for some time, paying less than legally required given his income and the dictates of the Guidelines; that this failure to provide income in accordance with the Guidelines should be corrected from the date of their separation. [8] Ms. Jeffrey further stipulates that Mr. Jeffrey, since separation, has basically refused to provide any contribution towards legitimate special or extraordinary expenses related to their son. She indicates the reason she did not take action to be reimbursed for such expenses at an earlier date was Mr. Jeffrey’s indicating to her, on numerous occasions, that he did not have sufficient funds to make further contribution. [9] Mr. Jeffrey submits that, until very recently, he was unaware of what were his child maintenance responsibilities as dictated by the Guidelines. He states his contributions since separation were basically dictated by Ms. Jeffrey’s requests. As an example, he notes his initial payment of $300.00 month went almost immediately to $350.00 by virtue of the request of Ms. Jeffrey that she needed more by way of child maintenance; that in 2006 the amount was raised to $400.00 again, at her request. He acknowledges he complained as to his ability to provide additional funds but did ultimately concede to her requests. As to special or extraordinary expenses, he submits he was led to believe by Ms. Jeffrey that he was providing an appropriate amount for child care. [10] To recap, we have Ms. Jeffrey’s view that an intelligent and educated parent was aware, or should have been aware, he was not providing child maintenance in accordance with the Guidelines either from the point of view of the table amount or as contribution towards special or extraordinary expenses; further, that such under payment from him from the date of separation is now due and owing. [11] Mr. Jeffrey’s view is that Ms. Jeffrey also an intelligent and educated parent asked for child maintenance, received it and, from time to time, requested an increase which was acknowledged and, basically, left Mr. Jeffrey with the belief that he was providing an appropriate amount of child maintenance; further, that she knew or should have known it was open to her, since their separation in 2001, to take the legal action she finally began in 2007. RELEVANT LEGISLATION [12] The relevant sections of the Maintenance and Custody Act are: Maintenance order Upon application, court may make an order, including an interim order, requiring parent or guardian to pay maintenance for dependent child. 1997 (2nd Sess.), c. 3, s. 4. Powers of court 10 (1) When determining the amount of maintenance to be paid for dependent child, or child of unmarried parents pursuant to Section 11, the court shall do so in accordance with the Guidelines. (2) The court may make an order pursuant to subsection (1), including an interim order, for definite or indefinite period or until specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as the court thinks fit and just. [13] The relevant sections of the Nova Scotia Child Maintenance Guidelines are: Presumptive rule 3(1) Unless otherwise provided under these Guidelines, the amount of child maintenance order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the parent against whom the order is sought; and (b) the amount, if any, determined under Section Special or extraordinary expenses (1) In child maintenance order the court may, on parent's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the parents and those of the child and, where the parents cohabited after the birth of the child, to the family's pattern of spending prior to the separation: a) child care expenses incurred as result of the custodial parent's employment, illness, disability or education or training for employment; b) that portion of the medical and dental insurance premiums attributable to the child; c) health related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; e) expenses for post-secondary education; and f) extraordinary expenses for extracurricular activities. (1A) For the purposes of clauses (1)(d) and (f), “extraordinary expenses” means a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, if the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or b) if clause (a) is not applicable, expenses that the court considers are extraordinary, taking into account all of the following: (I) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, if the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, (v) any other similar factor that the court considers relevant. Sharing of expense (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the parents in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. Subsidies, tax deductions, etc. (3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim subsidy, benefit or income tax deduction or credit relating to the expense. Note: Section of the Guidelines was amended on November 28, 2005 a) Retroactivity: Should Mr. Jeffrey be ordered to provide child maintenance beginning prior to October of 2007 the date of Ms. Jeffrey’s application? b) If such an order is to be made, what should be the date Mr. Jeffrey’s obligation begins? ANALYSIS Retroactivity [14] It is agreed that Ryan has been, since the date of separation, and continues to be, dependant “child” within in the meaning of the Maintenance and Custody Act. [15] It is further agreed that this Court has the power to order original retroactive child maintenance awards pursuant to applications made under the Maintenance and Custody Act. [16] Both parties have advanced D.B.S. v. S.R.G. 2006 SCC 37 (CanLII), [2006] S.C.R. 231 as being the leading case on the issue of retroactive child support. They further acknowledge the five factors to be considered when determining this issue to be as follows: 1) the status of the child; 2) reasonable excuse for delay why support was not set earlier; 3) conduct of the payor parent; 4) circumstances of the child; and 5) hardship occasioned by the retroactive award. Reasonable Excuse for Delay [17] Ms. Jeffrey submits she was under an incorrect assumption as to Mr. Jeffrey’s income while being over extended given her responsibilities as to caring for Ryan and her aging parents. Further, she was consistently being told by Mr. Jeffrey he did not have the financial ability to provide additional child maintenance. Mr. Jeffrey counters by suggesting that Ms. Jeffrey has not discharged the onus of establishing the reasonableness of such delay in seeking maintenance. Conduct of Payor Parent [18] On this point, Ms. Jeffrey, in her pre-trial brief states: Conduct of Payor Parent The majority of the Supreme Court of Canada takes an expansive view of what constitutes blameworthy conduct and defines it generally at paragraph 106 as ‘anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support’. Regarding this factor, the majority of the Supreme Court of Canada has stated, in part, as follows: [105] This factor approaches the same concerns as the last one from the opposite perspective. Just as the payor parent's interest in certainty is most compelling where the recipient parent delayed [page278] unreasonably in seeking an award, the payor parent's interest in certainty is least compelling where (s)he engaged in blameworthy conduct. Put differently, this factor combined with the last establish that each parent's behaviour should be considered in determining the appropriate balance between certainty and flexibility in given case. [106] Courts should not hesitate to take into account payor parent's blameworthy conduct in considering the propriety of retroactive award. Further, believe courts should take an expansive view of what constitutes blameworthy conduct in this context. would characterize as blameworthy conduct anything that privileges the payor parent's own interests over his/her children's right to an appropriate amount of support. similar approach was taken by the Ontario Court of Appeal in Horner v. Horner (2004), 2004 CanLII 34381 (ON CA), 72 O.R. (3d) 561, at para. 85, where children's broad "interests" rather than their "right to an appropriate amount of support" were said to require precedence; however, have used the latter wording to keep the focus specifically on parents' support obligations. Thus, payor parent cannot hide his/her income increases from the recipient parent in the hopes of avoiding larger child support payments: see Hess v. Hess (1994), 1994 CanLII 7378 (ON SC), R.F.L. (4th) 22 (Ont. Ct. (Gen. Div.)); Whitton v. Shippelt (2001), 293 A.R. 317, 2001 ABCA 307 (CanLII); S. (L.). payor parent cannot intimidate recipient parent in order to dissuade him/her from bringing an application for child support: see Dahl v. Dahl (1995), 1995 ABCA 425 (CanLII), 178 A.R. 119 (C.A.). And payor parent cannot mislead recipient parent into believing that his/her child support obligations are being met when (s)he knows that they are not. [107] No level of blameworthy behaviour by payor parents should be encouraged. Even where payor parent does nothing active to avoid his/her obligations, (s)he might still be acting in blameworthy manner if (s)he consciously chooses to ignore them. Put simply, payor parent who knowingly avoids or diminishes his/her support obligation to his/her children should not be allowed to profit from such conduct: see A. (J.) v. A. (P.) (1997), 1997 CanLII 12394 (ON SC), 37 R.F.L. (4th) 197 (Ont. Ct. (Gen. Div.)), at pp. 208-9; Chrintz. [Emphasis added] [19] Mr. Jeffrey, on the same point, submits that the evidence does not show that his actions since separating from the applicant amounted to blameworthy conduct nor did he intentionally hide his income from Ms. Jeffrey or intimidate or attempt to intimidate her from seeking more child maintenance. Circumstances of Child [20] Ms. Jeffrey acknowledges that, by her sacrifices (financial and otherwise), Ryan has benefited from an adequate standard of living since the separation. She submits that these sacrifices on her part do not absolve the respondent from his past responsibilities in providing for his child. [21] Mr. Jeffrey suggests that, since the parties’ separation, he has provided for his son in manner similar as to how he would have done had the couple remained together. Hardship Occasioned by Retroactive Award [22] Ms. Jeffrey acknowledged that retroactive award such as she requests would be “inconvenient” for the respondent but falls short of creating hardship for him. [23] Mr. Jeffrey submits retroactive award in the amount claimed by Ms. Jeffrey would be equal to one-third of his annual income and amount to financial hardship to him. Date of Retroactivity [24] As stated by the majority of the Supreme Court of Canada in D.B.S. v. S.R.G., supra: [121] Choosing the date of effective notice as default option avoids this pitfall. By "effective notice", am referring to any indication by the recipient parent that child support should be paid, or if it already is, that the current amount of child support needs to be re-negotiated. Thus, effective notice does not require the recipient parent to take any legal action; all that is required is that the topic be broached. Once that has occurred, the payor parent can no longer assume that the status quo is fair, and his/her interest in certainty becomes less compelling [123] Thus, even if effective notice has already been given, it will usually be inappropriate to delve too far into the past. The federal regime appears to have contemplated this issue by limiting recipient parent's request for historical [page285] income information to three-year period: see s. 25(1)(a) of the Guidelines. In general, believe the same rough guideline can be followed for retroactive awards: it will usually be inappropriate to make support award retroactive to date more than three years before formal notice was given to the payor parent. [25] The applicant submits the decision of Abella J. in D.B.S. v. S.R.G., supra, allows for consideration in making retroactive order beyond the “three-year limitation period.” [26] Ms. Jeffrey applied for relief pursuant to the Maintenance and Custody Act in October of 2007. Consent Order dated January 9, 2009, provided relief to almost all of the issues raised in the proceeding, including ongoing child maintenance beginning January 4, 2008. What remains for decision is what responsibility, if any, Mr. Jeffrey has to retroactively provide child maintenance since the couple separated in August of 2001 up to the end of 2007. [27] As noted earlier, D.B.S. v. S.R.G., supra, identified five factors for consideration when considering retroactive child maintenance award. Status of the Child [28] There is agreement as to the status of the child. Reasonable Excuse for Delay [29] Ms. Jeffrey has, since the separation, made overtures to Mr. Jeffrey for increased child maintenance. Mr. Jeffrey has resisted such requests indicating lack of income to provide any additional amount. However, in spite of such reluctance, he did, on numerous occasions, increase his monthly payment. The evidence does not support conclusion Ms. Jeffrey was pressured or intimidated by Mr. Jeffrey to the extent it would be reason for her to delay her application to seek formalized child maintenance. [30] On this point, it should be noted that Ms. Jeffrey acknowledged that she and Mr. Jeffrey continued to see one another from November of 2006 to July of 2007, both as couple and family. This included family trip to Cuba in April or May of 2007. Circumstances of Child Hardship Occasioned by Retroactive Award [31] have considered both of these factors and have previously mentioned the parties’ submissions on these points. Conduct of the Payor Parent [32] Mr. Jeffrey provided child maintenance on monthly basis almost from the beginning of the family’s separation. He increased the amount of such maintenance on at least three occasions at the request of Ms. Jeffrey. He provided further financial assistance when requested by Ms. Jeffrey. However, prior to making his initial payment, Mr. Jeffrey received legal advice as to how the Child Support Guidelines would affect his obligation. In other words, in the fall of 2001 he was aware his obligation was directly related to his annual income. Since that time his income has significantly increased. find his increase in income, which he did not disclose to Ms. Jeffrey, together with the knowledge it affected his support obligation, put him in position of person who knowingly avoided or diminished his child maintenance obligation. [33] find it appropriate to consider retroactive obligation. Date of Retroactivity [34] When Mr. Jeffrey began his payment he had an annual income of just less than $50,000.00. Over the next few years, his income increased. In 2004, it was in the vicinity of $53,500.00. In 2005, it increased to more than $78,000.00. At that time, given his knowledge that his obligation was equated to his income, I find Mr. Jeffrey had “effective notice” that his current payment was deficient. Guideline Table Amount [35] In 2005, Mr. Jeffrey’s income was $78,270.00 which, according to the Guidelines, would attract payment for one child of $625.00 month or $7,500.00 per year. During that period, he paid $350.00 month or $4,200.00 for the year, leaving shortfall in his obligation of $3,300.00. [36] In 2006, Mr. Jeffrey’s income was $75,272.00. The Guideline table amount for the first four months of that year was $603.00 month or $2,412.00 for that period. For the remaining eight months his obligation was $649.00 month or $5,192.00 for that period, for yearly amount of $7,604.00. During that year, he paid $350.00 month for ten months, for total of $3,500.00 and an additional two months at the rate of $400.00, bringing his yearly contribution to $4,300.00 and leaving deficit for 2006 in the amount of $3,304.00. [37] In 2007, Mr. Jeffrey’s income was $77,760.00 attracting Guideline table amount of $669.00 month or $8,029.00 for the year. He contributed during this period $400.00 month or $4,800.00, again, leaving deficit in the amount of $3,229.00.00 Section or Special or Extraordinary Expenses [38] Given the conclusion the child maintenance order would apply to the years 2005, 2006 and 2007, only expenses attributed to those years are being considered. [39] Ms. Jeffrey submitted the following expenses: Child care (Landry) for the years 2005, 2006 and 2007; Excel child care lunches for January to June, 2005; Ryan’s birthday parties; School pictures; Vision Camp; Dental and medical premiums [40] In reply to this request for relief, Mr. Jeffrey, in his affidavit sworn on July 28, 2008, stated: 17. With respect to paragraph 16 of the Applicant’s affidavit, Ms. Jeffrey has not shown me receipts for the child care expenses she is claiming. Nevertheless, did contribute to child care provided by Mary Smith. have attached as Exhibit “A” to this my affidavit table of payments that made to Ms. Jeffrey for child care expenses while Ryan was in Mary Smith’s care. The figures in Exhibit “A” were compiled from Exhibit “B”, photocopies of pages from my bank book covering the period of March 2003 to January 2006, “C”, bank statement from the Credit Union for 2003, “D”, bank statement from the Credit Union for 2004, and “E”, bank statement from the Credit Union for the months of January to November, 2005, excluding July. 18. In 2005, Ms. Jeffrey began to pay Maurice Landry to look after Ryan. She told me she was paying very low amount for his care and she did not ask me to contribute to this expense. believed if she needed my contribution she would ask as she typically would. Over the years, paid what she asked and had she asked me to contribute to this expense would have. She did not tell me what she was paying, all she said was that she was paying very little. 19. With respect to paragraph 36 of the Applicant’s affidavit, too contributed to Ryan’s spending money for his school trip. made crib board and donated it and new junior golf bag to sell at his school auction. Ryan told me that these items were sold for around $130.00. was told that the money was to go to Ryan for spending on his trip. 20. With respect to paragraph 38 of the Applicant’s affidavit, too paid for medical and dental plan that covered both Ms. Jeffrey and Ryan. Attached as Exhibit “F”, to this my Affidavit is confirmation from Elaine A. Descoteaux, HR Compensation Team Leader, of my participation in the Public Service Health Care Plan. Ryan has always been covered under my medical and dental plan and that will continue for as long as am able to cover him. 21. Ms. Jeffrey encouraged me to use her medical plan and even gave me card of my own. She never asked me to contribute to or reimburse her for the premiums she paid. 22. may have complained to Ms. Jeffrey when she asked for contribution to something, but still paid. Since our separation have bought many things for Ryan, including three mountain bikes, golf lessons, cameras, computer, and many other items. also paid for computer repairs when necessary. 23. With respect to paragraph 56 of the Applicant’s affidavit, do buy him (sic) items of clothing for Ryan when he needs them. On March 24, 2008 purchased pair of sneakers for Ryan at cost of $101.69 from the Shoe Company as can be seen in copy of my bank statement for 2008 attached to this my Affidavit as Exhibit “G”. This is not an isolated purchase and has happened quite often since my separation from the Applicant. have taken him shopping for school supplies and clothing. If Ryan needs something and am aware of it provide it for him. 24. With respect to paragraph 57 of the Applicant’s affidavit, Ms. Jeffrey did not ask me what was earning, nor did ask her. 25. With respect to paragraph 64 of the Applicant’s affidavit, Ms. Jeffrey used my medical and dental plan for visits to an eye specialist and an orthodontist for Ryan. Attached as Exhibit “H” to this my Affidavit is printout of my medical plan summarizing usage of the plan for the period of January 1, 2001 to June 30, 2008. [41] Mr. Jeffrey questions if some of these submitted expenses would fit the definition of section of the Guidelines, as amended. He questions if the court has been provided with sufficient evidence to conclude that these expenses occurred. He further submits he has, when requested, provided additional support over and above the table amount. [42] I found that Mr. Jeffrey’s dramatic increase in salary was in and of itself “sufficient notice” his child maintenance obligation (table amount) had to be increased. [43] am unable to come to the same conclusion with regard to the section expenses. He did, on occasion, make additional payments with regard to some of the items put forward by Ms. Jeffrey. Again, it is relevant to mention that these parents, during the relevant periods, were, on occasion, acting as family. [44] Ms. Jeffrey’s request for a retroactive award with regard to the section 7 expenses is denied. [45] It is ordered that Mr. Jeffrey has a responsibility to provide child maintenance to Ms. Jeffrey for their child, Ryan, beginning January 1, 2005, and ending January 31, 2007; further, that he is in arrears with regard to this obligation in the amount of $9,833.00. [46] assume, as result of this decision, the Nova Scotia Maintenance Enforcement Program will be in contact with Mr. Jeffrey to make arrangements as to repayment of the arrears. [47] would ask counsel for the applicant to prepare the order.

At issue was retroactive maintenance for the now 16-year-old for a period of time pre-dating the mother's application (in 2007). Although the parties separated in 2001, there was no written agreement/order in place until 2009. The father paid support voluntarily, at an amount that was increased over the years. The mother said the father controlled the amount and knew it was below his table obligation under the Guidelines. She claimed she did not know his true income, and that every time she asked for additional assistance (such as a contribution to extraordinary expenses) he told her he could not afford it. The father said he was unaware of the correct table amount, and that he paid according to the mother's demands. Retroactive support awarded according to the table amount from 2005 onward. The father's hardship arguments rejected. He was aware from the outset that his child support obligation was related to his income. The dramatic increase to his income, and his failure to disclose it to the mother in 2005 constituted sufficient/effective notice that his payments were now deficient. Claim for retroactive s. 7 (extraordinary or special) expenses for the same time-period denied. The father did, on occasion voluntarily contribute to these expenses. During the relevant period of time, the parents spent some time trying to reconcile and acting as a family.

c_2009nssc180.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Rhyno v. Rhyno, 2004 NSSF 61 Date: 20040609 Docket: 1201-56778 SFHD 15150 Registry: Halifax Between: Kimberly Anne Rhyno v. Christopher Lee Rhyno Respondent Judge: The Honourable Justice Arthur J. LeBlanc Heard: January 15, 2004, in Halifax, Nova Scotia Counsel: Kimberly A. Rhyno, self for the Petitioner Christopher L. Rhyno, self for the Respondent By the Court: [1] The petitioner, Kimberly Guy, seeks a divorce from Christopher Rhyno. She also seeks custody, child support (with payment for extraordinary expenses), a division of matrimonial assets and an order directing that Mr. Rhyno’s equity in the matrimonial home be postponed until the youngest child is 19 years old. She proposes to sell the home and put the proceeds – together with a new mortgage – toward the purchase of a new home. In his counter-petition, Mr. Rhyno seeks an equal division of the matrimonial assets and joint custody of the children, with Ms. Guy having primary care and himself having liberal access. [2] The parties were married on August 20, 1983. They first separated on April 24, 2002. After an attempted reconciliation they finally separated prior to December 1, 2002. have determined that there is no possibility of reconciliation and the divorce is granted as result of permanent breakdown of the marriage pursuant to paragraph 8(2)(a) of the Divorce Act. THE PARTIES’ CIRCUMSTANCES [3] Ms. Guy works as commission retail sales agent for Whacky Wheatleys. In 2002 she earned total income of $33,135.30 [2002 tax return summary, line 150] and in 2003 she earned $27,147.14 [gross, pay stub dated December 15, 2003]. [4] Mr. Rhyno is carpenter. He earned $33,135.00 in 2002. In 2003 he received income from three sources: Employment Insurance ($4,915.00 gross), Force Construction Limited ($13,253.76) [$12, 704.64 plus $549.12 for the last two weeks of 2003, based on pay stubs dated December 13 and 20, 2003] and T.P. Pulsifer Construction ($2,890.49) [beginning December 30, 2002]. Thus his total income in 2003 was $21,059.25. [5] Mr. Rhyno did not provide an updated statement of financial information, but reviewed his monthly expenses at the hearing: Line of credit payment $250.00 Telephone $80.00 Taxes $50.00 Heat $80.00 Wood $35.00 Vehicle $400.00 Children’s allowance $50.00 Alcohol $75.00 House repairs $100.00 Clothing $50.00 Parking and tolls $30.00 Drugs and dental $25.00 Gifts $25.00 Child support $706.00 ($500.00 while unemployed) [6] Mr. Rhyno is living common-law. His common-law spouse works outside the home as caregiver for elderly people. She pays for the groceries. Mr. Rhyno said he will likely need to replace his vehicle within the next year, and said his current vehicle has little or no value. Therefore his motor vehicle expenses will increase substantially. He said there is also potential problem with the septic tank at his home. CUSTODY AND ACCESS [7] There are four children of the marriage: Nicholas Roland, born March 31, 1987; Jason Christopher, born April 5, 1989; Jeremy Thomas, born June 27, 1993; and Lucas Tanner, born November 29, 1994. At the time of separation Ms. Guy had care and custody of the children. She sought custody of all four children in the petition for divorce. Mr. Rhyno sought joint custody, with primary care and control to Ms. Guy. However, Nicholas, the eldest son, has been living with his father following an incident with his mother that resulted in recognizance against him to keep the peace. Ms. Guy seeks custody of the three younger sons. [8] The parties have advised me that Nicholas is undergoing anger management counselling, although Mr. Rhyno has suggested that Nicholas is unwilling to attend because the sessions are not actually anger management. Any future counselling for Nicholas will be arranged by Mr. Rhyno, with the costs paid by Ms. Guy. Mr. Rhyno should be consulted with respect to the schedule and the contents of the program being offered. [9] I order joint custody of all four children to Mr. Rhyno and Ms. Guy. Mr. Rhyno will have primary care and control of Nicholas, while Ms. Guy will have primary care and control of the three younger children. Ms. Guy will provide Mr. Rhyno with information concerning the three younger children’s health and education. In the event that the children require major medical attention Mr. Rhyno will be notified. Mr. Rhyno will also be notified of all parent-teacher meetings involving the children in Ms. Guy’s care, so that he too can attend those meetings. Mr. Rhyno is required to provide Ms. Guy with information of Nocholas’ health and education and if any major medical attention is required. [10] Insofar as access is concerned, Mr. Rhyno will have access to the three children in Ms. Guy’s custody on Saturdays. He advises that more time than this is not possible due to the demands of his work during the summer and fall. There have not been dates set for Mr. Rhyno to visit with the children at Christmas. He would like to see them during the days when they are on March break. If the parties are unable to arrange an acceptable schedule for access visits at Christmas or March break, they are free to apply to the Court to fix schedule. Given the particularly strained relationship between Ms. Guy and Nicholas, make no direction concerning access to Nicholas by Ms.Guy. [11] Ms. Guy advised the Court that there is no communication with Mr. Rhyno regarding access, and no advance notice. Although there appears to be some strain in the relationship, this should not interfere with Mr. Rhyno’s reasonable access with reasonable notice. CHILD SUPPORT [12] Mr. Rhyno is required to pay child support for the three children in Ms. Guy’s care based on the federal Child Support Guidelines. Based on his income for 2003 of $21,059.25 he is required to pay $401.20 [$400 2.04% of $59.25] per month. Ms. Guy must pay support for the one child in Mr. Rhyno’s care. Her 2003 income was $27, 147.14. Her amount payable under the federal Child Support Guidelines is $235.29 per month [$234 .88% of $147.14]. Section of the federal Child Support Guidelines provides that “[w]here each spouse has custody of one of more children, the amount of child support order is the difference between the amount that each spouse would otherwise pay if child support order were sought against each of the spouses.” Accordingly, pursuant to the Federal Child Support Guidelines direct that each parent pay their respective amounts payable to the Maintenance Enforcement Program. [13] Ms. Guy also seeks payment for various special and extraordinary child care expenses. Special or extraordinary expenses are covered by section of the federal Child Support Guidelines. Subsections 7(1) and (2) state: Special or extraordinary expenses 7.(1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expenses in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (a) child care expenses incurred as result of the custodial parent’s employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. Sharing of expense (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. [14] In her submissions, Ms. Guy seeks additional child support payments for special and extraordinary child care expenses: Cubs: $75.00 per child plus $2.00 for each weekly meeting; Child care expenses: $4,653.60 (day care); Orthodontic treatment for Jason Rhyno: $4,740.00 [based on estimate dated January 5, 2004](of which $500.00 has already been incurred); Back-to-school costs for the 2003-2004 school year: $1460.36; Health and dental plan:$440.82 [estimate for 2004, dated January 8, 2004]; Family medical and drug plan expenses for herself and the children” $120.00; Extra dental expenses for 2003: $80.20.In total, these expenses amount to more than $14,000.00 per year. While necessary, these expenses must be reasonable and may not be incurred in vacuum. [15] Ms. Guy said the two youngest children have been members of cubs since before the separation. Mr. Rhyno agreed. [16] Ms. Guy said the orthodontic expenses are required for one child, and provided summary of the expenses that have already been incurred, as well as an estimate of the expenses necessary to complete the treatment. Her current medical plan does not cover orthodontic expenses. Mr. Rhyno said it would be impossible for him to contribute proportionately to these expenses, as he only receives salary that meets his necessities of life. am satisfied that this expenditure is necessary but have strong concerns as to whether Mr. Rhyno can contribute. [17] As to the school expenses, these were borne by Ms. Guy in 2002 and 2003. The figure of $1460.36 was incurred in 2003. am satisfied that this was legitimate expense for the children’s clothing and supplies, and am satisfied that this expense was in fact incurred. Given the ages of the children, this will be recurring expense. [18] Ms. Guy presented series of invoices for childcare expenses in 2003, amounting to total of nearly $4,500.00. She said she needs child care services for three days per week while she is working when the children are home from school, as well as one night when she is required to work, and during the summer holidays when the children are not in school. She does not require childcare on Friday evenings, when the children are with Mr. Rhyno, and there is question of how much child care she would require if the children were with their father more often. However, due to the demands of his work, and apart from periods when he is laid off, Mr. Rhyno’s only chances to be with the children are overnight on Wednesdays and Fridays. He said he is likely to be laid off in March, and would be prepared to have the children with him during the day. He agreed to return the children to their mother’s home at determined hour. Mr. Rhyno suggested that the day care expenses were exaggerated, but did not substantiate this claim other than by second-hand statements upon which the Court cannot rely. Without evidence to the contrary, must conclude that the child care expenses are legitimate. Though the expenses may seem high, Ms. Guy explained the need for the expense and the basis upon which it was paid. Further, this expense covers three children. [19] Ms. Guy provided written confirmation from her employer that the dependent health and dental coverage for herself and the four children with Great West Life cost approximately $450.00 per year ($453.54 in 2003 and an estimated $440.82 in 2004). She did not provide the cost for single coverage. will provisionally treat the amount for the children as about two-thirds of this amount, about $300.00 per year. [20] In determining the appropriate level of special and extraordinary expenses, must also consider any tax benefits or credits. Subsection 7(3) of the federal Child Support Guidelines states: In determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim subsidy, benefit or income tax deduction or credit relating to the expense. [21] Ms. Guy confirmed that she was receiving child tax credit payments of between $7,500.00 and $8,000.00 annually. Mr. Rhyno said he is not credited with any of this payment despite the fact that he has care and custody of Nicholas. am satisfied that Ms. Guy receives Child Tax Credit amounting to $7,500.00. This is adequate to cover the cost of Cubs, child care, back-to-school expenses and medical expenses (including extra medical coverage), with small amount left over to go towards orthodontic expenses. [22] also find that Mr. Rhyno does not have the means to meet all of the ongoing special and extraordinary expenses that are not covered by the Child Tax Credit. have examined his budget carefully and conclude that his expenses are reasonable. He is meeting basic expenses. It would be imprudent on my part to order Mr. Rhyno to pay extraordinary expenses that he simply cannot meet. Mr. Rhyno said that when the couple was living together and relying entirely on his income there was no possibility that they could afford the orthodontic treatment. However, am satisfied that the payment for orthodontic treatment, to the extent that it is not met by the Child Tax Credit, can be paid from the “children’s fund”, and direct Mr. Rhyno to provide his consent in writing to the withdrawal from this account sufficient funds to meet the payment for orthodontic expenses. am also satisfied that he should contribute to the costs of preparing the children for the school year in an appropriate amount, namely 43 per cent of such expenses on an annual basis. [23] All child support payments will be made to the Maintenance Enforcement Program. The parties will exchange income tax returns and notices of assessment each year no later than June 1, commencing June 1, 2004. PROPERTY DIVISION [24] The parties have the following matrimonial assets and debts: Assets matrimonial home $105,000.00 RRSP (Guy) $11,799.62 (as of beginning of 2003) RRSP (Rhyno) $12,936.14 (as of March 31, 2003; $14,022.74 at beginning of 2003) Trust fund $7,625.81 (as of March 31, 2003) Debts Line of credit $35,733.37 (as of November 30, 2003) [25] Ms. Guy is living in the matrimonial home in Hubbards, Nova Scotia, with the three younger children. Mr. Rhyno lives in mobile home about seven kilometres away, with Nicholas in his care. The parties agree on the value of the matrimonial home. Mr. Rhyno does not claim any adjustment for the value of the furnishings in the matrimonial home, as he has retained tools and skidoos. [26] The matrimonial home is paid for, with the exception of the outstanding line of credit. Since the separation, Ms. Guy has paid all the monthly payments on the common line of credit, which is secured by first mortgage on the matrimonial home, except for couple of payments made by Mr. Rhyno. [27] Each party will keep their own vehicle. One vehicle was purchased at the time of an attempted reconciliation, with money supplied from line of credit. There is still money owing on the vehicle. Mr. Rhyno claims that Ms. Guy should pay $4000.00 more on the line of credit loan by virtue of the fact that the vehicle she retained is worth twice the amount of the vehicle he retained. [28] Mr. Rhyno has line of credit, which he incurred in order to buy trailer to live in. The balance was $10,011.51 on May 27, 2003. He was paying $250.00 per month to retire this debt. [29] The parties will each retain their own RRSPs. [30] At the hearing Mr. Rhyno indicated that he was prepared to stay his interest in the matrimonial home until the youngest child turns 21 years of age. Ms. Guy indicated an interest in moving to new area where the children would be eligible for scholarships under the “Shatford Trust Fund.” This move would require her to sell the matrimonial home and buy (or build) new house. The cost would be substantial, approximately $235,000.00. The Court was not provided with any written estimates of the expenditure. There would also be some risk, as there would be first mortgage of not less than $70,000. This amount would have to be paid out or new mortgage registered against the property with funds flowing to Mr. Rhyno. But there is presently line of credit secured by mortgage on the matrimonial home in the amount of about $34,000.00. This represents substantial differential with new mortgage that would be required to provide new home for Ms. Guy and the three children. [31] I am prepared to order that Mr. Rhyno’s interest in the matrimonial home be postponed until the youngest child is 21 years old if that child is attending university. However, will not order that his interest be postponed in order to permit Ms. Guy to acquire new house at new location, thereby reducing his equity in the matrimonial home. Admittedly, new home would probably have significantly greater value than the existing one, but at the present time there is net value in the existing home of approximately $70,000.00, while there would be net value of about $55,000.00 in new home after accounting for the $70,000.00 mortgage. [32] acknowledge that the children might lose the opportunity to obtain certain university scholarships if they continue to live in the present location, but there is no certainty that they will either attend university or qualify for scholarships even if they do move. The approach suggested by Ms. Guy would require crystal ball-gazing and would put Mr. Rhyno’s equity at risk. Given Ms. Guy’s income, mortgage of $70,000.00 would be substantial payment, even at current mortgage rates. The indebtedness in respect of the matrimonial home would be in excess of $70,000.00, and when the youngest child is 21 years old it will likely still be in the range of $60-$65,000.00. Ms. Guy’s response that she would be able to negotiate the amount and pay out Mr. Rhyno’s equity at that time would mean that she would require mortgage of more $100,000.00 in order to have sufficient funds with which to pay out Mr. Rhyno’s equity. [33] Therefore am not prepared to grant Ms. Guy’s request to postpone Mr. Rhyno’s interest in the matrimonial home so that she can buy new home. Put another way, it would not be practical to require Mr. Rhyno to wait for his equity on the precarious condition that Ms. Guy would be able to raise an additional $35,000.00 through mortgage renewal, when she is ten years older and may or may not be employed. agree with the position taken by Mr. Rhyno on this issue. OPTIONS PROPOSED BY MS. [34] In her final submissions, Ms. Guy proposed several options. One suggestion required Mr. Rhyno to sign over the children’s trust account to be used to pay special or extraordinary expenses until that fund is dissipated. Then the parties would pay for these expenses in proportion to their respective incomes. second option would have Mr. Rhyno sign over his equity in the matrimonial home, and Ms. Guy would release him from any claim for spousal support, extraordinary expenses and matrimonial debts. He would continue to pay child support. third option would have Ms. Guy pay the expenses and Mr. Rhyno’s share of the matrimonial home would come off the equalization payments upon termination of exclusive possession of the home. [35] Ms. Guy suggests there should be an unequal division of the equity in the matrimonial home in lieu of spousal support, to which she argues she is entitled because she stayed home and cared for the children throughout the marriage. She claimed that she lost her opportunity to enter the work force earlier and that she should therefore be compensated. She said she has agreed to waive any claim for spousal support in exchange for Mr. Rhyno postponing his equity in the matrimonial home in lieu of spousal support. If that is not possible, she wants spousal support of $25,000.00 to be paid from his equity in the matrimonial home. She maintains that living in the matrimonial home is cost-prohibitive. She says there is no full basement that can be accessed from inside the house, that the pipes freeze and that the house needs various repairs. She states in her submissions that she recently had to replace the oil tank at cost of $1,400.00, and expects to replace the septic system. [36] Ms. Guy appears to be arguing that Mr. Rhyno should be punished for the apparent cause of the separation. In assessing the issues of child and spousal support and division of property must not consider alleged misconduct of the parties; in fact am precluded from doing so by section 15.2(5) of the Divorce Act. [37] It appears that the parties maintained lifestyle prior to separation that was based on Mr. Rhyno’s earnings at that time. have no indication that those earnings were great deal more than what he is earning now, although they may have been more in the range of $30,000.00 than $22,000.00. Even at the higher level, it would have been difficult to maintain the same lifestyle. am not prepared to penalize Mr. Rhyno by confiscating his equity in the home. It is sufficient to postpone his equity until the youngest child is 21 years old. If Ms. Guy wishes to avail herself of a home in the area covered by the Shatford Trust Fund, she may do so, but she would be required to pay out Mr. Rhyno’s equity in the matrimonial home. [38] I conclude that the best solution is to freeze Mr. Rhyno’s equity in the matrimonial home at the amount owing on the line of credit when the parties separated, less $4,000.00 for the differential in the value of the vehicles retained by the parties. Ms. Guy would get the benefit of any principal reduction. [39] Ms. Guy will also have control of the trust fund, for which she will be required to account to Mr. Rhyno. [40] As result, no costs are awarded to either party.

The wife sought a divorce, custody, child support, a division of matrimonial assets and an order directing that the husband's equity in the matrimonial home be postponed until the youngest child reached 19 years of age. She proposed to sell the home and put the proceeds, together with a new mortgage, towards the purchase of a new home. Joint custody awarded for all four children, with the father to have primary care and control of the oldest and the mother to have primary care and control of the three younger children; the father is to pay child support for three children in the guideline amount and the mother is to pay child support for one child in the guideline amount; the husband's equity in the matrimonial home is frozen at the amount owing on the mortgage when the parties separated and his interest is postponed until the youngest child reaches the age of 21 years; if the wife wishes to obtain a new home in a new location, she will be required to pay out the husband's equity in the matrimonial home.

d_2004nssf61.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: McMullin (Crouse) v. Crouse, 2004 NSSF 51 Date: 20040503 Docket: 1201-54828 Registry: Halifax Between: Catherine Anne McMullin (Crouse) v. Ross Letson Crouse Respondent Judge: The Honourable Justice Leslie J. Dellapinna Heard: November 3, 2003 and January 21, 2004, in Halifax, Nova Scotia (Supplementary Decision on Costs) Counsel: William Leahey, for the Petitioner By the Court: [1] After releasing my decision in this matter on March 8, 2004 but before an order from that decision was issued, the Court received from Mr. Crouse letter dated March 25, 2004 in which he stated, among other things, that he was not served with the Applicant’s application and supporting material. The Court had previously received from the Applicant sworn Affidavit of Service indicating otherwise. wrote to Mr. Crouse on April 12, 2004. In that letter stated: would be prepared to meet with you and Mr. Leahey in Court and on the record to allow you the opportunity to express under oath any concerns you might wish to put forward regarding service. [2] provided Mr. Crouse with my Assistant’s name and phone number and told him that he had until the 23rd of April, 2004 to contact the Court. also advised him that if the Court did not hear from him by April 23, 2004 that would assume that he did not wish to appear and my Order would be issued. [3] On April 22, 2004 received from Mr. Crouse letter dated April 20, 2004 enclosing document entitled “Affidavit”. In that document Mr. Crouse again stated that he was not informed of when the hearing was to take place. I had my Assistant contact Mr. Crouse at his place of employment (the office phone number having been provided by Mr. Crouse in an attachment to his affidavit) and a telephone conference was arranged for the same day at 2:00 p.m.. Mr. Leahey’s office was also contacted. Mr. Leahey confirmed his availability for phone conference at that time. [4] Beginning at 2:00 p.m. numerous telephone calls were made to Mr. Crouse’s office from the Courtroom. observed the Court Reporter placing the call to ensure that the numbers provided by Mr. Crouse were used and I personally placed two calls to Mr. Crouse’s office and on one of those occasions left a message on Mr. Crouse’s voice mail to return the call. The Court Reporter also left at least two messages on Mr. Crouse’s voice mail to return the call. The Court’s calls to Mr. Crouse’s office continued at approximately five minute intervals up to and including 2:50 p.m. without any success. At no time on that day or on any of the days up to and including April 30, 2004 did Mr. Crouse return the Court’s calls. [5] I have since received correspondence from Mr. Leahey arguing that his client should be entitled to additional costs (over and above that which was provided in my decision of March 8, 2004 because of the time which he took preparing for the phone conference. agree that his client is entitled to costs. [6] I remain satisfied that Mr. Crouse received adequate notice of the hearing. I am unconvinced by Mr. Crouse’s affidavit. In any event, because he did not make himself available for the telephone conference and was not available for cross examination, his affidavit is struck. The Applicant is entitled to additional costs in the sum of $250.00 for a total of $550.00, inclusive of disbursements.

After the court released its decision but before an order was issued, the court received a letter from the respondent in which it was stated that he had not been served with the applicant's application and supporting material. The applicant had previously provided the court with a sworn Affidavit of Service indicating otherwise. The respondent was provided with the judge's assistant's name and phone number and given a date by which he was to contact the assistant. The assistant was not contacted but the respondent sent a second letter to the court enclosing a document entitled 'Affidavit' which again stated that he had not been informed of when the hearing was to take place. A telephone conference was arranged but the court was unable to contact the respondent at the set time despite numerous calls and messages from the court. The applicant now sought additional costs due to the time counsel had taken to prepare for the telephone conference. Affidavit of the respondent struck; applicant entitled to additional costs in the amount of $250. The court was not convinced that the respondent had not received adequate notice of the hearing and because he did not make himself available for cross- examination, his affidavit was struck.

9_2004nssf51.txt

QUEEN’S BENCH FOR SASKATCHEWAN IN BANKRUPTCY AND INSOLVENCY Citation: 2009 SKQB 201 Date: 2009 06 02 Docket: Court No. 1308 Estate No. 23-022447 Judicial Centre: Regina BETWEEN: VERONICA LEAY ARMBRUSTER and KPMG INC., trustee in bankruptcy of the estate of Veronica Leay Armbruster Counsel: Michael J. Krawchuk for the Applicant Murray W. Douglas for the Respondent JUDGMENT WIMMER J. June 2, 2009 [1] bankruptcy petition against the applicant was filed on May 18, 1995 and receiving order with respect to her property issued the following month. KPMG Inc. (formerly Peat Marwick Thorne Inc.) is the trustee of her bankrupt estate. The applicant received an absolute discharge on March 8, 1996. The trustee has never applied for discharge. [2] The trustee did not oppose the applicant’s discharge and in its report, prepared pursuant to s.170 of the Bankruptcy Act, R.S.C. 1985, c. B-3 as am. by the Bankruptcy and Insolvency Act, S.C. 1992, c. 27, s.2 (the “Act”), stated there were no facts, matters or circumstances that would justify the court in refusing an unconditional order of discharge. The report, dated February 8, 1996, also stated that the applicant’s duties under the Act had been satisfactorily performed; that her conduct either before or after the bankruptcy was not subject to censure; and that she had not committed any offence in connection with the bankruptcy. Now, more than 13 years later, there remains an unresolved issue concerning non-exempt equity in the applicant’s homestead. [3] The applicant is, and was at the date of her bankruptcy, registered as owner of residential property in the City of Saskatoon having an exemption in the amount of $32,000.00. The trustee’s s.170 report assigned an estimated dollar value of $200,000.00 to this asset. Its realizable value at the time was said to be unknown. Nevertheless, the report noted that the “trustee is transmitting an 82% interest in the real property to the trustee’s name.” That transaction was completed on February 19, 1996. [4] In Re Zemlak and Deloitte, Haskins Sells Ltd. (1988), 1987 CanLII 4662 (SK CA), 42 D.L.R. (4th) 395, the Saskatchewan Court of Appeal set out minimum requirements for trustee to meet when dealing with non-exempt equity in bankrupt’s homestead. These include requirement that the report of the trustee on the bankrupt’s application for discharge should set forth the value of any such equity if the trustee intends to attach it for further realization. That did not occur here. [5] There is evidence that the 82% interest referred to in the trustee’s report was calculated as follows: Potential sale price $215,000 Less encumbrances (rounded) (37,500) Total equity $177,500 Bankrupt’s exemption Interest ($32,000/$177,500) 18% Trustee’s Interest ($145,500/$177,500) 82% It seems the trustee had some notion of what the realizable value of the property might have been in February, 1996 although there is no indication of how the potential sale price was arrived at. City of Saskatoon Tax Summary shows the fair market value as at February 24, 2009 as $332,700.00. [6] The applicant feels aggrieved by the trustee’s transmission of 82% of her title. She says it was an arbitrary action taken without her agreement and knowledge. She also complains of the transmission being made without her having had an opportunity to oppose it because there was no hearing associated with her discharge. Her present application is for relief under s. 37 of the Act. She seeks an order reversing the trustee’s decision and restoring the 82% interest to her. It is an order the court is empowered to make under s. 37 if warranted by the circumstances. [7] Upon her bankruptcy, the applicant’s property, subject to exemptions, vested and remains vested in the trustee unless it is released to her by the trustee or re-vested by court order under the Act. Zemlak, supra is the leading authority in this province referring to trustee’s handling of the non-exempt value of bankrupt’s home. [8] In that case the court ordered the removal of caveats registered by the trustee against the bankrupt’s residential property when it claimed an interest in non-exempt equity. The trustee and the bankrupt had both been discharged before any non-exempt equity in the property existed. However, the trustee’s position was that future accumulation of such equity should accrue to the benefit of creditors. Mr. Justice Tallis rejected the argument as contrary to the spirit and intent of bankruptcy legislation. The following passage from his reasons for judgment appears at page 403: In the factual context of this case we conclude that nonexempt equity did not exist at the time of the application for discharge. On that ground alone the caveat should be vacated if it were not for the trustee's position that any increase in the equity will accrue to the benefit of the creditors. In argument before this court the appellant's counsel used the following example in his factum to illustrate the ultimate result result which was not disputed by the respondent: "The following is submitted as specific example of the ultimate result if the Learned Chambers judge is correct: i. At the date of discharge of the Trustee Bankrupt's home is valued at $50,000.00; ii. The $50,000.00 is apportioned by way of an $18,000.00 real property mortgage and $32,000.00 exempt equity; iii. At the time of discharge, the Trustee does not specifically return the home to the Bankrupt pursuant to s. 22(1); iv. Some 30 or 40 years later the discharged bankrupt has paid off the mortgage and the home, through inflation, is then valued at $82,000.00; v. When the discharged bankrupt moves to retirement home, he would be entitled to his $32,000.00 exemption and the Trustee would distribute the $50,000.00 nonexempt equity to the creditors without any obligation to maintain or administer the home in the intervening years. If this result were permitted, property acquired by the debtor after an absolute discharge in bankruptcy would be appropriated to payment of the discharged debtor's debts. The equity built up in the property after issue of an absolute discharge order would form realizable fund for creditors at some future date, notwithstanding the final discharge. Such result does not comport with the philosophy of the Act. He went on to observe that the result would be tantamount to converting an absolute discharge into conditional discharge which might continue in place indefinitely and ultimately require the bankrupt or the estate in bankruptcy to surrender an interest in property acquired after an absolute discharge. [9] Counsel for the trustee says the Zelmak, supra judgment is distinguishable from this case on the facts because the trustee there was discharged whereas here the trustee is not. That argument supposes that it is appropriate in summary bankruptcy administration proceedings for trustee to withhold timely application for discharge and await market enhancement of the value of non-exempt equity in homestead property. do not take Zemlak to stand for such proposition. On the contrary, I take it to mean that only the value of non-exempt homestead equity existing at the time of the bankrupt’s application for discharge can be attached by the trustee. [10] I will make the order applied for by the applicant including the order for costs. In so doing, do not say that the trustee may not realize upon the value of her non-exempt equity in the homestead, but as at what date and to what extent remain open questions which can be addressed upon an application by the trustee for discharge. J. C.R. WIMMER

A bankruptcy petition against the applicant was filed on May 18, 1995 and a receiving order with respect to her property issued the following month. KPMG Inc. (formerly Peat Marwick Thorne Inc.) is the trustee of her bankrupt estate. The applicant received an absolute discharge on March 8, 1996. The trustee has never applied for a discharge. The trustee did not oppose the applicant's discharge and in its report dated February 8, 1996 stated that the there were no facts, matters or circumstances that would justify the Court in refusing an unconditional order of discharge. Now, more than 13 years later, there remains an unresolved issue concerning non-exempt equity in the applicant's homestead. The applicant applies for relief under s. 37 of the Bankruptcy and Insolvency Act for an order reversing the trustee's decisions and restoring the property interest to her. The Court reviewed the relevant case law and found that only the value of non-exempt homestead equity existing at the time of the bankrupt's application for discharge can be attached by the trustee. HELD: The Court made the order applied for by the applicant including an order for costs.

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1993 File No. 1201‑47245 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: ALICE BERYL HICKEY and THOMAS EARLE HICKEY, JR. DECISION HEARD: at Halifax, Nova Scotia before the Honourable Justice Margaret J. Stewart on March 21 and 22, 1994 DECISION: May 25, 1994 COUNSEL: Graydon Lally, for the petitioner Kay L. Rhodenizer, for the respondent Stewart, J.: On August 29, 1980, Alice Beryl Hickey and Thomas Earl Hickey, Jr. were married in Moncton, New Brunswick. They have two children, Conor Andrew Hickey, born January 27, 1989 (7 years) and Braden James Hickey, born September 13, 1988 (51/2 years). The parties separated in June of 1992, and Mr. Hickey voluntarily left the matrimonial home in late November, 1992. am satisfied that all procedure and jurisdictional matters have been properly proven. There has been marriage breakdown and the divorce is granted. The parties\' claim under the Matrimonial Property Act, R.S.N.S. 1989, c. 275 and for Corollary Relief under the Divorce Act, R.S.C. 1985 (2nd Supp), c. 3 was resolved by agreement, prior to trial, except for1. how the children\'s investments, in the approximate amount of $2,000.00 each, should be administered;2. custodial alternatives ‑ sole or joint custody;3. specific access;4. quantum of child maintenance. 1. The Children's Investments Investments in Canada Savings Bonds and Mutual Funds exist in the children's names in the approximate amount of $2,000.00 each. Mr. Hickey disagrees with the investment strategy of using Canada Savings Bonds as he questions whether they yield an appropriate return. He proposes that the investments be jointly administered and controlled by the parties or alternatively that half the investments be transferred to his control to hold in trust and to administer, and the other half be held and administered by Mrs. Hickey. After hearing each other's positions, this issue was resolved at trial. The Corollary Relief order shall reflect the parties' agreement for each parent to hold in trust and administer one‑half the investments. would remind the parties that this is the children's money and they are responsible and accountable to the children for the monies. 2. The Custodial Alternatives sole or joint custody Mr. Hickey seeks equal parental control and responsibility by an order for joint custody under s. 16(4) of the Divorce Act. Mrs. Hickey, proposes sole custody, wishing to be the final decision maker in matters relating to the children\'s welfare, growth and development while being prepared to promote maximum contact between the children and their father to the extent that this is consistent with the best interests of the children. She is not adverse to consulting and seeking his input prior to making important or major decisions affecting the children. The day to day physical custody, and decision making during this period are her greatest concerns. am required to consider the best interests of the children of the marriage, having reference to their conditions, means, needs and other circumstances. (s. 16(a)). have reviewed and considered the extensive case law provided by counsel. (Zwicker v. Morine (1980), 1980 CanLII 2547 (NS SC), 38 N.S.R. (2d) 236 (N.S.S.C., AD.); McCann v. McCann (1993), 1993 CanLII 4675 (NS SC), 120 N.S.R. (2d) 59 (N.S.S.C., T.D.); Hines v. Hines (1992), 40 R.F.L. (3d) 274 (N.S.S.C., T.D.); Kruger v. Kruger (1979), 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52 (Ont. CA.); Fry v. Silkalns (1993), 1993 CanLII 254 (BC SC), 47 R.F.L. (3d) 169 (B.C.S.C.); Donnelly v. Donnelly (1988), 85 N.S.R. (2d) 257 (N.S.S.C., T.D.); Buckroyd v. Garratt (1990), 98 N.S.R. (2d) 29 (N.S.F.C.) ;Baker v. Baker (1978), R.F.L. (2d) 193 (Ont. H.C.); Baker v. Baker (1979), 1979 CanLII 1962 (ON CA), R.F.L. (2d) 236 (Ont. C.A.); Kaemmle v. Jewson (1993), 50 R.F.L. (3d) 70 (Ont. H.C.); Parsons v. Parsons (1985), 48 R.F.L. (2d) 84 (Nfld. S.C., Unified Family Court); S.C.C. v. P.P.C. (1993), 122 N.S.R. (2d) 205 (N.S.F.C.); Glasgow v. Glasgow (1983), 57 N.S.R. (2d) 355 (N.S.S.C., A.D.); MacKinnon v. MacKinnon (1988), 84 N.S.R. (2d) 363 (N.S.F.C.); Carruthers v. Carruthers (1982), 55 N.S.R. (2d) 88 (S.C., T.D.); Sullivan v. Sullivan (1989), 91 N.S.R. (2d) 404 (S.C., T.D.); Turner v. Turner (1991), 102 N.S.R. (2d) 316 (S.C., T.D.) There is no issue as to parenting abilities. Each acknowledges the other as fit and proper parent with appropriate and, for the most part, equatable philosophies and approaches to child development. They are both caring, capable and equally acceptable parents who are involved and proud of their children. Employed at Dalhousie University Killam library for the past fourteen years, as librarian assistant, Mrs. Hickey has worked part‑time since 1987, on three day week basis from 8:00 a.m. to 5:00 p.m. She presently has Mondays and Fridays off. The decision to work part‑time was mutual one and permitted her to spend more time with the children and to assume responsibility for the scheduling and organizing of their activities, including health care appointments. Her employer has proved to be flexible and allows her to use vacation days on short notice when the children are ill. During the marriage, she was the parent to respond to any emergencies during the work day and reserved one week of her vacation time for such emergencies. Mr. Hickey works full time as an environmental consultant with Jacques Whitford Association Limited and is able to schedule his work schedule for the most part around the children. He is not as immediately accessible during the day as Mrs. Hickey. During the marriage, he was actively involved in caring for the children including such things as meal preparation, putting them to bed and attending at sporting activities. Throughout their lives, the children have had the benefit of one constant, outside the home, sitter, whom the parties continue to use. Both children now attend school and they are dropped off and picked up at the sitters during the school year. As of trial date, the parties were separated for sixteen months. Mrs. Hickey and the two children continue to reside in the matrimonial home and since June, 1993, Mr. Neil Stover widow and long‑time family friend, and his two boys, ages four and five have resided with them. Since August, 1993, Mr. Hickey has been renting three bedroom townhouse ten minutes from the matrimonial home and the sitter's home. For the first six months following the physical separation in November of 1992, Mr. Hickey attended at the matrimonial home on Tuesday and Wednesday evenings to care for and interact with the children as well as to bathe and put them to bed. Split weekend access was shared by the parents for the first month or so and then changed to alternating weekends. Justice Gruchy, in an oral decision on June 30, 1993, following an interim custody hearing, ordered joint custody of the children, with maximum exposure to each parent through, among other provisions, regular alternating weekend contact by the father from Friday evening until Sunday and during the week, while the children engage in their regular activities, on two consecutive overnights from Tuesday after school until Thursday, when they are to be picked up by their mother. In ordering this joint custody, Justice Gruchy made specific to "access" the following comments: again emphasize that my decision, especially with respect to access, is intended to be interim only. do so, because as the children get older, it would be foolhardy to have them going from home to home during the week. Children in the school need stability of one home and uniformity of approach with respect to school work, bedtime hours, television watching and many other activities. At their present ages, that need may not be as pressing as it will be in year or so; therefore, subject to such changes make below, will order that the respondent will have access. He also provided that the joint custody would only continue to January, 1994, in the hope that the trial would by then have moved along. Mrs. Hickey notes regressive behaviour by the children since this interim order. She describes them as being more subdued, clingy and wanting to be with her upon their return home. Unclear as to whether it was during the summer or the fall, she observes Conor has commenced carrying his blanket with him again and guidelines had to be set as to when and where he can have it. Braden commenced crying spells at daycare and in the fall when he first started school. This is now ceased. She specifically finds Conor, at times, to be more aggressive towards her, rude and inclined to answer back. Since the fall, she notes the evening ritual of going to bed has become prolonged with requests by both for back rubs and having difficulty in getting to sleep. She observes their sleep pattern appears disturbed. She cites one incident of Conor falling asleep on the school bus. She raises concern that the children find the week day overnight schedule confusing and points to them regularly asking her the where, whom and when's of their times with each parent. Under cross‑examination, she agreed she had not resorted to colored calendar setting out the particulars to assist them with concepts and times. She also agreed that nothing to date has caused her to seek counselling for the children. Mr. Hickey sees no significant difference in the children during the last eight and half months of functioning under the parenting schedule set out in the interim custody order. The children appear to be happy and content to be with him. He is unaware of any sleep difficulties and usually has them in bed by 8:15 or 8:30 p.m. This is approximately fifteen minutes to half an hour later than Mrs. Hickey. Although they can call their mother, at any time they wish, he observes that usually it is she who calls them. He places no significance on Conor's recent re‑attachment to his blanket. Through his counsel, he points to the order coinciding with Mr. Stover and his two young boys moving into the matrimonial home and an obvious need for making adjustments and learning to share, despite the children's life‑long friendship with the Stover children. The February, 1994 school report cards reflect no behavioral problems by either child, and Conor's card reports him functioning at highly satisfactory level. Mr. Hickey expresses concerns that the primary focus of the time he will have with the children, without week day overnights, will end up being the activities they are enrolled in rather than allowing him, at the same time, to foster meaningful relationship through basic normal family functioning and interaction such as homework completion, bath time, story time, sharing of breakfast, etc. He does not want to react to the children's needs but rather to be part of the nurturing and channelling of their potential attributes. Without the specifics set out in parenting. plan, allowing him to be decision maker during the times the children are scheduled to be with him, he is not confident that Mrs. Hickey will acknowledge the children's need to benefit from having both parents' guidance and input; rather she will always make their scheduled activities the necessary primary focus during the week nights they are with him. He cites as examples, soccer and day camp scheduling during March break. He notes that her failure to communicate the latter resulted in him having two less days in which to go away with the children during the break. Mr. Hickey points to some demonstrable evidence of past co‑operation prior to the interim order which shows the parties' ability to agree for the benefit of the children. For example, he notes the free flow of toys between households, Mrs. Hickey's placement of school notices into the children's overnight bag for his information, the regular uninterrupted telephone access between the children and the other parent and their ability to change from split weekends to alternating weekends when they realized this was better for everyone. Mrs. Hickey expresses confusion as to what Mr. Hickey is proposing in terms of the specific rights and obligations of each parent when the children are in the specific care of the other. Is she to be excluded from the decision making process respecting the children's care while in their father's care or is it implicit that both parents must co‑operate in joint decision making regardless of which parent has physical custody of the children? She cites babysitting arrangements as an example. Besides being comment on the inadequate communication level between them, her confusion is understandable given Mr. Hickey's response on cross‑examination concerning who would make the sitter arrangements. His response was not totally in keeping with joint cooperative decision making theme. While confirming his responsibility for the children, while in his care on weekdays, he stated that at present, he would not be looking for or making different day care arrangements. He then, however, qualified it with "but might" before proceeding to indicate his satisfaction with the present sitter who had been mutual choice and then later spoke in terms of them both possibly seeking alternative day care arrangements in the future. accept that both parents are willing and able to facilitate and encourage close and continuing parent‑child relationship between the children and the other parent. They vary in how this is to be achieved. There is nothing calculated or agenda setting in either of their approaches which is intended to interfere with the other parent. They are motivated by their interest in and concern for the children and not by desire to intentionally interfere or usurp the other parent's relationship with the children. am satisfied that both parents have been advised by their lawyers of the advisability of resolving custody access and support disputes by negotiation or mediation pursuant to s. (2) of the Divorce Act and are aware of the inherent limitations of the adversarial legal process through this application and their various prior court appearances. As parents, they are intelligent, civil individuals who have made an effort to avoid drawing their children into their own stressful relationship. This they achieve by avoiding total contact with one another and unfortunately it has flowed over into how they deal with concerns for the children. This lack of contact concerning the children is truly problematic. Joint custody is complex and there are many details of logistics, timing and notices to be discussed and worked out. It demands frequent contact and people who are flexible, accommodating, trusting and motivated to make it work. Although it can be judicially encouraged and endorsed, parental cooperation cannot be easily ordered. Common sense tells us that parental cooperation and ability to communicate is central to its success. (RE: J. and C.; Catholic Children's Aid Society of Metropolitan Toronto v. S. and S. (1985), 48 R.F.L. (2d) 371 at 381 (Ont. Prov. CO. The specifics of this case lead me to believe that the parties, who have functioned under joint custody order for eight and half months, need more than the tool or the guide that is being suggested by Mr. Hickey in his detailed proposal. Communications are so strained, Mr. Hickey really wants daily road maps to tell each of them exactly what to do with and for the children in order to accommodate the parents' inability to communicate. They lack flexibility to discuss and communicate and the will to resolve without regular court interference. Of the two parents, find that Mrs. Hickey appears to be more flexible and accommodating. Since the interim order for joint custody, in June of 1993, it has been necessary for the parties to return to Court to resolve Christmas access, as they were not able to agree on the interpretation of the order or resolve the holiday visitation between themselves. This application, before Justice Saunders, coincided with an application to vary the interim maintenance and was before pending appeal by both parties early in the new year of the interim joint custody order itself. Both the Supreme Court and the Appeal Court dismissed the matters and Justice Saunders clarified for the parties visitation over the 1993 holiday season. During the trial, it was necessary for me to make inquiries about the parties' position on the appropriate arrangements for Easter vacation and then having to order it rather than being presented with their agreement. The decision consisted of Mrs. Hickey having Easter weekend 1994 as Mr. Hickey had it the year before when it was suppose to be Mrs. Hickey's turn. This pattern so early on does not fair well for continued joint custodial arrangement. To date, it has not been the "occasional resort" to the Court referred to by Wilson, J. in her dissent at p. 73 in Krugger v. Krugger (1980 ), 1979 CanLII 1663 (ON CA), 11 R.F.L. (2d) 52. It is impossible to determine the source or the reason why the symptoms or responses of the children as described by Mrs. Hickey are occurring. It could be any single or combination of factors that have occurred since June 30, 1993. It is possible that two consecutive week day overnights with their father are causing disruption and discontinuity to the children's developmental needs. cannot lightly dismiss the children's reaction. accept them as fact and not as fabrication by parent who is strongly opposed to joint custody. have also considered the possibility, among many others, that the week day overnights with their father provides them the benefit of one parent's concentrated focus. On the other band, at their mother's home they have the constant presence of two other young boys. am conscious of the benefit to be derived from both parents' guidance and input on regular basis. Having heard the evidence specific to these children, do, however, agree with and give substantial weight to Justice Gruchy's comments in his interim order about it being foolhardy to have the children going from home to home during the week. Children of this age need security, stability, continuity and the confidence engendered by regularity, particularly during the school year. Their present schedule allows for only five consecutive nights in one bed over fourteen day span. am left to weigh among other factors, the need of the children for an on‑going relationship with two equally responsible parents who will contribute to their emotional and developmental needs and help them mitigate the obvious effects of the parental separation, the potential for disruption and discontinuity in their developmental needs by certain joint custody arrangements, and the effect upon the children of exposure to on‑going custody litigation. Having in mind the best interests of the children, I am satisfied the present joint custody arrangement is not working on a day‑to‑day decision making basis. I order that both parents continue to share equal rights and responsibilities for major matters affecting the children\'s welfare specifically in the areas of formal education, religion and major health issues, while ordering the mother to have sole responsibility and decision making authority for the day‑to‑day physical care and control of the children and the father generous access. The evidence did not reveal any pressing or immediate differences of philosophy or opinion between the parties in these major areas. Both are supportive of French emersion and express no strong religious preferences or concerns. At present, these do not appear to be areas of conflict between the parties, that would require immediate dialogue or open communication. These are areas of significant importances to the children's development and they should have the benefit of both parents' thoughts and input. When the need arises for decisions in these major areas, the parties will have to dialogue to achieve solutions for the benefit of the children. If the present communication impasse has not been overcome in the meantime then, in the interest of the children, one of the parties will have to be given the responsibility of making final decision in these areas. One of the factors that may be considered on any future review will undoubtedly be the willingness of each party to work at achieving meaningful dialogue in order to reach solution most beneficial to the children. am concerned about the lack of dialogue between the parties to date. With respect to these major areas, in view of the lack of immediate urgency, am continuing with the spirit of joint decision making because of its obvious desirability in promoting the interests of the children. If, by the time some decisions in these areas are required, the impasse has not been overcome, then the interest of the children will dictate the need for decision maker. 3. The Access Plan During the course of the direct and cross‑examination, the parties indicated their agreement to number of provisions concerning the children, being incorporated into the Corollary Relief Judgement. The following shall be reflected in the order: A. Neither party shall change the children's surnames, either legally or by common usage without prior mutual consent. B. Neither party will apply to obtain passport for the children without the prior written consent of the other, such consent shall not be unreasonably withheld. C. Each parent shall appoint the other as guardian of the children in any will they execute. D. If Mrs. Hickey intends to move more than fifty kilometres from her present residence, she shall give Mr. Hickey minimum of ninety days notice of her intention to move and if Mr. Hickey disagrees with the proposed move, he may apply to court of competent jurisdiction for review of the custody and access. have reviewed the access provisions submitted for my consideration at hearing by Mr. Hickey. Following his format, am prepared to adopt the provisions as agreed by the parties and order pursuant to s. 16 as the minimum access to the father, the following: GENERAL PROVISIONS 1. The parties may, as required in the best interest of the children, from time to time, agree to adhoc variations of the access terms by mutual agreement. Such adhoc variations shall not be deemed to establish precedent for ongoing variations of the access terms. 2. All notice shall be given by telephone or in person. 3. Each parent shall have reasonable telephone access to the children at reasonable times when the children are not in their care. Where either parent is going to remove the children from their residence, overnight, the other parent shall be advised of the telephone number where the children may be reached during that period. For the purposes of establishing the sequence of alternating weekend access, it is confirmed that the father's next access weekend commences in accordance with the existing schedule. WEEKENDS AND LONG WEEKENDS 4. Except where otherwise specified, the children will visit with their father every second weekend. The father will pick the children up at the mother's home at 4:30 p.m. on Friday and return them to the mother's home at 7:00 p.m. on Sundays. This access shall hereafter be referred to as "regular weekend access". 5. If statutory holiday or children's school holiday (such as, but not limited to, an in‑service day) falls immediately before the regular access weekend, the children may spend that holiday commencing at 9:00 a.m. with the father in addition to the regular weekend access. The father will notify the mother at least fourteen days before the holiday whether he intends to add this extra day to the regular weekend access. 6. Where holiday or children's school holiday (including but not limited to in‑service days) does not fall immediately before or after regular weekend access, the parent who would otherwise have the children with them, shall have the children with them on that holiday. Where the holiday falls during the time the children would be with the father, the father may spend that day with the children rather than sending the children to day care or an extra curricular activity. 7. Paragraphs do not apply to any holidays which occur during the summer vacation, March break, Easter, Thanksgiving or Christmas week. WEEK DAY ACCESS 8. From September to June 30 of each year, the children shall spend each Tuesday and Wednesday evening from 4:30 to 7:30 with their father who shall accommodate their activities, if any. The father will pick the children at 4:30 p.m. on Tuesday and Wednesday from either the mother's home or their place of normal activity (such as, but not limited to, day care, school or sport's field, etc.) and shall return the children to their mother's home at 7:30 p.m. each Tuesday and Wednesday evenings. 9. From July to August 31 of each year, the children shall spend two consecutive nights with their father on Tuesday and Wednesday evenings. The father shall pick the children up at 4:30 p.m.on Tuesday and Wednesday from either the mother's home or their place of normal activity (such as, but not limited to, day camp, sitter, sport's field, etc.) and drop the children off at 7:00 a.m. on Wednesday and Thursday mornings at either the mother's home or their place of normal activity. As this will only be for four weeks during the summer, in view of the provisions for summer vacation, any plans the father may wish to make for joint activities, between himself and the children during the day on Wednesday and Thursday, shall be accommodated over any day camp/sitter arrangements, provided sufficient notice is given. The children shall be returned to their mother's home at 7:30 p.m. Thursday, if they spend the day with their father. The visits in paragraphs and are hereafter called "regular weekday visits". 10. The period from December 24th until January 1st inclusive in each year is hereafter called "Christmas Week". 11. An even number years commencing in 1994, the children will be with; (a) the father from noon December 24th until 7:00 p.m. December 25th (b) the mother from 7:00 p.m. December 25th until 9:00 a.m. December 27th (c) the father from 9:00 a.m. December 27th until 7:00 p.m. December 29th (d) the mother from 7:00 p.m. December 29th until the next regular access day which would otherwise have occurred after January 1. 12. In odd number years commencing in 1995, the children will be with: (a) the mother from noon December 24th until 7:00 p.m. December 25th (b) the father from 7:00 p.m. December 25th until 9:00 a.m. December 27th (c) the mother from 9:00 a.m. December 27th until 7:00 p.m. December 29th (d) the father from 7:00 p.m. December 29th until 7:00 p.m. January (e) the regular weekend and weekday access schedule will resume on the first day on which the father would otherwise have had regular access after January 1. MARCH BREAK 13. March break means the five days the children are not in school. In odd numbered years commencing in 1995, the children will spend March break with their father. In even number years commencing in 1996, the children will spend March break with their mother. 14. The March break time with the father may be combined with the regular weekend access. If March break follows immediately after regular access weekend, the children will say overnight with the father on the Sunday prior to March break. If March break falls immediately before regular access weekend, he shall pick them up from the mother's home at 9:00 a.m. on the Monday and return them at 7:00 p.m. on the following Sunday. 15. If the children spend March break with their mother and that precedes the father's regular access weekend, he shall pick them up at 4:30 p.m. on the Friday of March break. 16. Easter holiday means from Good Friday to Easter Monday. In odd number years, commencing in 1995, the children will spend the Easter holiday with their mother. In even number years, commencing in 1996, the children will spend Easter holiday with their father. In arriving at the start up date, am conscious that the children spent this Easter with their mother but note the appropriateness of alternating the March break and Easter periods between the parties given the close time proximity. The father's regular weekend and weekday access schedule will resume on the first day on which the father would otherwise have had regular access after Easter Monday. If, however, the Easter holiday is spent with the mother on the father's regular weekend, his regular weekend access schedule shall resume the next weekend. Similarly, if the Easter holiday is spent with the father on the mother's regular weekend, her regular weekend access schedule will resume the next weekend. THANKSGIVING 17. Thanksgiving weekend means from Friday at 4:30 p.m. until Thanksgiving Monday at 7:00 p.m. In odd numbered years, commencing in 1995, the children will spend Thanksgiving weekend with their father. In even numbered years, commencing in 1996, the children will spend Thanksgiving weekend with their mother. The father's regular weekend and weekday access schedule will resume on the first day on which the father would otherwise have had regular access after Thanksgiving Monday. If, however, the Thanksgiving weekend is spent with the mother on the father's regular weekend, his regular weekend access schedule will resume the next weekend. Similarly, if the Thanksgiving weekend is spent with the father on the mothers' regular weekend, her regular weekend access schedule will resume the next weekend. OTHER SPECIAL OCCASIONS 18. Children's birthdays When the children are with the father on their birthdays according to the regular weekend access schedule, the mother may pick up both children from the father and visit with them for two hour period. When the children are with the mother on their birthdays, the father may pick up both children from the mother and visit with them for two hour period. In both cases, the time of the visit shall be mutually agreed upon in advance or failing agreement shall be from 5:00 p.m. until 7:00 p.m. 19. Mother's Day If Mother's Day falls during the father's regular weekend access, the mother shall be entitled to pick the children up from the father at 9:00 a.m. on Mother's Day and the balance of Mother's Day will be spent with her. 20. Father's Day If Father's Day does not fall during the father's regular weekend access, the father shall be entitled to pick the children up from the mother at 9:00 a.m. on Father's Day and shall return the children to the mother at 7:00 p.m. 21. Hickey Family Re‑union If the children would not otherwise be with the father on the weekend of the Hickey Family Re‑union, the mother will adjust her regular weekend schedule to accommodate the children's attendance at the event; provided that, as soon as the event has been scheduled, but in any event no later than thirty days, before the father shall notify the mother of the event. If the re‑union occurs on the mother's regular weekend, her regular weekend access schedule will resume the next weekend. 22. Summer vacation In even numbered years, commencing 1994, the mother shall have first choice of the time she will vacation with the children, provided that she gives notice of her choice of dates not later than June 1. If she fails to give notice by that date, the father may have first notice of his vacation period with the children. The reverse arrangement will apply in odd numbered years. The party not having first choice of summer vacation date shall notify the other of his or her vacation dates, not later than June 15th. 23. The summer vacation period shall be defined as starting from the day after the children finish school until the sixth day before the children start school in September. The regular weekend and weekday access shall continue except as required to accommodate the following provisions for summer vacation. 24. Each parent may take two separate vacations of one week each (from 9:00 a.m. Monday until 9:00 a.m. the following Monday) or one consecutive two week's vacation (9:00 a.m. Monday until 9:00 a.m. on the second Monday thereafter). 25. When the father's vacation week or weeks follow the regular access weekend, he shall not be obliged to return the children to the mother's home on the Sunday evening before the vacation. 4. The Ouantum of Child Maintenance Mrs. Hickey and Mr. Stover an annual family income of approximately $84,000.00, with Mrs. Hickey earning $16,716.00. Mr. Hickey's annual income is $70,600.00 and in addition, he receives an annual bonus consisting of combination of shares in the company and cash. His after tax bonus for the years 1990, 1991, and 1992 was $2,000.00, $2,400.00 and $850.00 respectively. Pursuant to Justice Gruchy's interim order, Mr. Hickey is paying $1,800.00 per month or $900.00 per child. Mrs. Hickey estimates the children's expenses, before tax, to be in the area of $1,845.00 which includes savings towards education of $176.00 per month. The budget does not appear to reflect many extra‑curricular expenses. She is claiming maintenance in the amount of $2,000.00 per month. Mr. Hickey questions some of Mrs. Hickey's proposed children's expenses as being high. In particular, he notes their share towards the costs of household maintenance, as well as the food and day care costs, given the amount of time the children are residing with him. He proposes monthly amount of $1,200.00 plus direct $100.00 per month payment by him for the children's education. He estimates his expenses for the children, over and above any monthly maintenance, to be $784.00, exclusive of the $174.00 per month, after tax, direct education contribution that he is prepared to pay. have reviewed counsel's detailed submissions and the parties budget and taking into account the tax ramification to Mrs. Hickey, award the sum of $1,500.00 per month for the support of the two children. The first payment shall be due for the month of May. Other The Corollary Relief Judgment shall also reflect the parties' agreement: (a) to divide equally their matrimonial asset with the equalization payment having been paid as of trial date, (b) to divide their respective employment pensions, pursuant to the Pension Benefits Act in Nova Scotia (c) that Mr. Hickey shall maintain life insurance coverage for $137,600.00 for the children for so long as this coverage is available through his employment and further $10,000.00 with Crown Life unconditionally. The trustee of the insurance proceeds for the children while they are minors shall be person of Mr. Hickey's choice.

This was a petition for divorce with an application for settlement of corollary matters, especially custody and access. The mother was the primary caregiver during the marriage, but the father also made significant contributions. The parties had an interim order for joint custody, which the father sought to continue. The mother sought sole custody with generous access. The evidence was that although both parents were good parents, they had difficulty in resolving problems between them, causing a lack of communication. Allowing the mother's application, that because the day to day decision-making was problematic, it was necessary for one of the parties to be given final say. Both parents were to continue to share in rights and responsibilities on major issues. As the parties lacked flexibility, a detailed access plan was incorporated.

4_1994canlii4365.txt

J. Editor’s Note: Corrigendum released on November 15, 2011. Original judgment has been corrected with text of corrigendum appended. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 386 Date: 2011 10 17 Docket: Q.B.G. 1880/2011 Judicial Centre: Regina BETWEEN: KENSINGTON DEVELOPMENTS INC. and DAVID HUNTLEY and THELMA HUNTLEY RESPONDENTS and DIRECTOR OF RESIDENTIAL TENANCIES Counsel: Greg D. Fingas for the appellant David Huntley representing himself JUDGMENT SCHWANN J. October 17, 2011 [1] The landlord, Kensington Developments Inc., appeals a decision rendered by a hearing officer under The Residential Tenancies Act, 2006, S.S. 2006, c. R-22.0001(the “Act”). The issue before the hearing officer concerned the tenants’ claim for damages and return of the security deposit arising out of the landlord’s notice to vacate. Introduction [2] David and Thelma Huntley (the “tenants”) were given written notice to vacate their apartment unit on December 3, 2010 for December 31st termination date. The tenants reluctantly accepted termination even though it was short notice, and thereafter applied under the Act for the return of their security deposit and other damages. [3] hearing was convened on May 18, 2011 at which time the hearing officer heard evidence from the tenants, the landlord’s caretaker, and considered the written submissions of the owner, George Pantazopoulos. The tenants testified to difficulties encountered by them with an end of December move. Thelma Huntley is elderly and David (her son) had work commitments taking him out of town for five weeks commencing in January. He did not wish to saddle his mother with the move consequently, in so-called panic, they signed new lease right away. David’s evidence was summarized by the hearing officer as follows: “The tenant stated that the move was nightmare and expense due to short notice. He stated that they were unable to take both their pets to the new apartment so had to get rid of one.” The tenant claimed for damages under the Act for moving costs of $1,100.00, hook-ups and address change at $113.50, moving supplies of $97.48, and $64.05 for carpet cleaning. [4] The circumstances of the tenants’ claim for partial rent abatement were summarized by the hearing officer as follows: significant issue for the Tenants was the fact that in January 2008 there was water leak in their main bathroom which had caused stain on the downstairs units ceiling. They were advised not to use the bathroom. plumber was called in and the Tenant had to move all of their belongings to one side of the dining room so that the plumbers could access the wall behind where the bathroom pipes were. The plumbers did come at one point and in moving large breakfront in the dining room broke number of items. This visit by the plumbers did not correct the problem, so the Tenants left the breakfront and the dining room furniture to one side of the room in order for access to be had. They were unable to use the dining room from January 2008 to their move out on December 31, 2010. Although the Tenant spoke with the caretaker her [sic] estimates 100 times about the plumbing problem, nothing was done. He states in late 2010 they were advised that they could use the toilet but could not use the tub as they believed that is where the leak was. ... [5] The landlord’s caretaker, who appeared at the hearing on behalf of the landlord, confirmed the protracted plumbing problem and the tenants’ restriction on bathroom use. While not abundantly clear from the decision itself, it would appear the hearing officer accepted the tenant’s evidence on the unusable space, and that this evidence represented her findings of fact. [6] Exercising her discretion under s. 70 of the Act, the hearing officer awarded the tenant half of the tenants\' actual moving cost ($598.92) and one year of rent abatement of $3,060.00. [7] Before turning to the analysis, three documents which form part of the record deserve mention. The first is the tenants’ Form Application for Hearing. In the box entitled “Claims for these losses or Order”, the tenant checked off “other”, and specified in the space provided: “illegal eviction, deposit, unusable space.” The second document is the actual Hearing Notice. Applicants are required to complete this form and serve it on the other side. It would appear from the file that George Pantazopoulos was in fact served. The bottom portion of this form is significant because it sets out the particulars of their claim. Here the tenant stipulated: Failed to keep property adequately repaired, making areas unusable. Made many promises. Performed an illegal eviction of tenants, stating rules did not apply. Inadequate notice of rent increases and demand that we vacate. Further, under the heading “Order Requested”, the tenant claimed the following: Landlord to do the following: Return interest on deposit monies. Return portion of rent on unuseable [sic] space, Jan 2008 to Dec 2010 interest. Pay the moving expenses, as deemed reasonable, an eviction was contrary to provincial law. [8] The final document is letter of May 4, 2011 from G. Pantazopoulos to the Rentalsman concerning the tenants’ application. Mr. Pantazopoulos wrote: 4. The accusation by the Huntley’s that the condo was unusable in [sic] obscured. This condo unit was and is in mint condition and all areas were livable. If the condo was not usable, why did they stay for three years (Jan 2008 Dec 2010)? There was small leak from the faucet in one of the bath tubs that was resolved by Mackenzie Plumbing and Heating. The statement that was given by the Huntleys is dishonest, as Kensington Developments Inc. is company that develops condos and sells them and the notice was given in accordance to the law when property has been sold. With regard to the hearing date, Mr. Pantazopoulos said this: will be over seas the date of the hearing and this is my company’s written response. The building Manager, Don Dawson, will be in attendance at the hearing. Jurisdiction [9] Section 72 of the Act provides right of appeal from decision of hearing officer made under the Act on question of law or jurisdiction. This limited scope of appellate review has been described in the following manner by the Saskatchewan Court of Appeal in Reich v. Lohse (1994), 1994 CanLII 4691 (SK CA), 123 Sask.R. 114 (Sask. C.A.), [1994] S.J. No. 413 (QL) at para. 18: 18 Our jurisdiction and that of the Queen's Bench on an appeal from the rentalsman is simply supervisory one with respect to the interpretation of the law and the rentalsman's jurisdiction. It is not our task to pass judgment on the behaviour of either tenants or landlords as it relates to the exercise of their right. That is the function of the rentalsman. Grounds of Appeal [10] The landlord submits the hearing officer erred by:(a) ...failing to give the landlord an opportunity to respond to the claims and evidence of the Respondents, David and Thelma Huntley (the “Tenants”);(b) ...unreasonably awarding damages for moving expenses in the absence of any evidence that the alleged lack of proper notice to the tenants affected in any way their actual cost of moving; and(c) ...unreasonably awarding rent abatement respecting the loss of use of the dining room space in the absence of any evidence as to why such space was not usable during the period for which the abatement was awarded. A. Failure to Give Opportunity to be Heard and Respond to Claims [11] Under this ground of appeal, the landlord contends he was not given opportunity to be heard, or to adequately respond to the tenants’ claim. He says the tenants failed to properly identify which area of the unit was unusable, failed to describe the relief sought or the nature of argument they intended to advance. Moreover, as the owner was unable to attend on the scheduled hearing date, the matter proceeded unfairly without an opportunity for him to be heard. Reliance is placed on the following decisions: Charan Properties Management Inc. v. Zorn, 2011 SKQB 56 (CanLII), [2011] S.J. No. 73 (QL); Watson v. Weidner Investment Services, 2008 SKQB 178 (CanLII), [2008] S.J. No. 243 (QL). [12] This line of argument cannot succeed for several reasons. First, contrary to the landlord’s contention, the tenant did in fact give him notice of his claim by way of two separate documents. In his Form application, the tenant clearly and legibly printed the words “unusable space”. This initiating document was followed by the Hearing Notice where the tenant elaborated on both the alleged breach and the remedy sought. (see paragraph above). [13] Second, the landlord appears to be have been under no misapprehension about the tenant’s position as evidenced by his written response provided by letter of May 4th. The landlord squarely addressed the “unusable space” issue in taking the position that all areas of the unit were livable. In any event, he went on to indicate that his building manager would attend the hearing. [14] In my view, the May 4th letter seriously undermines the landlord’s submission of being unaware of the nature of the argument to be advanced, moreover, by his own words, the letter was intended to serve as “my company’s written response” to the tenants’ application. In any event, Pantazopoulos arranged for someone else to appear on his behalf. He now argues the caretaker did not attend as his advocate, however, there is nothing in his letter to reflect the caretaker’s limited role. Finally, had Pantazopoulos wished to attend in person, he could have sought an adjournment, but he did not. The cases relied upon in support are all distinguishable on their facts. B. Unreasonableness of Award of Damages for Moving Expenses and Loss of Useable Space [15] The landlord contends the award of damages was unreasonable because it was an arbitrary award unsupported by any link or connection between the “improper” termination notice and the tenants’ moving costs and loss of useable space. He suggests there are no findings of fact to support either award. [16] With regard to the moving costs, the hearing officer's rationale for awarding damages was the following: also must adjust the claim for moving as again eventually that expense would occur on move out. However due to the improper notice (the last day written notice could have been properly provided for December 31st departure would have been November 30th) and the inconvenience caused by this improper notice, award one-half of these costs or $598.92. do not award for the registered mail charge as service on landlord can be made by ordinary mail. While she did not specify the precise nature of the tenants’ “inconvenience” in this part of her decision, fair reading of the whole of the decision points to her adoption of the tenants’ evidence that improper notice had caused them extra expense and inconvenience. Similarly, in rendering her decision on the rent abatement issue, the hearing officer implicitly accepted the tenants’ evidence about loss of usable space buttressed by evidence from the caretaker who confirmed the protracted plumbing problem. This was her conclusion: While sympathize with what the Tenants had to live with and their concern about complaining and losing their apartment, the Act requires Landlord to mitigate their losses and so too must Tenant. The Tenant had options to come to this office and request repair order which may have meant that they didn’t have to live with this situation for years. find that the length of time can award for abatement would be for one year. find this in consideration of the promises made by the Landlord to have the repair done. The Tenant obviously put his faith in the Landlord that it would be dealt with and was therefore patient. award for one year or rent abatement or $3,060.00. [17] Section 70(6)(c) of the Act empowers hearing officer to order payment of damages where the hearing officer considers it just and equitable in the circumstances. The wording of this provision is broad and unconstrained, which suggests the Legislature intended broad exercise of discretionary authority having regard to the objects and purposes of the Act and to the facts presented in evidence. “What is “just and equitable” depends in part on the context and in part on the facts.” (Hryck v. Neves 2007 SKQB 189 (CanLII), 300 Sask. R. 17). Moreover, the only limitation on the nature of damages which may be imposed is that it must not be punitive. (Grover v. Kozmyk (1995), 1995 CanLII 5848 (SK QB), 139 Sask. R. 155 (Sask Q.B.), [1995] S.J. No. 773 (QL); Mubili v. Colliers McClocklin Real Estate Corp. 2007 SKQB 375 (CanLII), 306 Sask. R. 5) [18] The landlord argues the hearing officer erred by awarding damages without any direct link or connection to actual loss incurred by the tenants. This line of argument is premised on the position that the scope of damages is restricted to recovery for actual loss and does not extend to such things as damages for stress or aggravation. [19] In Grover v. Kozmyk, supra, the court held the Rentalsman was not empowered to assess punitive damages but the court nevertheless concluded it was open to the Rentalsman under the Act to award aggravated damages where the circumstances warrant it. (Grover supra, at para. 12; Gasparovic v. Sutherland (1996), 1996 CanLII 6794 (SK QB), 150 Sask.R. 51, [1996] S.J. No. 715 (QL)). [20] While the hearing officer’s decision could have been more clearly worded, conclude that fair reading of the decision reflects an award for damages for both compensatory loss (loss of usable space) and aggravation and inconvenience. Conclusion and Disposition [21] It is clear from the record that the landlord had notice of the application, the nature of the tenants’ complaint and the relief sought. If the landlord had wished to personally attend, he could have sought an adjournment, but he did not. Instead he chose to have his position advanced through combination of written submission and attendance by his representative. The landlord’s strategic miscalculation does not amount to an error on the part of the hearing officer. [22] With regard to the award of damages, I conclude the decision on rent abatement was made on a principled and logical basis having regard to the facts. The purpose of the award was to compensate the tenants for their loss of use of usable space. The award for moving costs was intended in part to compensate for inconvenience and aggravation, and in part as compensatory loss for related expenses. Both awards were reasonable on both fact and law, accordingly. I find no reviewable error by the hearing officer. [23] The landlord’s appeal is therefore dismissed. J. L.M. SCHWANN QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 386 Date: 2011 11 15 Docket: Q.B.G. 1880/2011 Judicial Centre: Regina BETWEEN: KENSINGTON DEVELOPMENTS INC. and DAVID HUNTLEY and THELMA HUNTLEY RESPONDENTS and DIRECTOR OF RESIDENTIAL TENANCIES Counsel: Greg D. Fingas for the appellant David Huntley representing himself November 15, 2011 SCHWANN J. CORRIGENDUM to JUDGMENT of October 17, 2011 (2011 SKQB 386) [24] In my judgment herein dated October 17, 2011, the citation referred to for Charan Properties Management Inc. v. Zorn in para. [11] was quoted incorrectly as 2010 SKQB 30 (CanLII), [2010] S.J. No. 37 (QL). It should read [2011] S.J. No. 37 (QL). J. L.M. SCHWANN

The tenants were given short written notice to vacate their apartment unit. The tenants applied under the Residential Tenancies Act for the return of their security deposit and damages including moving expenses. The landlord was out of country at the time of the hearing but authorized by letter that the caretaker would attend the hearing to represent the landlord. The caretaker confirmed the tenants endured a protracted plumbing problem and restriction on bathroom use in the apartment. The hearing officer awarded the tenants half of the actual moving cost and 1 year of rent abatement. The landlord appealed the hearing officer's decision. The landlord alleged that he was not given the opportunity to be heard or to adequately respond to the tenants' claim as he received inadequate notice and alleged that the award of damages was unreasonable. HELD: The landlord's appeal was dismissed. 1) The tenant gave notice of his claim by two separate documents and the landlord showed no misapprehension of the tenants' position based on his written response. The landlord did not indicate in his letter that the caretaker had a limited role and the landlord could have sought an adjournment but did not. 2) Section 70(6)(c) of the Act empowers the hearing officer to order payment of damages where the hearing officer considers it just and equitable. The wording of this provision is broad and unconstrained excepting that the nature of damages that may be imposed must not be punitive. The decision on rent abatement was principled and to compensate the tenants for their loss of use of usable space. The award for moving costs was intended to compensate for inconvenience, aggravation and related expenses. The awards were reasonable both in fact and law and no reviewable error was made by the hearing officer. Corrigendum released dated November 15, 2011 and added to fulltext.

6_2011skqb386.txt

J. Q.B.G. A.D. 1998 No. 78 J.C.B. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: MYRON WETZSTEIN, SHERRY WETZSTEIN, WAYNE HUDSON, MARY ELLEN HUDSON and GLADYS DOW Plaintiffs/Respondents and LOIS RETA HUDSON Defendant/Applicant Randy T. Klein for Applicant (Lois Hudson) Harvey Neufeld for Respondents/Plaintiffs FIAT KRUEGER J. FEBRUARY 02, 1999 [1] The applicant, Lois Hudson seeks an order declaring that the solicitors for the plaintiffs, Politeski Strilchuk & Milen have breached confidentiality and are in conflict of interest between clients. She asks that they be removed as solicitors of record in this action. [2] In 1995 Neil Hudson, spouse of the applicant, Lois Hudson, with assistance from some of his children, who are now plaintiffs, retained Celine-Rose J. Polischuk of the law firm, Politeski Strilchuk Milen for the purpose of having his wife, Lois Hudson admitted for treatment pursuant to The Mental Health Services Act. At that time Neil Hudson collected some personal letters, records and computer printouts (documents) prepared by Lois Hudson and delivered them to Ms. Polischuk. They were forwarded by her to Peter T. Johnson, Q.C., then solicitor for Lois Hudson. [3] In 1998, the plaintiffs, some of whom are children or spouses of children of Lois Hudson commenced defamation action against her. The documents are material in the present litigation. The same information as contained in the documents, although perhaps in some other form, was available to the plaintiffs from other sources. 1. What was the relationship between Lois Hudson and the law firm of Politeski Strilchuk Milen when the documents were delivered to them? 2. If solicitor-client relationship did not exist what duty, if any, was owed to Lois Hudson? [4] There can be no doubt that if solicitor-client relationship existed between Lois Hudson and Celine-Rose J. Polischuk when she received the confidential documents from Neil Hudson she owed duty to Lois Hudson. Unless otherwise satisfied the court would, in those circumstances, infer that all lawyers working with Ms. Polischuk shared her confidences. Her affidavit to the effect that she did not discuss with or reveal to other members of the firm the contents of the documents is not sufficient to satisfy the public requirement that there be no appearance of breach of confidentiality. See McDonald Estate v. Martin (1990), 1990 CanLII 32 (SCC), S.C.R. 1235 (S.C.C.). [5] No explanation was provided as to why Neil Hudson delivered the documents to Celine-Rose J. Polischuk or in what capacity she took delivery of them. The position of Lois Hudson is that fiduciary relationship was created between her and Ms. Polischuk when the documents were accepted. That relationship was close enough to solicitor-client retainer to give rise to need for confidentiality. Because the documents contained confidential information, it was submitted that the public’s confidence in the administration of justice would be undermined if any member of the law firm were now allowed to act for the plaintiffs. [6] Counsel for the plaintiffs took the position that no solicitor-client relationship existed and, therefore, Chapters IV and of the Code of Professional Conduct have no application. No breach of solicitor client confidentiality took place and no conflict of interest as between clients exists. [7] The Politeski Strilchuk Milen law firm acted for Neil Hudson in 1995. His interests were then adverse to those of Lois Hudson who had her own lawyer. Whatever documents Neil Hudson delivered to his lawyer in 1995 were not needed to support his legal proceedings. They were sent to Lois Hudson’s lawyer. Neil Hudson now supports his wife in the defence of the present action brought by the plaintiffs. He is not, however, party to that action. I do not accept the assertion by Neil Hudson that the documents were delivered to Ms. Polischuk for safekeeping. No instructions were given to that effect and at the time there was no need to keep the information confidential. [8] The freedom of litigants to counsel of their own choosing must be weighed against the high standards required of the legal profession. In the circumstances of this case, am satisfied that no duty was owed to Lois Hudson by Ms. Polischuk when she accepted delivery of documents from her client, Neil Hudson. I am unable to conclude that in delivering the documents, Neil Hudson was acting as an agent for or on behalf of his wife, Lois Hudson. At that time no duty was owed by the solicitors to anyone other than Neil Hudson. He did not give any instructions and as the documents were not required in the proceedings then underway, they were forwarded to the lawyer for Lois Hudson. [9] In my view no solicitor-client relationship was created between Ms. Polischuk and Lois Hudson when, what proved to be confidential documents, were received by her from Neil Hudson. Ms. Polishuk was not required to take any action or to refrain from doing anything. It cannot, therefore, be said that any breach of confidentiality occurred or conflict of interest arose as contemplated by Chapters IV and V of the Code of Professional Conduct. [10] Nor am I able to conclude that any fiduciary duty was owed to Lois Hudson resulting from the acceptance by Ms. Polischuk of documents from Neil Hudson. Whatever duty was owed by her was to Neil Hudson. The fact that Neil Hudson now supports his wife in her defence of the action brought by the plaintiffs does not, in my opinion, change the situation that existed in 1995. To extend the confidentiality of solicitor-client relationships to the circumstances of this case would, in my view, lead to unreasonable results. [11] Since no solicitor-client relationship and no other duty was owed by Ms. Polischuk to Lois Hudson, none existed relating to the law firm which she is a member of. [12] The application is dismissed with costs to the plaintiffs.

FIAT. The applicant sought a declaration that the plaintiffs' solicitors had breached confidentiality and were in a conflict of interest and asked that they be removed as solicitors of record in this action. The applicant's husband had given her personal letters, records and documents to his solicitor in 1995. These documents were relevant to a defamation action brought by her children or their spouses. The applicant argued that a fiduciary relationship was created when the documents were accepted which was close enough to a solicitor-client retainer to give rise to a need for confidentiality and that the public's confidence in the administration of justice would be undermined if any member of that law firm acted for the plaintiffs. HELD: The application was dismissed with costs to the plaintiffs. No solicitor-client relationship was created between the husband's lawyer and the applicant when the documents were received. There was no breach of confidentiality or conflict of interest as contemplated by Chapters IV and V of the Code of Professional Conduct. No fiduciary duty was owed to the applicant when the solicitor accepted the documents from the applicant's husband. The husband was not acting as agent for his wife nor was it accepted that he delivered the documents for safe keeping. The husband's solicitor had forwarded the documents to the applicant's lawyer. The fact that the husband now supported his wife in the defence of her action did not change the situation that existed in 1995.

8_1999canlii12948.txt

J. 2004 SKQB 379 D.I.V. A.D. 1994 No. 016328 J.C. R. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: MONICA LYNN DOROSH (ANTONOWITSCH) and WAYNE JOSEPH DOROSH RESPONDENT Ian D. McKay, Q.C. for the petitioner Wayne Joseph Dorosh self-represented FIAT SANDOMIRSKY J. September 17, 2004 [1] On February 13, 2004, the respondent, Wayne Joseph Dorosh, acting on his own behalf, applied to this Court, in Chambers, to vary the support and access provisions contained within consent judgment of this Court granted May 2, 1995. That judgment provided for the divorce of the petitioner and respondent, distribution of the matrimonial property estate of the couple, as well as custody, access and support for the child of the marriage, Letitia Paige Dorosh (born August 22, 1989). [2] Mr. Dorosh sought to alter custody in 1997. Mr. Justice McIntyre rendered judgment upon that application on July 31, 1997. Central to that application was Mrs. Dorosh, now Antonowitsch’s declared intention to relocate with Letitia from Saskatchewan to Kelowna, British Columbia. In written decision Mr. Justice McIntyre dismissed Mr. Dorosh’s interim application and directed trial on the issue of whether there should be variation of the custody provisions of the May 2, 1995 judgment. The terms of the 1995 judgment prescribe that Ms. Antonowitsch, is the sole custodian of Letitia. The matter never proceeded to trial. [3] On January 20, 2003, Mr. Dorosh again applied for variation of the 1995 judgment. At that time Mr. Dorosh requested the following relief: (a) variation of custody and access based on the wishes of the child; and (b) variation of the child support which was set in 1995 at $250.00 per month to be redefined under the provisions of the Federal Child Support Guidelines (SOR/97-175, as am.). [4] Letitia was then 13 years old. Today she is 15 years old and Grade 10 student at Sheldon Williams Collegiate in Regina. [5] On January 24, 2003, Mr. Justice Smith ordered that the last of the variation applications be adjourned sine die in order to await “Voices of Children” report. The status of matters was revisited in chambers on November 25, 2003, at which juncture Mr. Justice Scheibel provided directions to the parties to assist in bringing Mr. Dorosh’s last application to vary before the Court in readied state for argument. [6] This application finally proceeded to be argued before Madam Justice Dawson on January 21, 2004. written decision was rendered on January 26, 2004. That fiat has direct bearing upon the present application and therefore the text is set forth and read as follows: Wayne Dorosh applies to vary the custody and child support order of May 2, 1995. Mr. Dorosh seeks to vary the custody order on the basis that his daughter, Letitia, born August 22, 1989, (currently 14 years old) wished to spend more time with him. “Children’s Voices Report” was prepared. The assessment and/or conclusion of the assessor is contained on page 5: Letitia treasures both of her parents, and is able to benefit from each relationship’s strengths to the fullest. She would not like to alter her relationship with either parent, only the time she is able to spend with her dad. She indicates, that given her age, she should be able to determine when she can be with both parents. She recognizes, as she gets older, she will likely spend more time with her friends than with either parent, however, she would like to maximize her time with both parents. By having both parents agree to allow her to make her decisions about when she sees them, instead of having set schedule, Letitia believes she would benefit the most in both relationships. Letitia appeared very genuine in her desire to spend increased time with her father, and indicates the flexibility that has been recently added to the access schedule is exactly what she desired. Both parties indicate that Letitia has been spending more time with Mr. Dorosh, taking into account Letitia’s schedule. It appears that Letitia has access to Mr. Dorosh when she requests it and at the times that are convenient to Letitia. Mr. Dorosh acknowledges that this type of access is agreeable to him. Hopefully both parents will consider the “Children’s Voices Report” in the future and treat each other with respect and encourage and foster Letitia’s relationship with each of her parents, the two most important people in Letitia’s life. The access order shall be varied as follows: Wayne Joseph Dorosh shall have reasonable access to Letitia Paige Dorosh at all reasonable times having regard to Letitia’s wishes and her school and activities schedule. Mr. Dorosh seeks to vary the child support order and asks that the court order that he pay zero (0) child support on the basis that he has his daughter in his custody at least 40% of the time and on the basis that his income has changed. The child support order of May 2, 1995 required Mr. Dorosh to pay child support in the amount of $250.00 per month. am not satisfied that Letitia is in the custody of Mr. Dorosh 40% of the time and, in fact, Mr. Dorosh acknowledged in Chambers that Letitia had not spent as much time with him lately due to her own interests and commitments. Mr. Dorosh failed to file any income tax returns, notices of assessment or re‑assessment in support of his application. His affidavit sworn November 29, 2002 indicated that he was on disability. He attached to that affidavit T4 for 2001 which indicated that he received $9,383.565 from Saskatchewan Social Services. His financial statement sworn November 29, 2002 indicated that he was self‑employed but currently on disability and set out his income from disability to be $9,383.56. Mr. Dorosh filed further financial statement, on July 25, 2003. This financial statement was unsworn. Again this unsworn statement indicated that his income was $9,383.56 from disability income. Nowhere in the material does Mr. Dorosh state that he did not file income tax returns. Mr. Dorosh has not provided this information to the petitioner. advised Mr. Dorosh in Chambers that would be prepared to grant him an adjournment to file the appropriate financial information. also advised Mr. Dorosh that he bore the onus to prove that there was change in circumstances sufficient to warrant variation in child support and that he was required to file income tax returns, notices of assessment and pay stubs or disability income pay stubs. Mr. Dorosh did not wish to adjourn the application and asked the court to consider his application based on the evidence on file. Mr. Dorosh was, as of August 2003, 10 months in arrears of child support. I dismiss Mr. Dorosh’s application to vary child support and arrears. This is without prejudice to Mr. Dorosh to bring an application to vary with respect to the same relief if supported by the appropriate financial disclosure and documentation. There are no costs awarded. [7] What remains to be determined upon this application are the matters of custody, child support and cancellation of the arrears of child support. [8] Madam Justice Dawson did not address the matter of custody of Letitia. Accordingly, Ms. Antonowitsch remains the custodial parent pursuant to the provisions of the 1995 judgment. Should this order of custody be varied at this time? [9] variation application entails twostep process as set out in the Divorce Act, R.S.C. 1985, c. (2nd Supp.) at s. 17. That process was defined by the Supreme Court of Canada in the decision of Willick v. Willick, 1994 CanLII 28 (SCC), [1994] S.C.R. 670. material change of circumstance must be demonstrated to have occurred since May 2, 1995 by which the 1995 judgment, as it pertains to custody, is no longer appropriate. If this threshold step is met the Court will then proceed with fresh examination of the relevant facts and circumstances pertaining to custody, including the evidence of change. [10] The mere passage of time, in this instance nine years, would constitute material change of circumstance relevant to custody. Letitia is now 15 years old whereas at the time of the 1995 judgment she was merely six years old. Therefore it is appropriate in the circumstances to ask whether there should be variation of the custody order when Letitia is 15 years old. [11] The Children’s Voices Report dated June 4, 2003, described Letitia as “confident, happy, articulate, bright and spirited 13-year-old girl. She displays high level of maturity, understanding, emotional stability and insight into her relationships, activities and future.” Reading the Voices Report, if it characterizes Letitia accurately, then one can delight in the wholesome and mature outlook which Letitia exhibited. [12] The Voices Report quotes Letitia as indicating that she has two “awesome” parents. She says that she loves them and wants to be with them both. Letitia indicates that she has great relationship with both, although she recognizes her relationship with each of them is very different from her relationship with the other. [13] This enthusiasm which Letitia displays to each parent should not be confused by either parent—particularly Mr. Dorosh. Mr. Dorosh enjoys generous and fulfilling relationship with Letitia and he must not confuse his daughter’s affection and enthusiasm toward him as being to the exclusion of her mother. Madam Justice Dawson did not have to deal with declaration on the matter of custody because it was not requested at that time. But neither was it necessary. Today, Letitia is 15 and presumably all the wiser than she was two years ago. [14] In the Voices Report Letitia is quoted as indicating “her parents do not get along well together ‘at all’.” “[T]hey’ve tried to talk, but they are just two different people. They just need to not be together. don’t know how they were ever together.” Letitia then concluded, “Now it is better because they don’t talk.” The Voices Report continues at some length to quote Letitia’s view of her parents’ personalities and behaviour with remarkable wisdom given her then age of 13 years. What wisdom can come “out of the mouth of babes.” [15] Letitia has been in the primary care of her mother. Her principal residence continues to be with her mother and is closely located to her collegiate and circle of friends. It is clear that her best interests require that the status quo be continued. [16] Mr. Dorosh and Ms. Antonowitsch are not candidates for joint custody and shared parenting. Letitia’s view of the dysfunctional relationship between her parents compels this Court to preserve the status quo as being in the child’s best interests. Ms. Antonowitsch will continue as the sole custodian. Mr. Dorosh should not be offended by this conclusion. Rarely would court of law be so bold as to try to mandate an intelligent, mature and wholesome 15-year-old’s custody in the circumstances that prevail here. Both parents are in fact to be congratulated that they have parented Letitia to be who she is today. Letitia herself is to be congratulated on the manner in which her personal skills manage her relationship with each of her mother and father. [17] In January of this year Madam Justice Dawson varied access as was prescribed in the 1995 judgment. Nothing has changed to warrant a variation. The material change threshold has not been met. The existing access order allows Letitia to define the extent of access or time spent with each of her mother and father. At her age, Mr. Dorosh and Ms. Antonowitsch should be alive to the fact that Letitia deserves significant amounts of time to pursue her own social life, school studies, extracurricular activities and to have the freedom of quiet and private time. Letitia should not be made to feel obligated to spend more time with her mother and father at the expense of her own growing freedom and independence. Nor should the natural growth of child toward independence be misconstrued as sign of disaffection. Mr. Dorosh’s Driver’s Licence [18] The Court has allowed the director to reinstate Mr. Dorosh’s driver’s licence. This enables Mr. Dorosh to pick up and deliver Letitia without reliance on others. This also complements Mr. Dorosh’s opportunity to pursue employment in meaningful way and this Court encourages that the licence continue to be reinstated unless there is future disobedience of this Court’s judgment and order. Child Support and Arrears [19] Mr. Dorosh asks to have the accumulated arrears of child support expunged and that his obligation to contribute to Letitia’s care and maintenance be reduced from $250.00 per month to zero. [20] In his application Mr. Dorosh states his request on the basis that the parties share custody of Letitia, that is, that Letitia is residing with her father at least 40% of the time. In Mr. Dorosh’s supporting affidavit he fails to provide the Court with any evidence that Letitia is indeed residing with him or under his direct supervision and control. There is the mere statement that there is a “50-50 living arrangement from the beginning of the proceedings.” Nor does Mr. Dorosh provide any evidence nor explanation at to why he has failed to pay child support which creates the present arrears. [21] In an unsworn financial statement filed on July 25, 2003, Mr. Dorosh informs the Court that he is self-employed. He states in the year 2001 he received $9,383.56 in Employment Insurance benefits and had no other income. In the same financial statement Mr. Dorosh claims his annual living expenses are modest $14,160.00, thus creating an annual deficit of $4,776.44. In calculating his expenses, Mr. Dorosh included his obligation to pay $3,000.00 per year in child support. In fact, Mr. Dorosh acknowledges that he has not made those payments for the better part of two years. statement of arrears filed in the proceedings together with accrued arrears to and including the month of September 2004, would now total $5,734.00. [22] Throughout oral argument Mr. Dorosh asserted that he pays for many of Letitia’s needs and is building up an education trust fund for her college years. However, in the financial statement no expense is disclosed for either purpose, indeed no childcare costs are disclosed. The Employment Insurance benefits which Mr. Dorosh received in 2001 and any disability benefits since that date, would provide Mr. Dorosh with bare subsistence and no financial ability to provide for Letitia as he claims. [23] second financial statement was filed on February 13, 2004, unsworn and undated, in which Mr. Dorosh claims that he has been unemployed since the year 2000. Again, he claims to have received Employment Insurance benefits totalling $9,383.00 and expenses identical to that claimed in the earlier financial statement. In addition, Mr. Dorosh filed notices of assessment for the tax years 2001 and 2002 in which it is affirmed that Mr. Dorosh’s total income was $9,383.00 in the year 2001 and rose to $9,940.00 in the year 2002. Mr. Dorosh filed 2002 income tax return which disclosed his annual income was $9,940.00 derived from social assistance. [24] Ms. Antonowitsch has filed three affidavits in this proceeding, each at different date during this protracted application. In the most recent of these affidavits, sworn March 18, 2004, she attests that Mr. Dorosh’s title to his residence at 258 Scarth Street was transferred into the name of his parents in April 2001. The new title appears in the names of Joe and Irene Dorosh and is dated March 29, 2001. It discloses the property to be valued at $50,000.00 and shows that previous first mortgage granted by CIBC was discharged from the title on April 25, 2001. copy of the transfer from Mr. Dorosh to his parents was also entered as an exhibit indicating consideration was paid to the transferor of $50,000.00. [25] No evidence has been provided by either party as to why this transfer occurred and what proceeds were realized from the “sale.” Mr. Dorosh asserted in his oral argument that the bank was foreclosing. However, the title evidence would indicate that if such proceedings were instituted they did not conclude and the mortgage was paid out and discharged. [26] Ms. Antonowitsch suggests in her affidavit that Mr. Dorosh earns an income in construction, in the siding business, and also assists his family in buying and selling antiques. At paragraph 15 of her affidavit Ms. Antonowitsch states: 15. THAT had discussions with him and even though he was claiming in his materials that he was not working he admitted to me that he was in fact working however indicated that he wouldn’t be providing any documentation to substantiate this. [27] In the same affidavit, at paragraph 17, Ms. Antonowitsch denies that Letitia has spent 40% or more of her time with the respondent. The measure of time for the purposes of the 40-60 guideline rule examines total time including days when child is at school. Letitia remains under her mother’s dominion and control while in school. She visits with her father at times and in the manner which she deems appropriate. That is what Madam Justice Dawson’s order provides. During the summer holidays Letitia may have spent equal amounts of time under the charge and care of each of her parents, but on the whole there is no evidence that Letitia’s time with her father exceeds 40% or more of the year within the meaning of the Guidelines. [28] Finally, the affidavit of Ms. Antonowitsch, states that Mr. Dorosh has admitted to her that he does work on his parents’ farm, assists in the trading of antiques and does siding contracts. [29] In oral argument Mr. Dorosh asserted that he contributed to his daughter’s care and that he is also contributing to her education trust fund. If these expenditures were in fact made over and above his own living costs, would be compelled to accept the fact that he has financial resources available to him other than the $9,940.00 of social assistance which is disclosed in his tax return and financial statement. [30] Despite the grounds for relief recited in the application for variation, the heart and essence of Mr. Dorosh’s application is based upon his claim that his health has, and continues to preclude him from being able to work. Initially Mr. Dorosh filed letter from his personal physician, Dr. R. H. Hatfield which letter is dated April 19, 2004 and reads as follows: The patient has been struggling with depression and anxiety for quite some time now. He is on medication for these problems and we are doing the best we can, but he is not in any position to work or look for work at the present time. The above patient has been under my care for the last six years and has experienced this problem for all these years. He has had his ups and downs, but is unable to work presently and has been unable to work for all these years. cannot say when my patient will be able to return to the work force. It is his intention to return at some stage, but due to the severity of his illness and its chronic nature, don’t foresee return in the next years. He has been off work since 2000 until the present. [31] An application was granted to Ms. Antonowitsch compelling Dr. Hatfield to produce his clinical notes and recordings on Mr. Dorosh’s file. subsequent court order was granted allowing Ms. Antonowitsch to examine Dr. Hatfield for discovery. The transcript of evidence reveals an extensive and thorough cross-examination of Dr. Hatfield upon his April 19 letter, clinical notes and his assessment of his patient, Mr. Dorosh. Nowhere in Mr. Dorosh’s case did he reveal nor did he claim to be an alcoholic, heavy drinker or one who uses marijuana. Mr. Dorosh claims that he suffers from chronic depression and anxiety. Mr. Dorosh relies solely upon Dr. Hatfield’s evidence to prove that he is so debilitated by his state of depression and anxiety that he could not and will not be able to earn livelihood. [32] The following excepts from Dr. Hatfield’s evidence at discovery are germane to this application for rescission of arrears and eliminating Mr. Dorosh’s obligation to pay support for his daughter: Then goes down to—when he told you that he was drinking heavily, did he tell you how long that had been going on? When questioned him at that time, he said that he’d been drinking heavily big part of his life, and said to him, discussed alcohol with you before put you on the medications, and he said that, stopped and I’ve started and I’ve stopped and I’ve started. There have been times in my life where I’ve actually not drank, but I’ve been—I have had—I have been using alcohol for good period of my life. So did he tell you that he’d been using it for quite while before he attended on June the 11th of '01? Basically what he said was—his words to me was that, I’ve started drinking heavily again. So at that time, questioned him and he said that he’d been drinking on and off for good proportion of his life. And so said to him, well, you obviously have to stop being on these medications, and said to him, would you think you’d be able to stop by yourself or do you think you need some help? And he said, no, he thinks he can stop by himself. Did you offer to send him for some assessment or rehab? did and he said that he didn’t feel it was necessary. He said he thinks he can stop by himself. Did it cause you concern that one of the most common medical causes of depressive episodes, other than primary depression, is alcohol? It did cause me concern and it still does to this day. It still does? Yeah. And he may not have depression. It may be as result of his drinking and his drug intake; isn’t that correct? That’s correct. And once again going through this, and think you’ve agreed, “The most common medical causes of depressive episode (other than primary depression) include: Substance abuse and/or dependence involving sedatives, especially alcohol”? Alcohol is the biggest cause of depression there is. And the use of alcohol can cause the same type of symptoms as the depression? Absolutely. And that’s compounded if, in fact, he’s taking drugs such as marihuana? Oh, yeah, it’s compounded, very much so. So you had sent him—so at this point in time it was causing you some concern as to whether or not it was clinical depression or if it was depressive symptoms as result of his drinking; isn’t that correct? That’s correct, it absolutely was big concern for me. ... Did you continue to talk to him about his use of alcohol throughout this period of time? Yeah, spoke to him about it on every visit. said to him, so how’s the drinking going? You know that you shouldn’t be drinking on these medications, and said, are you drinking? And his stock answer to me was, have couple of beers every now and again. That was his stock answer to me. So the bottom line was he hadn’t quit drinking? Absolutely. ... No. And the types of symptoms that he was showing with are consistent with the use of alcohol and drugs as well? Absolutely. Sure they are. And, mean, as you can see on January the 14th of '02, he’s smoking marihuana and drinking still. ... And then we go to this January the 14th of '02. He comes in, he’s not doing that well, he’s smoking marihuana and drinking? Absolutely. He’s taking medication, but he’s having many anxiety episodes, which explain to him could largely be brought on by his marihuana that he’s mixing with his alcohol, and the fact that the medications aren’t working is because he’s drinking excessively. ... So covering both of those aspects to determine whether or not he was actually depressed or if it was because of his drinking? Correct. said, listen, you’ve got to go and get some help with regards to this. can send you to the right people to look at your alcoholism and to look at your depression, and he refused. Did he say why? He said, think can stop drinking. think can get this under control. just need my medication. So said, well, can’t force you, but don’t think you can get it under control because it’s been going on for many years now. And to the best of your knowledge, he hasn’t got it under control; it’s still going on? Correct, to the best of my knowledge. ... So basically what we’re dealing with is if—or what is causing his major problems is self-induced? Correct. If he stops his drinking, stops the drugs, he can go back to work right now, can’t he? would say he probably would need to be on his antidepressant medication, but if he stayed on his antidepressant medication and if he stopped drinking and he stopped using marihuana, he would be able to go back to work And that’s been the situation from day one, if he stayed away from the booze, stayed away from the marihuana, took his medication? think that that’s been his problem all his life has been his booze, yes. And that’s what we’re talking about, his booze? Yeah, think that’s been his big problem. And, in fact, if he stopped the booze and if he stopped the medication—I think as you said earlier, he may not need any medication because that may be causing his symptoms? Correct. would say that you’ve summed it up. He may not, but certainly think that if he stopped drinking and he stopped taking his marihuana, he would be able to go back to work. could control that depression if there indeed was still depression, which there may not be, as you say. agree with you. ... But even with his situation, as you’ve said, the alcohol, he could go out and do—there are all kinds of jobs that he could do? For example, out on the farm, he could do that? He could. And he could have done that from day one? He could. I’ve never felt as result of never attending, never going to the hospital because he was that bad, I’ve never seen any suicidal ideation, and I’ve never ever seen any kind of situation where I’ve felt that he’s been too depressed to work. So the answer to that question is, yes, do believe that he could even do something now. There are people— He could have since 2002? ... Going back to the time that you signed the first one with Human Resources, he could have gone out and done construction work, he could have done manual labour work, he could have done farm work, he could have done siding, he could have done all of that? told him so. Yes, and he was well aware of that and he could have done it then and he can still do it today? Yes. And he can go out and earn money to pay something towards his daughter? [33] The Court recognizes that alcoholism is disease and that in chronic state can be debilitating. In the exchange quoted above, Dr. Hatfield emphasizes that Mr. Dorosh exacerbates his depression and anxiety with the use of alcohol and marijuana. At minimum, with abstinence and medication Mr. Dorosh could function normally. At best, with abstinence Mr. Dorosh’s anxiety and depression may be eliminated. In either scenario, Dr. Hatfield states that since 2002 he believes Mr. Dorosh could have worked and thereby contributed to Letitia’s support. [34] Based upon this medical evidence I cannot conclude that Mr. Dorosh’s generalized anxiety and depression disorder is beyond his own control—that is, Dr. Hatfield does not say that Mr. Dorosh was, is or will be incurable. He is not hopelessly addicted and never has been. If that were so, would equate such hopeless addiction as debilitating illness which precluded Mr. Dorosh from working and thereby earning livelihood by which he could contribute to the support of his daughter. If that were the case, would have cancelled the accumulated arrears because Mr. Dorosh’s illness was beyond his control. However, the evidence of Dr. Hatfield, and indeed of Mr. Dorosh himself, is that Mr. Dorosh still has power over his own destiny and could choose to help himself by eliminating alcohol and marijuana use. [35] Mr. Dorosh’s health nemesis must be examined in light of the law regarding rescission of child support arrears. The burden of proof or onus to show that nonpayment of child support over the time the arrears accrued was the consequence of matters over which he had little or no control lies upon the applicant/payor, Mr. Dorosh. In his pleadings he stated Letitia resided with him 50% of the time, fact which is not true. In his oral argument, Mr. Dorosh relied almost exclusively upon the fact that his depression and anxiety disorder was reason to expunge the arrears of support and to reduce his future obligation to zero. find this argument totally lacks merit. [36] At no time in his affidavit material, nor oral argument, did Mr. Dorosh make reference to alcohol or marijuana. He urged the Court to believe that his depression and anxiety disorder is genetic in origin. Dr. Hatfield confirmed the extent to which alcohol and drug misuse is self-inflicted and that even were the depression and anxiety physiologically manifested, that proper use of medication would control the disorder permitting Mr. Dorosh to work. Dr. Hatfield also would not foreclosure the prospect that abstaining from the use of alcohol and marijuana may eliminate the depression and anxiety symptoms altogether, thereby removing the need for medication. Therefore find that Mr. Dorosh was capable of controlling his depression and anxiety by either abstaining, or by abstaining and using his medication properly, throughout the period 2002 to the present. Mr. Dorosh has failed to meet the burden of proof by demonstrating that his depression and anxiety disorder was the consequence of origin and factors beyond his control and thus preventing him from working and having an income with which to pay his child support obligations during the period under review. The application for variation of child support and cancellation of child support arrears is dismissed with costs. [37] To assist Mr. Dorosh in understanding the applicable law, quote from the recent decision of Madam Justice Wilkinson of this Court delivered in the case of Stadnyk v. Stadnyk, 2004 SKQB 230 (CanLII); [2004] S.J. No. 355 (QL) (Sask. Q.B.), together with the authorities quoted therein. Paragraphs 26, 30 and 33 of that decision are instructive: [26] The established jurisprudence, as outlined in Van Gool v. Van Gool (1998), 1998 CanLII 5650 (BC CA), 44 R.F.L. (4th) 314 (B.C.C.A.) and Pagani v. Pagani, 2000 BCSC 75 (CanLII), [1999] B.C.J. No. 3051 (B.C.S.C.) (QL), is that the court must consider not only the amount of income actually earned, but also the amount that could be earned if payor was working to capacity. The general rule is that parent cannot avoid child support obligations by self‑induced reduction of income. The petitioner’s decision to pursue romantic relationship that jeopardized his career potential created self‑induced reduction of income. It cannot stand on any higher footing than an arbitrary termination of employment without justification, or unilateral decision to pursue higher education rather than working. In these cases, the courts have not been prepared to relieve payor of the child support obligation. [30] Recent appellate decisions confirm that parent can be found to be intentionally under‑employed if that parent is not reasonably maximizing his or her income, regardless of whether there is any accompanying intention to avoid child support obligation. See: Llewellyn v. Llewellyn (2002), 2002 BCCA 182 (CanLII), 26 R.F.L. (5th) 389 (B.C.C.A.) and Drygala v. Paul (2002), 2002 CanLII 41868 (ON CA), 29 R.F.L. (5th) 293 (Ont. C.A.). [33] Except for the limited rescission of arrears affected by this retroactive variation, am not prepared to discharge the arrears further. It must be established not only that payor has present incapacity to pay, but also that he or she will not be able to pay at any time in the future. See: Haisman v. Haisman (1994), 1994 ABCA 249 (CanLII), R.F.L. (4th) (Alta. C.A.); Diebel v. Diebel (1997), 1997 CanLII 11005 (SK QB), 28 R.F.L. (4th) 100, 155 Sask. R. 96 (Q.B.). [38] Mr. Dorosh’s belief that he was not able to work since 2002 and cannot work at the present time is self-induced and false belief. If Mr. Dorosh were willing, there is no reason for me to believe that he could not earn an annual income of $24,000.00, which impute as being his annual income for child support purposes. Commencing September 1, 2004, Mr. Dorosh will pay to Ms. Antonowitsch the sum of $202.00 on the first day of each and every month for so long as Letitia is child within the meaning of the Divorce Act. This order, being made subsequent to May 1, 1997, falls under the provisions of the Guidelines and amended provisions of the Income Tax Act, R.S.C. 1985, c. (5th Supp.) with consequence that the amount paid is nondeductible for Mr. Dorosh’s tax purposes and is nontaxable in the hands of Ms. Antonowitsch. The after tax effect should equate to the former level of real support. [39] Ms. Antonowitsch is entitled to her taxable costs against Mr. Dorosh.

FIAT: The issues to be determined on this application are custody, child support and cancellation of the arrears of child support. HELD: 1) On the issue of custody, the mere passage of time, in this instance 9 years, would constitute a material change in circumstances relevant to custody. The child is now 15 years old. The parties are not candidates for joint custody and shared parenting. The child's view of the dysfunctional relationship between her parents compels this Court to preserve the status quo as being in the child's best interests. The petitioner will continue as the sole custodian. 2) The access was varied in January 2004. Nothing has changed to warrant a variation. 3) There was no evidence to support the respondent's statement that the child is living with him half the time. There was no evidence or explanation as to why he has failed to pay child support, which creates the present arrears. The evidence with respect to the respondent's finances was unsworn and out of date. In oral argument, the respondent asserted that he contributed to his daughter's care and that he is contributing to her education trust fund. If these expenditures were in fact made over and above his own cost of living, the Court would be compelled to accept the fact that he has financial resources available to him other that the $9,940 of social assistance which is disclosed in his tax return and financial statement. 4) The essence of the respondent's application for variation of the child support is based on his claim that his health has precluded him from working. The respondent's doctor was examined and, based on that medical evidence, the Court could not conclude that the respondent's generalized anxiety and depression disorder is beyond his control. The evidence was that the respondent could choose to help himself by eliminating alcohol and marijuana use. The respondent failed to meet the burden of proof by demonstrating that his depression and anxiety disorder was the consequence of factors beyond his control and thus preventing him from working and having an income with which to pay his child support obligations during the period under review. The application for variation of child support and cancellation of child support arrears is dismissed with costs.

3_2004skqb379.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 367 Date: 2007 10 12 Docket: Q.B.G. No. 943 of 2004 Judicial Centre: Saskatoon BETWEEN: DAVID KIRK TAYLOR and THE SASKATOON CIVIC EMPLOYEES’ UNION LOCAL 59 Counsel: Self for the plaintiff M. J. Torrens and C. G. Veeman for the defendant JUDGMENT R. S. SMITH J. October 12, 2007 Introduction 1) In June, 2004, the plaintiff, an employee of the City of Saskatoon and member of the Saskatoon Civic Employees’ Union, CUPE Local No. 59 (hereinafter the “Union”) commenced this action under the simplified procedure of Part 40 of The Queen’s Bench Rules, seeking judgment for $50,000. 2) The plaintiff’s claim is grounded on a provision of the Union’s by-laws which reads:Article XII - Indemnity Clause CUPE Local 59 shall pay the cost of: 12.1 a) Defending an action or proceeding against Union officer claiming liability on the part of that Union officer for acts or omissions done or made by the Union officer in the course of his/her duties or paying any sum required to settle the action or proceeding; b) Damages and costs awarded against Union officer as result of the finding of liability on the part of that Officer for acts or omissions done or made by the Union officer in the course of his/her actions. This Bylaw shall cover Executive officers of Local 59 only. 3) The plaintiff asserts he is involved in Union related litigation and is thus entitled to the benefit of the indemnity clause. The Union resists the claim asserting various defences, the primary being that the plaintiff misconstrues and misinterprets the indemnity by-law and, more to the point, the Court should decline to become involved in the dispute because the Union is voluntary association and is entitled to resolve its own disputes. 4) While the Union may well make the employees of the City of Saskatoon strong, it does not, apparently, make them all happy. The plaintiff had been president of the Union for roughly 10 years when he was defeated in an election for that office in 2000. recount was requested but the result was confirmed. Several months later, the position of vice-president was in contest and the plaintiff put his name forward. He also lost that bid. 5) Defeat did not rest easily with the plaintiff and he again proffered his name for election for the position of Reclassification Chair, in an election to be held in September, 2000. The third time was charm and he was elected to that office. 6) From the moment the plaintiff was defeated in his bid for the presidency in 2000, his relationship with the executive of the Union became rancorous. The plaintiff was constantly engaging the Union’s various officers in procedural objections and debates. General meetings and sessions of various committees for the most part descended into dysfunction. It reached such point that the Union executive actively considered giving up self-government and placing itself in the hands of CUPE National office. 7) Much was said and written by all the players to the drama which, in due course, gave rise to considerable litigation. The plaintiff, in 2001, initiated defamation action against three Union officers (Q.B. No. 664 of 2001) (the “First Action”). The Union defended and brought counterclaim against the plaintiff for defamation by him against certain Union officers. 8) Litigation of the type brought by the plaintiff was new to the Union. It carried no insurance to cover such costs and, accordingly, it was resolved that an indemnity by-law should be passed to ensure that the officers who had been sued in the First Action had the costs of their defence paid by the Union. Not surprisingly, the plaintiff was vociferous in his objection to the by-law and proposed motions and other procedural barriers. In the end, the by-law outlined in the Introduction was adopted. 9) The Union executive sought assistance from CUPE National office which led to report prepared by CUPE National representative. The report observed at page that: The local’s problems seem to have intensified immediately after the election of Sister Lois Lamon as president of the local. Former President, Brother Dave Taylor, and others have devoted much of their time to making life as difficult as possible for the democratically elected officers. This comment is supported by many documents. 10) The observation by the CUPE National representative did not sit well with the plaintiff. He responded by issuing statement of claim (Q.B. No. 2030 of 2002) (the “Second Action”), naming as defendants the Union, CUPE National office, the author of the report and local Union officer. As with the First Action, the primary complaint of the plaintiff was defamation. 11) In 2003, the plaintiff commenced Q.B. No. 1535 of 2003 (the “Third Action”), again alleging defamation by fellow Union member arising out of an e-mail. 12) In March, 2005, Klebuc J. (as he then was), granted an order directing that the First, Second and Third Actions were to be tried sequentially before the same judge with the evidence in each action to be applied to each of the others. 13) As noted, in June, 2004, the within action (the “Fourth Action”) was commenced by the plaintiff under the simplified Rules claiming $50,000 against both the Union and CUPE National for reimbursement of costs incurred by him in advancing his claims in the First, Second and Third Actions. The plaintiff grounds the Fourth Action on the basis of the indemnity by-law. In July, 2004, CUPE National successfully applied to have the Fourth Action dismissed as against it. Accordingly, the Union is now the sole defendant in the Fourth Action. 14) In addition to clamorous debates at Union meetings and the three civil actions, there was second front opened against the Union by Nadine Schreiner. From the Court file, it is reasonable inference to draw that Ms. Schreiner has joined with the plaintiff in his crusade. 15) Ms. Schreiner sought relief against the Union by way of various applications to the Labour Relations Board under sundry provisions of The Trade Union Act, R.S.S. 1978, c. T-17. All of those applications were unsuccessful. (See: Schreiner v. Canadian Union of Public Employees, Local 59 et al., [2001] Sask. L.R.B.R. 444; Schreiner (Re), [2001] S.L.R.B.D. No. 40 (QL); Schreiner (Re), [2001] S.L.R.B.D. No. 76 (QL); and Schreiner (Re), [2005] S.L.R.B.D. No. 35 (QL)). 16) The applications by Ms. Schreiner to the Labour Relations Board are not relevant to the current application, however, they are illustrative of the shock and awe litigation strategy employed by the plaintiff. 17) The plaintiff now applies under Queen’s Bench Rule 485 for summary judgment. Rule 485(1) provides: 485(1) After the close of pleadings, party may apply with supporting affidavit material either by notice of motion for summary judgment, or application for summary trial. 18) The plaintiff posits that as the merits of his case are self-evident, an immediate judgment against the Union in the amount of $50,000 should be granted. Analysis Appropriate forum 19) The Union submits in its brief: 44. Clearly, given the above-described nature of the membership contract, it would be inappropriate to treat the membership contract as simply an ordinary commercial contract. After all, the membership contract is essentially form of “social contract” establishing form of workplace government. It cannot function if the individual members can simply opt out when convenient for them, by for instance invoking the courts when the democratic process does not produce the results that they desire. It [sic] because of this that the members agree that they will abide by the democratic decision-making processes of the union. 45. By declining to get involved in such disputes, therefore, the Court is merely upholding basic term of the membership contract, without which the union cannot function effectively on behalf of its members. 46. The Union further submits that the case law in relation to the supervision of the affairs of voluntary associations, as well as the principles of statutory interpretation, support the above submissions in terms of the Court not becoming involved in this dispute. 20) Firstly, would observe that for employees of the City of Saskatoon, membership in and payment of dues to the Union is not voluntary. For all practical purposes, s. 36 of The Trade Union Act and the union security provisions of the Collective Bargaining Agreement impose both obligations on all in-scope employees as condition of their employment. As to the larger issue of whether the Court should exercise its jurisdiction over disputes between member and the Union, have benefited from the guidance of the Supreme Court in Berry v. Pulley, [2002] S.C.R. 493, 2002 SCC 40 (CanLII), where the Court observed at para. 48: [48] In light of the above, the time has come to recognize formally that when member joins union, relationship in the nature of contract arises between the member and the trade union as legal entity. By the act of membership, both the union and the member agree to be bound by the terms of the union constitution, and an action may be brought by member against the union for its breach; however, since the union itself is the contracting party, the liability of the union is limited to the assets of the union and cannot extend to its members personally. say that this relationship is in the nature of contract because it is unlike typical commercial contract. Although the relationship includes at least some of the indicia of common law contract (for example offer and acceptance), the terms of the contractual relationship between the union and the member will be greatly determined by the statutory regime affecting unions generally as well as the labour law principles that courts have fashioned over the years. With this in mind, for ease of reference will refer to the membership agreement between the individual member and the union as contract. [Emphasis added] 21) The core of the dispute in the Fourth Action is whether the plaintiff is entitled to benefit from an indemnity contained in the Union’s by-laws. The dispute distills to an interpretation of the terms of the Union membership contract in sum, the very type of debate contemplated by the Supreme Court in Berry v. Pulley. 22) The defendant also invokes the reasoning in Street v. B.C. School Sports, 2005 BCSC 958 (CanLII), [2005] B.C.J. No. 1523 (B.C. S.C.) (QL). In that case, Silverman J. declined to address the merits of dispute concerning high school athletic association. Silverman J. observed that, as general rule, courts are loathe to become involved in the internal business of voluntary organizations. 23) With all respect to the defendant, this case is very different than Street v. B.C. School Sports. The dispute in the Fourth Action involves contractual debate concerning the meaning and scope of an indemnity clause. This is substantially different from an internecine dispute in voluntary sports organization respecting the disciplining of high school coach over recruiting practices. The analysis in Street v. B.C. School Sports is not germane to the within debate. However, it is worth noting that in that case the Court did exercise supervisory jurisdiction to ensure the process was fair. 24) Accordingly, in the absence of some statutory regime precluding the Court’s involvement, the debate in the Fourth Action is totally appropriate for disposition by the Court. The statutory regime the Court must be sensitive to is The Trade Union Act. That legislation provides the Labour Relations Board with an exclusive domain on many matters dealing with industrial relations. 25) On this point, have sought guidance from the Court of Appeal in McNairn v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 179, 2004 SKCA 57 (CanLII), (2004), 249 Sask. R. 111 (C.A.). To provide context for the Court of Appeal’s analysis, quote from the judgment the following: [1] The question on this appeal is whether the Court of Queen's Bench has jurisdiction over an action for damages brought against union by one of its members alleging breach of contract by the union in violating the hiring hall rules governing the allocation of jobs among unemployed union members. [2] The action was brought by Rodney McNairn against United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry in the United States and Canada, Local 179. In essence, the statement of claim pleads the following cause of action: Mr. McNairn is welder and member of the Union. The relationship between the Union and its members is contractual and is governed by written set of "Working Rules and Bylaws" constituting terms of the contract between the two. Pursuant to the Rules the Union maintains an unemployment board containing the names of out of work Union members, listing them in the order in which the Union is to dispatch them as jobs become available. In violation of the Rules the Union moved Mr. McNairn's name from the top to the bottom of the board, depriving him of work for which he was qualified, causing him loss, and entitling him to damages. [3] On receipt of the statement of claim the Union applied for and obtained an order striking it out on the ground the Court lacked jurisdiction. At that, Mr. McNairn brought this appeal, contending the order was made in error. 26) At the Queen’s Bench level, the Court concluded that the dispute between the parties, in its essential character, was grounded in sections 25.1 and 36.1 of The Trade Union Act. Therefore, the debate between McNairn and his union fell exclusively within the jurisdiction of the Labour Relations Board. 27) The Court of Appeal was of different view and overturned the Queen’s Bench decision. The Court of Appeal concluded that the debate between McNairn and his union was one which fell within the purview of the Queen’s Bench Court. 28) The Court observed, at para. 34: [34] Were the dispute between the parties grounded in section 25.1, there could be no doubting the Board's exclusive jurisdiction to entertain it. However, the facts as pleaded in the statement of claim do not reveal dispute of that character. They reveal dispute over whether the Union removed Mr. McNairn's name from the top of the unemployment board in breach of its obligations pertaining to the maintenance of the board. The Union's obligation to place the names of its unemployed members on the unemployment board in appropriate sequence did not arise out of its statutory duty of fair representation. Rather, it arose out of the Working Rules and Bylaws.... and further, at para. 38, the Court of Appeal opined: [38] Thus subsection 36.1(1) imposes duty upon union (again correlative to the right thereby conferred upon an employee), to abide by the principles of natural justice in disputes between the union and the employee involving the constitution of the trade union and the employee's membership therein or discipline thereunder. As such, the subsection embraces what may be characterized as "internal disputes" between union and an employee belonging to the union, but it does not embrace all manner of internal dispute. For the subsection to apply, the dispute must encompass the constitution of the union and employee's membership therein or discipline thereunder. And when it does apply, it requires that the principles of natural justice be brought to bear in the resolution of the dispute. [emphasis added] 29) The essential nature of the debate between Taylor and the Union relates to the interpretation of the indemnity clause in the Union by-laws. In that respect, the contest in this case is indistinguishable from the dispute in McNairn. Moreover, the argument between the plaintiff and the Union is even further removed from those which the Labour Relations Board has exclusive jurisdiction. The dispute is, in its essential character, contractual in nature; namely, is the plaintiff entitled to the benefits of the indemnity clause in the Union by-laws? 30) In short, this is precisely the type of internal dispute that is not within the exclusive realm of the Labour Relations Board. The forum for this contest is The Queen’s Bench Court. Accordingly, this Court has jurisdiction to entertain the plaintiff’s claim and his application under Queen Bench Rule 485 for summary judgment. Exhausting internal remedies 31) The defendant also takes the position that the Court should not lend its process to the Fourth Action as the plaintiff has available to him further internal Union appeals. That appeal process is not self-evident in the Union’s by-laws, however the defendant posits that an expansive reading of CUPE National’s by-laws would lead to conclusion that the plaintiff has one last place to plead his position, namely, at the office of the president of CUPE National. 32) do not accept the position advanced by the defendant. The dispute in the Fourth Action revolves around the by-laws of the Union, not CUPE National’s. Nothing in the Union by-laws precludes the plaintiff from seeking relief from the Courts before making final appeal to the CUPE National office. In my view, it would be inequitable to prevent the plaintiff from bringing this application in the absence of clear and enforceable provision excluding his access to the Courts. Meaning of the indemnity clause 33) In advancing his application the plaintiff utilizes number of interpretive twists and turns. The heart of his argument is that because he is engaged in litigation respecting the Union, he is entitled to have his costs paid. He contends that those costs should notionally be set at $50,000. 34) The plaintiff represents himself. He has incurred no legal fees, other than disbursements, but, nonetheless, he asserts he is entitled to $50,000. The figure of $50,000 is proffered by the plaintiff as an appropriate sum as he expects the defendant has spent at least that much defending the four actions. 35) The Union replies that the plaintiff’s interpretation of the by-law is completely counter-intuitive, blatantly disregards the plain wording of same and totally ignores the context in which it was passed. 36) To assist the Court, the Union invokes Gilchrist v. Western Star Trucks Inc., 2000 BCCA 70 (CanLII), (2000), 73 B.C.L.R. (3d) 102 (B.C. C.A.). At para. 17, the Court summarized the traditional approach to the interpretation of contracts as follows: [17] The goal in interpreting an agreement is to discover, objectively, the parties' intention at the time the contract was made. The most significant tool is the language of the agreement itself. This language must be read in the context of the surrounding circumstances prevalent at the time of contracting. Only when the words, viewed objectively, bear two or more reasonable interpretations, may the court consider other matters such as the post-contracting conduct of the parties. 37) In interpreting contractual language, in this case the language of the by-law, it is important to do so in the context of the surrounding circumstances at the time the provision was drafted. In this instance, the Union found that it was being assailed by the plaintiff and drawn into litigation. The Union appropriately felt obligated to protect its officers from actions done in the course of their office that made them the subject of the plaintiff’s, or others, litigation. As result, the executive took steps to pass by-law which would indemnify the officers. observe the by-law is not dissimilar to one that would be found in many organizations and is logical and appropriate step to take in litigious world. 38) It is worth noting that the plaintiff, at the time of the debate concerning the indemnity clause, introduced motion to amend the indemnity by-law so as to exclude the First Action. That motion failed. The only inference to draw is that the members at that meeting knew that they were paying for the cost not only of the defence of the First Action, but also the counterclaim contained in the First Action. 39) The Union submits that there are two key reasons why the plaintiff is not entitled to be indemnified under the indemnity by-law: (a) The Indemnity Bylaw was not intended to be used to initiate actions or proceedings, but rather to defend actions or proceedings. The counterclaim against the Plaintiff is part and parcel of strategy to defend the officers who were sued by the Plaintiff. (b) The Plaintiff was either not an “Executive Officer” at the relevant time or was not acting in the course of his duties as an Executive Officer when he made the comments and published the material for which he is being sued. 40) The Union asserts that it would be clearly wrong and an error in law to interpret the indemnity clause so as to obligate the Union to fund the plaintiff in his activity of suing the Union and its officers. The Union further notes the apparent contradiction in the plaintiff’s claim for reimbursement of costs not incurred. 41) The Union asks that if the Court concludes, as have done, that it has jurisdiction to hear the plaintiff’s application for summary judgment under Queen’s Bench Rule 485, that it consider dismissing the plaintiff’s claim. The Union cites Wait v. Prince Albert (City), 2002 SKQB 374 (CanLII), (2002), 225 Sask. R. 113 (Q.B.), which stands for the proposition that in disposing of summary judgment motion, the Court may, in addition to granting judgment or directing trial, also grant judgment for the defendant by dismissing the action where such dismissal is appropriate. 42) As noted by Gerein C.J.Q.B., (as he then was) in the application by CUPE National to strike it from the Fourth Action: [3] claim should be struck only where it is plain and obvious that it cannot succeed. See The Attorney General of Canada v. Inuit Tapirisat, 1980 CanLII 21 (SCC), [1980] S.C.R. 735; Marshall v. Saskatchewan, Government of, Petz and Adams (1982), 1982 CanLII 2387 (SK CA), 20 Sask. R. 309 (C.A.); and Sagon v. Royal Bank of Canada et al. (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 (C.A.). 43) The pith and substance of the Fourth Action is to compel the Union to provide the plaintiff with war chest for the sole purpose of suing the Union and its officers. It is plain and obvious that the plaintiff’s claim is grounded on an interpretation of the indemnity clause that is so illogical and inconsistent with its plain wording that it cannot succeed. The plaintiff’s claim for reimbursement of costs not incurred is equally incapable of success. 44) The Dickensian character, Mr. Bumble, upon being advised that the law supposes that his wife acts under his direction, exclaimed “if the law supposes that, the law is ass idiot”. Since that time, commentators and pundits of every stripe have embraced the phrase “the law is an ass”. Notwithstanding the best efforts of legislators and judges, expect, from time to time, the law is still an ass. Not this time. 45) The plaintiff’s application for summary judgment is dismissed. Further, the within action brought by the plaintiff is dismissed, in full. As per the agreement between the parties, there will be no order as to costs. J. R. S. Smith

The plaintiff is an employee of the City of Saskatoon and member of the Union. He commenced this claim based on the Indemnity Clause contained in the Union's bylaws. The plaintiff asserts he is involved in Union related litigation and is thus entitled to the benefit of the indemnity clause. HELD: The plaintiff's application for summary judgment is dismissed. The within action is dismissed in full. 1) The essential nature of the debate between the plaintiff and the Union relates to the interpretation of the indemnity clause in the Union bylaws. This is precisely the type of internal dispute that is not within the exclusive realm of the Labour Relations Board. The forum for this contest is the Queen's Bench Court and this Court has jurisdiction to entertain his claim under Queen's Bench Rule 485 for summary judgment. 2) The plaintiff represents himself. He has incurred no legal fees, other than disbursements, but he nonetheless asserts that he is entitled to $50,000. The figure of $50,000 is proffered by the plaintiff as an appropriate sum as he expects the defendant has spent at least that much defending all four actions. 3) It is plain and obvious that the plaintiff's claim is grounded on an interpretation of the indemnity clause that is so illogical and inconsistent with its plain wording that it cannot succeed. The plaintiff's claim for reimbursement of costs not incurred is equally incapable of success.

e_2007skqb367.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 100 Date: 20040624 Between: Docket: 952 Her Majesty the Queen in Right of Saskatchewan represented by the Superintendent of Pensions (Applicant) Proposed Appellant and MacKenzie Financial Corporation, Haywood Securities Inc., Dynamic Mutual Funds Limited and AGF Management Ltd. (Respondents) Proposed Respondents Before: Sherstobitoff J.A. Counsel: Ralph K. Ottenbreit, Q.C. for the Proposed Appellant Deron A. Kuski for the Proposed Respondent Application: From: 2004 SKQB 187 (CanLII) Heard: June 23, 2004 Disposition: Dismissed Written Reasons: June 24, 2004 By: The Honourable Mr. Justice Sherstobitoff SHERSTOBITOFF J.A. [1] The Superintendent of Pensions seeks leave to appeal an order staying six separate proceedings brought by him in purported exercise of powers conferred on him by s. 8 of The Pension Benefits Act, 1992, S.S. 1992, c.P-6.001 and Regulations made thereunder. The stay was granted upon the applications of the respondent corporations and was to remain in effect until an action against them by one Faye McMaster, not party to these proceedings, was settled or otherwise completed. The subject matter of the McMaster action and the Superintendent’s applications was the same, namely certain monies McMaster’s husband had paid into pension plan and in which she had an interest by reason of judicial division of matrimonial property. [2] Hunter J., who dealt with the stay application, felt impelled to deal with the powers of the Superintendent because it had previously been agreed by the parties and directed by the Court that the preliminary issue to be determined was the scope of s. of the Act. She determined that the Superintendent did not have the powers he claimed to have and purported to exercise. However, she was careful to limit her judgment in this respect as follows: [24] This matter was addressed as preliminary issue only without any adjudication on the merits. It is impossible to address the scope and breadth of statutory provision in the absence of factual context. However, that is how the matter was put for determination. [25] In an effort to limit the effect of this determination on preliminary issue on the merits of the six motions commenced by the Superintendent, find that the letter of August 6, 2002 is not direction of the Superintendent, which may be enforced pursuant to s. of the Act. Section is to assist the Superintendent in carrying out his administrative duties and the letter of August 6, 2002 is beyond the legislative authority of the Superintendent and beyond his administrative capacity. [3] From this, it is clear that her finding was for procedural purposes only and was not intended to be definitive. She left it open to the Superintendent to proceed with his applications when the McMaster action was finished and that her decision respecting his powers was open to review upon further evidence being adduced. Indeed, it could be said that her findings in respect of s. were obiter dictum as not being strictly necessary to the decision, and made only because that was the way the matter was put to her by previous decision of the court and the agreement of the parties. [4] Since the judge made it clear that the part of her judgment which the Superintendent says was wrong was made “without any adjudication on the merits” the matter is left open for the Superintendent to argue another day, either in the stayed proceeding or in another case, in proper factual context, which was lacking here. [5] For these reasons, find it inappropriate to grant leave to appeal. The application is dismissed with costs. DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of June, A.D. 2004. SHERSTOBITOFF J.A.

The Superintendent of Pensions seeks leave to appeal an order staying six separate proceedings brought by him in purported exercise of powers conferred on him by s. 8 of The Pension Benefits Act, 1992. HELD: The application was dismissed. It was clear that the judge's finding was for procedural purposes only and was not intended to be definitive. The judge left it open to the Superintendent to proceed with his applications when the McMaster action was finished and that her decision respecting his powers was open to review upon further evidence being adduced.

2004skca100.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN RITA VERMA (Petitioner) APPELLANT and DR. SHEO P. VERMA (Respondent) RESPONDENT CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Sherstobitoff The Honourable Madam Justice Jackson COUNSEL: Mr. Neil Turcotte for the appellant Ms. Merri-Ellen Wright for the respondent DISPOSITION: Appeal Heard: September 14, 1995 Appeal Allowed: September 14, 1995 (orally) Reasons: October 13, 1995 On Appeal From: UFC 383/85, 622/85 477/88, J.C. of Saskatoon Appeal File: 1725 Reasons by: The Honourable Mr. Justice Sherstobitoff In concurrence: The Honourable Chief Justice Bayda The Honourable Madam Justice Jackson SHERSTOBITOFF J.A. This appeal was allowed from the bench with brief written reasons to follow. These are the reasons. The appeal is from an order that determined, after trial of an issue, that the parties had reached a binding agreement as to the value of Dr. Verma\'s pension plan during negotiations which took place during a series of pre-trial conferences. The judge, in her reasons, outlined the background as follows: Dr. Sheo Verma and his ex-wife, Rita Verma, separated in 1983 and were divorced in 1989. Mrs. Verma commenced her action for division of matrimonial property on May 1, 1985 and Dr. Verma petitioned for divorce in 1988. The question of the division of certain of the matrimonial assets has been contentious one and the fact that there is property in Germany and India as well as in Saskatchewan has complicated matters. The sequence of events relative to the division of Dr. Verma's pension benefits is as follows: November 15, 1988 Examinations for discovery of Dr. and Mrs. Verma. Both gave undertakings to produce certain documents. Dr. Verma was to produce statement of the value of his pension plan as of the date of commencement of the application, May 1, 1985. June 9, 1989 First pre-trial conference. At this settlement conference Ms. Gregor appeared with Mrs. Verma and Mr. Singer with Dr. Verma. There were oral agreements on the value of certain items of property. The pre-trial judge made no written memorandum but advised the parties to record what had been agreed upon that day. The conference was adjourned to October 3, 1989. June 19, 1989 Mr. Singer wrote to Ms. Gregor asking her to confirm his listed items of agreement, including: "That the husband's pension is valued at $39,411.00." July 14, 1989 Ms. Gregor's letter in reply confirmed "That the husband's pension is valued at $39,411.00." October 3, 1989 Pre-trial was adjourned sine die. April 8, 1991 Pre-trial resumed with Mr. Chetty acting for Mrs. Verma and Mr. Singer still acting for Dr. Verma. The pre-trial judge recorded various items of agreement but the list did not include agreement on the value of Dr. Verma's pension. The fiat ended: Pre-trial for continuation with respect to maintenance, jewellery and debts of the wife incurred. Adj. sine die. Court orders transcript of tape. June 20, 1991 Pre-trial conference continued. In his long fiat the judge declared that this pre-trial was terminated and made orders with respect to values of certain other items of property. The fiat contained the following direction: If the petitioner is not going to accept the value of the pension as being $39,411 and the respondent's employers contributions of $40,576, if they're not accepting the combined values of these figures as being the value of the respondent pension you are to have prior to the pre-trial date an actuaries valuation of the pension. March 8, 1993 At further continuation of the pre-trial conference Mr. Turcotte appeared with Mrs. Verma and Ms. Wright with Dr. Verma. The fiat read: There will be trial of the issue on the pension as to whether or not the documentation on the file and the correspondence constitutes and agreement as to the value of the pension and if it does not state the value of the pension then the court should determine what the value of the pension is for the purpose of the matrimonial property action. There will also be trial of the issue on whether or not the correspondence, briefs of law and fiats on the file constitute an agreement of the value of certain properties on the file, if not then to determine what the value of this property is. This fiat was made by the consent of the parties. The pension in question turned out, according to the judge, to be worth $102,615.94 on the date in question. The judge found that this information was available to Mrs. Verma and her counsel when the letters were exchanged each agreeing to the value of $39,411.00 for the pension and that Mrs. Verma should be bound by her agreement as to its value. She relied on the following statement of Dickson J. of the Unified Family Court in Zimmerman v. Zimmerman (1992), 1992 CanLII 8027 (SK QB), 104 Sask. R. 150, at p. 153, (appeal to Court of Appeal dismissed without reasons, May 3, 1993): The resulting agreement should be recognized and enforced by our courts. Otherwise the primary purpose of the pretrial conference is lost. cost-saving and time-saving procedure would then be reduced to meaningless step int he litigation process. adopt the reasoning of Estey, J., in Revelstoke Companies Ltd. v. Moose Jaw et al., 1983 CanLII 2223 (SK QB), [1984] W.W.R. 52; 28 Sask. R. 115, at page 60 W.W.R.: "Settlements of actions have been encouraged in our courts for great many years and it appears to me that the courts should be hesitant in upsetting or rectifying minutes of settlement unless of course there be something in the nature of fraud, incapacity of party, or the minutes of settlement are too vague to enforce or are obviously incomplete." Since the judgment of this Court in Childs v. Childs Estate, 1987 CanLII 205 (SK CA), [1988] W.W.R. 746, there is no doubt that judge has the power, under Rule of s. 44 of The Queen's Bench Act, R.S.S. 1978, c. Q-1, to enforce or set aside an agreement compromising an action by summary proceedings. The law as stated in that judgment applies as well to agreements or settlements reached during the course of pre-trial conferences in matrimonial property matters. What the judge in this case failed to note was that the courts in Zimmerman and in Childs were dealing with complete agreements settling or purporting to settle all aspects of the actions in question. In this case, we are dealing with something entirely different: an agreement fixing the value of few items of property, reached during the course of negotiations with view to an overall property settlement between the parties. There was nothing in the evidence to indicate that the parties intended that each individual item agreed to during the course of negotiations toward final agreement would constitute separate, independent, binding, and enforceable agreement irrespective of whether agreement was reached on all of the other items outstanding between the parties. These circumstances lead rather to the conclusion that each item agreed to was subject to reaching an overall final agreement. Accordingly, there was no contract that the judge could enforce. That is not to say that the parties cannot reach several separate independent, binding and enforceable agreements as part of an effort to reach an overall settlement of the matters in issue between them, but in order to do so, the intention of the parties to settle on a piecemeal or instalment basis must be clear. And, as noted above, nothing in the evidence indicates such an intention in this case. It might be added that the quotation from Zimmerman relied on by the trial judge, and quoted above, itself says that settlement should not be enforced by the court if it is "obviously incomplete". One final comment as to Zimmerman. The judgments in Zimmerman and in number of Queen's Bench judgments which have followed it have taken their authority to enforce settlements reached during pre-trial conferences from Queen's Bench Rule 184A. That Rule is contained in Part Fourteen of the Queen's Bench Rules, Offer To Settle, which contemplates formal written offer to settle to be served on the other party (Rule 181), and formal written acceptance to be served on the other party (Rule 183), and means of enforcing offers made and accepted under the Rules 181 and 183 (Rule 184A). While these Rules may apply to some settlement agreements made during pre-trial conferences, they would not apply in most cases where agreement is reached by negotiation, rather than by formal written offers and acceptances in compliance with the Rules. In the cases of negotiated settlements, the application to enforce, or to set aside, should be made under Rule of s. 44 of The Queen's Bench Act as was done in Childs. The appeal is therefore allowed. There will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 13th day of October, A.D. 1995. SHERSTOBITOFF J.A. concur BAYDA C.J.S. concur JACKSON J.A.

After a series of pre-trial conferences, and the exchange of some correspondence between the parties lawyers, the husband took the position that the parties had reached a binding agreement as to the value of his pension. The wife disagreed and a trial of this issue was directed and determined in the husband's favour. The wife appealed. HELD: Appeal allowed. 1)Since the judgment of this Court in Childs v. Childs Estate, [1988] 1 W.W.R. 746, there is no doubt that a judge has the power, under Rule 7 of s. 44 of The Queen's Bench Act, R.S.S. 1978, c. Q-1, to enforce or set aside an agreement compromising an action by summary proceedings. The law as stated in that judgment applies as well to agreements or settlements reached during the course of pre-trial conferences. 2)Parties will not usually intend to settle selected issues on a piecemeal basis, but rather will reach tentative agreements on selected issues conditional on an overall settlement agreement being concluded. Such was the parties' intention in this case, and accordingly, there was no settlement contract for the judge in the court below to enforce. 3)This is not to say that parties cannot reach several separate independent, binding and enforceable agreements as part of an effort to reach an overall settlement of the matters in issue between them, but in order to do so, the intention of the parties to settle on a piecemeal or installment basis must be clear. Nothing in the evidence indicated such an intention in this case. 4)In cases of settlement agreements reached at a pre- trial conference, the application to enforce, or to set aside, should be made under Rule 7 of s. 44 of The Queen's Bench Act as was done in Childs and not under Rule 184A as was the developing practice.

7_1995canlii4030.txt

T.J. KEENE QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 311 Date: 2010 08 30 Docket: Q.B.C.A. No. 11/2009 Judicial Centre: Saskatoon BETWEEN: RON KOCSIS, and HER MAJESTY THE QUEEN, Respondent Appearances: Ron Kocsis on his own behalf Sandeep Bains and Marcel J.H. St. Onge for the respondent JUDGMENT POPESCUL J. August 30, 2010 Introduction [1] Very few charges laid by the Crown are declared to be void ab initio. This is because the modern approach to determining the sufficiency of informations and indictments dictates that only counts that are drafted so poorly that they bear no resemblance to an existing offence will be found to be “void” or labelled an “offence not known to law”. In this case, the charge, as drafted, is so palpably bad it does not give fair notice to the defendant of the nature of the charge nor the penalties that may be imposed if a breach is established. As result, the appeal must be allowed and the charge declared void because it does not charge an offence known to law. Procedural Background [2] The appellant, Ron Kocsis (the “appellant”), launched a summary conviction appeal against conviction and sentence following his conviction in Traffic Safety Court for “unlawfully have sunscreen in front side windows” contrary to “s. 66(3) The Vehicle Equipment Regulations (Reg 10)”. [3] The appellant was convicted after an ex parte trial before Traffic Safety Court justice (the “traffic justice”) and was fined $350.00, together with victim’s surcharge of $50.00 for total of $400.00. [4] The grounds of appeal stated in the notice of appeal are as follows: 1.) The Crown did [sic] prove their case of sunscreen being present. 2.) The Offence Notice issued on January 25, 2008 failed to describe the location of the alleged offence. 3.) The fine issued exceeded the original fine by 333% plus surcharge. Factual Background [5] On January 25, 2008, peace officer with the Saskatoon Police Service encountered the appellant operating his 2005 Hummer on public street in Saskatoon, Saskatchewan. The Hummer had after‑market tinted side windows. The peace officer issued certificate of offence. voluntary payment option of $105.00 was provided in the certificate of offence. [6] The appellant did not exercise the voluntary payment option. Instead, he sent an agent to appear on his behalf on the March 10, 2008, return date, at which time “not guilty” plea was entered and the matter was set down for trial. [7] The trial was eventually scheduled to take place on February 2, 2009. No one appeared for the appellant on that date. The Crown was given leave to proceed ex parte, and trial was held. The peace officer testified that the appellant was operating his Hummer with after‑market tinted windows on public highway, after which the traffic justice found the accused guilty as charged. [8] The Crown tendered evidence of previous convictions for the same type of offence with the same vehicle and asked the Court to impose fine of $200.00. The traffic justice commented that the appellant had been in apparent violation of the tinted window prohibition for over three years and imposed fine of $350.00, an amount greater than what was requested by the Crown and more than the voluntary payment option amount endorsed on the certificate of offence. [9] Although the self‑represented appellant did not advance the issue of the charge, as framed, being a nullity, the Court invited both the Crown and the appellant to address the issue of the sufficiency of the charge. The Crown was given an opportunity, which it took, to file written argument on the sufficiency issue. Standard of Review [10] Summary conviction appeals, such as this, are determined by the Court of Queen’s Bench in accordance with s. of The Summary Offences Procedure Act, 1990, S.S. 1990‑91, c. S‑63.1, and ss. 812(1)(a), 813 and 822 of the Criminal Code, R.S.C. 1985, c. C‑46. The powers of an appellate court, as set out in s. 686 of the Criminal Code, are made applicable by virtue of s. 822(1) of the Criminal Code. [11] Section 686(1) permits an appellate court to allow an appeal from conviction where the verdict is unreasonable and cannot be supported by the evidence, was based on wrong decision on question of law or on any ground if there was miscarriage of justice. However, the defendant’s appeal ought to be dismissed where, although not properly convicted on particular count, he was properly convicted on another count or where there was legal error made but no substantial wrong or miscarriage occurred. [12] On factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky, 2006 SKCA 145 (CanLII), [2007] W.W.R. 99 at para. 74. On question of law, the standard is correctness, and the appellate court should intervene if the decision is not correct in law, unless there has been no substantial wrong or no miscarriage of justice. See R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659. [13] The issues are: 1. Is the offence with which the appellant was charged and convicted nullity? 2. If not, has the appellant advanced any meritorious basis to disturb the conviction entered or the fine imposed? 1. Is the offence with which the appellant was charged and convicted nullity? [14] The certificate of offence, form prescribed by Form of The Summary Offences Procedure Regulations, 1991, R.R.S. c. S‑63.1 Reg 2, permits the issuer to designate, by ticking off the appropriate box, the Act or Regulation which is alleged to have been breached. Options available are: The Alcohol and Gaming Regulation Act, 1997 The Highways and Transportation Act, 1997 The Traffic Safety Act The Wildlife Act, 1998 Regulations under indicated Act Bylaw No. for (municipality) [15] In this case, the issuing officer chose the “Other” category and filled in the words “The Vehicle Equipment Regulations (Reg 10)” in the space provided and referred to s. 66(3). [16] Section 66(3) of The Vehicle Equipment Regulations, 1987, R.R.S. c. V‑2.1 Reg 10, under the general heading of “Side windows”, states: Side windows (3) The glass shall not have coatings of sunscreen or reflective material other than that applied by the glass manufacturer. [17] Although the regulations purport to prohibit after‑market tinted side windows, there is nothing in the Regulations that prescribe that contravening the prohibition constitutes an offence with corresponding penalty. [18] Section 6(2) of The Summary Offences Procedure Act, 1990, supra, authorizes the issuance of certificate of offence “[w]here the Lieutenant Governor in Council has designated offences in the regulations ...” (emphasis added). Similarly, The Summary Offences Procedure Regulations, 1991 identifies which proceedings may be commenced by the issuance of certificate of offence, and uses language such as “... offences pursuant to The Vehicle Equipment Regulations, 1987 ...” (emphasis added). [19] Here, alleging contravention of s. 66(3) of The Vehicle Equipment Regulations, 1987 by itself does not allege an offence because although it purports to prohibit the use of certain tinted windows on vehicles, it does not provide that the contravention of the prohibition is an offence that carries with it penalty. It is prohibition, without the creation of an offence or imposition of penalty. [20] Accordingly, conclude that s. 66(3) of The Vehicle Equipment Regulations, 1987, although purporting to prohibit the use of after‑market tint on side windows of vehicles, does not make it an offence to do so. [21] It would appear that it could be possible to frame count so as to allege an offence of operating vehicle that has after‑market tinted side windows because, as mentioned above, s. 66(3) contains the after‑market tinted side windows prohibition. The Vehicle Equipment Regulations, 1987 were passed pursuant to The Vehicle Administration Act, S.S. 1986, c. V‑2.1, which was repealed by The Traffic Safety Act, S.S. 2004, c. T‑18.1, in 2006. The Vehicle Equipment Regulations, 1987 continues in force under The Traffic Safety Act. If one reviews The Traffic Safety Act, it is clear that it is an offence to operate vehicle on highway that is not equipped in accordance with that Act or its Regulations: Prohibition on operation of unequipped vehicles 113 No person shall operate or cause to be operated on highway vehicle that is not equipped in accordance with this Act and the regulations. ... General offence and penalty 275 Any person who contravenes any provision of this Act or the regulations for which no other penalty is specifically provided ... is guilty of an offence and liable on summary conviction: (a) in the case of an individual, to fine of not more than $1,000; and [22] Accordingly, it is not an offence to possess vehicle that has after‑market tinted windows; however, it is an offence, punishable by fine of up to $1,000.00, to operate or cause to be operated motor vehicle on public highway that is not equipped in accordance with the regulations (i.e., s. 66(3) of The Vehicle Equipment Regulations, 1987 after‑market tinted side windows). [23] The question that next arises is whether the court ought to simply amend the count to fix the problem. For the reasons set out below, I find that it is not possible to amend the count so as to cure the defect. This is because the count, as drafted, is a nullity, and a nullity is not capable of amendment. One cannot fix nothing. [24] At one point in the history of our inherited common law, it was necessary for the Crown to draft criminal pleadings with meticulous care. If the Crown’s pleadings were not exact, it was not uncommon for courts to quash informations or indictments for even the smallest technical defect. See Tim Quigley, Procedure in Canadian Criminal Law, 2nd ed., looseleaf (Toronto: Carswell, 2005) at 17.1‑17.2. [25] However, this technical approach has given way to the “modern approach”, which requires that courts determine cases on the merits, rather than on “technicalities”, where possible. This modern approach is based upon the wording of several Criminal Code provisions, such as ss. 581, 582, 583, 584, 585, 586 and 601, and judicial decisions, including R. v. Moore, 1988 CanLII 43 (SCC), [1988] S.C.R. 1097; R. v. Côté, 1977 CanLII (SCC), [1978] S.C.R. 8, and R. v. Major, 1976 CanLII 173 (SCC), [1977] S.C.R. 826. [26] Generally speaking, conviction based upon defective information ought not be found to be nullity “... so long as charge contains in substance an allegation that an offence has been committed ....” (R. v. Moore, supra, at p. 1107). [27] In Côté, supra, the accused was charged with failing to provide breath sample after demand was made by peace officer. The information did not contain the words “without reasonable excuse”, an essential averment of the offence. The Supreme Court of Canada held that the lack of an essential averment did not result in the count being found to be nullity because the accused was reasonably informed of the charge against him. At page 13, de Grandpré, speaking for the majority, stated: ... the golden rule is for the accused to be reasonably informed of the transaction alleged against him, thus giving him the possibility of full defence and fair trial. When, as in the present case, the information recites all the facts and relates them to definite offence identified by the relevant section of the Code, it is impossible for the accused to be misled. To hold otherwise would be to revert to the extreme technicality of the old procedure. [Emphasis added.] [28] In Moore, supra, at pp. 1108-09, the Supreme Court held that as result of the application of the principles in Côté and Major: ... it is no longer possible to say that defective information is automatically nullity disclosing no offence known to law. If the document gives fair notice of the offence to the accused, it is not nullity and can be amended under the broad powers of amendment s. 529 [now s. 601] gives to the courts. Only if charge is so badly drawn up as to fail even to give the accused notice of the charge will it fail the minimum test required by s. 510(2)(c) [now s. 581(2)(c)]. charge that is this defective would have to be quashed. ... [29] At the risk of oversimplification, the Supreme Court has stated that defective count should be amended and/or conviction based upon defective information ought not be disturbed on appeal (even if essential averments are omitted, but provided that the Crown has proved the essential elements) if, at least, the Crown got the statute and the section number right. [30] Here, unfortunately, the Crown did not allege the proper statute (The Traffic Safety Act) or the correct section number (ss. 113 and 275 of The Traffic Safety Act). [31] The essence of the offence is not the existence of a tinted window but, rather, operating a motor vehicle on a highway with prohibited equipment, to wit, after‑market tinted side windows. [32] Looking at s. 66(3) of The Vehicle Equipment Regulations, 1987, on its own, does not provide the accused with fair notice of the charge that he faces or the penalty that he faces for the contravention. [33] Accordingly, the charge is nullity and is void ab initio. Because it is nullity, the count cannot be amended so as to breathe life into something that is nullity. The appeal is allowed, and the conviction is quashed. [34] It should also be noted that the certificate of offence provided voluntary payment of $105.00. The Summary Offences Procedure Regulations, 1991 permits person, to whom ticket is issued, to accept responsibility by making voluntary payment in the prescribed amount in certain cases. There does not appear to be the legislative authority for the utilization of voluntary payment for an alleged violation of operating motor vehicle on public highway which has after‑market tinted side windows regardless of the way the charge was framed. [35] There will be no order as to costs. J. M.D. Popescul

The accused was charged with having aftermarket tint on the side windows of his vehicle. He appealed on other grounds. The summary conviction appeal judge raised the issue of the sufficiency of the charge on its own motion. The face of the ticket purported to charge the accused with an offence under s. 66(3) of The Vehicle Equipment Regulations. HELD: The charge was declared a nullity because it was drafted so poorly that it did not give fair notice to the accused of the charge or the penalty to be imposed if breach was established. Section 66(3) of The Vehicle Equipment Regulations purports to make displaying aftermarket tint an offence, but the section is a charging offence and does not prescribe a penalty. The correct way to charge an accused with this offence is under s. 113 of The Traffic Safety Act which makes it an offence to operate a motor vehicle on a public highway that is not equipped in accordance with the regulations. The count could not be amended to cure the defect because the charge was a nullity and void ab initio. The conviction was quashed.

b_2010skqb311.txt

2001 SKQB 10 D.I.V. A.D. 1999 No. 595 J.C.S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: ELIZABETH ANN PATTERSON PETITIONER (RESPONDENT BY COUNTER-PETITION) and ALEXANDER CAMPBELL PATTERSON RESPONDENT (PETITIONER BY COUNTER-PETITION) Cheryl A. Cuelenaere for Elizabeth Ann Patterson Gregory G. Walen for Alexander Campbell Patterson JUDGMENT KOCH J. January 8, 2001 [1] This is an action for divorce based on separation. In issue are custody, access, child support, spousal maintenance, possession and division of the matrimonial home and division of matrimonial property. The petitioner seeks costs. [2] To their credit, the parties have reached agreement on some of the issues and substantial agreement on others. [3] The marriage breakdown has been established. The parties have been living separate and apart since January 23, 1998. The divorce is granted. [4] There are two children of the marriage: Robert Scott Patterson, born May 8, 1985, now residing with the respondent, presently student in Grade X; Cynthia Lyn Patterson, born February 1, 1988, now residing with the petitioner, presently student in Grade VII. [5] The parties have agreed on joint custody of both children with Robert Scott Patterson to reside primarily with his father, the respondent, and Cynthia Lyn Patterson to reside primarily with her mother, the petitioner. It has been further agreed in principle that access should be essentially reciprocal on alternate weekends from Friday evening until Sunday evening, with the objective that the children be together with the same parent on most weekends. Clearly this is in the best interests of each of the children. When the weekend includes holiday on the Friday or the Monday, the access for that weekend is to be extended by one day accordingly. There will also be access on one evening each week as may be determined to be compatible with the children's respective activity schedules. The parties will equally share the children\'s time during school vacations. Either party who feels that more specificity with respect to access is required will have leave to apply. BACKGROUND FACTS [6] The contentious issues remaining to be resolved require consideration of the factual background. [7] The petitioner, Elizabeth Ann Patterson, now aged 45, married the respondent, Alexander Campbell Patterson, now aged 46, on May 16, 1981. Neither had been previously married and neither has had any children outside of the marriage. [8] The parties separated for several months in 1995 and finally on January 23, 1998. Neither wishes to reconcile. [9] The parties met in Vancouver in 1978. At that time the petitioner had taken some university classes and was employed in the banking and financial sector. The respondent had received his B.A. from the University of Saskatchewan in 1975 and thereafter studied architecture at the University of British Columbia. The respondent was receiving income while he pursued his education as child of deceased World War II veteran. He also had Canada Pension Plan income as the result of his father's death. In June, 1978 the parties moved to Saskatoon for short time and then to Guelph, Ontario where the respondent entered masters program at the University of Guelph to qualify as landscape architect. The petitioner was again employed at bank. The respondent completed his studies in 1981 at which time the parties married. During the time they lived in Guelph, approximately three years, the parties did not cohabit on full-time basis. [10] In 1981, shortly after their marriage, the parties moved to Japan where they lived for the next year and one-half. The respondent had scholarship to study Japanese gardens and from that and his other income sources was able to provide for their support. The petitioner worked as an English teacher; her income was expended for travel by the parties in Japan and elsewhere in Southeast Asia. [11] In June, 1983 the parties moved to Regina where the respondent was employed by an engineering firm and the petitioner was employed at secretarial and clerical work. Late in 1984 the respondent moved to Ottawa with the same employer. The petitioner moved there to join him early in 1985 prior to the birth of their son. While they lived in Ottawa the petitioner was employed at bank but shortly discontinued that employment in favour of running small daycare out of the home to accommodate more involvement in parenting the children. [12] In fall 1989 the parties moved to Saskatoon, the respondent still with the same employer for whom he continued to work until 1994 when he commenced work with the City of Saskatoon. He is now landscape development coordinator for the City, which he describes as middle-management position. [13] When they moved to Saskatoon the parties, who by then had two children, purchased their residence on 7th Street East because it was suitable, with some renovations and improvements, for the operation of daycare by the petitioner. The petitioner cared for up to six children at time, until late in 1999 when, after the separation, she decided that she would need more income than the daycare business could provide. [14] Early in 2000 the petitioner participated in workforce re-entry program as dietary services worker at City Hospital. This did not lead to full-time employment but she found similar part-time employment at retirement home and continues to be employed there. Shortly before the trial she started two-year dietary program at Kelsey Institute which she expects will qualify her to obtain full-time permanent employment in that field when she completes the course, hopefully in May, 2002. [15] Obviously the breakup of the marriage was an emotional experience for the petitioner and that circumstance, together with the fact that at the time of the separation she had not held employment outside of the home for many years, left her somewhat lacking in confidence as to her job skills and employability. She has, however, made reasonable efforts to upgrade her skills and to become occupationally established. [16] There is no evidence that either party has formed any relationship that involves, at least in the near term, the possibility of remarriage or cohabitation. [17] Commendably, both parties have tried hard to minimize the negative impact of the breakup of their marriage on their children. [18] There is no evidence of any significant health issues. CHILD SUPPORT [19] Both children are healthy and active. [20] For the time being the petitioner is not earning enough from her part-time employment to contribute other than nominally to the support of Robert Scott Patterson. Maintenance for Cynthia Lyn Patterson has to be determined in accordance with the Federal Child Support Guidelines (SOR/97-175 as am.). The respondent\'s gross salary is $59,700 per annum and, as invited by counsel for the petitioner, I am adding $1,500 to reflect the profit the respondent makes on the car allowance he is paid by his employer, to a total of $61,200. Therefore, the appropriate monthly support payment in accordance with the Guidelines is $485 per month subject to any additions pursuant to s. 7. Evidence was presented as to certain expenses for music lessons, band and extracurricular school activities but none of these, in my view, qualifies as a special or extraordinary expense in the context of the basic monthly support payment of $485. In that regard follow the case of Fisher v. Heron, [1997] P.E.I.J. No. 77 (QL); (1997), 157 Nfld. P.E.I.R. 42 (S.C.) cited on behalf of the respondent. [21] In accordance with s. 7, the respondent will have to contribute his proportionate share of the part of the orthodontic treatment expenses for Cynthia Lyn Patterson that is not covered by insurance. direct that he pay, promptly as incurred, his share of the shortfall. Counsel for the petitioner suggested that based on the part-time income of the petitioner of $7,658 the respondent should be paying proportionately 89 percent. As that compilation does not reflect the spousal maintenance hereinafter awarded, I find the appropriate ratio to be 73 percent. [22] The respondent, as he has agreed, is ordered to keep the children on his group insurance benefit plan so long as they are eligible and to designate the children as beneficiaries of his life insurance for such period of time as, in the case of each child, that child continues to be child of the marriage as defined in the Divorce Act, R.S.C. 1985, c. (2nd Supp.). SPOUSAL MAINTENANCE [23] The petitioner contends that in accordance with the provisions of ss. 15.2(4) and 15.2(6) of the Divorce Act, supra, she is entitled to spousal maintenance for an indefinite period. The petitioner\'s prospective job advancement was impeded as the result of the marriage, specifically by the frequent moves to accommodate the respondent\'s job transfers, and arising from her working out of the home for limited income to facilitate child rearing. To meet the needs based and compensation based objectives in accordance with s. 15.2(6) of the Divorce Act, supra, as interpreted by the leading authorities, and to fairly adjust and apportion the economic circumstances of the parties in recognition of their 19-year marriage she contends she is entitled to spousal support of $1,100 per month. [24] The respondent contends, however, that while recognizing the petitioner's needs and the validity of her compensatory claim, consideration must also be given to other factors including: The fact that once the matrimonial home is sold, the petitioner's cost of housing should be drastically reduced and, in keeping with the means of the parties, she should be expected to occupy relatively modest apartment such as the respondent has been doing; The respondent is almost fully supporting both children and that is likely to continue for at least several more years; From practical standpoint the interim spousal maintenance of $750 per month ordered in November, 1999, has proven burdensome to the respondent and caused him to incur debt, whereas the petitioner's cash position seems to have improved since November, 1999; The petitioner is bright, articulate, well motivated individual who can be expected to achieve economic self-sufficiency in the fairly immediate future (paragraph (iv) of s. 15.2(6)) and therefore time limited award for period of no more than three years would be appropriate, ending about one and one-half years after the petitioner is expected to have completed her present course of study and to have had reasonable opportunity to successfully re-enter the workforce. [25] The argument arising from the short-term financial distress of the respondent is somewhat confined to the interim circumstances. Once he receives his share of the proceeds from the sale of the residence he will no longer be carrying any substantial debt, at least not involuntarily. [26] I find the appropriate amount of spousal maintenance to be $900 per month, payable the first day of each and every month commencing as of January 1, 2001. The Divorce Act permits time limited orders, but the trend seems to be to avoid them in situations such as the present where the marriage has given rise to economic dependence (Russell v. Russell (1999), 1999 CanLII 12313 (SK CA), 180 Sask. R. 196 at 229 (C.A.)). The determination of fair and reasonable time period in this case would involve considerable speculation. am not therefore providing for any time limit. I am, however, stipulating that the issue of spousal maintenance be reviewable at the instance of either party at any time after December 31, 2003. It can be reviewed in the meantime on the ordinary ground of material change in circumstances, should such occur. MATRIMONIAL HOME [27] The parties have also agreed that the matrimonial home located at 501 - 7th Street East in Saskatoon, valued at approximately $150,000, subject to loans secured by two mortgages against the title totalling approximately $50,000, is to be sold at the earliest opportunity with the net proceeds, after realtor\'s commission and solicitor\'s fees and disbursements, to be equally divided, subject to matrimonial property adjustment calculations. The petitioner seeks adjustments for some maintenance and repair costs and insurance costs incurred after the date of the petition and with respect minimum monthly payments she made on the Canada Trust Powerline loan. am not prepared to allow such adjustments. Pending the sale the petitioner is entitled to occupy the property and will be obligated to pay the first mortgage payments and the minimum monthly Powerline payments as well as the insurance, utilities and other ordinary occupancy costs, with the cost of any major repairs to be split equally. MATRIMONIAL PROPERTY [28] Each party has claimed as exempt pursuant to s. 23(1) of The Matrimonial Property Act 1997, S.S. 1997, c. M-6-11, certain items of chattel property alleged to have been owned or acquired before the marriage. Understandably there was little evidence of the value of these items at the time of the marriage but as the property in question is not of substantial value and the exemptions claimed were not seriously disputed infer that their respective values at the date of the petition were the same as the value at the date of the marriage. find to be exempt the value of the following items claimed by the petitioner: Mahogany Writing Box Exhibit P-3 Item Communion Mug Exhibit P-3 Item Rocking Chair Exhibit P-3 Nightstand Exhibit P-3 Item 15 Oakwood Chest Exhibit P-3 Item 17 Deacon's Bench Exhibit P-3 Item 35 and the value of the following items claimed by the respondent: Tool Box and Tools Exhibit P-3 Item Leather Kit Suitcase Exhibit P-3 Item 12 Drawings and Paintings Exhibit P-3 Item 35 Antique Round Side Table Exhibit P-3 [29] The respondent also claims that television set included in the list of matrimonial property was acquired after the date of the petition and is therefore not shareable matrimonial property. uphold his contention. [30] During the course of the marriage, at various times, including after the separation, the petitioner received chattel property from her parents which she claims to be antiques and heirlooms, not household goods. She claims it would be unfair and inequitable to distribute that property in accordance with s. 21(2). These items appear to have present value in excess of $6,000. The respondent contends that the petitioner has not met the criteria applicable under s. 21 for the Court to refuse to order distribution. Notwithstanding that contention believe it would be inequitable to order an equal or any distribution of this property simply because the concept of value implies the option of sale or liquidation for value and there is compelling evidence that this property was neither given nor received in that context, but simply as property to be enjoyed and passed along to succeeding generations. [31] The petitioner also requests that an inheritance that she received from her aunt in Great Britain who died in January, 1999, almost year after the separation, be excluded from distribution. The inheritance amounted to $2,297.85 Canadian. The proceeds ultimately ended up in one of the petitioner's accounts at the Bank of Montreal in existence at the date of the petition. The aunt's will is effective at the date of her death. It is most unlikely the aunt would have intended to benefit the respondent nearly year after the final separation. The amount of the bequest should be excluded from distribution. [32] The remaining chattel property, including the motor vehicles, is to be divided as hereinafter set forth and valued as indicated. The motor vehicles are being divided in accordance with their value in October 2000 as the parties have agreed to that. In all other respects the matrimonial property and the debts and obligations will be valued as at the date of the petition. [33] The petitioner will deliver to the respondent promptly when called upon items to 17, inclusive, in the list of chattels set forth in Exhibit P-3 at Tab H. [34] I direct that the respective registered retirement savings plans of the parties at Canada Trust, in the case of the petitioner, accounts 518-3307597 and 518-09301455, and in the case of the respondent, accounts 518-3306519, 518-3302782, 518-04016232 and 518-13659865, be equalized as at October 15, 1999, by rollover from the respondent\'s account to the petitioner\'s account and that the parties promptly when called upon sign and deliver such documents as may be required to accomplish such rollover. [35] The respondent has pension with his employer, City of Saskatoon. The petitioner contends that the value for the purposes of distribution pursuant to The Matrimonial Property Act, 1997, supra, is the amount payable upon hypothetical termination compiled in accordance with the calculation technique adopted in the case of Hamel v. Hamel (2000), 2000 SKQB 263 (CanLII), R.F.L. (5th) 321 (Sask. Q.B.). The respondent does not disagree. In issue is whether the division should be made as at the date of the petition as contended by the petitioner, or at the date of separation, with an allowance for interest thereafter, as contended by the respondent. The test is whether division at the date of the petition would lead to an unfair and inequitable result so as to require compilation at different date, the effect of which would be unequal division. do not find such to be the case. The value of the termination benefit as of the date of the petition is $27,333.50, one-half of which is $13,666.75. The respondent is ordered to convey one-half of the commuted value as of the date of the petition (½ of $21,804.38 = $10,902.19) to a locked-in RRSP in the name of the petitioner. This is the maximum amount transferrable in accordance with The Pension Benefits Act, 1992, S.S. 1992, c. P-6.001. The difference of $2,764.56, subject to the deduction of estimated income tax of 30% results in an equalization adjustment in favour of the petitioner of $1,935.19, which with interest at 4.6% per annum to December 31, 2000 in the amount of $107.56 results in a total adjustment of $2,042.75. [36] At the date of the petition the parties had the following RRSP's: Petitioner Respondent Canada Trust (as at Sept. 30/99, Exhibit P-3, Tab G) $2,362.35 Canada Trust (as at Dec. 31/99, Exhibit P-3, Tab J) $47,818.76 Total: $50,181.11 am not prepared to accept the contention of the respondent that the portion contributed by him after the separation should be excluded. Equalization will require the transfer by the respondent to the petitioner of $22,728.20 plus interest for one year at 4.6%, $1,045.50, for total of $23,773.70. am limiting the interest to one year as the statement filed is dated December 31, 1999. If the parties are unable to agree as to which individual investment in the portfolio is to be transferred, such transfer shall include proportionate share of each investment. [37] At the date of the petition the parties had bank accounts as follows: Petitioner: Toronto Dominion Bank 38.70 Bank of Montreal 205.51 Bank of Montreal GIC 9,500.00 Bank of Montreal Money Market Fund (net of October, November and December interest) 5,563.53 Royal Bank 848.39 Total: $16,156.13 Respondent: Canada Trust 640.16 [38] The petitioner's bank accounts presumably included the inheritance she received from her aunt of $2,297.85, dealt with separately, and retroactive child tax benefit of $4,604.57 received in September, 1999 which is included in the matrimonial property available for distribution, as find it should be. [39] At the date of the petition the financial obligations of the parties, in addition to the loans from Canada Trust secured against the title to the matrimonial home, were as follows:Canada Trust RRSP loan $ 729.08Canada Trust line of credit loan $1,292.00CIBC Visa $ 966.82Each of these three items of indebtedness has been assumed by the respondent. [40] In the result, the final adjustment upon the sale of the matrimonial home will be compiled as follows: Respondent 1995 Plymouth Voyager 9,000 1993 Mercury Topaz 400 Household goods and other chattel property in accordance with Exhibit P-3, Tab (not including items 5, 15, 17 and 35 3,856 Household goods and other chattel property in accordance with Exhibit P-3, Tab (not including items 7, 12, 29, 35, 36 and 37 3,468 Respondent's pension net after assignment 2,043 Bank accounts 640 Adjustment for petitioner's inheritance (2,298) Loans and obligations assumed by respondent (2,988) Net adjustment of proceeds of sale of matrimonial home from petitioner's share to respondent [41] If there are any discrepancies in the above calculations, counsel are invited to bring them to my attention. [42] No costs are awarded.

The divorce action was based on separation for more than a year. In issue were custody and access, child support, spousal maintenance, possession and division of matrimonial property. HELD: 1)Divorce was granted. The parties, married 19 years, had been living separate and apart since January 1998. 2)They agreed to joint custody of both children. The son was to reside primarily with his father. The daughter resided with her mother. Access was essentially reciprocal on alternative weekends. The children were to be together most weekends. School vacations would be shared. 3)The father was to pay monthly child support of $485 based on his gross salary of $61,200 which included a $1500 car allowance. Expenses for music lessons, band and extracurricular school activities did not qualify as a special or extraordinary expense. The father was to contribute his proportionate share (73% to reflect spousal maintenance) of orthodontic expenses not covered by insurance. 4)Spousal maintenance of $900 was to be reviewable after December 31, 2003. The mother's job advancement was impeded as a result of the marriage, specifically by frequent moves to accommodate her husband's job transfers. She had worked out of the home for limited income to facilitate child rearing. 5)The parties agreed the matrimonial home would be sold and proceeds divided equally after payment of expenses of the sale. Costs of any major repairs were to be split equally pending the sale. The petitioner was entitled to occupy the property and was to pay the mortgage, insurance, utilities and other usual costs. 6)It was inferred the value of the chattels was the same as that at the date of the marriage. It would be inequitable to order a distribution of chattel property given as antiques or heirlooms by her parents valued in excess of $6,000. The inheritance from her aunt who died almost a year after the separation was excluded. The motor vehicles were divided in accordance with their value as of October 2000. All other matrimonial property and debts and obligations were valued as of the date of the petition. RRSPs were to be equalized as of October 15, 1999 by rollover. 7)The respondent was to convey one-half of the commuted value of his pension at date of the petition to a locked in RRSP in the name of the petitioner. The balance in excess of the maximum amount transferable under the Pension Benefits Act resulted in an adjustment of $2,042.75. The respondent was to assume any debts. 8)No costs were awarded.

7_2001skqb10.txt

1995 S.P. No 03479 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: Kathy Marie MacLean -and­ Empire Theatres Limited, body corporate, carrying on business under the name "Empire Drive-In Theatre" DECISION Heard Before: The Honourable Justice Douglas L. MacLellan Place Heard: Pictou, Nova Scotia Date Heard: April and 7, 1998 Date of Written Release: April 28, 1998 Counsel: Jamie MacGillivray, Esq., for the plaintiff David Miller, Q.C., and Nancy Murray, for the defendants MacLellan, J.: The plaintiff, Kathy Marie MacLean, claims against the defendant Empire Theatres Limited for injuries sustained when she fell and injured herself on premises occupied by the defendant. FACT On August 20th, 1995, the plaintiff, who at that time was five and one-half months pregnant, went with her common-law husband to drive-in theatre located outside of Westville, Pictou County, operated by the defendant. They paid a flat fee for their vehicle to enter the premises, and prior to the start of the first movie went to the canteen building located in the middle of the drive-in where they purchased some drinks and food. According to the plaintiff, they then watched the first of the two scheduled movies and at the intermission, after the first movie, she walked from their vehicle to the canteen building. She was carrying the garbage from their food order being couple of drink containers and some other paper containers which were on tray which had been supplied when they purchased the items at the canteen. She was also carrying her wallet. She said she was going to the canteen to dump the garbage and return the tray. She also wanted to use the washroom located inside the canteen and the pay phone to call her babysitter at home. As she approached the canteen building she said she tripped on the edge of the concrete sidewalk which is located in the front of the canteen building. Introduced into evidence were number of photographs showing the canteen building and the concrete sidewalk as it was in 1995. The entrance to the canteen had concrete sidewalk which was approximately four feet wide and goes along the entire front of the building. When person crosses the sidewalk you step up approximately three inches to another concrete platform upon which the doors to the canteen are located. There are four doors there, one of which was open as the plaintiff approached the building. That was the door furthest to the right as you approach the building. Just inside the canteen building was poster case attached to the right side wall. It contained posters of upcoming movies. The case protruded out from the wall number of inches. The plaintiff said that as she approached the area in front of the canteen doors, she tripped on something and stumbled over the sidewalk and onto the platform and then through the open door and landed on the floor inside the canteen. She said this stumble took about four seconds and she didn't really know that she had hit her head on the poster case until afterwards when she realized that she had severe cut in the middle of her forehead. She said she would not get that by just hitting the concrete wall and therefore she must have hit the edge of the poster case. Following her fall, the plaintiff was taken by ambulance to hospital where she received nineteen stitches in her forehead. She was off work until August 27, 1995. LIABILITY In addition to her own evidence the plaintiff called Mr. William White who was qualified to give expert evidence on the inspection of and identification of safety problems in building structures with particular reference to the National Building Code. He visited the site in October, 1995, and took some photographs and measurements. He produced report which was introduced as Exhibit 1, Tab 3, in which he found that "due to the slope of the sidewalk and the uneven condition, feel this may be safety hazard". In his evidence Mr. White said that the slope in the sidewalk for the outside edge to the inside edge where it meets the step was three and one-half inches and that it was inward, not outward. This was problem because it would cause water to collect between the sidewalk and the step and also because person walking into the building would not expect such slope and therefore it might cause person to lose their balance, especially at night. He also noted that there was one and one-half inch lift between the outside edge of the sidewalk and the graveled area beyond it. He said person might trip over that. He had no complaint about the platform leading to the canteen doors. He did not inspect the door threshold, because the building was not open when he was there. He also made no comment about the location of the poster cases inside the canteen. On cross-examination, Mr. White was asked about the National Building Codes and whether he noted any violations of the code at the canteen site. He said he could not specifically find section in reference to whether concrete sidewalk should be level, however, he suggested that Section 8.1.1.5.4 could apply. It provides: "All sidewalks, streets or other public property that have-been damaged shall be restored to safe condition..." He suggested that an uneven sidewalk was not in safe condition.. The plaintiff was cross-examined on the issue of how she fell. She was referred to her evidence given at Discovery in April of 1996 in which she said that she didn't remember what happened when she approached the sidewalk. She had said there that it happened so fast that she basically didn't know what caused her to fall or what her foot had tripped over before she fell. She also acknowledged that at Discovery she said that she told the Theatre Manager, Mary MacKinnon, on the night in question, that she had tripped over the front steps. She indicated that the sidewalk and the platform step were all the same to her. When confronted with number of references to her Discovery evidence which indicated that she couldn't remember where she tripped and in which she didn't say that she tripped on the outside edge of the sidewalk, the plaintiff conceded that she was confused and said that her memory of where she tripped was not good. She said that she did not know if she remembered tripping or not. The defendant called Mark Kennedy. He was employed at the drive-in theatre by the defendant company and was standing just outside the canteen entrance when the plaintiff approached it. He said she was carrying tray from the canteen containing couple of drink containers and other garbage. He said that he was on the platform entrance in front of the door and that he let the plaintiff go ahead of him into the building. He said that as she entered the door she stumbled forward and fell on the floor. He did not see her hit the poster case but saw her head jerk backwards as she fell forward. He offered her assistance and was there when the ambulance took her away. He noted as she approached the building that she was pregnant and afterwards that she was wearing canvass deck shoes. He was questioned as to whether it was possible that the plaintiff tripped over the outside edge of the sidewalk and stumbled, as she described, through the open door. He said that did not happen and that she tripped just as she entered the canteen door. Wade McCain is an insurance adjuster who investigated the plaintiffs claim when first advanced. He took pictures of the scene and did measurements. He was initially called by the plaintiff and later called as witness by the defendant. He indicated that the platform in front of the doors to the canteen is 37 3/4 inches wide and that the door threshold is four inches wide and that the distance from the inside of the threshold to the poster case was 34 inches. Mr. McCain, initially, in his evidence, described in detail the door threshold which ran under the door and gave measurements about it. When he was called by the defendant later, he indicated that the measurements originally given were incorrect. He said that he had checked the location again during the lunch break. He provided diagram showing the door threshold being one-half inch in height and four inches in width. He said it appeared to be standard door threshold for the type of door used on the canteen. Mr. McCain also said that he interviewed the plaintiff in September, 1995, in her lawyer's office and that he understood from her that she was saying that she tripped over the platform and not the outside edge of the sidewalk. He made note of what she said then, which was that "she felt she, had tripped over the platform where it meets the sidewalk". He marked that location on one of the photographs. FINDINGS OF FACT find based on the evidence before me that the plaintiff tripped on the door threshold at the entrance to the canteen building. do so because find that Mark Kennedy's evidence is both credible and reliable. His evidence was in no way challenged by the cross-examination of the plaintiffs counsel. His evidence is consistent with the other evidence, particularly, the fact that the distance from the outside of the sidewalk to the poster case which would be over ten feet makes me believe that it was not likely that the plaintiff would stumble that far before falling. I also find that the plaintiffs evidence of where she tripped is unreliable. She first told the theatre manager that she tripped on the step up to the platform. She re-stated that to Mr. McCain the insurance adjuster. She said in Discovery that she didn't remember what happened. Her evidence at trial, that she tripped on the outside edge of the sidewalk is an attempt, believe, to establish negligence in light of Mr. White's evidence that the sidewalk was unsafe. believe that when confronted with her conflicting evidence from the Discovery, the plaintiff backed away from her direct evidence and admitted that she didn't know where she tripped. don't believe she does know where she tripped because it happened too fast. THE LAW The law involved in this case is occupier's liability. It is set out by the Supreme Court of Canada in the case of Campbell v. Royal Bank of Canada (1963), 1963 CanLII 92 (SCC), 43 D.L.R. (2d) 341. That case has been adopted by our Courts for many years. Our Court of Appeal in Vyas v. The Board of Education of Colchester-East Hants District (1989), 94 N.S.R. (2d) 350 summarized the leading cases on occupier's liability and adopted the test for negligence as set out in Fiddes v. Rayner Construction Ltd. (1963), 1963 CanLII 599 (NS CA), 45 D.L.R. (2d) 367. There the Court found that the following factors were to be considered: (1) Was there an unusual danger? (2) If so, was it one which the defendant knew or ought to know? (3) If so, did the defendant use reasonable care to prevent damage to the plaintiff from the usual danger? and (4) Did the plaintiff use reasonable care on his own part for his own safety? The first step of the test is whether there was an unusual danger on the premises of the defendant. If not, the case should go no further. (See Maclntye v. Beaton (1994), 135 N.S.R. (2d) II). There was no evidence presented before me to suggest that the door threshold on the platform to the canteen was in any way an unusual danger as far as construction was concerned. It protruded up only about one-half inch from the floor and was four inches wide with the sides sloped upward. There was suggestion by the plaintiff that maybe the lighting on the sidewalk was not adequate. disagree with that submission. find that the lighting in the area of the entrance to the canteen was adequate, particularly so in regard to the door threshold which was receiving light from the lights inside the canteen building because the door was open and from the outside pocket lights located outside the door. find that there was no garbage or other materials present to cause the plaintiff to fall. The concrete platform was clear and dry. I find that there was no unusual danger existing on the premises of the defendant, as that term is defined by the Supreme Court of Canada in Campbell v. Royal Bank of Canada (supra). conclude that the plaintiff tripped on the door threshold either because she was not exercising normal care with how she walked or because of the fact that she was carrying the tray containing the garbage. There appears to be little explanation for why she fell because even she could not explain it. There is no evidence that other patrons of the canteen had any difficulty walking across that door threshold. The defendant, through counsel, has suggested that the test of negligence here should be in regard to contractual entrant because the plaintiff paid to get into the drive-in. He submitted the case of Brown v. and F. Theatres Limited (1947), 1947 CanLII (SCC), S.C.R. 486 from the Supreme Court of Canada applies here. In that case the Court found that where the plaintiff had paid to enter theatre that higher standard of care applied. In that case Rand, J. said: "The case has been treated as raising the ordinary question of the duty owed by proprietor of premises towards an invitee. think should observe, however, that this is not merely case of such invitation as was present in Indermaur v. Dames [(1867) L.R. C.P. 311.]. Here, Mrs. Brown paid consideration for the privileges of the theatre, including that of making use of the ladies' room. There was contractual relation between her and the theatre management that exercising prudence herself she might enjoy those privileges without risk of danger so far as reasonable care could make the premises safe. Although the difference in the degree of care called for may not, in the circumstances here, be material, think is desirable that the distinction between the two bases of responsibility be kept in mind: Maclenan v. Segar [[1917] K.B. 325; (1917) 86 L.J.K.B. 1113.], following Francis v. Cockrell [91870) L.R. Q.B. 184.]. In Cox v. Coulson [[1916] K.B. 177, at 181.], Swinfen Eady L.J. said: The defendant must also be taken to have contracted to take due care that the premises should be reasonably safe for persons using them in the customary manner and with reasonable care: citing Francis v. Cockrell [91870) L.R. Q.B. 184.]." In this case, the evidence before me is that the defendant took all the necessary steps to ensure that the canteen entrance was reasonably safe. Staff were instructed to inspect the premises daily before each movie and after the first movie started to ensure that the floors were clear of garbage from the canteen especially liquids. There was sign on the door advising about slippery floors if drinks were spilled. The lights in the canteen and at the entrance were turned up just before the intermission time. find no negligence on the part of the defendant using the standard set out in Brown v. B. And F. Theatres Ltd, (supra). Based on my finding I would dismiss the plaintiff's claim and award costs to the defendant. Despite my finding against the plaintiff on liability, would, however, deal with the plaintiff's claim for damages in case my finding on liability is overturned. DAMAGES The plaintiff sustained significant laceration to her head. The cut was five and one-half centimeters long and located in the middle of her forehead extending beyond her hairline. She showed it to me in Court and the scar was hardly noticeable. She normally wears her hair with bangs which completely cover any scar. She agreed that she got good result from the stitches which were used to close the wound. The plaintiff was off work for some time. At the time of the accident she was working at the Dairy Queen making $5.25 per hour. She said she lost about week of work. The evidence in regard to loss of wages is not very specific, however, am satisfied that her loss would amount to approximately $300.00 including some days that she said that she lost because of headaches after she had returned to work. After her injury, the plaintiff got an eye infection for which she used an antibiotic. She paid $12.49 for that and $60.00 for the ambulance to take her to the hospital. would, if she had been successful, have allowed these special damages. The plaintiff claims for pain and suffering. Her evidence is that she had fairly severe headaches in the weeks following the accident. She also had nose bleeds and complained about charley horse in her leg. The medical evidence does not detail the complaints other than the cut to her head. The plaintiff, through counsel, submits that damages should be $10,000.00 for pain and suffering. Based on the evidence of the plaintiff, would award damages for pain and suffering in the amount of $6,000.00 if she had been successful on liability.

The plaintiff fell while entering a canteen operated by the defendant. She claimed to have tripped on the concrete sidewalk located in front of the canteen. Others testified that she tripped on the door threshold of the building. Dismissing the claim, that the plaintiff's evidence of where she tripped is unreliable. Furthermore, there was no unusual danger on the premises.

b_1998canlii2200.txt

QUEEN’S BENCH FOR SASKATCHEWAN Date: 2012 10 30 Citation: 2012 SKQB 443 Docket: Div. No. 88 of 2012 Judicial Centre: Saskatoon, Family Law Division BETWEEN: KIRSTEN ANN TUCKER-LESTER and KEVIN JAMES LESTER Counsel: Marilyn Penner for the petitioner Kate Crisp for the respondent FIAT DUFOUR J. October 30, 2012 1) will get right to the point: with only very rare exception, communications designed to settle legal disputes cannot be disclosed to the Court unless both parties agree. Settlement negotiations are protected by settlement privilege which is a jointly held privilege that cannot be waived by any one party acting alone. This privilege is fundamental to the policy interest of promoting settlement discussions as means to avoiding trial. It should only be set aside if there is very compelling, competing policy warranting such. As settlement communications are almost always irrelevant to the issues that are properly considered by the Court, it is rare that there will be any competing policy or, indeed, any reason to reference them at all. 2) The application at bar is another salvo in a bitter custody and access dispute. ruled on the substantive aspect of the application in separate fiat and now render my decision in respect of the admissibility of some of the evidence the respondent put before the Court. He exhibited a letter to his affidavit that was from his counsel to the petitioner’s counsel. The letter was marked “Without Prejudice” and began with: ... My client has instructed me to forward the following without prejudice proposal in order to attempt settlement of the parties parenting and child support matters. 3) Just as promised, the letter goes on to set out a detailed, comprehensive offer of settlement. Although the law is clear that settlement proposals should seldom be made known to the Court, it happens too often and for no good reason. It is my hope that this reminder, not to be viewed as gentle, will change that. 4) do not intend to engage in lengthy discussion of settlement privilege because the law is quite clear and am bringing nothing new to the table: no extension of the law; no epiphany or novel approach just brief refresher for those who seem to have forgotten. More comprehensive analyses can be found in: Middelkamp et al. v. Fraser Valley Real Estate Board et al.(1992), 1992 CanLII 4039 (BC CA), 71 B.C.L.R. (2d) 276, [1992] B.C.J. No. 1947 (QL) (C.A.); 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.); Meyers v. Dunphy, 2007 NLCA (CanLII), 262 Nfld. P.E.I.R. 173; Squires v. Corner Brook Pulp and Paper Ltd. (1999), 1999 CanLII 18967 (NL SC), 175 Nfld. P.E.I.R. 202, [1999] N.J. No. 146 (QL) (Nfld. C.A.); Hansraj v. Ao, 2002 ABQB 385 (CanLII), 314 A.R. 262; Costello v. Calgary (City), 1997 ABCA 281 (CanLII), 152 D.L.R. (4th) 453; Leonardis v. Leonardis, 2003 ABQB 577 (CanLII), 43 R.F.L. (5th) 144; William Allan Real Estate Co. v. Robichaud (1987), 37 B.L.R. 286, [1987] O.J. No. 2167 (QL) (Ont. H.C.); Dos Santos (Committee of v. Sun Life Assurance Co. of Canada, 2005 BCCA (CanLII), 40 B.C.L.R. (4th) 245; Milton Farms Ltd. v. Dow Chemical Canada Inc. (1987), 1987 CanLII 4690 (SK QB), 63 Sask. R. 144, [1987] S.J. No. 197 (QL) (Q.B.). Settlement privilege 5) The petitioner objected to the admissibility of the respondent’s settlement proposal on the basis of settlement privilege. The respondent countered with: This is the respondent’s without prejudice proposal. He has chosen to waive any privilege over this proposal. 6) The respondent is wrong. party is entitled to waive some types of privilege, such as solicitor‑client privilege or litigation privilege, because they are his own to waive. Not so with settlement privilege. It is a jointly held privilege. A party cannot unilaterally waive privilege even on the proposal he made because it is not his to waive. That this must be so becomes clear on review of the reasons for the privilege. 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. H.C.), 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, supra). (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, supra; Leonardis, supra). (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., supra). (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, supra). 9) Against that backdrop, return to the settlement proposal the respondent exhibited to his affidavit. can divine no reason that the respondent would put it before the Court other than to attempt to leave the inference that: “my proposal is reasonable so must be good, reasonable parent; by failing to accept that reasonable proposal, she must be unreasonable and, therefore, not as good parent.” This is gamesmanship and nothing more. Gamesmanship fouls that which the policy seeks to promote. Relevance of settlement proposals 10) Settlement privilege aside, and with the exception of few issues such as costs and limitation periods or when party seeks to establish that there was concluded agreement, am hard pressed to come up with situation where the existence of settlement proposal would be relevant to an issue before the Court. The comprehensive custody and access proposal the respondent exhibited to his affidavit here does nothing to advance his cause. Slatter J. was faced with an almost identical situation in Leonardis and observed at para 10: [10] Even if the privilege was somehow to be removed from this letter, it is not relevant. It does not outline any facts. It is argumentative, and merely puts forward the position of one party. At best it is an editorialized prayer for the relief that one of the parties thinks the Court should grant.... 11) Further in respect of relevance or the lack thereof, consider that settlement negotiations are conducted on the normal contractual basis of offer and acceptance: “if contract is reached, the negotiations are superseded by the contract itself, and become irrelevant and inadmissible, and if no contract is reached, then the negotiations are, for that reason, irrelevant.” (see: The Law of Evidence in Canada, supra, at para. 14,316; Newbery Energy Ltd. v. Amok Ltd. (1987), 1987 CanLII 4935 (SK QB), 62 Sask. R. 1, [1987] S.J. No. 685 (QL) (Q.B.). 12) Only rarely should the Court be advised of settlement negotiations and such will be even more rare in chambers applications. Yes, the matter of costs is at issue in interim applications but arguments for enhanced costs will seldom override the policy of promoting settlement. Costs can be pursued with vigour after trial if either of the parties is of such mind. 13) The petitioner shall have costs of $500 in respect of the notice of objection, payable within 15 days. J. G. D. Dufour

The parties were involved in a dispute regarding the custody of their children. The respondent husband sought to adduce as evidence an offer of settlement made by him to the petitioner. The respondent argued that he had waived any privilege regarding the proposal. HELD: The Court held that settlement proposals were privileged and that both parties jointly held it; the respondent could not unilaterally waive it. The Court denounced the respondent for exhibiting it to his affidavit as an attempt to infer that he was the better parent because the offer was so reasonable that only an unreasonable person would not accept it. The Court should only rarely be advised of settlement negotiations and even more rarely in chambers applications.

b_2012skqb443.txt

Q.B.G. A.D. 1996 No. 1334 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ROBERT PETERS and SASKATCHEWAN GOVERNMENT INSURANCE RESPONDENT Robert Peters appeared on his own behalf Jennifer A. Bailey for the respondent JUDGMENT MAURICE J. January 21, 1999 [1] On February 26,1995, at Saskatoon, Saskatchewan, the applicant Peters, age 34, sustained injury to his lower back in an automobile accident. The back injury resolved within ten days to two weeks. [2] In late June of 1995, Peters began to experience pain in his back. His condition slowly worsened until he was hospitalized in late October of 1995 and diagnosed with large central and right sided disc herniation at the L5/S1 level. He made an application under Part VIII of The Automobile Accident Insurance Act, R.S.S. 1978, c. A- 35 (the “Act”), for income replacement benefits contending that the accident of February 26,1995 caused the disc herniation. The respondent, Saskatchewan Government Insurance, denied his claim for benefits. It took the position the disc herniation was not caused by the accident. Pursuant to s. 194(1) of the Act, Peters applied to the respondent for review of its decision. The respondent confirmed its decision and Peters appealed to this Court pursuant to s. 197. [3] The issue before me is whether Peters’ disc herniation was caused by the accident of February 26, 1995. [4] Peters applied for income replacement benefits as a non-earner pursuant to s. 117 (1) of the Act: Subject to subsection (5), if on the 181st and subsequent days following an accident non-earner is unable to hold the employment he or she could have held at the time of the accident, the non-earner is entitled to an income replacement benefit calculated pursuant to this section. [5] There is no doubt that for period of time after the disc herniation, Peters was unable to hold the employment he could have held at the time of the accident and would be entitled to an income replacement benefit if the herniation was caused by the accident. [6] Accident is defined in s.100(1)(a) as: “accident” means any event in which bodily injury is caused by an automobile. [7] The onus is on Peters to establish his claim to the benefits on balance of probabilities: Collis v. Saskatchewan Government Insurance (1998), 1998 CanLII 13463 (SK QB), 165 Sask. R. 108 (Q.B.). In Athley v. Leonati (1996), 1996 CanLII 183 (SCC), 140 D.L.R. (4th) 235 at 238 (S.C.C.), Major J. said: Causation is established where the plaintiff proves to the civil standard on balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] S.C.R. 311, 72 D.L.R.(4th) 289 (S.C.C.); McGhee v. National Coal Board, [1972] All E.R. 1008 (H.L.). [8] Peters relies on the evidence of two family physicians in support of his contention. Dr. Dindo was his family physician prior to the accident. In his medical report Dr. Dindo noted that, up to October 1994, Peters was not diagnosed as suffering from herniated disc or from any injury or dysfunction of the discs. He was generally in good health and had no evidence of any back problems. Dr. Rai, Peters’ family physician after the accident, in his medical report, stated: ... feel that though the pain and discomfort from June onwards was caused from disc problem which initially caused nerve root irritation and later nerve root compression causing acute pain, these discomforts seem to have some relation to the injury of February 1995 as he had no back problem prior to 1995. Based on the above mentioned facts still feel that his already existing back injury of February 1995 probably worsened the disc discomfort. Though the patient was symptom free from March to June 1995 most of the time he was not doing any work and his soft tissue injury had not completely healed causing his symptoms to get worse after the disc herniation. [9] Based on this medical evidence, and on his own testimony that the back pain he suffered after June of 1995 was in the same area as the pain he suffered after the accident, Peters claimed to have met the onus on him of proving that the accident caused the disc herniation. [10] Unfortunately for Peters, Dr. Rai does not conclude that the accident caused the herniation; he only concludes that it would worsen the symptoms. [11] In the absence of any other evidence, one could, perhaps, infer that, due to the fact Dr. Dindo found no evidence of disc herniation prior to the accident, together with Peters’ testimony that the back pain he suffered after June of 1995 was in the same area as the pain he suffered after the accident, the accident must have been cause of the herniation. [12] However, in this case, there is other evidence. Dr. Flotre, the medical director of rehabilitation services for the respondent, testified that in his opinion the accident did not cause the disc herniation. He explained that if Peters’ disc had been herniated by the accident, he would have expected symptoms and signs of herniation such as leg pain, numbness, tingling sensations and muscle weakness over the succeeding weeks, and Peters was symptom free until late June. He also explained that the quick resolution of Peters’ back problems and the length of time after the accident he was symptom free militated against disc herniation at the time of the accident. He stated that there can be multiple causes of disc herniation which have nothing to do with trauma. And pain in the same area after lengthy symptom free period of time, post accident, could be related to numerous causes other than the accident. Dr. Flotre\'s opinion was supported by Dr. Stewart, the orthopaedic surgeon who treated Peters for the herniation, who also opined that the herniation was not caused by the accident. In his medical report he stated: ... He [Peters] is trying to relate this all to his previous accident but have told him that the disc herniation coincided with the marked exacerbation and right leg pain in late October 1995. [13] A review of all of the evidence leads me to conclude that Peters has not met the onus on him of establishing causation on a balance of probabilities. His appeal is dismissed.

The applicant sustained a lower back injury in an automobile accident in February 1995 which resolved within ten days to two weeks. In June 1995 he began to experience pain in his back which slowly worsened until he was hospitalized in October 1995. He was diagnosed with a large central and right sided disc herniation. SGI denied his claim for income replacement benefits as a non-earner under s.117(1) of the Automobile Accident Insurance Act. In issue was whether the accident caused the disc herniation. HELD: The appeal was dismissed. The plaintiff had not met the onus on him of establishing causation on a balance of probabilities. Two family physicians supported his contention but the medical director of rehabilitation services for SGI and the orthopaedic surgeon who treated the applicant were both of the opinion the herniation was not caused by the accident.

5_1999canlii12498.txt

nan Q.B. A.D. 1996 No. 01221 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: KAREN LEE SEIFERLING and DONALD GEORGE LANGMAIER RESPONDENT James J. Vogel for the applicant Kenneth J. Brodt for the respondent JUDGMENT DAWSON J. February 5, 1998 Karen Seiferling, the applicant, brings a motionfor variation of child support, pursuant to The FederalChild Support Guidelines (SOR/97-175) (the "guidelines"),including an amount for extraordinary expenses. She also brings an application for an order fixing the amount owing under the previous child support order of Baynton J., dated September 5, 1990. Much of the evidence herein is disputed between the parties. Both counsel confirmed that they wished the issues resolved on the basis of affidavit evidence, without resort to viva voce hearing, with the respondent, Donald Langmaier placing one caveat on this consent: that the court not draw an adverse inference against Mr. Langmaier for failing to file the financial records of his farming partner, his brother. do not draw any adverse inference against the respondent for failing to produce this material. On the evidence before me, am of the opinion that can determine the facts upon which to base an order. FACTS The parties were married on October 8, 1981, and had two children, Daniel, born June, 1983 and Kurtis, born August, 1985. They divorced on September 5, 1990. At the time of the divorce judgment, Baynton J. ordered the respondent to pay child support for the two children, and also ordered the respondent to pay the applicant's income tax on this child support. In each year since the judgment, the applicant has had to apply to court for an order for payment of this tax. The respondent explains that he wanted the court to confirm the amount payable under the order and that is why he would not pay the amount voluntarily. At the date of commencement of this application, the respondent had not paid the applicant's 1996 tax liability for the child support in the amount of $1,713.00. However, immediately prior to this matter being heard in chambers, the respondent made the payment. At the chamber hearing, the respondent also consented to the amount owing for 1997, in the amount of $1,800.00. The children continue to live with the applicant. She has remarried and babysits in her home. The applicant hasclaimed child support in accordance with the guidelines, andin addition makes a claim for s. 7 expenses. This claimrelates to orthodontic costs for Kurtis. The total cost ofsuch orthodontic work is $3,900.00. The applicant says that her new spouse has dental plan which will pay for one-half of the expense, and she seeks contribution from the respondent for the other one-half not covered. The respondent continues to farm, and resides with his fiance. The children visit him every second weekend and one-half of the school holiday periods. CHILD SUPPORT The first step in determining the amount of child support payable is to determine the respondent's annual income. This is where the parties were at odds. The guidelines state that spouse's income is the "Total Income" disclosed in the T1 General form issued by Revenue Canada, adjusted in accordance with Schedule III to the guidelines. The court may also impute income where there is evidence of unreasonable expenses, and under s. 19(2) of the guidelines, the reasonableness of an expenses deduction is not solely governed by whether the deduction is permitted under the Income Tax Act. In addition, as stated at pp. and by Wimmer J. In Magnes v. Magnes, Sask. Q.B. No. 0159664, J.C. Regina, July 22, 1997 (unreported): In the case of farmer, as with other self-employed individuals, it will usually be necessary to examine the pattern of income established over time because the income earned in any particular year may not be representative. It is permissible under the guidelines to fix the income at the average earned in the three most recent taxation years. The respondent farms with his brother. Together they farm 32 quarters of farmland. The respondent owns two and one-half quarters as does his brother. The balance is rented. The respondent has continuously cropped the land since 1994. The respondent's T1 General forms and Notices of Assessment disclose total income for the 1994, 1995 and 1996 taxation years of $30,521.00, (-$37,659.00) and $87,431.00, respectively. The respondent suggests that should deduct from his income the amount of NISA payments that he received. am not prepared to deduct from total income in each of those years the amounts that the respondent received from NISA, despite the fact that these may be non-recurring in the future. The purpose of NISA is to provide savings for the stabilization of income for farmer. That is the purpose the respondent used it for and it is appropriately calculated into income. In each of the 1994, 1995 and 1996 taxation years, the respondent claimed capital cost allowance of $36,866.00, $37,179.00 and $29,720.00, respectively. Of these amounts, $555.10 in 1994, $904.50 in 1995 and $814.10 in 1996 should be added back into the respondent's income as the capital cost allowance with respect to real property, as required by s. 11 of Schedule III. The applicant also suggested that add back to the respondent's income the capital cost allowance on personal property, such as equipment. As stated by Halvorson J. in Pyper v. Neville (1995), 1995 CanLII 5970 (SK QB), 132 Sask. R. 300, the simple deduction of expenses from gross income can be unfair, as it understates the real cash available from which payor can pay child support. Halvorson J. suggested that understatement may be remedied to degree by adding depreciation back before implementing the tables. However, as stated by Gerein J. in Jones v. Jones, (1994), 1994 CanLII 4910 (SK QB), R.F.L. (4th) 293 at 317: nan [I]t would be unfair to simply treat all of the capital cost allowance as income available for normal living expenses. This approach would ignore the reality that there are capital costs involved in operating farm and that money should be set aside for the purpose of replacing equipment as it wears out. The respondent has had significant acquisitions of equipment in these three years. This allowed him maximum depreciation deduction in each year. And while he needs to update equipment, there is an understatement of income from which he can pay support. Specifically, in 1995, his loss amounts almost totally to his depreciation deduction. I do not find deducting all of the respondent'scapital cost allowance on personal property is a reasonableexpense. In that regard I am going to impute 15% of thecapital cost allowance claimed on personal property to therespondent pursuant to s. 19 in each of the above years. Therefore, in 1994 the further income of $5,441.28 will be imputed to the respondent. In 1995, the sum of $5,431.53 is imputed to the respondent and, in 1996 the sum of $3,290.65 is imputed to the respondent. I find that the respondent's income for 1994 for thepurposes of the guidelines is $36,517.38; for 1995 it is(-$31,322.97) and for 1996 it is $91,535.75. The average ofthese three years of income is $32,243.39. That is the respondent's income for the purposes of determining child support according to the tables. I decline to include the1997 income information in this calculation, despite the factthat the guidelines require the court to use the most recentinformation. I do this because the financial evidence filedby the respondent with respect to 1997 was not sufficient norsubstantiated sufficiently to determine income. The applicant's income for the purposes of theguidelines, for the years, 1994, 1995 and 1996, respectively,was $7,226.20, $5,606.82 and $3,002.20. find that she has appropriately deducted expenses from her gross income as she has only deducted portion of her home and vehicle expenses; that portion which is attributable to her business. Theapplicant's average income for those three years, that is herincome for the purposes of calculating s. 7 expenses is$5,278.40. The respondent shall pay to the applicant commencingJanuary 1, 1998, and continuing on the first day of each monththereafter the sum of $454.00 for the support of the twochildren of the marriage, such support to continue for so longas they remain children within the meaning of the Divorce Act,R.S.C. 1985, c. 3 (2nd Supp.) as am. Further, find that the extraordinary expenses claimed for orthodontic costs of $1,950.00 is an appropriate expenses. The respondent suggests in his affidavit that the parties split this cost. However, the respondent is to pay his proportionate share, in accordance with the guidelines. The respondent's proportionate share of that expense is 86%being $1,677.00. The respondent shall pay that sum to theapplicant by five payments of $280.00, the first of whichshall be paid on the 1st day of April, 1998, and a likeamount on the 1st day of August, 1998, the 1st day ofDecember, 1988, the 1st day of April, 1999, the 1st day ofAugust, 1999 and a final sixth payment in the amount of$277.00 on the 1st day of December, 1999. There shall be a further order that the respondentpay to the applicant the sum of $1,800.00 on or before April30, 1998, as payment under the previous child support order ofSeptember 5, 1990. There will also be an order that the respondentproduce to the applicant by May 1 in each year, the documentsreferred to in s. 21 of the guidelines for the previous year. The applicant shall have solicitor/client costs of her application to determine the amount of outstanding maintenance owing for 1996 and 1997, pursuant to the order of Baynton, J. With respect to the balance of the application, the applicant shall have her taxable costs.

An application for variation of child support pursuant to the Federal Child Support Guidelines including an amount for extraordinar expenses of $3,900 for orthodontic work. The parties married in 1981 and were divorced in 1990. The father was $1,713 in arrears until immediately prior to the matter being heard in chambers. He consented to $1,800 owing for 1997. HELD:1)The father was to pay $454 for child support for the two children who lived with the mother. His proportionate share of orthodontic expenses was 86% ($1,677) to be paid by five payments of $280. 2)The respondent's average income over 1994-96 for the purpose of determining child support was $32,243.39. The 1997 income information was not included because the financial evidence was insufficient. 15% of the capital cost allowance was imputed pursuant to s19 for the 1994-96 taxation years. Deducting all of the respondent's capital cost allowance was not a reasonable expense. An adverse inference was not drawn from the failure to produce the financial records of the respondent's farming partner. 3)The applicant's average income for 1994-96 for purposes of calculating the s7 expense was $5,278.40. 4)The father was to pay $1,800 prior to April 30/98 as payment under the 1990 order. 5)The father was ordered to produce the documents referred to in s21 to the applicant by May 1st each year. 6)The applicant was awarded solicitor/client costs of her application to determine the amount of outstanding maintenance owing for 1996 and 1997 and her taxable costs on the balance of the application.

e_1998canlii13966.txt

J. 2000 SKQB 75 U.F.C. A.D. 1993 No. 391 J.C.S. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: EDWIN JOHN HINZ and NANCY MARGARET HINZ RESPONDENT K. J. Ford, Q.C. for the applicant P. H. Loran for the respondent JUDGMENT BAYNTON J. February 18, 2000 THE APPLICATION [1] The applicant applies to vary a February 1, 1995 consent judgment by terminating or significantly reducing his obligation to pay further spousal support. The amount he is required to pay under the 1995 judgment is $2,500.00 per month. [2] The application before me was triggered by the applicant’s loss of employment and a debilitating leg injury. [3] The affidavit material filed by the parties indicates that they have different views as to many of the issues involved and their respective needs and means, but neither wanted trial of the issue. agreed to determine the issue on the basis of the materials filed in chambers keeping in mind the extensive inquiries mandated by Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.R. 420. POSITION OF THE PARTIES [4] The applicant raises two grounds as constituting a material change in circumstances. The first is that he is now unemployed and no longer receives the substantial salary that he previously enjoyed. The second is that the respondent is now over 65 years of age and receives Canada Pension Plan and Old Age Security Pension benefits. The applicant acknowledges that he should continue to pay some ongoing spousal support but that it should be significantly reduced. He maintains that the respondent chooses to remain by herself in the matrimonial residence which is located across from the university and could generate significant income. Alternatively the respondent could sell it and acquire more suitable accommodation with net financial benefit to herself. [5] The respondent acknowledges that there has been material change in circumstances that entitles the Court to vary the level of spousal support set out in the consent divorce judgment. She suggests that the reduction in spousal support should be limited to the amount that she now receives from her Old Age Pension and her Canada Pension. She takes the position that despite the significant reduction in the applicant’s income, he is still in financial position to continue to meet spousal support obligations. She also takes the position that despite the decreases and increases in their respective incomes, she will still have less disposable income to live on than is available to the applicant. [6] The respondent resists any reduction in excess of her pension benefits until the applicant can establish that he will not in fact have any employment income. She suggests that the applicant’s position on this variation application is based on future projections, not on established fact. She suggests that he be given leave to make further variation application in couple of years when the status of his employment income will be known. [7] Neither counsel filed any cases in support of their respective positions and confined their submissions primarily to the financial information filed. [8] The applicant and respondent were married on July 8, 1961. They had three children, all now adults living independently of their parents. The applicant and respondent lived together almost 29 years, separating in May 1990. The respondent remained in the matrimonial home and the applicant supported her from the date of separation until 1993 when the level of support was set by court order at $2,500.00 per month. In 1995 they agreed on an equal division of their matrimonial property and consented to divorce judgment that ordered ongoing spousal support of $2,500.00 per month. The support was not time limited nor was it expressed to be subject to variation by the Court should the financial position of either party change substantially in the future. [9] The applicant is now 62, the respondent 67. The respondent has not remarried and lives alone in the former matrimonial home. The applicant has remarried. [10] The applicant is current with his spousal support payments. The material filed on behalf of the applicant when the support was continued at $2,500.00 per month by the consent judgment in 1995, indicated that he was earning approximately $90,000 per year. In 1998 his gross employment income was almost $99,000.00 per year. In August of 1999 his employment was terminated in part because of his age and his injury and he was given severance package that continued his salary to and including March 31, 2000. [11] The applicant’s pension consists of Registered Retirement Savings Plans. The respondent received her proportionate share of this “pension” when the matrimonial property was divided in 1995. The applicant’s future income will be restricted to what he draws from these RRSP’s and other investment income. He has no desire or plans to seek other employment. [12] The respondent also has health problems. Some of them arose during the marriage. Although she has university education, she stayed at home during the marriage to raise their children. She has not been employed since the parties separated. Upon reaching the age of 65 years, she qualified for Old Age Pension benefits that are currently $417.00 per month. She was also entitled to receive her proportionate share of the applicant’s Canada Pension Plan benefits. The combined current amount of these benefits is just over $775.00 per month. [13] The applicant has filed comprehensive financial analysis of the joint investment income that is available to his second wife and himself, with an estimate of what portion is attributable to her. He has obtained projections from financial planner. He asserts that if he is required to maintain the current level of spousal support, his savings including those that represent his pension will be depleted by the year 2011. [14] Despite how the respective needs and means of the parties might be interpreted, it is beyond dispute that compared to the time the order was made in 1993 and continued by the divorce judgment in 1995, the applicant’s income is now less while the respondent’s income is more. It is also beyond dispute that the health of each of the parties has deteriorated since the order. It is unlikely that either is now capable of earning significant employment income. [15] It is clear from Bracklow v. Bracklow, supra, that each case involving spousal support issue must be determined on its own facts. It is also clear that the Court must give due consideration to all the factors and objectives of spousal support order set out in s. 15.2 of the Divorce Act, R.S.C. 1985, c. (2nd Supp.), rather than focussing on one factor alone, such as income levels or self-sufficiency. [16] The application of these legal principles to the facts and circumstances of the case before me do not warrant termination of the applicant’s spousal support obligations to the respondent, but they do warrant reduction of the quantum of the support payable. The parties had three children. The respondent understandably did not work during the marriage. Fortunately the matrimonial property division coupled with the spousal support, provided her with sufficient financial means so that she was not required to seek employment after the parties separated. [17] From financial perspective, considering the changes to the needs and the means of the parties since the divorce judgment, the position of the applicant is now worse while the position of the respondent is better. The applicant has met the threshold for a variation application by demonstrating that there has been a material change in circumstances since the spousal support order was last revised. Although this entitles him to have the Court review his obligation to pay spousal support, it does not follow that his obligation should be terminated. [18] It is significant that the agreement reached by the parties in 1995 did not provide that the spousal support was either time limited or that it was to be varied if there was a substantial change in the future financial positions of the parties. Surely at the time the agreement was made, the parties had contemplated their eventual retirement and the financial consequences that it would have for each of them. Yet it is not likely that the parties intended spousal support to continue indefinitely at $2,500.00 per month even after the applicant retired. [19] In most cases each party to marriage is disadvantaged by its breakdown. In this case, being a traditional marriage, the respondent has been disadvantaged to a greater degree than has the applicant. The respondent devoted her full time to working in the home and raising the three children of the marriage during the years when she would have been the most productive financially had she pursued a job or a career outside the home. Because of her efforts the applicant was able to pursue and develop his career as an engineer and thereby acquire the capacity to earn significant level of income annually. A couple of years after the parties separated in 1993, the respondent received her full share of the joint efforts of the parties up to that point in time in the form of an equal division of matrimonial property. [20] But the parties obviously recognized, and acknowledged through the additional spousal support provision of the agreement, that the property settlement alone would not put them on an even plane financially. In 1995 the respondent had little prospect of remunerative employment while the applicant’s financial future was secure. He then had the benefit of thirty-two years of employment as an engineer with secure future financially. In the years that have followed, he has been in much better position to improve his financial position than has the respondent. One of the reasons for this is because the respondent stayed home during the most productive years of her life to raise the children which enabled the applicant to focus on and advance his career. [21] Although it is obviously not the law that appropriate spousal support levels are determined by equalizing the incomes of couples who have divorced, the economic benefits and disadvantages that flow from the marriage and its dissolution must be taken into account. Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813. The fact that the applicant will no longer have any employment income, is not the sole consideration on this variation application, nor is it determinative of whether spousal support should be terminated. [22] The applicant has quite properly gone to considerable lengths to project his retirement income. Because most of it consists of tax sheltered investments, the tax consequences to him are substantial. He estimates that he will be required to draw $7,733.00 per month from those investments in order to maintain his standard of living and continue to pay the respondent $2,500.00 per month. His amortization projections show that if he does so, his retirement income will run out by the year 2011. He has sought the advice of certified financial planner respecting the implications of converting his Registered Retirement Savings Plans (RRSP’s) into Registered Retirement Income Funds (RRIF’s), Locked-In Retirement Accounts (LIRA’s), Life Income Funds (LIF’s) and Locked-In Retirement Income Funds (LRIF’s). [23] review of the material filed indicates that the applicant and his financial planner have focused primarily on the legal limitations he faces in accessing his RRSP’s and on the fact that there is significant tax cost to him in accessing retirement funds through any of these potential vehicles. The applicant also focuses on suggestions as to how the respondent could increase her monthly income by taking in boarders or selling her home and purchasing some form of annuity. There are two flaws in these submissions. The first is that there is significant tax saving to the applicant respecting payments he makes for spousal support. It is not evident from the material that either he or his planner have adequately taken this into account. The second is that the applicant could also supplement his own income by selling his residence and purchasing some form of annuity. [24] Considering all the factors set out in Moge v. Moge, supra, and Bracklow v. Bracklow, supra, and the means and needs of the parties and the changes to their financial positions, conclude that the 1995 spousal support should be varied downwards but should not be terminated. An adjustment period is also called for in the circumstances. [25] It is ordered that commencing April 1, 2000, the ongoing spousal support payable by the applicant to the respondent shall be $1,750.00 per month up to and including March 1, 2001. From and after April 1, 2001 until further order, the amount of spousal support shall be $1,250.00. [26] There is no merit in the wait-and-see suggestion of the respondent. It is evident that the applicant has retired and has no intention to become re-employed. It is essential that he know now what his future obligations will be. [27] As each party has had some measure of success, no costs are awarded to either.

The applicant sought to vary the 1995 consent judgment by terminating or significantly reducing spousal support of $2,500 per month. The respondent suggested the reduction should be limited to the amount she now received from her old age pension and CPP. Neither wanted a trial of the issue and submissions were primarily confined to the financial information filed. HELD: On-going spousal support was reduced to $1,750 per month from April until March 1, 2001 and $1,250 thereafter. 1)It is clear from Bracklow that each case involving spousal support must be determined on its own facts. The court must give due consideration to all the factors and objectives of a spousal support order set out in s.15.2 of the Divorce Act rather than focusing on one factor alone, such as income levels or self sufficiency. 2)There had been a material change in circumstances as the applicant, now 62, had lost his employment and suffered a debilitating leg injury while the respondent, now 67, was receiving an old age pension. 3)The 1995 agreement did not provide spousal support was either time limited or that it was to be varied if there was a substantial change in their future financial positions. However, it was unlikely the parties intended spousal support to continue indefinitely at $2,500 per month even after the applicant retired. The respondent was disadvantaged by the traditional marriage to a greater degree than the applicant as she devoted her full time to working in the home. She received her full share of their joint efforts in the form of an equal division of the matrimonial property. The economic benefits and disadvantages that flow from the marriage and its dissolution must be taken into account (Moge). There was no merit in the wait-and-see suggestion of the respondent. 4)No costs.

3_2000skqb75.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 296 Date: 2007 08 14 Docket: Q.B.G. 959/99 Judicial Centre: Regina BETWEEN: DUN-RITE PLUMBING HEATING LTD. and ALEC KEITH MORRISON and DWAYNE WALBAUM, ALL-RITE PLUMBING HEATING LTD., TAMWAL INVESTMENTS LTD., TAMMY WALBAUM, ROBERT SIM, ROSEMARY TURNER, GABRIEL CONSTRUCTION LTD., ALBERTA FAZAKAS, ROBERT DUMUR and 593340 SASKATCHEWAN LTD., carrying on business under the name DUMUR INDUSTRIES Counsel: Diana K. Lee Marc D. Kelly for the plaintiffs David J. Bishop for the Walbaum Group of defendants Patrick N. McDonald, Q.C. for Robert Sim Rosemary Turner Louis A. Browne for Gabriel Construction Ltd. Kenneth J. Karwandy for Robert Dumur Dumur Industries FIAT BALL J. August 14, 2007 [1] The plaintiff brings this action against nine defendants (the claim against the defendant Albert Fazakas has been discontinued) who can be separated into four groups: (a) Dwayne Walbaum All-Rite Plumbing Heating Ltd. Tamwal Investments Ltd. Tammy Walbaum (herein “the Walbaum Group”) (b) Robert Sim Rosemary (Turner) Sim (herein “the Sims”) (c) Gabriel Construction Ltd. (herein “Gabriel”) (d) Robert Dumur 593340 Saskatchewan Ltd., carrying on business as Dumur Industries (herein “the Dumurs”) [2] The Sims, Gabriel and the Dumurs bring separate motions, pursuant to Queen’s Bench Rule 41(a) for severance of the claims against them or for orders staying the claims until the plaintiffs’ claims against the Walbaum Group have been heard and decided. [3] The plaintiff, Alex Keith Morrison, and the defendant, Dwayne Walbaum, were equal partners in Dun-Rite Plumbing Heating Ltd. The relationship between the two shareholders broke down and in November of 1997, on the application of Mr. Morrison, Dun-Rite was ordered liquidated. Thereafter, Mr. Walbaum carried on business as the sole shareholder of All-Rite Plumbing Heating Ltd. [4] The main defendant in the action is Dwayne Walbaum. The principal allegation against him is that during 1996 and 1997 while he was solely in charge of Dun-Rite Plumbing Heating Ltd. he diverted virtually all of its assets to himself, his companies (All-Rite Plumbing Heating Ltd. and Tamwal Investments Ltd.) and his wife, Tammy Walbaum. The claims against the Walbaum Group constitute the majority of the claims in the 45 paragraph statement of claim. [5] The plaintiffs claim that the other defendants were “involved” in the divestiture of assets by the Walbaum Group. Specifically with respect to the Sims, the plaintiffs claim: 29. The Defendants, Robert Sims and Rosemary Turner, own Condominium unit number 5, Condominium Plan 96R47845, located on that property civically described as 1150 Rose Street, Regina, Saskatchewan (the “Condominium”). 30. At the direction of Walbaum, Dun-Rite renovated the Condominium and in so doing supplied and paid for labour and materials at the request of and/or for the benefit of Robert Sim and Rosemary Turner. Dun-Rite has not yet been paid for the renovations. 31. Dun-Rite states that Robert Sim and Rosemary Turner are liable to Dun-Rite for breach of contact and failure to pay for the renovations. Alternatively, Dun-Rite states that Robert Sim and Rosemary Turner are liable to pay Dun-Rite on quantum meruit basis for the renovations done by Dun-Rite to the Condominium. 32. At the direction of Walbaum, Dun-Rite renovated property in Toronto for the for the[sic] direct or indirect benefit of and at the request of Robert Sim, and in so doing supplied and paid for labour and materials. Dun-Rite has not yet been paid for the renovations. 33. As result of the failure by Robert Sim and Rosemary Turner to pay for the condominium renovations and as result of the failure of Robert Sim to pay for the Toronto renovations, Dun-Rite has suffered pecuniary losses and claims general and special damages. [6] Specifically with respect to Gabriel, the plaintiffs claim: 34. Dun-Rite, at the direction of Walbaum, and Gabriel entered into contract valued at approximately $73,571 in relation to the Gordon First Nation Band Office project (hereinafter the “Gordon project”). 35. Dun-Rite performed services and supplied materials to the Gordon project and rendered an account to Gabriel for $58,000, which sum remains unpaid. Approximately $15,571.00 of work remained to be done. Gabriel has claimed set-off in the amount of $68,858 against Dun-Rite for costs to complete the Gordon project, which set-off is without foundation. All-Rite, at the direction of Walbaum, allegedly performed further services and supplied further materials and rendered an account to Gabriel for $40,900.75 and was paid for the same by Gabriel. 36. Dun-Rite states that Gabriel acted in concert with All-Right and Walbaum to deprive Dun-Rite of payment for the work done by Dun-Rite on the Gordon project by claiming for set-off with respect to unsubstantiated costs and by paying All-Rite for work done and materials supplied by Dun-Rite. Accordingly, Gabriel is liable for breach of contract between it and Dun-Rite in relation to the said contract, and failure to pay money owing to Dun-Rite pursuant to that contract. 37. As result of the aforementioned breach of contract and failure to pay by Gabriel, Dun-Rite has suffered pecuniary losses. Dun-Rite makes claim against Gabriel for general and special damages. [7] Specifically with respect to the Dumurs, the plaintiffs claim: 20. With respect to the loan by Dun-Rite to Dumur Industries, on or about December 22, 1995, Dun-Rite, at the direction of Walbaum, loaned $120,000 to Dumur Industries to assist it in purchasing turret punch. Dumur Industries agreed to repay the loan to Dun-Rite, with interest at 12% per annum payable monthly, by June 30, 1996 (the “Loan”). 21. Because there was shareholder dispute between Morrison and Walbaum, it was agreed, in writing in June of 1997, between Morrison, Walbaum and Dumur for Dumur Industries, that the Loan proceeds would be paid into trust with the law firm of Gerrand Mulatz, solicitors for Walbaum. 22. At the direction of Walbaum, contrary to the said agreement to pay the Loan proceeds into trust, Robert Dumur did wrongfully cause Dumur Industries to pay $26,600 of the $120,000 Loan to Walbaum or to Tamwal and the balance of $93,400, directly to Dun-Rite. Walbaum was the sole director and person in control of Dun-Rite at that time. [8] The Sims, Gabriel and the Dumurs deny any involvement in the divestiture of Dun-Rite assets or in the dispute between Morrison and the Walbaum Group. Each applies for an order severing or staying the plaintiffs’ claims against them until the main action against the Walbaum Group is resolved. SUBMISSIONS OF THE PARTIES [9] All of the applicants make the following submissions: (a) the claims against them play small part in the larger action against the Walbaum Group; (b) the facts supporting the plaintiffs’ claim against the Walbaum Group are different from the facts supporting the claims against the Sims, Gabriel and the Dumurs; (c) the legal issues surrounding the plaintiffs’ claim against the Walbaum Group are different from the legal issues supporting the individual claims against the Sims, Gabriel and the Dumurs; (d) if the plaintiffs fail in the action against the Walbaum Group, it is unlikely that the Plaintiffs can or will continue to pursue the Sims, Gabriel and the Dumurs; (e) to sever the action against the Sims from the action against the Walbaum Group would reduce the length of the Walbaum Group trial by the same amount of time it wold take to hold separate trials of the claims against Sims, Gabriel or the Dumurs; (f) the action is now ready for trial. Courts have been more amenable to severing claims in these circumstances. [10] The plaintiffs oppose the applications on the basis that the applicants have not met the onus of establishing that they will suffer “undue prejudice” if the claims against them are not severed. The plaintiffs further submit that although severance would be convenient for the applicants and save them time and money, those are only secondary considerations. [11] The plaintiffs assert that the facts surrounding the dealings between the defendant, Dwayne Walbaum, and the remaining defendants will be explored during the trial. They say that the Sims, Gabriel and the Dumurs were each “involved in the divesting of some of the Dun-Rite assets” and that the circumstances of their involvement are part of the bigger picture supporting their claims against the Walbaum Group. Expressed another way, the plaintiffs intend to adduce evidence in respect of the Walbaum Group’s dealings with the applicants in order to support their claims against the Walbaum Group. This raises the likelihood that the applicants will be required to attend at least portions of the trial as witnesses subpoenaed by the plaintiffs or the Walbaum Group whether or not the claims are severed. [12] The applications are brought pursuant to Queen’s Bench Rule 41 which states: 41(1) Where the joinder of multiple claims or parties in the same action may unduly complicate or delay the trial, or cause undue prejudice to party, the court may: (a) order separate trials; (b) require one or more of the claims to be asserted, if at all, in another action; (c) order that party be compensated for being required to attend, or be relieved from attending, any part of trial in which he has no interest; (d) stay the action against defendant pending the hearing against another defendant, on condition that the party against whom the action is stayed is bound by the findings made at the hearing against the other defendant; or (e) make such other order as may seem just. [13] In Potash Corp. of Saskatchewan Mining v. Allendale Mutual Insurance Co. (1989), 1989 CanLII 5140 (SK CA), 80 Sask. R. 184 the Saskatchewan Court of Appeal confirmed that the paramount consideration on any application to sever is that no party will be unduly prejudiced by the result. Convenience, the saving of time, and the saving of costs for the litigants, while important, are secondary considerations. [14] These principles were applied in Chieftain Industrial Contractors and Consultants Ltd. v. Man-Ore Industrial Contractors Ltd.(1990), 1990 CanLII 7438 (SK QB), 81 Sask. R. 223 (Sask. Q.B.), case which also confirmed that applications by defendant (particularly when made at the conclusion of the discovery process) will receive more favourable consideration than an application by plaintiff. [15] useful summary of relevant principles is also set forth in Investors Syndicate Ltd. v. Pro Fund Distributors Ltd. et al. (1980), 1980 CanLII 3138 (MB QB), 12 Man. R. (2d) 104 (Man. Q.B.) affirmed (1980), 1981 CanLII 3537 (MB CA), 12 Man. R. (2d) 101 (Man. C.A.), which states as follows: 1. One party ought not to be harassed at the instance of another by an unnecessary series of trials. 2. There must be some reasonable basis for concluding that the trial of the issue or issues sought to be severed, will put an end to the action. 3. An order for severance should hold the prospect that there will be significant saving of time and expense. 4. Conversely, severance should not give rise to the necessity of duplication in substantial way in the presentation of the facts and law involved in later questions. 5. Nothing should be done which might confuse rather than help the final solution of the problem. 6. plaintiff who forms an action to suit his convenience will seldom be granted the right to sever, if the defendant objects. The objection of plaintiff to defendant’s application does not bear such heavy significance. [16] The court will look at all of the circumstances in deciding whether the grant an application for severance. In this case the plaintiffs should not be precluded from adducing evidence related to the Walbaum Group’s dealings with each of the applicants or required to segregate the evidence into two, three or four separate trials. Given the likelihood that the applicants will be required to attend portions of the trial in respect of the Walbaum Group in any event, severance would not necessarily result in a significant saving of time and expense. [17] Orders under Rule 41(a) are not confined to severance or stays of proceedings. Other options are available to ensure that all of the issues are tried in manner that minimizes unnecessary prejudice and expense to all parties. [18] Although counsel for the plaintiffs asserts that the evidence against all of the defendants can be adduced in no more than two and one-half days, given the number and complexity of the claims against the Walbaum Group this estimate seems very unrealistic. If evidence is to be adduced to support even portion of the various claims against the Walbaum Group, the trial will likely require many days of court time. [19] The plaintiffs acknowledge that only relatively small portion of trial time (perhaps less than one day) will pertain to the claims against any one of the Sims, Gabriel or the Dumurs. It would be unfair to require all of the applicants to participate in all of the trial when very little of it will be relevant to them. Specific dates and times should be set aside for the plaintiff to call evidence with respect to its claims against each applicant group. The applicants should be relieved from attending the trial at any other time. [20] Accordingly, at least 21 days prior to the scheduled commencement of the trial counsel for the plaintiff shall designate no more than two days during which the plaintiffs will adduce evidence in respect of the claims against the Sims; designate no more than two days in which the plaintiffs will adduce evidence in respect of their claims against Gabriel; and designate no more than two days in which the plaintiffs will adduce evidence in respect of their claims against the Dumurs. The days to be designated by the plaintiffs may pertain to the evidence to be called against one, two or all three of the applicants. The plaintiffs shall not call evidence in respect of those claims on any other date without leave of the court. Because control over the trial process and ultimate discretion with respect to costs should properly remain with the trial judge, the dates to be designated by counsel for the plaintiffs for calling evidence shall be subject to the approval of the trial judge. [21] It will also be left to the trial judge (or the pre-trial management judge) to designate specific days on which defence evidence may be adduced during the trial and argument presented with respect to each claim. All defendants other than those comprising the Walbaum Group shall be relieved from attending the trial on any date not designated by counsel for the plaintiffs or designated by the trial judge for adducing defence evidence and presenting argument. [22] Costs will be in the cause.

FIAT: The defendants, Sims, Garbriel and Dumurs, bring separate motions, pursuant to Queen's Bench Rule 41(a), for severance of the claims against them or for an order staying the claims against them until the plaintiffs' claim against the primary defendant, Walbaum have been heard and decided. HELD: 1) The Court will look at all of the circumstances in deciding whether to grant an application for severance. In this case the plaintiffs should not be precluded from adducing evidence related to Walbaum's dealings with each of the applicants or required to segregate the evidence into two, three or four separate trials. Given the likelihood that the applicants will be required to attend portions of the trial in respect of the Walbaum Group in any event, severance would not necessarily result in a significant saving of time and expense. 2) The plaintiffs acknowledge that only relatively small portion of trial time (perhaps less than 1 day) will pertain to the claims against any one of the Sims, Gabriel or Dumurs. It would be unfair to require all of the applicants to participate in all of the trial when very little of it will be relevant to them. Specific dates and times should be set aside for the plaintiff to call evidence with respect to its claims against each applicant group. The applicants should be relieved from attending the trial at any other time.

2_2007skqb296.txt

G.M. KRAUS THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 82 Date: 2014-08-05 Between: Docket: CACR2353 Her Majesty the Queen and Luis Manuel Alves Coram: Lane, Herauf and Whitmore JJ.A. Counsel: W. Dean Sinclair for the appellant Michael W. Owens for the respondent Appeal: From: Q.B.N.J. No. 30 of 2012, J.C. of Saskatoon Heard: June 26, 2014 Disposition: Dismissed Written Reasons: August 5, 2014 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Whitmore Herauf J.A. I. Introduction [1] The Crown appeals the acquittal of the respondent from charge of dangerous driving causing bodily harm, contrary to s. 249(3) of the Criminal Code of Canada. The respondent was tried on this charge before judge alone and was acquitted on October 10, 2013. [2] For the reasons that follow I would dismiss the appeal. In my view, the Crown has failed to overcome the heavy onus required to overturn appeals from acquittals under s. 676(1)(a) of the Criminal Code. II. Factual Background [3] On May 7, 2011, at approximately 7:30 p.m., Mr. Alves was driving his yellow Corvette on Circle Drive South in Saskatoon. Mr. Chetty was his passenger. Mr. Alves lost control of his vehicle and crashed into guardrail. Messrs. Alves and Chetty both sustained injuries. Mr. Alves was cut on his face and head, while Mr. Chetty was cut on the top of his head, behind his ear, and both his arms. [4] There was testimony that Mr. Alves was travelling anywhere between 93 to 180 kilometers per hour. Mr. Siba, witness who saw the accident, estimated that Mr. Alves’ car was travelling 160 kilometers per hour. Ms. Morgan, witness who was walking her dog near Circle Drive at the time of the accident, testified that she estimated the speed of Mr. Alves’ car to be 110 to 120 kilometers per hour, but that it also may have been travelling faster. Mr. Chetty testified that he saw the speedometer reach 180 kilometres per hour, but also believed he had heard Mr. Alves say the car was travelling 200 kilometres per hour. Mr. Matlock was driving when he was passed by Mr. Alves’ car. Mr. Matlock estimated that the car was travelling between 130 to 140 kilometres per hour, “but that it may have been faster.” [5] Cst. Low was called for the defence as an expert witness at trial (Cst. Low had been called by the Crown as an expert witness at the preliminary inquiry). Based upon his analysis, Cst. Low determined that the minimum speed at the time Mr. Alves’ car impacted the guardrail was 50 to 60 kilometres per hour. Consequently, Cst. Low estimated that at the time Mr. Alves lost control of the vehicle, it would have been travelling at minimum speed of between 93 to 99 kilometres per hour. Mr. Alves testified and said he was driving between 90 to 100 kilometres per hour. Of the witnesses who testified to Mr. Alves’ speed, only Cst. Low had ever had his ability to estimate speed tested. [6] Mr. Siba testified that traffic in the area of the accident was not heavy. He also testified, however, that he noticed “two cars that slowed down immediately in front of the Corvette.” Ms. Morgan, on the other hand, “stated that she had not noticed any other cars immediately before or after the yellow sports car.” Mr. Chetty testified that he saw car swerve off the road to avoid Mr. Alves’ car. Mr. Matlock stated that two lanes of traffic were in front of Mr. Alves’ vehicle, and that both were moving slowly. Mr. Alves testified that he passed two vehicles prior to the accident; immediately after passing the second, he lost control and crashed. [7] There was some conflicting evidence as to whether the accident occurred in construction zone or immediately near one. Cst. Erickson testified that “[a]lthough there was no construction at that exact location, [Cst. Erickson] could see construction had been started just east of that location.” However, Cst. Erickson stated in cross-examination that the speed limit in the area was 90 kilometres per hour. Mr. Siba stated that “the area just prior to the scene of the accident was under construction and that there was 60-kilometre per hour speed limit in the area.” Ms. Morgan, on the other hand, testified that the normal speed limit for that stretch of road was 90 kilometres per hour. Mr. Chetty stated that he believed the accident had occurred in the construction zone, so the speed limit was “probably 60 kilometres per hour.” Mr. Matlock also testified that the incident occurred in traffic zone, where Mr. Matlock himself had slowed to 60 kilometres per hour. Mr. Alves testified that he drove on that particular stretch of road daily, and that he usually travelled at 90 kilometres per hour. [8] As to the manner of Mr. Alves’ driving, Mr. Chetty testified that he asked Mr. Alves to slow down. Mr. Matlock described Mr. Alves’ car as veering from the right lane to the left and then off the road. In describing Mr. Alves’ driving, Mr. Matlock called it “dangerous and very aggressive”. When asked why he would say this, he stated it was “because it was being driven very fast and that he could hear the roar of the engine.” III. The Trial Decision [9] Mr. Alves was acquitted of the charge. The trial judge did “accept the evidence of Cst. Low, collision analyst for the Saskatoon City Police, who testified that based upon his expert analysis the minimum speed at which the car was travelling when it lost control on the roadway would be 93 to 99 kilometres per hour.” The trial judge also accepted “Cst. Low’s analysis that the roadway in question was major freeway in the city, and that although the immediate area was under construction at the time and the posted speed limit was 60 kilometres per hour, no actual construction involving workers or equipment was in the area at the time of the crash.” (See: para. 60 of the trial judgment). The trial judge also found as fact that the lighting at the time of the accident was good, the roadway was dry, and visibility was not an issue. [10] In acquitting Mr. Alves of dangerous driving causing bodily harm, the trial judge reasoned at para. 60: have concluded that the evidence has not established beyond reasonable doubt that the manner of driving of the accused was dangerous to the public in all the circumstances. While am prepared to accept that excessive speed can constitute dangerous driving the surrounding circumstances in those cases were held by the court to make the excessive speed objectively dangerous to the public. In the circumstances of this case, am not satisfied the Crown has established beyond reasonable doubt that the speed of the accused’s vehicle was anything more than 93 to 99 kilometres per hour or that it was objectively dangerous in the circumstances. IV. Jurisdiction and Standard of Review [11] Under s. 676(1) of the Criminal Code, the Crown may appeal to the court of appeal “(a) against judgment or verdict of acquittal or verdict of not criminally responsible on account of mental disorder of trial court in proceedings by indictment on any ground of appeal that involves question of law alone.” The standard of review for questions of law is correctness. [12] This Court’s authority to order new trial is set out in s. 686(4) of the Criminal Code. Under s. 686(4), “If an appeal is from an acquittal the court of appeal may (a) dismiss the appeal; or (b) allow the appeal, set aside the verdict and (i) order new trial.” However, not every error of law will merit new trial. As Jackson J.A. noted in R. v. Despins, 2007 SKCA 119 (CanLII) at para. 15, 299 Sask. R. 299, the Supreme Court has “establish[ed] standard of review against which the Crown’s claim to new trial must be assessed.” [13] That standard of review was most clearly set out in R. v. Graveline, 2006 SCC 16 (CanLII), [2006] S.C.R. 609, Fish J., writing for the majority, held: 14 It has been long established that an appeal by the Attorney General cannot succeed on an abstract or purely hypothetical possibility that the accused would have been convicted but for the error of law. Something more must be shown. It is the duty of the Crown in order to obtain new trial to satisfy the appellate court that the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had material bearing on the acquittal. The Attorney General is not required, however, to persuade us that the verdict would necessarily have been different. [Emphasis added] [14] Similarly, in Vézeau v. The Queen, 1976 CanLII (SCC), [1977] S.C.R. 277 at 292, Martland J., writing for the majority, held that it is “the duty of the Crown, in order to obtain new trial, to satisfy the Court that the verdict would not necessarily have been the same if the trial judge had properly directed the jury.” [15] This is significant burden. Adopting Vézeau, Sopinka J. held in R. v. Morin, 1988 CanLII (SCC), [1988] S.C.R. 345 at p. 374: am prepared to accept that the onus is heavy one and that the Crown must satisfy the court with reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. [Emphasis added] [16] In sum, the Crown must satisfy this Court of two things: first, the Crown must prove on the standard of correctness that an error of law was made. Second, the Crown must prove that “the error (or errors) of the trial judge might reasonably be thought, in the concrete reality of the case at hand, to have had material bearing on the acquittal.” While the Crown’s onus is heavy one, the Crown is not required to prove that the outcome of the trial would necessarily have been different but for the error or errors of law. [17] The Crown submits that the trial judge erred in law in three respects. [18] First, the Crown argues that the trial judge erred in mistaking question of fact—Mr. Alves’ speed—with an element of the offence. At issue here is whether the trial judge erred by applying the incorrect mens rea and actus reus to the offence of dangerous driving. [19] Second, the Crown argues that as result of mistaking speed for an element of the offence, the trial judge erred in law by failing to consider relevant evidence. [20] Third, the Crown argues that the trial judge erred in law by subjecting individual pieces of evidence to the standard of proof beyond reasonable doubt. As a corollary to any of the three alleged errors of law, the Crown argues that if this Court orders a new trial, it could rule on the admissibility of Cst. Low’s expert opinion evidence. Alternatively, this Court could rule on the weight to be given to Cst. Low’s evidence. will address all four points in turn. VI. Analysis (a) Did the trial judge mistake the elements of the offence? [21] It is an error of law for the trial judge to mistake the elements of the offence. In R. v. Johnson, 1973 CanLII 198 (SCC), [1975] S.C.R. 160 at p. 170, Ritchie J. for the majority held that “it appears to me that the question of whether or not certain conduct constitutes an offence under the Criminal Code is question of law in the strict sense.” Similarly, in R. v. Ciglen, 1970 CanLII 16 (SCC), [1970] S.C.R. 804 at p. 819, Martland J. held that when trial judge considers evidence “under misconception of law as to what was necessary to be proved in order to establish the Crown’s case,” the trial judge errs in law. [22] The actus reus and mens rea of dangerous driving were set out in R. v. Beatty 2008 SCC (CanLII) at para. 43, [2008] S.C.R. 49, in Charron J.’s majority reasons. These were subsequently affirmed by unanimous Supreme Court in R. v. Roy, 2012 SCC 26 (CanLII) at para. S.C.R. 60. In Beatty, Charron J. held that the actus reus of dangerous driving under s. 249 of the Criminal Code is “defined by the words of the enactment.” The actus reus of dangerous driving therefore requires: The trier of fact must be satisfied beyond reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic at that time is or might reasonably be expected to be at that place.” [23] The mens rea of dangerous driving is modified objective test. As Charron J. held in Beatty: 43 The trier of fact must also be satisfied beyond reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to marked departure from the standard of care that reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. [Emphasis added] At para. 36 in Roy, the Supreme Court set out helpful two-step approach for trier of fact to approach the mens rea of dangerous driving: first ask whether, “in light of all of the relevant evidence, reasonable person would have foreseen the risk and taken steps to avoid it if possible.” Second, ask “whether the accused’s failure to foresee the risk and take steps to avoid it, if possible, was marked departure from the standard of care of reasonable person in the accused’s circumstances.” [25] The Crown argues that the trial judge mistook the issue of Mr. Alves’ speed as necessary element of the offence of dangerous driving. In my view, the trial judge correctly stated and applied the elements of dangerous driving. Despite the trial judge’s repeated and unfortunate statements that Mr. Alves’ speed needed to be proved beyond reasonable doubt, his analysis suggests that he simply misspoke. He did not confuse an issue of fact—Mr. Alves’ speed—with either the actus reus or the mens rea of dangerous driving. At para. 51 of the trial judgment, the trial judge set out five conditions necessary to establish dangerous driving. The trial judge determined that the fourth condition—whether the operation of the motor vehicle was dangerous to the public considering all the circumstances—was at issue. In setting out the actus reus and mens rea of the offence, the trial judge went on to quote extensively from Roy. In particular, he quoted para. 33 of Roy, which adopted the actus reus as it was set out by Charron J. in Beatty. The trial judge was, in other words, clearly alive to the holdings in Beatty and Roy that the actus reus is set out in s. 249(1)(a) of the Criminal Code. The trial judge then quoted the two-step process to analysing the mens rea of dangerous driving, as it was established in Roy and quoted above. [27] The issue as to whether the trial judge mistook question of fact for an element of the offence arose when the trial judge stated at para. 60 of the trial judgment: the evidence has not established beyond reasonable doubt that the manner of driving of the accused was dangerous to the public in all the circumstances. While am prepared to accept that excessive speed can constitute dangerous driving, as shown by previous Saskatchewan cases the surrounding circumstances in those cases were held by the Court to make the excessive speed objectively dangerous to the public. In the circumstances of this case, am not satisfied the Crown has established beyond reasonable doubt that the speed of the accused’s vehicle was anything more than 93 to 99 kilometres per hour or that it was objectively dangerous in the circumstances. [Emphasis added] This statement may appear to suggest that he had mistaken “speed” as an element of the offence, because only elements of the offence need to be proved beyond reasonable doubt. The trial judge went on to state that Mr. Alves’ speed needed to be proved beyond a reasonable doubt several more times. [28] However, a closer reading suggests the trial judge did not confuse the factual issue of Mr. Alves’ speed with either the mens rea or the actus reus. Instead, the trial judge conducted his analysis of the facts against the correct actus reus and mens rea requirements. At para. 60, for instance, the trial judge addressed whether the facts satisfied the actus reus: accept the evidence of Cst. Low, collision analyst for the Saskatoon City Police, who testified that based upon his expert analysis the minimum speed at which the car was travelling when it lost control on the roadway would be 93 to 99 kilometres per hour. As was pointed by Cst. Low, Alves may have been driving his vehicle faster than this, but when proof of his speed is required to be beyond reasonable doubt, the minimum proven speed is what must use. also accept Cst. Low’s analysis that the roadway in question was major freeway in the city, and that although the immediate area was under construction at the time and the posted speed limit was 60 kilometres per hour, no actual construction involving workers or equipment was in the area at the time of the crash. accept the evidence of several of the witnesses who testified that at the time of the accident the lighting conditions were good, the surface of the roadway was dry and there was good visibility. And also accept Cst. Low’s evidence that no pedestrian traffic would be expected on Circle Drive South as is freeway. Finally, Cst. Low testified that at the time of day the accident happened, 7:30 p.m., one would not expect higher than normal traffic flow, although one would expect to find slower moving traffic in construction zone marked 60 kilometres per hour. Although three civilian witnesses estimated that the vehicle may have been travelling faster than Cst. Low’s minimum estimate, they are not trained speed estimators and each admitted in cross-examination that their estimate was “guess”. As was pointed out in R. v. Beatty, 2008 SCC (CanLII), 2008 SCC5, [2008] S.C.R. 49, significant fault element is required in order to establish dangerous driving for the purposes of the imposition of criminal punishment. While the conduct of the accused, Alves, may very well constitute civil negligence, in my opinion it was not dangerous to the public in all the circumstances so as to establish criminal negligence. [Emphasis added] [29] References to proving speed beyond reasonable doubt are troubling, as excessive speed is neither the actus reus nor the mens rea of dangerous driving. However, these passages do not disclose that the trial judge was confused as to the actus reus of the offence. Indeed, they show the opposite: the trial judge recognized and applied the correct actus reus, as set out in Beatty and Roy. What is more, the trial judge incorporated the language of s. 249 into his analysis, stating: “While the conduct of the accused, Alves, may very well constitute civil negligence, in my opinion it was not dangerous to the public in all the circumstances so as to establish criminal negligence.” The trial judge did not confuse the issue of Mr. Alves’ speed with the actus reus. [30] As to whether the facts bore out the mens rea, the trial judge stated at para. 61: Based upon my finding that the Crown has not proved beyond reasonable doubt that the accused’s speed was anything beyond 93 to 99 kilometres per hour, this speed would not be marked departure from the standard of care expected of reasonable person at that time of day on that stretch of roadway assuming that there were no construction workers or construction equipment in the area. [Emphasis added] While problematic that the trial judge suggested that proof beyond reasonable doubt of Mr. Alves’ speed was needed, that appears to be function of how the Crown structured its case. The Crown’s case was, basically, built around the issue of speed. The Crown essentially maintained that Mr. Alves’ driving, in light of all the other circumstances (namely, the construction zone and other traffic moving slowly), was dangerous in the circumstances because it was too fast. The speed of Mr. Alves’ vehicle was therefore at the crux of culpability. By stating that Mr. Alves’ speed needed to be proved beyond reasonable doubt, the trial judge was not, in my view, mistaking the mens rea of dangerous driving; he was simply conducting his mens rea analysis in response to the manner in which the Crown had built its case. Indeed, he specifically held that the facts do not establish “marked departure from the standard of care expected of reasonable person,” which is to say he specifically held that the facts did not meet the mens rea established in Beatty and Roy. This is consistent with the trial judge having instructed himself as to the applicable actus reus and mens rea by quoting Roy extensively. [31] In short, the trial judge assessed Mr. Alves’ speed against the actus reus and mens rea applicable to the offence of dangerous driving, as set out by the Supreme Court in Beatty and Roy. The trial judge did not mistake the elements of the offence, and so did not err in law. This ground of appeal is dismissed. (b) Did the trial judge fail to consider relevant evidence? [32] The Crown argues that “the trial judge misapprehended the essential elements of the offence of dangerous driving. As consequence, he erred in law by failing to consider evidence relevant to the proof of the offence.” Put another way, the Crown alleges that the trial judge incorrectly focused on Mr. Alves’ speed, leading him to disregard relevant pieces of evidence that could have established other circumstances relevant to the actus reus. [33] In R. v. J.M.H., 2011 SCC 45 (CanLII) at para. 24, [2011] S.C.R. 197, the Supreme Court held that in relation to “the issue of when the trial judge’s alleged shortcomings in assessing the evidence constitute an error of law giving rise to Crown appeal of an acquittal,the jurisprudence currently recognizes four such situations.” First, it is an error of law to make finding of fact for which there is no evidence. Second, the legal effect of findings of fact or of undisputed facts is question of law. Third, an assessment of evidence based on the wrong legal principle is an error of law. Fourth and lastly, the trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law. [34] The third situation is at issue here. Interpreting Wilson J.’s decision in R. v. B.(G.), 1990 CanLII 115 (SCC), [1990] S.C.R. 57, Sopinka J. in R. v. Morin, 1992 CanLII 40 (SCC), [1992] S.C.R. 286 at para. 18, held that “[f]ailure to appreciate the evidence cannot amount to an error of law unless the failure is based on misapprehension of some legal principle.” This is difficult error for the Crown to prove. In her concurring reasons in B.(G.), McLachlin J. (as she then was) aptly noted at para. 46 that “the law is clear”, absent misdirection in law, “doubts about the reasonableness of the trial judge’s assessment of the evidence do not constitute questions of law alone, and hence cannot support an appeal from acquittal.” [35] The Crown argues that the trial judge misdirected himself to acquit Mr. Alves if he believed Mr. Alves’ speed was less than 100 kilometres per hour. At para. 46 of the Crown factum, it is stated: “It was wrong because speed was not an essential element of the actus reus or the mens rea. It was also wrong because speed was not the only circumstance to consider.” As discussed above, however, the trial judge did not misdirect himself as to the essential elements of the offence. The trial judge’s statements that speed needed to be proved beyond reasonable doubt, while unfortunate, neither resulted in nor reflected misapprehension of the applicable actus reus and mens rea. [36] First, the Crown argues that the Trial Judge did not consider that Mr. Alves admitted he was speeding in construction zone. However, the trial judge was certainly aware of the issue of the construction zone and addressed it several times throughout his decision. At para. 60 of the trial judgment the trial judge stated: also accept Cst. Low’s analysis that the roadway in question was major freeway in the city, and that although the immediate area was under construction at the time and the posted speed limit was 60 kilometres per hour, no actual construction involving workers or equipment was in the area at the time of the crash. accept the evidence of several of the witnesses who testified that at the time of the accident the lighting conditions were good, the surface of the roadway was dry and there was good visibility. also accept Cst. Low’s evidence that no pedestrian traffic would be expected on Circle Drive South as it is freeway. Indeed, contrary to the Crown’s position, the trial judge clearly addressed the issue of the construction zone. Furthermore, the trial judge went beyond merely considering whether Mr. Alves was in construction zone and accepted as fact that there were no construction workers or equipment in the area. [37] The Crown further submits at paras. 48 and 49 of its factum that: There was no dispute there were other motorists in the construction zone or that they were travelling at much slower speed than he was. There was clear evidence he nearly rear-ended other vehicles before he lost control. There was clear and undisputed evidence from most of the eye witnesses that they foresaw the likelihood of an accident long before it happened. Indeed, his own passenger was so afraid that he repeatedly begged the Respondent to stop or slow down. All of those circumstances deserved consideration. They got none. The trial judge made few if any real findings of fact. For example, he did not say he was accepting or rejecting Mr. Matlock’s evidence that the Respondent nearly collided with slow moving vehicles in the construction zone. He did not say whether he was accepting or rejecting the testimony of Mr. Matlock, Mr. Siba or Mr. Chetty that they all foresaw the accident long before it occurred. He did not accept or reject Mr. Siba’s evidence the Respondent was still accelerating when he passed slower moving vehicles in the construction zone. He did not accept or reject Mr. Chetty’s evidence that the Respondent was driving at “full throttle” or that he saw the speedometer reading to be 180 km/hr. He did not make any of those findings because his focus, from beginning to end, was whether the Crown had proven the Respondent’s speed beyond reasonable doubt. [Emphasis added] However, the trial judge was not blind to this evidence. Indeed, the trial judge provided a thorough review of each witness’s testimony. In reviewing Mr. Siba’s evidence, the trial judge noted at paras. 11 and 13 of the trial judgment that Mr. Siba: saw yellow Corvette automobile coming toward him, which appeared to be going at high rate of speed. The Corvette swerved around couple of cars. As Siba watched in his rearview mirror he saw the Corvette’s brake lights come on, and it went sideways When asked by Crown counsel as to what the traffic was like on the side of the roadway that the Corvette was on, he said it was light. He did, however, notice two cars had slowed down immediately in front of the Corvette. He stated that the area just prior to the scene of the accident was under construction and that there was 60-kilometre-per-hour speed limit in the area. [Emphasis added] As to the evidence of Mr. Chetty, the trial judge similarly addressed the testimony that the Crown submits was neglected. In his summary of Mr. Chetty’s evidence, the trial judge noted at paras. 22 and 23 of the trial judgment that Mr. Chetty: stated that he felt that the car was going full throttle until they smashed into the guardrail. When asked what was the fastest speed he saw them travelling, he stated he recalled seeing the speedometer show 180 kilometres per hour, but that he also thought that he had heard Alves say he was going “like 200 kilometres per hour.” When asked how the accident happened, Chetty indicated that Alves must have gone over too far and that there was built up loose gravel on the shoulder which caused him to lose control. When asked whether there were other vehicles in front of the Alves’ automobile, he indicated that he saw someone “drive off into the ditch to dodge us”. [Emphasis added] As for the testimony of Mr. Matlock, the trial judge summarised his evidence at paras. 33 to 36 of the trial judgment as follows: On May 7, 2011 he was driving his vehicle on Circle Drive South in westerly direction. He saw car in the left-hand lane go by him very fast. It switched lanes, and then the operator of the vehicle lost control, and the car flipped. As this was in construction zone, Mr. Matlock was down to 60 kilometres per hour. He stated that the car that passed him was yellow Corvette. When asked as to its speed, he stated that his “best guess” was 130 to 140 kilometres per hour, but it may have been faster. He stated that there were two lanes of traffic in front of the yellow vehicle going very slowly because it was construction zone. He stated, that he thought that these cars were approximately one-quarter of kilometre in front of him, but he could not say for sure. He stated that the Corvette was very close to the traffic in front of him at the time of the accident and he thought that the Corvette was going to run into this traffic. When asked whether he had observed how the Corvette lost control, he stated that it had veered to the right from the left-hand lane and when its driver hit the brakes the car went to the left and off the road on the left-hand side. When asked how he would characterize the driving of the Corvette, he said it was “dangerous and very aggressive”. After the accident, he pulled over to the side of the roadway and went to the site of the accident. He stated that the car was on its side with both occupants still in the car. The passenger was bleeding very badly. He stated that it took two to three minutes to get the passenger and driver out of the vehicle. He recalls hearing the passenger ask, “why was he driving so crazy”. When asked if there was any response by the driver, he stated, “nothing.” [Emphasis added] [38] The purpose of quoting these passages at length is to simply emphasize that the trial judge was very clearly aware of the evidence that the Crown submits received inadequate consideration. The Crown has no case here. While it was argued that the trial judge’s reasons do not make adequate findings of fact— which in turn was implied to mean that the trial judge did not consider all the evidence—the trial judge is not obligated to refer to every piece of evidence. Nor is the trial judge obligated to explain exactly how each piece of evidence was weighed or considered. This ground of appeal is also dismissed. (c) Did the Trial Judge subject individual pieces of evidence to the criminal standard? [39] The Crown argues that the trial judge erred in law by subjecting individual pieces of evidence to the criminal standard of proof, resulting in a piecemeal consideration of only the evidence that is proved to the criminal standard of beyond a reasonable doubt. [40] In J.M.H., the failure to consider all the relevant evidence was the fourth situation in which trial judge’s assessment of the evidence can amount to an error of law. The “underlying legal principle” of this error is that “it is an error of law to subject individual pieces of evidence to the standard of proof beyond reasonable doubt; the evidence must be looked at as whole.” (at para. 31) This error was originally recognized by Sopinka J. in Morin (1988). [41] Sopinka J. in Morin (1988) explained that to subject individual pieces of evidence to the criminal standard results in “piecemeal” consideration of only the evidence that is proved beyond reasonable doubt, rather than proper consideration of all the relevant evidence. The problem that arises from subjecting individual pieces of evidence to the criminal standard is that the trier of fact is left with only those (presumably) small parts of the Crown’s case that could be proved beyond reasonable doubt. Indeed, The effect of the misdirections referred to above may very well have been that the jury examined evidence that was crucial to the Crown’s case in bits and pieces. Standing alone or pitted against the evidence of the accused without the support of other evidence, much of this evidence might have been discarded as not measuring up to the test. When the jury came to consider the Crown’s case as whole there may not have been very much left of it. [at pp. 358-9, Emphasis added] [42] However, as the Supreme Court noted in J.M.H., the application of this error is limited to circumstances where the trial judge clearly subjects individual pieces of evidence to the criminal standard; it has no application where the trial judge has not offered reasons as to how each piece of evidence was assessed. Explaining this limit in Morin (1992), Sopinka J. held at p. 296 that: To apply Morin, supra, as basis of review of trial judge’s findings of fact whenever the reasons for judgment fail to deal with particular piece of evidence, or the inference from such evidence would require trial judge to record each piece of evidence and his or her assessment of it. This would be misapplication of Morin to the trial process when the trial is by judge alone. trial judge must consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not proper basis for concluding that there was an error in law in this respect. [Emphasis added] [43] In summary, it is an error of law to subject individual pieces of evidence to the criminal standard of proof beyond reasonable doubt. To err in such manner results in an improper and piecemeal consideration of only the evidence that the Crown could prove beyond reasonable doubt. However, this error does not arise if the trial judge has merely not explained how each individual piece of evidence was assessed; it arises only if the trial judge subjected individual pieces of evidence to the criminal standard. [44] In my view, the trial judge erred and applied the criminal standard of proof beyond a reasonable doubt to the different pieces of evidence going to Mr. Alves’ speed at the time of the accident. The trial judge repeatedly emphasized that Mr. Alves’ speed might have been higher than the 93 to 99 kilometres per hour attested to by Cst. Low. However, the trial judge also emphasized that he was not convinced, beyond reasonable doubt, that Mr. Alves’ speed was higher than 93 to 99 kilometres per hour. The trial judge stated at para. 60 of the trial judgment: “In the circumstances of this case, am not satisfied that the Crown has established beyond reasonable doubt that the speed of the accused’s vehicle was anything more than 93 to 99 kilometres per hour or that it was objectively dangerous in the circumstances.” Later in the paragraph, the trial judge again subjected the evidence going to Mr. Alves’ speed to the criminal standard and seemed to suggest that because he thought the issue needed to be proved beyond reasonable doubt, he could not accept evidence that suggested without definitively proving that Mr. Alves was going faster than 93-99 kilometres per hour. The trial judge stated: accept the evidence of Cst. Low, collision analyst for the Saskatoon City Police, who testified that based upon his expert analysis the minimum speed at which the car was travelling when it lost control on the roadway would be 93 to 99 kilometres per hour. As was pointed out by Cst. Low, Alves may have been driving his vehicle faster than this, but when proof of his speed is required to be beyond reasonable doubt, the minimum proven speed is what must use. [Emphasis added] When he addressed Mr. Alves directly, the trial judge reiterated that Mr. Alves was fortunate the evidence of his speed had not been proven beyond reasonable doubt. At para. 62 of the trial judgment he stated: Mr. Alves, you are very lucky man. Obviously the accident could have caused death to you and/or your passenger or much more serious injuries than were experienced. Furthermore, had there been any highway workers in the area you could have caused death or serious injury to them for which am sure you would have never forgiven yourself. You are also lucky that there was no police radar to record your exact speed. You are lucky because the Crown is unable to prove beyond reasonable doubt that your speed exceeded 93 to 99 kilometres per hour even though it may have been much faster. [Emphasis added] [45] All the while acknowledging that Mr. Alves may very well have been travelling much faster than the 93 to 99 kilometres per hour attested to by Cst. Low, the trial judge emphasized that the Crown’s failure to prove evidence of Mr. Alves’ speed beyond reasonable doubt precluded finding Mr. Alves guilty of dangerous driving. Perhaps more to the point, the trial judge’s statement that “the minimum proven speed is what must use” suggests that he felt obligated to accept the lowest speed offered in any of the testimonies—and therefore discard the evidence of higher speeds—because the lowest possible speed was necessarily the only uncontested evidence as to speed, and therefore the only evidence of speed that was proved beyond reasonable doubt. Consequently, the trial judge erred in law by subjecting evidence of Mr. Alves’ speed to the criminal standard of beyond reasonable doubt. [46] It may be argued that since the trial judge did not expressly state that he was subjecting the testimonies of Messrs. Siba, Chetty, and Matlock and that of Ms. Morgan to the criminal standard, the limits to the Morin (1988) rule that Sopinka J. identified in Morin (1992) are applicable here. In my view, that would be incorrect. It is clear from the above-quoted passages that the trial judge believed evidence of speed needed to be proved to the criminal standard. He consequently felt he was under an obligation to accept the lowest speed proffered in testimony, which is to say the only speed proved beyond reasonable doubt. In so doing, the trial judge necessarily must have discarded other evidence of higher speeds, simply because that evidence was not proved beyond reasonable doubt. Or rather, the trial judge’s reasons as whole—and treatment of Cst. Low’s testimony in particular—show that he subjected evidence of Mr. Alves’ speed to the criminal standard of proof beyond reasonable doubt. [47] The trial judge focused only on the estimate that was proved beyond reasonable doubt: the lowest estimate—Cst. Low’s. He did not consider all the different pieces of evidence going to Mr. Alves’ speed as whole. Accordingly, this case falls within the application of the Morin (1988) rule and does not run afoul of the limits thereto set out in Morin (1992). The trial judge erred in law. [48] Based upon Graveline, supra, the analysis does not stop here. Identification of an error of law is the first step. The next step is to determine if the Crown has proved that the error might reasonably be thought to have material bearing on the acquittal. [49] It is worthwhile to reiterate that the Crown’s case was predicated upon Mr. Alves travelling at an unsafe speed in construction zone where the speed limit would be 60 kilometres per hour. Evidence from both Crown and defence witnesses peg the speed at low of 93 kilometres per hour to high of 200 kilometres per hour. The trial judge was tasked with determining guilt beyond reasonable doubt based upon this somewhat bizarre range of speeds. [50] All the Crown witnesses were effectively cross-examined by defence counsel at trial. For example, the certainty of the speed estimates provided by Crown witnesses during examination-in-chief changed in cross-examination to admissions that the speed estimates were “guesses”. One of the witnesses in cross-examination admitted that she observed the vehicle in question for only one to two seconds. Another witness clarified in cross-examination that the reference to his observation that Mr. Alves’ vehicle “weaved” was simply that the vehicle changed lanes and was not meant to infer that the vehicle was all over the road. In addition, two of the Crown witnesses in cross-examination confirmed that they did not observe any other vehicle in the vicinity of the Alves vehicle applying their brakes in order to take evasive action. As well, Mr. Chetty’s reliability was called into question after his admission of substantial consumption of alcohol and use of illegal drugs on the date of the offence. [51] More telling is the evidence of Cst. Low. As already noted, Cst. Low was called by the Crown as an expert witness at the preliminary inquiry. He was called by the defence at the trial. At trial, he was qualified by consent of counsel “as an expert, enabled to give opinion evidence regarding the ability to calculate speed of vehicle from physical evidence at the accident scene…”. Cst. Low spent at least five hours at the accident scene analysing the physical evidence. He took measurements and made calculations. He took into the account the “guesses” of speed provided by the witnesses except Mr. Chetty. He took photographs of the accident scene and prepared report on his conclusions which was filed as an exhibit at trial. In his expert opinion, he estimated Mr. Alves to have been travelling at between 93 and 99 kilometres per hour at the time of the accident. Cst. Low “was not convinced that at that speed [93 99 kilometres per hour] it was necessarily dangerous driving on Circle Drive.” [52] After careful consideration, I am not convinced that, notwithstanding the identified error of law, the verdict would necessarily have been different. Without proof of excessive speed, there are no other factors in the driving itself that were dangerous as defined by law. The circumstances do not warrant ordering new trial since the Crown has not established “with reasonable degree of certainty” that the acquittal may have been affected by the error of law. (d) The admissibility of Cst. Low’s expert opinion evidence. [53] Even though new trial has not been ordered it is worthwhile to address this issue. In its factum, the Crown questions Cst. Low’s qualifications to give expert opinion evidence. At para. 70 of its factum, the Crown suggests that “[i]n the event the Court orders new trial it may be appropriate for the Court to express an opinion concerning the admissibility of Cst. Low’s opinion evidence.” To the contrary, it would be inappropriate for this Court to rule on the admissibility of Cst. Low’s evidence. [54] While the admissibility of evidence is a question of law and is therefore reviewable by this Court on an appeal from an acquittal under s. 676(1)(a) of the Criminal Code, the Crown is not allowed to raise arguments on appeal that it had not raised at trial. In R. v. Penno, 1990 CanLII 88 (SCC), [1990] S.C.R. 865 at p. 895 McLachlin J. (as she then was), wrote in her concurring opinion: Crown counsel argued that drunkenness could not serve as defence because of the presumption created by s. 237(1)(a) of the Code. cannot accept this submission in view of the fact that the Crown chose not to assert this presumption at trial, but rather chose to rely exclusively on evidence that the accused had exercised care or control under s. 234(1)(a) of the Code. To allow the Crown to assert the presumption on appeal would result in the accused being deprived of the opportunity to make full answer and defence that could have been made if it had been raised at trial. [Emphasis added] Relying partially on McLachlin J.’s reasons in Penno, the Ontario Court of Appeal in R. v. Varga (1994), 1994 CanLII 8727 (ON CA), 90 C.C.C. (3d) 484 at 494 held that: [a] Crown appeal cannot be the means whereby the Crown puts forward different case than the one it chose to advance at trial. It offends double jeopardy principles, even as modified by the Crown’s right of appeal, to subject an acquitted, to second trial based on arguments raised by the Crown for the first time on appeal. Double jeopardy principles suffer even greater harm where the arguments advanced on appeal contradict positions taken by the Crown at trial. [55] On appeal, the Crown in Varga argued that the trial judge erred in holding that none of the contested records in question were privileged. The Crown had not adopted position on the privilege issue at trial. Indeed, The trial record reveals that Crown counsel had seen all of the documents, and that his decision not to advance any argument in favour of the privilege asserted by the complainant was considered one. This is more than an instance of the Crown failing to object, which, as the law now stands, is not necessarily fatal to Crown appeal It amounts to an affirmative decision not to litigate an issue at trial. That decision had certain potential benefits for the Crown in the conduct of the trial. conviction following unrestricted access to the records would be potentially easier to sustain on appeal than one following restricted access to these records. The Crown must live with that decision both at trial and on appeal. The accused’s liberty should not be jeopardized by permitting the Crown to join issue on the question of privilege for the first time on appeal. [at p. 496, Emphasis added] The Crown also appealed the trial judge’s ruling that the parties could contest the relevance of the documents in question, once defence counsel had decided which of the documents would be raised at trial. As Doherty J.A. remarked, Crown counsel then suggested that relevancy should be argued if and when defence counsel sought to refer to the contents of one of the documents in his cross-examination. The trial judge agreed with this suggestion and copies of the documents were turned over to defence counsel. At no time did Crown counsel suggest that defence counsel’s access to the documents required preliminary showing of materiality. Privilege was the only objection to production raised at trial. On appeal, Crown counsel resiles from that position, and argues that the trial judge was required to make some additional finding of materiality before the documents could be turned over to the defence. It would be an abuse of the appellate process to accede to this argument. Just as the Crown cannot challenge an acquittal by advancing theory of liability for the first time on appeal, it cannot secure new trial by advancing new test for admissibility that contradicts the one advanced at trial. [at p. 497, Emphasis added] [56] While it would not be accurate to say that the Crown is changing its theory of liability in suggesting that this Court rule on the admissibility of Cst. Low’s expert opinion, the Crown is completely reversing its position on Cst. Low’s qualifications from that which it adopted at trial. Cst. Low was originally Crown witness. When the issue of which side was to call Cst. Low as witness was being argued, the trial judge expressly addressed the Crown on whether it was seriously contesting the qualifications of Cst. Low. The trial judge stated, “I gather you’d be hard pressed to indicate that he wasn’t an expert, since you called him at the prelim and qualified him as an expert.” In response, the Crown clearly indicated it accepted Cst. Low’s qualifications as an expert: “Absolutely. I—I agree with that hundred percent. believe he’s an expert.” The Crown’s submissions in its factum to the contrary constitute fundamentally different position on Cst. Low’s qualifications than that which it adopted at trial. The Crown is not entitled on appeal to resile from its position on the issue. [57] In the alternative, the Crown submits that this Court should offer an opinion as to the weight that should be ascribed to Cst. Low’s testimony. However, this would not be appropriate. The weight to be given to evidence is question of fact. In Morin (1992), Sopinka J. remarked that [w]ith respect to the weighing of evidence, the manner in which the jury assessed individual pieces of evidence was not question of law in respect of which the trial judge was required to instruct the jury. The basic requirement was that the jury was to be instructed that they must consider the whole of the evidence and determine on that basis whether the guilt of the accused has been established beyond reasonable doubt. [at pp. 295-6] This Court therefore lacks jurisdiction on an appeal from an acquittal to rule on the weight that Cst. Low’s testimony should receive in new trial. [58] Moreover, it does not appear as if there is any principled reason for this Court to offer an opinion on the weight to be given to or the admissibility of Cst. Low’s expert evidence. If this Court had ordered new trial, it would be open to the Crown to make the admissibility of and appropriate weight to be given to Cst. Low’s opinion evidence live issue. Both parties would then be in position to make submissions to the trial judge who can rule appropriately. [59] The appeal is dismissed. DATED at the City of Regina, in the Province of Saskatchewan, this 5th day of August, A.D. 2014. “Herauf J.A.” Herauf J.A. concur. “Lane J.A.” concur. “Whitmore J.A.” Whitmore J.A.

The Crown did not meet the onus under s. 676(1)(a) of the Criminal Code, and therefore the appeal was dismissed. The Appeal Court found that the Crown must satisfy the court of two things: 1) that an error of law was made on the standard of correctness; and 2) that the error had a material bearing on the acquittal. The Court of Appeal dealt with the Crown’s arguments as follows: 1) while it is an error to mistake the elements of an offence the Court found that the trial judge did not do so. The trial judge did, unfortunately, state that the speed needed to be proved beyond a reasonable doubt but the trial judge did not confuse the factual speed issue with either the mens rea or actus reus; 2) the trial judge thoroughly reviewed each of the witnesses’ testimony. The trial judge did not have to refer to every piece of evidence or explain exactly how each piece of evidence was weighed or considered in the reasons; and 3) the trial judge did err in applying the criminal standard of proof beyond a reasonable doubt to the different pieces of evidence going to the vehicle’s speed. The trial judge concluded that the minimum speed must be accepted because the higher speeds were not proven beyond a reasonable doubt. The Court of Appeal concluded that the verdict would not have necessarily been different but for the error in law; speed was the only driving factor suggested to be dangerous. The Crown also questioned the admissibility of the analyst’s opinion evidence on appeal, although they did not at trial. The Crown was not allowed to raise arguments on appeal that were not raised at trial. The analyst was originally a Crown witness at the preliminary inquiry and then he was a defence witness at trial. Further, the Appeal Court declined to give an opinion on the weight that should have been given to the analyst’s testimony because that was a question of fact for the trial judge.

b_2014skca82.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 123 Date: October 25, 2016 Information: 43793619 Location: Moose Jaw Between: Her Majesty the Queen and Erinn Maria Babich Appearing: Brian Hendrickson, Q.C. For the Crown Merv Nidesh, Q.C. For the Accused JUDGMENT M. GORDON, Introduction [1] Erinn Maria Babich is charged as follows: On May 20, 2016 at or near Moose Jaw, Saskatchewan did without reasonable excuse, fail, or refuse to comply with demand made to her by peace officer pursuant to section 254(2) of the Criminal Code to provide sample of her breath to enable analysis to be made by means of an approved screening device contrary to section 254(5) of the Criminal Code On May 20, 2016 at or near Moose Jaw, Saskatchewan did while her ability to operate motor vehicle was impaired by alcohol or drug, operate motor vehicle, contrary to section 255(1) and section 253(1)(a) of the Criminal Code. [2] The Crown proceeded summarily and the trial took place September 7, 2016 in Moose Jaw. [3] The defence served and filed Charter notice alleging several breaches. [4] Counsel agreed that all evidence would be heard on the voir dire and all admissible evidence on the voir dire would apply to the trial proper. The defence did not call any evidence on the voir dire or during the trial proper. [5] The defence agreed that the only Charter issue being pursued was breach of Section 8. [6] Kelly Smith worked at the 7-11 on 13th Avenue in Moose Jaw. On May 20th woman came to her till asking for cigarettes. Ms. Smith had to ask her few times what brand of cigarettes which she thought was strange. She also noted strong odour of alcohol coming from this woman. The woman had little child with her and left the store and got into her vehicle and drove towards Grace Street. The woman put the child in car seat in the back of the vehicle. This was about nine to ten in the evening. Ms. Smith could not identify this woman and Ms. Smith called 911 as she was concerned that the woman was driving around with child in the vehicle under the influence of alcohol. [7] Constable Clements was on regular duty May 20th and received dispatch relating that an employee of 7-11 had called saying there was lady in the store who was intoxicated, had small child and then she had got into vehicle and driven away. The vehicle licence plate was provided and the SGI check showed it was registered in the name of Babich Farms and gave an address of an Erinn Babich. As result of this information Constable Clements drove to an address on Simcoe Street and drove by the residence looking for the vehicle which had been described to her. She was concerned that perhaps this person was out driving around with young child in the vehicle. She pulled up in her unmarked police vehicle in front of the house and knocked on the door. She stood on the landing by the front door. Ms. Babich answered the door and identified herself. The officer noted she had glossy eyes her speech was slow and there was smell of alcohol. Ms. Babich said she had come from the 7-11 store and had couple of drinks before driving but insisted she was not drunk. Constable Clements advised Ms. Babich that she had reasonable grounds to suspect Ms. Babich was operating motor vehicle while impaired. The officer told Ms. Babich that she was investigating this complaint of drinking and driving and that she would be making an approved screening device demand and administering this test. This was at 9:39 p.m. The basis for the officer’s suspicion was information from Ms. Babich. There was smell of alcohol coming from the woman. The eyes were droopy and the speech was very slow and Ms. Babich’s admission of having few beverages before driving to the 7-11 store. [8] Ms. Babich kept saying she knew her rights and wanted lawyer and was concerned that the police officer was there at the direction of her ex-spouse. There was some discussion with respect to what to do with the child and Ms. Babich informed her there was nanny present and so the officer followed Ms. Babich to the kitchen then upstairs looking for the nanny. The officer read the approved screening device from her issued card while both were inside the residence. [9] Ms. Babich accompanied the police officer to the police vehicle and was requested to stand outside. Constable Clements retrieves an ASD device and readies it. The accused still refused despite being explained the consequences. Ms. Babich was arrested for impaired driving, handcuffed, read her rights and warnings, and placed in the back of the police vehicle. At this time Ms. Babich said she wanted to talk to certain lawyer and that he was unavailable as he was in Hawaii. She refused any other options. [10] Corporal Lewis was on scene as well and after some discussion Ms. Babich was released to appear in court at later date. [11] On cross-examination Constable Clements acknowledged that the purpose of her going to the house was to locate the vehicle and who was the driver. She was looking for possible impaired driver. In other words she was investigating under the Criminal Code. She later agreed in cross-examination that she was going to the residence “searching for person and vehicle”. The officer did not see person or vehicle when she gets to the residence on Simcoe. She did not know if person or the vehicle was there and the only way to find out was to go to the door and request the person to open it and identify herself. This is in fact what the officer does when Ms. Babich comes to the door. Constable Clements says she is investigating an impaired driving complaint and watching the person to get evidence. She admitted to engaging the accused in conversation to find out if the accused was the driver and to get evidence with respect to this investigation such as the accused’s speech and actions. The officer says these are critical pieces of information in an impaired driving investigation. [12] Mr. Nidesh agreed that his application on behalf of Ms. Babich was under Section of the Charter of Rights and Freedoms. The officer filed the case of Stevens, 2011 OJ No 6059 as well as the case of Minielly, 2009 YJ No Yukon Territorial Court. In addition Mr. Nidesh referred to the very recent case from the Saskatchewan Court of Appeal of Rogers, 2016 SKCA 105 (CanLII). [13] Defence counsel referred to the Minielly case from the Yukon saying that once the officer formed reasonable and probable grounds to arrest Ms. Babich for impaired driving making the ASD demand was unlawful. [14] The second argument of the defence was based on the Rogers case submitting that the within facts are very similar. The argument is that the police officer’s only purpose was to locate the vehicle and the person and therefore Constable Clements was engaged in search under the Criminal Code to find the person and specific vehicle and to get evidence to support the grounds for impaired driving. [15] The observations that the officer makes from engaging Ms. Babich in conversation at the door are very similar as the Rogers case. The officer engaged in warrantless search that was without justification as it was with respect to dwelling house. The officer should have obtained warrant to enter the house. [16] The defence submits that pursuant to 24(2) of the Charter all evidence should be excluded from the time of the breach. Crown’s Argument [17] The Crown indicated that certainly Rogers needs to be considered but refers in particular to paragraphs 28 and 29 for support. The Crown also refers to the Gothiam case which was Court of Appeal Case of some vintage where the officer was investigating as result of an accident and was invited into the house. [18] The Crown also refers to the Vanwick case where the police go to the registered owner’s home who turns out to be the driver and he is arrested in his house. The Crown specifically points to paragraph 25 in Vanwick. [19] The Crown argues the police officer went to the house because there was continuing offence and as result it is different from the Rogers case. Crown suggests that Constable Clements did not go to the house for the purpose of securing evidence for crime but rather concern with continuing offence. [20] Counsel agreed that the only issue is whether there was breach of Ms. Babich’s Charter rights pursuant to Section of the Canadian Charter of Rights and Freedoms. [21] Section of the Charter reads as follows: Everyone has the right to be secure against unreasonable search or seizure. [22] The recent case of Rogers, 2016 SKCA 105 (CanLII) is of course binding on me and the facts are almost identical. In Rogers, Madam Justice Jackson speaking for the court states at paragraph one: [1] This appeal concerns the powers of the police to knock on the door of residence for the purpose of securing evidence as to whether the occupant, who was recently seen driving motor vehicle, is impaired. [3] Ms. Rogers was acquitted at trial of both counts. The trial judge found that the officer had knocked on his apartment door for the purpose of obtaining evidence against the occupant. The trial judge found that this constituted an unreasonable breach of s. of the Charter (R Rogers, 2012 SKPC 42 (CanLII), 394 Sask 302) [Voir dire Decision]). [1] When the trial resumed, the Crown made no submissions as to whether any of the evidence should be excluded under s. 24(2) of the Charter and the defence referred only briefly to Grant, 2009 SCC 32 (CanLII) [2009] SCR 353 [Grant]. The trial judge excluded all of the evidence and entered not guilty verdicts. The Crown appealed to the summary conviction appeal court. [5] have concluded for the reasons that follow that the appeal should be allowed and the decision of the Provincial Court restored. [23] The facts in Rogers are set out in paragraphs through 10. When say that the facts are almost identical note paragraph which states as follows: [8] Constable Dechief went directly to this building and he entered what he recalled was an unlocked exterior door and approached the door of Mr. Roger’s apartment. When he knocked on the door, Mr. Rogers opened the door and, while the two remained on either side of the door jam, Cst. Dechief formed the opinion that Mr. Rogers was impaired. The officer described his speech as “very slurred”. [24] The police officer then decided that he had grounds to make an improved screening device on Mr. Rogers. On appeal to the Court of Queen’s Bench Mr. Justice Chicoine relying on Vanwick, 104 OTC 161 at paragraph 33 (Superior Court SUP. CT), affirmed 2002 OJ 3144 (QL) (CA) held that the investigative questioning by the police officer does not exceed the bounds of the implied right to approach and knock and is not trespassing or in breach of Section of the Charter. The Crown in this case also relies on Vu, 1999 BCCA 182 (CanLII) leave to appeal to SCC refused and Grothiem, 2001 SKCA 116 (CanLII) as well as the Vanwick case. Considering these cases Madam Justice Jackson says in Rogers at paragraph 28 as follows: agree with Crown counsel’s submissions, as stated in the above paragraph, but Crown counsel goes on to extract from the above cases the principle that the police have an implied power to knock on someone’s door for the purpose of investigating possible drinking and driving offence, even if they do so with the intention of gathering evidence about the state of an occupant’s sobriety. In my view the cases do not go that far. At paragraph 29 Madam Justice Jackson concludes: The investigation of the crime of drinking and driving, or similar offence, necessarily entails the potential to obtain evidence from conversing with or observing the person answering the door. Nonetheless, based on my review of the authorities, have concluded that if trial judge finds on all of the evidence police officer knocked on the door to residence for the purpose of securing evidence against the occupant, the officer is conducting search within the meaning of s. of the Charter. This principle applies equally to drinking and driving offences as well as to other offences where observing the person opening the door will give visual, auditory and olfactory clues about the person’s participation in the crime under investigation. Evans remains the leading authority on point, and nothing in the jurisprudence extends the principles articulated by the majority in that decision as far as Crown counsel suggests. [31] For Sopinka J., the implied invitation to knock extends no further than is required to permit “convenient communication with the occupant of the dwelling’ (at 18). [25] Madam Justice Jackson states that Evans is still good law and the leading case on Section challenges. She also reviews in paragraphs 30 to 34 various more recent authorities from the Supreme Court. [26] The cases are fact based. It is the officer’s purpose that is accepted by the court that is crucial. Is the purpose of the police officer to talk to the home owner about an accident for example or is the sole purpose to continue an investigation and obtain further evidence against the occupant? The police are clearly engaged in search within Section of the Charter. With this distinction in mind it is clear that cases such as Grotheim and Vanwick and the like are distinguishable on the facts. At paragraph 53 of Rogers the court refers to the transcript of the questions and answers of Constable Dechief in both examination in-chief and cross. My notes indicate that Mr. Nidesh put the same or almost the same questions to Constable Clements in the within case and received similar answers. [27] rely on the following evidence which was not challenged: The police officer received certain information from dispatch about possible impaired driver The officer attended at the address of the registered owner obtained via licence plate information. The officer saw no person or vehicle in the area. The officer knocked on the door, woman answered. The police officer testified that she was investigating possible Criminal Code offence and went to this residence searching for person and vehicle. The officer’s sole purpose was to obtain the identity of the driver and to obtain grounds to make an approved screening device demand. [28] The police officer testified that the information she received from the occupant was the identity of the occupant being the accused, she could smell alcohol and she made observations of the accused. The officer admitted the only way that she could obtain information for an approved screening device demand was in this fashion. Officer Clements testified in cross-examination that she told the occupant she was investigating an impaired driver complaint and that she was watching the person to get evidence, such as her speech and actions. These were critical pieces of information. [29] In Rogers the Court of Appeal upheld the trial judge’s conclusions that the police officer was attending to conduct search for evidence following Evans, 1996 CanLII 248 (SCC), 1996 SCJ 1, the police officer exceeded the authority conferred by the implied licence to knock. The Court of Appeal affirmed in Rogers the trial judge’s decision that this search was found to be unreasonable and therefore breach of Section of the Charter. warrantless search is primefecia unreasonable and the Crown bears the onus of showing that it is reasonable. In Collins, 1987 CanLII 84 (SCC), 1987 SCR 265, Chief Justice Lamer stated that warrantless search is presumed to be unreasonable and the Crown must establish the search was reasonable on balance of probabilities. search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. The Crown fails on all three requirements. Applying Evans the search was not authorized by law as well the case of Feeney, 1997 CanLII 342 (SCC), 1997 SCR 13 requires the police have warrant and judicial authorization to enter dwelling house unless the police officer is in hot pursuit of an individual in attempting to make an arrest. [30] Finally Constable Clements and several police officers as it turns out were in front of the Babich home in this residential area. Ms. Babich was handcuffed outside her home on the street in full public view. Constable Clements had already walked around inside the house with the accused to keep contact with her and watch her. There was very young child present. conclude Constable Clements had no lawful authority to conduct search at the entrance to the house nor to enter the house without permission. [31] Neither counsel made any argument with respect to the appropriate remedy other than referring to Grant analysis. section 24(2) analysis pursuant to Grant 2009 SCC 32 (CanLII) requires the court to consider and balance the effect of admitting into the trial process the unconstitutionally obtained evidence on the one hand against society’s confidence in the long term criminal justice system. The court must have regard to the following: i. The seriousness of the Charter infringing state conduct. ii. The impact of the breach on Charter protected interests of the accused. iii. Society’s interest in adjudication of the case on its merits. [32] When consider the first line of inquiry have to look to Constable Clement’s actions that night. accept that Constable Clement’s felt this was acceptable police procedure. Indeed the Rogers case is very recent judgment of the Court of Appeal dated August 19, 2016 of the within incident. From the case law it is clear that the police and indeed often courts have upheld this type of investigation. What do find more serious with respect to the police actions that evening was the entering of the home without consent or invitation and following Ms. Babich around the home so she did not lose eye contact with her. In addition the arrival of other officers on scene and placing Ms. Babich in handcuffs outside the police car and requesting that she go down to the police station initially, find more objectionable. Although I do not find the police officer behaviour egregious I do find the Charter breach is serious. [33] The second stage of analysis calls on the court to consider the extent to which the breach undermines the interest protected by the Charter. Here I find the unreasonable search contrary to Section 8. It affected the accused’s privacy, liberty, and human dignity. She was in her own home. She did not ask the police officer in and as I have said the police officer’s accompanying her around the home and the actions outside of the home in full public view in a residential neighbourhood are serious. [34] Finally the third factor in Grant being the adjudication of the case on its merits has to be considered. Breath samples of course constitute very reliable evidence with respect to this charge. The refusal to provide samples is also viewed as serious offence and carries the same penalty. An individual should not be allowed or rewarded for frustrating the system and frustrating the detection of impaired drivers. Parliament and society at large have acknowledged the serious social impact of impaired drivers. On the other hand again cannot over emphasize Ms. Babich was in her own home when the police officer came and entered the home for one specific purpose only. There were other methods to obtain this information such as search warrant. Certainly the public has a strong interest in the detection of impaired drivers but also I would suggest the public has equally or stronger interest in the right of citizens to be free from police interference in their own home without proper judicial authorization. Therefore balancing the three lines of inquiry in the Grant analysis do not condone such Charter breach when other avenues were available to the police. find admitting the evidence would undermine the long term repute of the administration of justice. As such the evidence will be excluded. Counsel at the outset said my decision on the voir dire would be determinative of the final decision in this matter. [35] Therefore, I find Ms. Babich not guilty on count one. Impaired Driving [36] The Crown must prove the essential elements of this charge beyond reasonable doubt. The leading cases Stellato, 1994 CanLII 94 (SCC), [1994 SCR 478]. The case stands for the proposition that as long as the evidence of impairment establishes beyond reasonable doubt any degree of impairment ranging from slight to great the offence has been made out. [37] There was no evidence of driving at all. Ms. Babich walked to her vehicle carrying small child put the child in car seat in the backseat and drove away. Ms. Smith, the 7-11 employee, went outside the store to obtain the licence plate. Ms. Smith gave no evidence with respect to the driving actions of Ms. Babich. Constable Clements received call from dispatch about possible impaired driver and attended very quickly to the Simcoe Street address as she was the in the area. There was no vehicle outside and when she knocked on the door the occupant answered. [38] The Crown did not really argue the impaired driving charge and I find there was little if any evidence to support the charge. Therefore count two with respect to the impaired driving I find Ms. Babich not guilty as well.

HELD: The Charter application was granted. The accused was found not guilty. The court found that the accused’s s. 8 Charter rights had been breached. After applying the Grant analysis, the court decided that the breach was serious and that the unreasonable search affected the accused’s privacy, liberty and dignity because the accused did not invite the officer into her house, she was followed by the officer throughout her home and then handcuffed outside her home in full public view. The court concluded that society’s interests to be free from police interference in their own home without proper judicial authorization supported the exclusion of the evidence. Regarding the impaired driving charge, the accused was found not guilty because of insufficient evidence.

9_2016skpc123.txt

J. 2002 SKPC 138 ON THE INFORMATION OF S/CST L.C. SMITH PEACE OFFICER FOR THE CITY OF YORKTON IN THE PROVINCE OF SASKATCHEWAN -AND- JOSHUA SCHWARTZ ACCUSED JUDGMENT E.S. BOBOWSKI, PCJ DECEMBER 23, 2002 T. Wellsch for Crown K. Wasylyshen for Accused 1. The accused is charged that:On or about the 13th day of April A. D. 2002 at Yorkton in the Province of Saskatchewan did without reasonable excuse fail to comply with a demand made to him by a Peace Officer, to wit: Cpl. Ian McLean, pursuant to Section 254(3) of the Criminal Code of Canada requiring him to provide then or a soon thereafter as is practicable such samples of his breath as in the opinion of a qualified technician are necessary to enable a proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood, contrary to Section 254(5) of the Criminal Code. 2. On April 13, 2002, Cpl. Ian McLean, 28 year member of the RCMP, while on duty, at 2:00 a.m. was alerted by the Citizens on Patrol Program personnel to be on the lookout for certain vehicle that was driving erratically. 3. As that particular vehicle passed Cpl. McLean on Broadway Avenue, he pulled in behind it and followed it for one or two blocks. When it turned north on Barber Avenue, Cpl. McLean turned on the emergency lights and the accused did not stop until Cpl. McLean pulled alongside him and honked his horn to get his attention, about block later. 4. The accused was the lone occupant and identified himself to Cpl.McLean as Joshua Schwartz and because of smell of liquor emanating from the vehicle, asked if the accused had anything to drink. The accused replied that he did not. 5. When Cpl. McLean stated he could smell liquor, the accused then replied that he'd had little bit of beer earlier. Cpl. McLean concluded that the accused had alcohol in his body and called for roadside screening device which was delivered by Cst. Chambers within five minutes and the accused blew fail without problem on one attempt at around 2:20 a.m. 6. As result of the fail, Cpl. McLean believed his ability to operate motor vehicle was impaired by alcohol and made breathalyser demand on the accused, gave him his rights to counsel including free legal aid and police warning. The accused understood what was told to him. 7. They arrived at the Yorkton Rural Detachment within five to seven minutes and Mr. Schwartz was taken directly to room with phone and list of local lawyers and given an opportunity to contact counsel. 8. Cpl. McLean observed through the window the accused use the phone for short period of time. The accused then stood there and after hanging up the phone, made no attempt to move towards the door. 9. Cpl. McLean then opened the door and asked if he had contacted his lawyer. The accused indicated that he didn't contact his lawyer, that his lawyer would not be able to come down. Cpl. McLean then told him that he wasn't compelled to have his lawyer attend the office and he could get his legal advice over the phone and that he could call his lawyer back. The accused then told Cpl. McLean that he got an answering machine. No call back was ever received from any lawyer at all times pertinent hereto. 10. Cpl. McLean then asked him if he wanted to contact someone else and advised him that there was list of lawyers as well as phone book. He then closed the door and watched the accused for approximately ten minutes. During the approximately ten minutes, the accused did not use the phone nor did he turn towards the phone list, just stood there looking at the window. 11. Cpl. McLean then opened the door and asked him if he wanted to contact lawyer. He said he did but his lawyer was not available. Cpl. McLean replied that he had two hour window presumption in breathalyser investigations and that it would be necessary for him to contact counsel and dialled the Legal Aid number and handed the phone to the accused and left the room. 12. When the accused hung up, Cpl. McLean opened the door and took the accused into the intoxilyzer room for breath tests. This was at 2:55 a.m. 13. The accused indicated to Cpl. McLean that he was not satisfied with the advice he received from the Legal Aid lawyer but he did not ask Cpl. McLean to call another lawyer. 14. Cpl. McLean is qualified to obtain readings on the Intoxilyzer, an approved instrument in the Criminal Code. He has had considerable experience with respect to obtaining breath samples doing over 700 tests on the Breathalyser and 200 tests on the Intoxilyzer. He has also blown into both the roadside screening device that was used and the Intoxilyzer and indicated that it is more difficult to blow into the roadside screening device, that is, the effort required to blow into the Intoxilyzer is less. 15. While Cpl. McLean was preparing the Intoxilyzer by entering Mr. Schwartz's statistics, the accused advised Cpl. McLean that he was subject to anxiety attacks. Cpl. McLean made conversation with the accused to try and keep him relaxed and instructed him to blow long, hard and steady until the tone stopped. 16. The accused then began to gasp and hyperventilate. He was moving back and his chest was rising and falling and his head was moving. Cpl. McLean told him to calm down, to take deep breaths, to get control and relax. He did so and asked him to blow again. As Cpl. McLean held the mouthpiece up to him, the accused started to pant again. He did this the third time after which time Cpl. McLean had to reenter his statistics into the Intoxilyzer to get sample. The deficient sample was given at 3:07 a.m. 17. Cpl. McLean once again told him to relax and stay calm. As the accused leaned forward to give the sample, he started to hyperventilate again and contaminated the mouthpiece causing an ambient failure. The Intoxilyzer was prepared again but Mr. Schwartz hyperventilated again and Cpl. McLean told Mr. Schwartz that he believed he was faking. 18. Upon this accusation, the accused started to argue with Cpl. McLean and immediately stopped hyperventilating, i.,e, he was breathing normally. Cst. McLean told him to stay that mad so sample could be taken and advised him of the consequences for failing to blow. 19. Some conversation was then exchanged about whether the accused was faking it and Cpl. McLean pointed out to him that he didn't seem to be sweating nor were his pupils moving nor did he show any other signs of anxiety outlined in First Aid books, but that he only seemed to not be able to breath when it was time to obtain sample from him. 20. The Intoxilyzer was prepared again, and as he placed his mouth over the mouthpiece, Cpl. McLean saw that the accused sealed the mouthpiece with the tip of his tongue. 21. Cpl. McLean then advised him that he could not block the mouthpiece with his tongue, that free-flowing breath sample was required. The accused moved forward again and blew but there wasn't enough air entering the Intoxilyzer to start the tone because he didn't seal his mouth off and air escaped before entering the mouthpiece. There was no sound of air going through the tube, nor were there obstructions in any of the mouthpieces used. 22. Cpl McLean advised the accused that he had to seal off his mouth but for at least two times the accused failed to do so. It was at this time (3:16 A.M.) that Cpl. McLean became satisfied that the accused was not going to provide suitable sample and charged him accordingly, 23. At the outset of the accused's testimony he indicated that he might be little choppy every once in while because he was anxious right now and if he had to stop for few seconds, he hoped not to annoy the court. This statement was offered after the Court asked if he wanted to speak to his counsel privately for minute or two. The accused replied that his counsel knew what he was going to say and defence counsel did not object. 24. It is rare when witness or an accused would offer an opening statement. However, with the statement in mind, did not detect in his giving of evidence any indications of anxiety, such as described by Cpl. McLean and that he appeared to be in control of his breathing. 25. The accused testified that during the day of Friday, April 12, 2002, he was pretty hung over and at lunchtime he went to friend's house for few beer, then went back to bed for while, then got up and went to Holly's night club at about 12:15 or 12:30 a.m. of Saturday morning, April 13. When asked by defence counsel, how many beer he consumed, the accused replied"I would say three beer, yes". 26. At Holly's, he indicated: "I would have had two or three beer, probably three beer as was there until probably quarter after 2:00". 27 When Cpl. McLean stopped him and told him that he smelled liquor on him, the accused replied that he had quite large amount of alcohol spilled on him that night at the bar from drunk friends and whatnot. 28. The accused admitted replying no to Cpl. McLean when asked whether he drank anything but after being told by Cpl. McLean that he could smell alcohol, the accused replied yes, did have few drinks of beer earlier on. 29. The accused further admitted that he had no difficulty blowing into the roadside test. 30. When at the detachment, the accused testified that his first phone call was to Ron Bell, lawyer who was not there. He made second call to defence counsel, Mr. Wasylyshen and got an answering machine. 31. After advising Cpl. McLean that he could not get hold of his lawyer, Cpl. McLean put him back into the room. The accused stated he was sitting there for approximately 10 minutes doing nothing waiting for call back from Mr. Wasylyshen because the answering machine said he would call back. He did not communicate his reason for waiting to Cpl McLean. 32. Cpl. McLean then came into the room and dialled the Legal Aid number for him. The accused stated that earlier on when Cpl McLean mentioned about Legal Aid lawyer, he expressed to Cpl. McLean that he did not want to get one of them because he didn't think he would get the advice that he needed. 33. He stated he was on the phone to Legal Aid for maybe 30 seconds, it wasn't five minutes and was told not to say anything. 34. Then he was taken to the breathalyser room and that's where he couldn't breathe normally. 35. He testified that prior to April 13, 2002, he had two prior anxiety attacks. Firstly, December 22, 2001 at Kamsack, Saskatchewan and secondly, in February 2002, at Yorkton. 36. The accused admitted that he did stop hyperventilating when he was being shouted at by Cpl. McLean. He stated that the attacks are erratic in that his heart could be pounding one minute and the next minute he can be sitting back and it will be okay. That he was trying to control his attacks while he was in the breathalyser room. 37. He admitted that lowering his head to his knees helped "for the time being, until it seemed you know, it's going to seem until, yeah, until it was ready to go again. And then it just automatically, bang, it kicked in again". 38. When asked whether he put his tongue over the mouthpiece, his reply was: "No, maybe for split second, but other than that, no, it wasn't on there, while was trying to blow". 39. When asked by his counsel and to return to his testimony about phone calls to lawyers, he was asked; "Did you you talked about phoning two lawyers, did you phone,can you go back and and recall, is there anything you've missed in terms of Without allowing counsel to complete the question, the accused replied; "Yes, that's right, I'm sorry, did phone third at the same time phoned Dave Rusnak at the same time as did the first and got no answer". 40. The accused further testified that he did not ask Cpl. McLean to call another lawyer after expressing his dissatisfaction about Legal Aid because he was on the way to the breathalyser room and Cpl. McLean indicated to him that the time was up. 41. When referred back to the time when he was in the room for ten minutes the accused testified that; "I was sitting there for the ten minutes after after was in the room for the first time, that's when was waiting for call from Mr. Wasylyshen". Q. After you left message on the machine? Q. And you told this to the Cpl.? A. Yes, told him that I'd left message on the answering 42. When asked by the court what the recording was on the answering machine, the accused replied; "The answering machine said, believe, I'm not in right now, but will call you back as soon as possible". 43. In cross-examination, when asked what triggers these anxiety attacks, he replied that driving on highway, hard night of drinking the night before and situations that don't know how to handle. He then referred to the situation right now (while testifying) that it's pretty nerve racking. must comment that at the time did not notice any outward signs of anxiety on the accused and that he appeared to be quite controlled and calm giving his evidence. 44. When asked to describe the attacks, he stated that it usually starts off with just slight pressure in the chest and then increases to where he breathes pretty rapidly. He gets sweaty and then his vision gets blurry and he gets dizzy. 45. In further cross-examination, the accused stated that when he was in the room waiting for the ten minutes, he did nothing but wait for Mr. Wasylyshen's return call. He stated that most of the other lawyers on the wall were Real Estate lawyers who would be absolutely no use to him in this situation but he did not communicate this to Cpl. McLean. He admitted that he did not tell Cpl. McLean that he was waiting for phone call back from Mr. Wasylyshen and that he told Cpl. McLean that he could not get hold of lawyer before Cpl. McLean suggested Legal Aid. 46. He further admitted in cross-examination that he didn't get anxious until presented with the mouthpiece to blow and that after relaxing his breathing became normal. 47. On the third time, he stated that he blew as hard and long as he could and did not block the mouthpiece with his tongue. That although he was anxious, he had no difficulty blowing as hard as he could. That he had sweaty palms but displayed no other signs of sweating or cold sweats. He further admitted that he could get sweaty palms without having an anxiety attack and that on this night he did not have major anxiety attack whereby he had to seek medical attention. 48. The defence then called Dr. Bashara Issa, licensed medical doctor and physician licensed to practice medicine in the Province of Saskatchewan, who currently had the accused as patient. 49. He has had no experience of blowing into an Intoxilyzer but based on his known medical history of the accused, Dr. Issa stated that if an individual is having an anxiety attack, his or her breathing becomes extremely short and rapid and therefore deep lung sample will not be obtained. These attacks can be triggered by stress, alcohol and/or drugs. 50. He stated that he was not treating Mr. Schwartz for anxiety attacks but advising him on how to manage them. He surmised that Mr. Schwartz's anxiety disorders were precipitated by alcohol and other factors and was advised to try and eliminate as much as possible the known triggering factors. 51. In cross-examination, the Dr. agreed that if one's breathing is normal then deep lung breath could be obtained but when shallow and rapid, it could not. 52. Counsel for the accused then made an application under Section 10(b) of the Charter without calling further evidence and both him and Crown counsel decided to apply the evidence already heard for the purposes of the Charter issue. The onus of proof is on the accused to prove on balance of probability that there was Charter violation. 53. Defence counsel argues that the accused was not given reasonable opportunity to contact counsel of his choice as was his right under Section 10(b) of the Charter. That for the police to insist that the accused blow into an intoxilyzer 35 minutes into the two hour window of opportunity is unreasonable and constitutes an infringement of his rights. 54. The law with respect to Section 10(b) rights was canvassed by the New Brunswick Court of Appeal in R. v. Dunnett, (1991), 1990 CanLII 2346 (NB CA), 62 C.C.C. (3d) 14 as cited by defence counsel. Mr. Justice Hoyt cites four factors arising from recent Supreme Court of Canada decisions concerning detained or arrested person's right to lawyer. 1) When request for lawyer is made, unless there is an urgency because of the time limit imposed either by the Code or the circumstances of the situation, the police must permit the accused reasonable opportunity to consult counsel. Lamer, J., as he then was in R. v. Tremblay (1987), 37 CCC (3d) 565 said at pages 567 and 568; "In the case the accused was promptly informed of his right to counsel, asked for lawyer, was given telephone and placed call to his wife. It appears, though the evidence on this point is not all that clear, that she was to call lawyer for him. Right after that call, the police officers requested that the accused give his first sample of breath, request he complied with. When that request was made, there remained ample time to comply with the requirements set down in the Criminal Code as regards the time limits for the taking of breath samples; there was thus no urgency to proceed, and to do so right after his call was what, in my opinion, triggered the violation of this accused's rights. From the moment the accused was intercepted on the road to the moment he was asked to give the first sample of his breath his behaviour was violent, vulgar, and obnoxious. reading of the record and the findings of fact below satisfy me that, while the police, following the request for counsel, did not, as they must, afford the accused reasonable opportunity to contact lawyer through his wife before calling upon him to give breath sample, their haste in the matter was provoked by the accused's behaviour. Indeed, throughout this encounter with the police, the accused, as was found by the trial judge as matter of fact, "was deliberately attempting to make the investigation difficult" and "was actively obstructing it". As testified to by police officer, it appeared to the police that the accused was stalling when he was given the telephone to contact lawyer. Generally speaking, if detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this court's decision in R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385, 41 D.L.R. (4th) 301, [1987] S.C.R. 1233, imposed on the police in situation where detainee has requested the assistance of counsel are suspended and are not bar to their continuing their investigation and calling upon him to give sample of his breath. While this is not the case here, the accused's conduct was, to some degree, misleading in that regard. While the police hastiness does not change the fact that the detainee's right to counsel was violated, the reasons therefor make it understandable and are relevant when one addresses the s. 24(2) issue. In my view, the admission of the evidence obtained would not, having regard to all of the circumstances, bring the administration of justice into 2) The accused must be diligent in attempting to obtain counsel once he indicates this wish. 3) After R. v. Brydges (1990), 53 (CCC)(3d) 330, (S.C.C.) the police must, in some circumstances, assist the person in his efforts to obtain lawyer. 4) An accused may waive his right to counsel. 55. Regarding urgency at Page 23, Mr. Justice Hoyt of the New Brunswick Court of Appeal states; "I do not say that in all circumstances the police would have to wait until the two hour period is about to expire. In this case, however, there remained sufficient time in the circumstances surrounding the detention to afford Mr. Dunnett further opportunity to attempt to consult counsel. Although some of the Supreme Court of Canada decisions involve circumstances where there was no urgency due to some time constraint, the tenor of those decisions is that, if the person is diligent in asserting his right and the circumstances permit, he must be permitted to continue his efforts. Once it is apparent that further efforts will be futile or when time-limit is approaching, the person can no longer refuse and invoke his rights under S. 10(b) of the Charter; During argument, counsel pressed us to indicate cut-off time, say one hour or one hour and half, after which person would have to give breath sample or be faced with refusal charge. That, of course, is impossible as each case depends on its own unique circumstances". 56. Regarding the case at bar, granted that the accused was charged with refusal 51 minutes after the demand for the breath tests, I find that even though Mr. Schwartz was diligent in attempting to reach counsel, he was not diligent in pursuing his rights after he unsuccessfully tried to contact a lawyer three times. No one was at Ron Bell's number. An answering service was reached on his second call to Mr. Wasylyshen and no one answered at David Rusnak's number. That does not surprise me as it was 2:30 a.m. find that he did not communicate the contents of the message on the answering machine to Cpl. McLean thus not allowing Cpl. McLean to consider longer waiting period than the 10 minutes he did allow. In any event, find that when the message on the answering machine at 2:30 a.m. is that the party is not here and would call back as soon as possible, that message is not an indication that it's reasonable to assume that the call back would be made in the next 10 or 15 minutes or even one hour. 57. When Cst. McLean realized that Mr. Schwartz was not able to reach his lawyer, he then proceeded to comply with the ruling in v. Brydges, that is, he got him the services of Legal Aid lawyer. It is not police officer's obligation to go further if the accused does not appreciate the advice of Legal Aid counsel. 58 This case is basically similar to the Alberta Court of Appeal decision of R. Topp (Quicklaw) cited by the Crown which although not binding is persuasive wherein Mr. Justice Cote states the accused must not conceal his reasons for refusing to give breath samples. The case has to be decided on the basis of what the police knew or could readily surmise, not the hidden facts which the accused had not disclosed to the police. He states further that since the administration of justice is prejudiced by delay then after initial attempts to reach the chosen lawyer at home failed, the police need not delay further if it is unlikely to do the accused any good. Accordingly, the Charter application is dismissed. 59. Besides the Charter argument, defence further argues that the accused had a reasonable excuse to refuse the intoxilyzer based on his medical condition of anxiety attacks at the time of blowing. 60. adopt the statement of law enunciated by Richard J. of the Yukon Territory Supreme Court in R. v. Pederson dated March 25, 1993 where he states at paragraphs and 6; "In my respectful view the trial judge, in his oral reasons, correctly stated the law as to when medical condition constitutes "reasonable excuse" in the context of s.254(5): "The law is clear that if person cannot provide sample of this kind by reason of medical condition that is reasonable excuse. Now, when say he cannot provide sample, this does not mean that it is absolutely and utterly impossible for him to provide sample. It means that the medical condition must make it either extremely difficult or extremely painful\\or uncomfortable or involve some risk to the accused's health. So it is not an absolute, but it must be condition which, as say, makes compliance extremely difficult. It is simply not the case that any respiratory difficulty which makes it more difficult for the accused than for the average person involves reasonable excuse." This statement of the law is in accordance with R. v. Nadeau (1974) 1974 CanLII 1538 (NB CA), 19 C.C.C. (2d) 199 (N.B.S.C., App. Div.) and v. Phinney (1979) 1979 CanLII 2928 (NS CA), 49 C.C.C. (2d) 81 (N.S.S.C. App. Div.). And the onus is on the accused person to satisfy the trial judge that he had reasonable excuse. ee R. v. McDougall (1975) 15 N.B.R. (2D) 279 (N.B.C.A.) and v. Phinney, supra. 61. On the evidence before me, I cannot conclude that the accused's respiratory problems made it impossible for him to provide a sample. In fact, Dr. Issa stated, he could do so when his breathing returned to normal as did the accused. 62. Further, an accused, who is aware of what triggers his anxiety attacks, for example, a hard night of drinking the night before and continues to drink alcohol and operate a motor vehicle cannot be later heard to say and hope to avoid conviction, that the refusal was a result of a known medical condition. He should not drink and drive. 63. Furthermore, the accused did provide an adequate supply of air in the roadside screening device about one hour before. It was only when he was asked to blow into the mouthpiece of the Intoxilyzer each time that these supposed anxiety attacks caused him difficulty in blowing. I do not believe his evidence on this point. 64. He suggests further that he blew long and hard on the last attempt indicating that he had sufficient air to do so. Yet, nothing registered on the intoxilyzer. I find that the intoxilyzer did not register because he was not blowing properly into the mouthpiece. 65. Accordingly, find the accused guilty as charged. DATED this 23rd day of December A. D. 2002 at the City of Yorkton in the Province of Saskatchewan. E. S. Bobowski, PCJ

The accused was charged with failure to comply with a demand to provide a breath sample contrary to s.254(5) of the Criminal Code. He argued that he had a reasonable excuse to refuse based on his medical condition of anxiety attacks at the time of blowing. HELD: 1)This case is similar to the Alberta Court of Appeal decision in Topp which stated the accused must not conceal his reasons for refusing to give breath samples. The case has to be decided on the basis of what the police knew or could readily surmise, not on the hidden facts, which the accused had not disclosed. The New Brunswick case of R. v. Dunnett canvassed the law with respect to s.10(b) rights and cited four factors arising from recent SCC decisions concerning detained or arrested person's right to a lawyer. Granted the accused was charged with refusal 51 minutes after the demand for the breath tests, even though he was diligent in attempting to reach counsel, he was not diligent in pursuing his rights after he unsuccessfully tried to contact a lawyer three times. It is not a police officer's obligation to go further if the accused does not appreciate the advice of Legal Aid counsel. 2)His evidence was not believed as to the anxiety attacks. The intoxilyzer did not register because he was not breathing properly into the mouthpiece. He provided an adequate supply of air in the roadside screening device about an hour prior. The statement of law enunciated in Pederson out of the Yukon Territory Supreme Court was adopted. It could not be concluded on the evidence that his respiratory problems made it impossible to provide a sample. The doctor stated he could do so when his breathing returned to normal as did the accused. Further an accused who is aware of what triggers his anxiety attacks, for example a hard night of drinking the night before, and continues to drink alcohol and operate a motor vehicle cannot be later heard to say and hope to avoid conviction that the refusal was a result of a known medical condition. He should not drink and drive.

d_2002skpc138.txt

J. 1999 SKQB 17 Q.B.G. A.D. 1997 No. 2579 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA [W.P.] PLAINTIFF(RESPONDENT) and ATTORNEY GENERAL OF CANADA DEFENDANT(APPLICANT) and WILLIAM STARR and G[…] FIRST NATION PROPOSED THIRD PARTY L.B. LeBlanc, Q.C. for [W.P.] J. Gunvaldsen-Klaassen and T.G.H. Kristiansen for Attorney General of Canada M.D. Rasmussen, Q.C. for G[…] First Nation JUDGMENT MAURICE J. August 23, 1999 [1] The plaintiff alleges that he was sexually assaulted by William Starr ("Starr") while he was student at, and Starr was the administrator of, residential school. The plaintiff alleges that the applicant, the Attorney General of Canada, as the employer of Starr, was responsible for his conduct. The applicant alleges that the G[…] First Nation was responsible for Starr\'s conduct. It applies to join the G[…] First Nation as a third party to the action brought by the plaintiff against it and Starr; so that it can claim contribution or indemnity from it — if the applicant is found liable to the plaintiff. [2] The applicant requires leave of this Court under s. 7 of The Contributory Negligence Act, R.S.S. 1978, c. C-31, and Rule 107A(c) of the Rules of Court. The Rules were amended in 1981. In Morrow et al. v. Regina (City) et al. (1989), 1989 CanLII 4713 (SK QB), 79 Sask. R. 98 (Sask. Q.B.) at p. 100, Halvorson J., explained the underlining philosophy of the amended Rules as follows: [10] [T]here is the underlying philosophy of the new Rules to expedite the joinder of third parties; to avoid multiplicity of actions; and, as well, in my opinion, to minimize the circumstances where third party claim may be set aside because of prejudice to the plaintiff. This observation becomes evident from review of the Rules. [3] Halvorson J. was of view applications for leave under s. of The Contributory Negligence Act and the Rules of Court should be treated the same. At p. 100 he said: [17] To attain uniformity, it seems reasonable on an application for leave under s. 7, to encourage the joinder of third parties thereby averting duplication in law suits, and to minimize delay and prejudice to the plaintiff by appropriate directions rather than refusal of leave. In so doing, specific third party practice under s. would be in tune with general third party practice under the Rules. [4] The plaintiff and the proposed third party argue that the applicant has not established prima facie claim for contribution or indemnity. In Hauer v. MacDonald, James Richardson Sons et al. and MacDonald (1965), 1965 CanLII 438 (SK CA), 51 W.W.R. (N.S.) 166, the Saskatchewan Court of Appeal referred to third party proceedings as being procedural in nature. The Court of Appeal held it was not necessary to assess evidence or go into possible defences at this stage. And while the court was of the view there must be some material by which prima facie claim is shown, the third party claim and the pleadings on file could well be sufficient for this purpose. In this application, the proposed third party claim on file and the other pleadings allege material facts that, if proven, would allow the applicant to obtain the relief it seeks from the proposed third party. At this stage the pleadings and proposed pleadings must be taken at face value; there is no evidentiary requirement to establish that they are correct. I am of the opinion, the low threshold for the establishment of a prima facie claim, as stipulated by the Court of Appeal, has been met by the applicant. [5] The plaintiff claims he will suffer prejudice and experience delay if the third party claim is allowed to proceed. While there is no doubt that an application can be dismissed on these grounds: See Arnusch v. Board of Education of Regina School District Division No. (1996), 1996 CanLII 6663 (SK QB), 151 Sask. R. 136 (Sask. Q.B.) and Amalco Credit Service Ltd. v. Time Jet Inc. et al. (1995), 1995 CanLII 5622 (SK QB), 132 Sask. R. 154 (Sask. Q.B.), the delay must be inordinate and the prejudice more than mere inconvenience; otherwise, prejudice or delay should be alleviated by directions (whether they are in the form of an order for costs or an order setting out time schedule for the completion of certain steps in the action) as opposed to dismissal of the application: Morrow, supra. [6] There may well be some delay to the plaintiff by allowing the third party proceedings, but it will not be inordinate. pre-trial was ordered by consent of the parties. It is obvious from the material that the parties were not ready for trial. They had not exchanged documents, and the plaintiff gave notice of his intention to amend his statement of claim after the consent order was granted. It was contemplated by the parties that if settlement was not achieved, further steps would be taken the parties agreed through correspondence that: "Should settlement not be reached at pre-trial, either party may take any further necessary steps that such party deems necessary to prepare for trial...". The plaintiff's claim dates back to 1984; it can hardly be said any additional delay, due to third party proceedings, must necessarily result in dismissal of the application. [7] Nor has the plaintiff established any prejudice. There is no indication that the inherent delay in allowing third party proceedings would result in the disappearance of any evidence, or that extra costs will be incurred by the plaintiff in redoing steps already completed or that the process will become so cumbersome and complicated as to undermine the plaintiff's claim. [8] The proposed third party claims it will suffer prejudice if it is joined as third party. There are many claims arising from alleged abuse at the residential school which could result in applications to join it as third party. The third party suggests it will incur large costs in defending these actions. It suggests it would be cost efficient and simpler to have the applicant sue it in one action to determine its liability, if any, to the applicant. Unfortunately, this is not solution to the problem. Each individual action brought by former student at the residential school is different in nature. It may cover different time period and/or different employee so that the extent of the third party's involvement will vary from case to case. The third party's liability, if any, to the applicant will have to be determined on case by case basis. [9] understand that pre-trial management judge is managing this case and other similar cases onto trial. schedule for the completion of the steps necessary to bring this matter to trial can be worked out with his assistance or an application can be made to court in the absence of agreement on time limits. [10] The application for an order granting the applicant leave to file a third party notice in the within action, in the form as filed with the court, is granted. The applicant shall have its costs of the application, to be taxed, against the plaintiff and the proposed third party.

The plaintiff alleged he was sexually assaulted and that Attorney General of Canada as employer of the administrator of the residential school was also responsible. The defendant alleged the First Nation was responsible for the administrator's conduct and applied to join the First Nation as a third party so that contribution or indemnity could be claimed. The applicant required leave under s.7 of the Contributory Negligence Act and Rule 107A(c) of the Rules of Court. HELD: Leave was granted to file a third party notice. 1)The low threshold for the establishment of a prima facie claim was met. 2)The delay would not be inordinate. The plaintiff's claim dated back to 1984. The parties were not ready for trial. No prejudice was established. 3)The third party's liability, if any, will have to be determined on a case by case basis. Each individual action brought by a former student at the residential school is different in nature. 4)The applicant was granted costs of the application against the plaintiff and the First Nation.

1999skqb17.txt

J. Date: 19990716 Docket: CA152113 and CA152110 NOVA SCOTIA COURT OF APPEAL Freeman, Hallett and Pugsley, JJ.A. BETWEEN: LABOUR RELATIONS BOARD (NOVA Catherine J. Lunn SCOTIA), PETER DARBY, BRUCE for the Appellant Board ARCHIBALD, LEO MacKAY, SANDRA WHITEHEAD, PAULA WEDGE and S. Bruce Outhouse, Q.C. DIRKJE JOHNSON for the Appellants Darby, Archibald, MacKay,Whitehead, Appellants Wedge and Johnson and FUTURE INNS CANADA INC. Blair H. Mitchell and Ian Blue, Q.C Respondent for the Respondent -and- N.S. FEDERATION OF LABOUR Raymond Larkin for the Intervenor Intervenor Appeal Heard: June 1, 1999 Judgment Delivered: July 16, 1999 THE COURT: The appeal is allowed, in part, per reasons for judgement of Pugsley, J.A., Hallett and Freeman, JJ.A., concurring. Pugsley, J.A.: [1] The narrow issue in this appeal is whether the Chambers judge applied a wrong principle of law in refusing to strike out the respondent’s statement of claim pursuant to a motion brought under Civil Procedure Rule 14.25. The broader issue involves consideration of the immunity of the Labour Relations Board, and its members, from actions based on their alleged malice and bad faith. [2] The appellant, Labour Relations Board (Nova Scotia), is statutory board, (the Board) established pursuant to the Trade Union Act, R.S.N.S. 1989 c.475, as amended (the Act). [3] At all relevant times: The appellant, Peter Darby (Darby) was the chairman of the Board; The appellants, Bruce Archibald, Leo MacKay, Sandra Whitehead, Paula Wedge, and Dirkje Johnson, (the individual appellants) were members of the Board; the respondent, Future Inns Canada Inc. (Future Inns) operated hotel in Dartmouth. [4] The intervenor, the Nova Scotia Federation of Labour, is federation of affiliated trade unions representing most of the organized employees in Nova Scotia, including unions certified to represent employees under the Act, and was granted leave to intervene in this proceeding pursuant to C.P.R. 62.35. [5] In or about the year 1982, the Board made finding of unfair labour practices against an employer, Brett Motors Limited (Brett). Bruce Brett, an officer and manager of Brett at the time, is presently principal of Future Inns. [6] In February of 1995, five former employees of Future Inns brought complaints of unfair labour practices against Future Inns with the Board. [7] The complaints were heard by the Board on April 26, June 27 and 28, 1995. The individual appellants were members of the panel who considered the complaints. The decision rendered by the Board, order L.R.B. 4267, dated July 19, 1995, determined that acts of unfair labour practice had been committed, and ordered Future Inns to reinstate the five employees to their former positions and to compensate them for lost wages. [8] By further order, dated October 16, 1995, (L.R.B. 4284) the Board fixed the amount of compensation to be paid to each of the five employees. The members of the Board who participated in that decision were three of the individual appellants, namely Archibald, MacKay and Johnson. [9] The Board subsequently declined to grant leave sought by Future Inns for reconsideration of the orders. [10] Future Inns then brought an application for certiorari to the Supreme Court to quash the Board orders and its decision to refuse leave to apply for reconsideration. [11] The certiorari application was dismissed on all grounds. [12] In February, and April, 1996, certain comments made by chairman Darby, to newspaper reporters respecting the actions and motives of Future Inns and Mr. Brett, were reported in two Halifax newspapers. [13] Future Inns appealed the Supreme Court decision to this Court. By decision dated February 26, 1997, the appeal was granted, quashing the decision of the Board for failure to give reasons. The matter was remitted back to the Board for rehearing before differently constituted panel of the Board. [14] In September, 1997, an application for leave to appeal to the Supreme Court of Canada from the decision of this Court was dismissed. [15] The Board set dates for rehearing the unfair labour practice complaints. Future Inns objected, alleging bias on the part of the Board, and made an application to the Supreme Court for an order in the nature of prohibition to prevent the Board from entering upon the rehearing. [16] The rehearing of the complaints was scheduled to begin on May 29, 1998. On May 13, 1998, the Board was advised that the parties had reached an agreement on procedure which would likely result in final settlement of the matter and requested the rehearing be adjourned without day. The request was granted and the Board has had no further involvement with the matter. [17] Future Inns’ application for an order in the nature of prohibition was also adjourned without day. [18] On July 31, 1998, Future Inns commenced the present action in the Supreme Court, alleging that chairman Darby, when he made comments to the press in the spring of 1996, and the individual appellants, by discussing amongst themselves the alleged anti-union animus of Mr. Brett at the time of the 1995 hearings, were not impartial and acted with malice and bad faith in discharging their statutory responsibility. It was also alleged that the Board acted with malice and bad faith when it dismissed Future Inns’ submissions of apprehension of bias respecting the Board’s proposed rehearing of the unfair labour practice complaints in 1998. [19] Without filing defence, the appellants then applied on August 14, 1998, under Rule 14.25 to strike out the statement of claim. [20] By oral decision, delivered on November 16, 1998, Justice Tidman, of the Supreme Court, dismissed the application to strike. [21] It is from this interlocutory decision that the Board, chairman Darby, and the individual appellants now appeal. The Allegations in the Statement of Claim [22] The relevant portions of the statement of claim for our purposes include the following: 4. The defendants at all material times were persons purporting to discharge responsibilities of judicial nature vested in them under the Trade Union Act. ... 6. On or about the 13th day of April, 1982, the Board, with the defendant Darby in the chair, considered complaints against Brett Motors Limited filed by the Canadian Brotherhood of Railway Transport and General Workers, Local 503. The Board’s Order of November 26, 1982, stated as follows: Unfortunately, testimony elicited in respect an immediate reapplication for Revocation, made it abundantly clear that Mr. Bruce Brett, President and General Manager of the Employer, and avowedly anti-union, had probably instigated the first Application and certainly had arranged it for the second One must not forget the admitted anti-union animus of Mr. Brett which number of employees admitted having heard him express. 10. The plaintiff says that before, during, or following the hearing held on April 26, June 27, and June 28, and before making Order L.R.B. 4267 and Order L.R.B. 4284, the defendants or one or more of them discussed the fact that Mr. Bruce Brett, referred to in paragraph 6, was principal of the plaintiff and the allegation that he was anti-union, fact and an allegation that were not in evidence and were therefore irrelevant and extraneous to considering whether the evidence supported finding of unfair labour practices. The defendants, by doing so, acted maliciously against the plaintiff and thereby discharged their statutory responsibility in bad faith. 11. The Plaintiff further states that consideration of the fact that Bruce Brett was principal of the plaintiff and allegedly had an anti-union attitude (and the consequent malice and bad faith referred to in the preceding paragraph) was present in the mind of the defendant Darby when he made the comments referred to in paragraphs 15, 17 and 18 below and were present because he remembered his comments in the Board’s November 26, 1982 decision referred to in paragraph above. 15. On Sunday, February 18, 1996, following contact with the defendant Darby, journalist Parker Barss Donham, columnist with the Daily News newspaper of Dartmouth, Nova Scotia, reported in column entitled "Help Wanted", on page 23: Meanwhile, Future Inns continues to defy the Board order. In telephone interview, Labour Relations Board Chairman Peter Darby, who did not sit on the Future Inns case said, "You don’t relieve yourself of the obligation to obey an order simply by filing an appeal." 17. In April, 1996, the defendant Darby discussed the Future Inns case, which was then to his knowledge before the court, with John McDonell, reporter of the Halifax Herald Limited. They discussed the absence from the Trade Union Act of any provision allowing Board orders to be made orders of the Supreme Court and enforced as such. In this context, Mr. Darby said "knowing the client, he was not "so sure" that it would have complied with such provision, even if it had been available. The plaintiff says and the fact is that the defendant Darby’s reference to "the client" was reference to Bruce Brett and to his alleged anti-union attitude and reflected the malice and bad faith with which the Board had made the Order L.R.B. 4267 and L.R.B. 4284. 18. On April 15, 1996, in story entitled "Burnside Inn fights rulings", journalist Chris Lambie, reporter with the Daily News newspaper, reported: "Employers that defy labour relations board rulings are rare, says Chairman Peter Darby. ‘This is an extremely unusual circumstance’, said Darby who has been on the board since 1971. ‘I can’t recall any case where this has happened before.’ Darby was reluctant to say whether he thinks the hotel has case. ‘There’s fair comfort zone given by the courts to the labour relations board when it’s acting within its jurisdiction,’ he said." 22. On April 4, 1997, the Board scheduled pre-hearing conference for the re-hearing ordered by the Court of Appeal. On April 19, 1997 the solicitor for the Applicant, objected to the defendant Darby, as chairman for the pre-hearing conference, on the ground that his past participation and statements gave rise to fears that he would be biased. Owing to this objection, the pre-hearing conference did not take place. 23. On May 15, 1997, the Respondents served Notice of Application for leave to appeal from the Court of Appeal’s decision of February 25, 1997. On September 25, 1997, the Supreme Court of Canada, LaForest, [Gonthier], and Major, JJ’s dismissed the application for leave to appeal. 24. On February 9, 1998, counsel for the Respondents requested the Board to reschedule the re-hearing directed by the Court of Appeal. 25. On February 18, 1998, the plaintiff’s solicitor responded by re-enclosing his letter of April 15, 1997, to the defendant Darby and copy of the Board’s Executive Director’s letter of May 6, 1997. He stated that the facts in the letters gave the plaintiff reasonable apprehension that any Board panel conducting the new hearing would be biased against it, by being contaminated by things the defendant Darby might have said about the plaintiff, Bruce Brett, or the plaintiff’s efforts to challenge the defendant Board’s decision as described in paragraphs 16, 20,21 and 23 hereof. 26. There then followed an exchange of correspondence between the plaintiff’s solicitor and the Board’s Executive Director in which the defendant Board attempted to argue that it was not biased and did not accept the argument of apprehension of bias while the plaintiff’s solicitor pressed the plaintiff’s concern about apprehension of bias. 29. The plaintiff states that the actions of the defendant Board, and of the personal defendants who participated in the decisions leading to these actions, described in paragraphs 22 and 26 to 28 above were an attempt to stonewall the plaintiff from uncovering and making public that the personal defendants had taken into consideration in making Orders L.R.B. 4267 and 4284 that Bruce R. Brett was principal of the plaintiff and that he was alleged to have an anti-union attitude. The defendants thereby continued their malice against the plaintiff and continued to act in bad faith. 30. As result of the malice and bad faith alleged herein and their consequences for the plaintiff, there were the following actions harmful to the plaintiff: (a) several articles in the Halifax electronic and print media hurtful to the business image of the plaintiff; (b) picketing of the plaintiff’s hotel on Highfield Park Drive, Burnside, in the Halifax Regional Municipality; (c) resolution of the Nova Scotia Federation of Labour condemning the plaintiff; and (d) prosecution under the Trade Union Act by the Director of Public Prosecutions brought against the plaintiff. These actions all stemming from the two orders, resulted in business loss to the plaintiff of approximately $200,000.00 in 1995-1997. 32. The plaintiff says that the defendants’ malicious decision reached in bad faith also entitle it to punitive damages and so claims them. (emphasis added) Decision of the Chambers Judge [23] Justice Tidman said in part: The law is clear that statement of claim should not be struck out unless it is plain and obvious that it discloses no reasonable cause of action. ...there are some other issues now before the court that in the court’s view are questions of law that should more properly have been brought before the court for determination under C.P.R. 25. The courts have made it clear that questions of law are not matters to be brought before the court in Section 14.25 application. refer counsel to several cases that believe make it clear and, notwithstanding that some of them are older cases, that question of law are not for determination in an application under Rule 14.25. (Justice Tidman referred to Curry v. Dargie (1984), 62 N.S.R. (2d), 416; Pigeau v. Crowell (1988), 85 N.S.R. (2d) 431; McCarten v. Prince Edward Island (1990), 83 Nfld. P.E.I.R. 159). [24] Justice Tidman continued: accept the plaintiff’s submission that the statement of claim is not so vague to the extent that it obviously discloses no reasonable cause of action. also accept the plaintiff’s submission that in Canada the extent of the immunity of administrative boards and its members is as yet unclear. It appears also that the constitutional question posed by the respondents has not yet been clearly answered by the courts. The desirability of maintaining supervisory jurisdiction over administrative tribunals by superior courts also appears now to be an open question in Canadian law. The court therefore declines to strike the statement of claim under CPR 14.25(1)(a). Dealing with the second part of the application, in the court’s view this is not matter of multifarious proceedings, at least not to the extent of being frivolous and vexatious. All appear to the court to be sincerely designed to seek redress of alleged wrongs. Dealing with the third argument of the applicant, in the Court’s view there is no abuse of process based on the principle of res judicata. In summary, the applicants have not satisfied the Court that it is plain and obvious that the statement of claim discloses no reasonable cause of action and would therefore dismiss the application. [25] The appellants apply for leave to appeal, and if granted, appeal from the judgment on the grounds that Justice Tidman erred in law by not striking out the originating notice and statement of claim: as disclosing no reasonable cause of action; because the appellants are protected by the principle of judicial immunity. Relevant Provisions of the Civil Procedure Rules Striking out pleadings, etc. 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). Preliminary determination of questions of law, etc. 25.01.(1) The court may, on the application of any party or on its own motion, at any time prior to trial or hearing, (a) determine any relevant question of issue of law or fact, or both ... Relevant Statutory Provisions Trade Union Act Section 16 Powers of inquiry (7): The Board and each member thereof has the powers, privileges, and immunities of commissioner under the Public Inquiries Act, including, but not so as to limit those powers, the power to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce any documents and things which the Board deems requisite to the full investigation of any matter within its jurisdiction. (emphasis added) Oath of Office (11) Each member of the Board shall, before acting as such, take and subscribe before judge of the Supreme Court or county court and shall file with the Minister, an oath or affirmation of office in the following form: do solemnly swear (affirm) that will faithfully, truly and impartially, to the best of my judgment, skill and ability, execute and perform the office of member of the Labour Relations Board (Nova Scotia) and will not, except in the discharge of my duties, disclose to any person any of the evidence or other matter brought before the said Board. So help me God. [26] Public Inquiries Act, R.S.N.S. 1989, C.372, states: Powers, privileges, immunities The Commissioner or Commissioners shall have the same power to enforce the attendance of persons as witnesses and to compel them to give evidence and produce documents and things as is vested in the Supreme Court or judge thereof in civil cases, and the same privileges and immunities as judge of the Supreme Court. (emphasis added) Standard of Review [27] All parties acknowledge that this court should not interfere with discretionary order on an interlocutory appeal unless the Chambers judge has applied wrong principle of law, or patent injustice would result, adopting the principle enunciated in Global Petroleum Corp. et al. v. CBI Industries Inc. et al. (1997), 1997 CanLII 9879 (NS CA), 158 N.S.R. (2d) 201 at 202 (N.S.C.A.)). The Test Under Rule 14.25 [28] The parties are in agreement that the test on an application under Rule 14.25 is stringent one. Where the application involves striking statement of claim, the applicant must establish under Rule 14.25(1)(a) that it is "plain and obvious" that it discloses no reasonable cause of action (Fraser et al. v. Westminer Canada Ltd. et al. (1996), 1996 CanLII 5216 (NS CA), 155 N.S.R. (2d) 347. [29] As put by Justice Freeman for the Court in American Home Assurance Co. et al. v. Brett Pontiac Buick GMC Ltd. et al. (No. 2) (1992), 1992 CanLII 2500 (NS CA), 116 N.S.R. (2d) 319, at p. 322: The appellant faces an onerous double burden in appealing from the dismissal of an application to strike out the statement of claim, serious matter that would result in the action being decided against the respondent plaintiffs without trial. claim will be struck out only if, on its face, it is "absolutely unsustainable" or "is certain to fail because it contains radical defect". Analysis Should Questions of Law Ever be Resolved under Rule 14.25? [30] Justice Tidman stated: The courts have made it clear that questions of law are not matters to be brought before the court in Section 14.25 application. [31] He concluded that questions of law were raised before him that "more properly" should have been brought for determination under Rule 25. That Rule has been interpreted by this Court to require the parties to submit question of law to the Court based upon an agreed statement of facts (Curry v. Dargie, supra; Seacoast Towers Services Limited v. McLean (1986) 1986 CanLII 122 (NS CA), 75 N.S.R. (2d) 70). [32] With respect, am of the view that questions of law are appropriate for determination under Rule 14.25, in cases where the law is clear, and provided no further extrinsic evidence is required to resolve the issues raised. [33] Justice Chouinard, on behalf of the majority, in Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] S.C.R. 716, case having significant similarities to the one before us, said at p. 745: It is important to avoid litigation or to terminate it as quickly as possible when it cannot succeed in law. This is provided in the Code of Civil Procedure [i.e. Province of Quebec]. It is also the way litigation is disposed of in many other jurisdictions, by means of motion or application to strike out the statement of claim. This is precisely what was involved in Sirros v. Moore [[1975] Q.B. 118], where the English Court of Appeal allowed the application to strike out and Lord Denning wrote in the passage cited above: Actions based on such allegations have been struck out and will continue to be struck out. [34] Justice Tidman, in support of his determination that Rule 14.25 was not available to the applicants, relied on two Nova Scotia cases (Curry v. Dargie (N.S.C.A.), Pigeau v. Crowell (N.S.S.C.) as well as decision of the Prince Edward Island Court of Appeal, (McCarten v. P.E.I.). [35] Both Pigeau and McCarten are distinguishable on their facts. [36] In Pigeau, the issue was the limited immunity conferred on magistrate pursuant to the Justices’ and Magistrates’ Protection Act, R.S.N.S., 1967 c-157. That immunity did not extent to an act "done maliciously and without reasonable and probable cause". Justice Grant concluded that the issue of whether the defendant exceeded his jurisdiction was substantive issue to be determined by facts established at trial. [37] In McCarten the issue before the Chambers judge involved arguable matters respecting the plaintiff’s mobility rights, and equality rights, as guaranteed under the Charter. The Court of Appeal dismissed an appeal from the decision of the Chambers judge as the panel was in agreement that the defendant had not established that it was "clear beyond any doubt" that the action could not succeed. [38] The Court in both these latter cases was not directed to the decision in Rivard. [39] In Curry v. Dargie, Justices MacDonald and Hart filed separate opinions (both concurred in by Justice Pace) allowing the appeal. [40] The respondent, residential tenancy officer, employed by the Province of Nova Scotia, had sworn an information against the appellant landlord respecting certain violations of the Residential Tenancies Act. The charges were dismissed at trial. The appellant then brought action against the respondent, but not against the Crown, for damages for malicious prosecution. defence was filed and discoveries were held. The application under Rule 14.25 was not brought until nine days before trial. [41] In the course of setting aside the order of the Chambers judge, which had granted the respondent’s motion to strike the statement of claim, Justice MacDonald concluded that the appeal should be allowed on three grounds: the application was not made promptly, or in time; (delay in bringing the application to strike, is obviously not an issue in this case). the issue of whether the respondent, in laying the information, was cloaked with Crown immunity, was unclear, in law (the foundation of Justice Hart’s decision). Crown immunity was not basis for striking pleading under Rule 14.25(1)(a). [42] With respect to the latter ground, Justice MacDonald said, at p. 429: The question whether the defendant has Crown immunity doesn’t really touch the issue whether the plaintiff has reasonable cause of action rather, it is more akin to statutory defence to an action. The cases say that such matters are properly raised by motion prior to trial to raise point of law for argument upon agreed facts. To my mind the only proper method of having the issue of Crown immunity determined in this case before trial was on proper application under R. 25. This Rule, however, appears to be applicable only where parties agree to submit question of law to the Court based upon an agreed statement of fact. [43] In view of the uncertainty respecting the issue of whether the respondent tenancy officer was carrying out judicial function, that mixed matter of law and fact should not have been determined on Rule 14.25 application. With respect, however, would not share Justice MacDonald’s conclusion that the issue of Crown immunity should never be determined on preliminary application under that Rule. Curry v. Dargie was decided year and half before the decision in Rivard; consequently, Justice MacDonald’s comments on that particular issue have to be considered in light of the subsequent opinion of the majority in Rivard. [44] It is now helpful to review the facts in Rivard. [45] Mr. Rivard, practising lawyer for twenty years, initially commenced two actions against the Police Commission of Quebec, and Messrs. Morier and Boily, authors of report issued by the Commission, which censured Mr. Rivard’s conduct. [46] The first action requested that the Court declare the Commissioner’s report to be null and void, the second requested that the Commission and the two authors be jointly and severally ordered to pay Rivard the sum of $250,000 as exemplary damages. The two actions were then joined in one. [47] Before filing defence, counsel for Messrs. Morier and Boily filed motion to dismiss Rivard’s action for damages, relying on the immunity conferred by s. 22 of the Police Act, which vested the members of the Police Commission with the powers and immunities of Commissioner appointed under the Act respecting Public Inquiry Commissions. [48] Section 16 of the Public Inquiries Act provided: The Commissioner shall have the same protection and privileges as are conferred upon judges of the superior court, for any act done or omitted in the execution of their duty. [49] The only matter considered by the Supreme Court of Canada was the issue respecting the claim for damages. [50] Justice Chouinard said at p. 745: Indeed, there is no question in the case at bar that appellants, members of the Commission de police, had the necessary jurisdiction to conduct an inquiry and to submit report. It is possible that they exceeded their jurisdiction by doing or failing to do the acts mentioned in the statement of claim. It is possible that they contravened the rules of natural justice, that they did not inform respondent of the facts alleged against him or that they did not give him an opportunity to be heard. It is possible that they contravened the Charter of human rights and freedoms. All of these are allegations which may be used to support the respondent’s other action to quash the report of the Commission de Police and the evidence obtained. This action continues to be before the Superior Court, and of course shall make no ruling upon it; but in my opinion these are not allegations which may be used as the basis for an action in damages. (emphasis added) [51] Justice Chouinard concluded that the motion to dismiss was "an appropriate proceeding", and declared it to be valid. In addition to the English practice referred to by Lord Denning in Sirros v. Moore, approving the employment of similar rule, Justice Chouinard also referred to cases arising in British Columbia, Quebec and Ontario, where the courts gave similar approval. [52] Since the decision in Rivard, the Quebec Court of Appeal upheld decision to strike an action commenced against presiding judge by members of the Bar who acted as defence counsel at trial (Royer v. Mignault (1988), 1988 CanLII 445 (QC CA), 50 D.L.R. (4th) 345).The application was made under Article 165(4) of the Quebec Code of Civil Procedure., the same procedure successfully invoked in Rivard. [53] similar result was reached in Ontario in Kopyto v. Ontario [1995] O.J. No. 601 (Q.L.), where the application was brought pursuant to Rule 11.12 of the Ontario Rules of Practice, Rule almost identical to Rule 14.25(1). [54] In conclusion on this issue, with respect, am of the opinion that questions of law may be determined under Rule 14.25 when the law is clear, and no additional evidence is required to resolve the issues raised. The Issue of Immunity [55] Justice Tidman accepted the submission on behalf of Future Inns: ...that in Canada the extent of the immunity of administrative boards and its members is as yet unclear. It appears also that the constitutional question posed by the respondents has not yet been clearly answered by the courts. [56] In the context of this case, where specific statutory immunity has been conferred, in my opinion, the immunity of the Board members is clear respecting actions carried out in their capacity as Board members. The immunity is also clear respecting the actions of the Board when it acts in Board capacity. [57] reach this conclusion because of the provisions of s. 16(7) of the Act, as well as s. of the Public Inquiries Act. The judgment of the Supreme Court of Canada in Rivard, (to which Justice Tidman did not refer) is supportive of this conclusion, and is also determinative of the constitutional question. [58] The first point to be made is that the legislation is clear and unambiguous. [59] guide to the construction of statute is set out by Chief Justice Lamer (with whom Justices Sopinka, and Cory, concurred) in R. v. Canadian Pacific Ltd., 1995 CanLII 111 (SCC), [1995] S.C.R. 1028. [60] The opinion of the majority of the Court was authored by Justice Gonthier. The Chief Justice agreed with that opinion, but arrived at his conclusion by "somewhat different route". The following excerpts from the reasons of the Chief Justice were not the subject of comment by Justice Gonthier. [61] The Chief Justice said, at p.1049: The starting point of the interpretive process is the plain meaning of the statute’s terms. As noted in R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] S.C.R. 686, at p. 697, ...where the language of the statute is plain and admits of only one meaning, the task of interpretation does not arise. [62] These remarks were referred to, with approval, by Chief Justice Lamer and Iacobucci, J. in their dissenting opinion in R. v. Hydro Quebec, 1997 CanLII 318 (SCC), [1997] S.C.R. 213, at 243. [63] The Chief Justice, in R. v. Canadian Pacific, continued at p. 1050: Thus, the first task of court construing statutory provision is to consider the meaning of its words in the context of the statute as whole. If the meaning of the words when they are considered in this context is clear, there is no need for further interpretation. The basis for this general rule is that when such plain meaning can be identified this meaning can ordinarily be said to reflect the legislature’s intention. [64] conclude that the wording of the Act, as well as the Public Inquiries Act, on this issue, is plain, admitting of only one meaning, and that when considered in the context of these statutes as whole, the meaning of the words in the context is clear, as well. [65] The immunity of the appellants’ respecting actions carried out in their capacity as Board, or members of the Board, is clear. The only issue is the extent of that immunity. Immunity is not Absolute [66] The immunity of Supreme Court judges is inherited from English law. [67] The reason for the immunity of judges was expressed succinctly in Garnett v. Ferrand (1827) B. C., 611, in these words, at p. 625-6: This freedom from action and question at the suit of an individual is given by the law to the Judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions they may be free in thought and independent in judgment, as all who are to administer justice ought to be. [68] These comments apply with equal force to Board members. [69] There are cogent reasons for the granting of such immunity to the Board, and its members, while performing its, or their, statutory duties. [70] The Board was established by the Legislature to adjudicate disputes arising over the application of the Act to employers, employees and unions. [71] The Board has broad powers of inquiry to determine matters respecting all aspects of labour relations in the province. [72] The Board’s decisions are protected by privative clause. [73] In light of the important function it performs in Nova Scotia, it is essential that the public repose confidence in the Board. That confidence could not be created, or maintained, unless the members were "free from actions brought by unhappy litigants". [74] There are, perhaps, two exceptions to this general principle, that are acknowledged by the appellants. [75] Counsel for the Board in her factum states: It is submitted on behalf of the applicant that the principle of absolute immunity extends to the Board and its members, unless the Board and its members did something they knew they had no jurisdiction to do or if the acts complained of were not done in their capacity as Board members. [76] One might argue that if the acts were not performed by the appellants in their capacity as Board members, those acts would not constitute exceptions to the principle, but rather would not be covered under the principle of judicial immunity at all. [77] Counsel for the individual appellants phrased it this way: The Board and the members thereof enjoyed the same immunity from civil liability as do superior court judges. The immunity of superior court judges for acts performed or omitted in their judicial capacity is absolute. Similarly, the immunity of members of the Board for acts performed in their capacity as Board members is also absolute. [78] The critical issue in this appeal is whether the acts, or words (in the case of chairman Darby) of the appellants, forming the subject-matter of the complaints in the statement of claim were performed, or said, in their capacity as Board, or members of the Board. [79] Although the majority in Rivard concluded that the appellants in that case “had the necessary jurisdiction to conduct an inquiry and to submit report” (745), Justice Chouinard reviewed the scope of the immunity under the case law and authorities, at p. 737-738. [80] For example, in the case of Fray v. Blackburn (1863) 122 E.R. 217, Crompton, J., stated at p. 217: It is principle of our law that no action will lie against judge of one of the superior courts for judicial act, though it be alleged to have been done maliciously and corruptly. ... (emphasis added) [81] In Royal Aquarium and Summer and Winter Garden Society v. Parkinson, [1892] Q.B. 431, Lord Esher, M.R., wrote at p. 442: It is true that, in respect of statements made in the course of proceedings before Court of justice, whether by judge, or counsel, or witnesses, there is an absolute immunity from liability to an action. The ground of that rule is public policy. It is applicable to all kinds of Courts of justice; but the doctrine has been carried further; and it seems that this immunity applies wherever there is an authorized inquiry which, though not before Court of justice, is before tribunal which has similar attributes. (emphasis added) [82] In Halsbury’s Law of England, 4th Ed., Vol. 1, 1973, at pp. 197 et seq., it is stated at nos. 206 and 210: 206 Persons protected. Persons exercising judicial functions in court are exempt from all civil liability whatsoever for anything done or said by them in their judicial capacity, nor can any action be brought against the Crown in respect of acts or omissions of persons discharging responsibilities of judicial nature or in connection with the execution of judicial process. 210. Extent of Protection. Wherever protection of the exercise of judicial powers applies, it is so absolute that no allegation that the acts or words complained of were done or spoken mala fide, maliciously, corruptly, or without reasonable or probable cause suffices to found an action. The protection does not, however, extend to acts purely extra-judicial or alien to the judicial duty of the defendant; and therefore, if the words complained of are not uttered in the course of judicial proceedings, the defendant is not protected. (emphasis added) [83] H. Brun and G. Tremblay, Droit Constitutionionnel (1982) Wright at p. 514: [Translation] Immunity of Judges. The primary aspect of the independence of the courts is negative: the judges will incur no civil liability when they act in their capacity as judges. This absolute immunity is rule of common law applicable to Superior Court judges even where bad faith has been alleged: see Anderson v. Gorrie, [1895] Q.B. 668. In the case of these judges, it can be said that they are immunized for any act performed in the course of and in connection with their duties. On the other hand, it is clear that Superior Court judges are solely liable for their purely personal acts, which have no connection with their legal responsibilities. (emphasis added) [84] review of the statement of claim filed by Future Inns leads me to the conclusion that the claims advanced against the individual appellants, and the claim advanced against the Board, arise out of actions taken within their respective "judicial capacities", and, as result, those actions are protected by the immunity granted by Statute. [85] The claim advanced against chairman Darby involves, in my opinion, different considerations. He was not member of either of the panels which participated in the decision to issue L.R.B. orders 4267 or 4284. Presumably, immunity is invoked as result of the responsibilities he assumed as chairman of the Board. We have not been directed to any provision in the Act or regulations, delegating authority to the chairman of the Board to speak to the media respecting the interpretation of Board orders. Whether the chairman of the Board should discuss with media the likelihood of litigants refusing to comply with Board orders is not matter that would consider as being without controversy. It is not, therefore, "plain and obvious" to me, that an action against chairman Darby should fail for these comments, provided it can be said that the statement of claim discloses question “fit to be tried”. [86] Counsel for the individual appellants stresses that Future Inns has not claimed it was defamed, and points out that the word defamation does not appear in the statement of claim. Further, there is no allegation in the statement of claim that any of the appellants, including chairman Darby, acted outside their capacity as Board members, with respect to any actions they carried out, or any statements he made to the media. While the words "malice", and "bad faith", are used in the statement of claim, there is, counsel submits, no tort of malice, nor any tort of bad faith “in the air”. Apart from the question of immunity, it is submitted, that the statement of claim discloses no reasonable cause of action. [87] Counsel draws our attention to paragraph of the statement of claim which provides: The defendants at all material times were persons purporting to discharge responsibilities of judicial nature vested in them under the Trade Union Act [88] The same point, he submits, is re-emphasized in paragraph 10 of the statement of claim, where it is pleaded: The defendants, by so doing, acted maliciously against the plaintiff and thereby discharged their statutory responsibility in bad faith. [89] These sections may indeed highlight "defects" in the statement of claim, but in my view, question "fit to be tried" against Mr. Darby is presented in paragraphs 15, 17 and 18, assuming, as we must for the purposes of this application, that the allegations are true. [90] am mindful of the comments of Chitty, J. in Republic of Peru v. Peruvian Guano Company (1877), 36 Ch. D. 489 at 496 where he stated: Under the new rule the pleading will not be struck out unless it is demurrable and something worse than demurrable. If, notwithstanding defects in the pleading, which would have been fatal on demurrer, the Court sees that substantial case is presented the Court should, think, decline to strike out that pleading; but when the pleading discloses case which the Court is satisfied will not succeed, then it should strike it out and put summary end to the litigation. [91] These comments were cited with approval by Wilson, J., on behalf of the Court, in Hunt v. Carey Canada Inc. 1990 CanLII 90 (SCC), [1990] S.C.R. 959, at 968. [92] The same approach was emphasized by Justice Tysoe, for the majority, in Minnes v. Minnes et al. (1962), 1962 CanLII 350 (BC CA), 39 W.W.R. 112, (B.C.C.A.) where he noted, in case where the statement of claim was "inaptly and inartistically worded", at p. 122: In my respectful view it is only in plain and obvious cases that recourse should be had to the summary process under O. 25, R. 4, and the power given by the Rule should be exercised only where the case is absolutely beyond doubt. So long as the statement of claim, as it stands or as it may be amended, discloses some question fit to be tried by judge or jury, the mere fact that the case is weak or not likely to succeed is no ground for striking it out. (emphasis added) [93] Justice Wilson, emphasized the sentence underlined with apparent approval, in Hunt v. Carey, at p. 978. [94] In conclusion, it is my opinion, that the claims advanced against the Board, and the individual appellants (other than chairman Darby), clearly arise from actions taken in their capacity as Board, or as Board members, and that those actions are protected by the statutory immunity. [95] With respect to the claim against Chairman Darby, am of the view that question fit to be tried has been made out, and that it is not plain and obvious that Chairman Darby’s statements are covered by the statutory immunity. am, accordingly, of the view that Justice Tidman committed no error of law when he refused to strike out the claim against chairman Darby. Ancillary Submissions Advanced by Future Inns Respecting the General Immunity Issue [96] Counsel for Future Inns raises three further submissions which require consideration: the ratio in Rivard should be narrowly construed as it is based on s. 16 of the Act respecting public inquiry commissions, R.S.Q. C-37; the action set out in the statement of claim is sustainable as the appellants acted in breach of their public duty; section of the Public Inquiries Act is ultra vires the Nova Scotia Assembly under the Constitution Act, 1867, because it would have the effect of elevating the members of the Board to the status of s. 96 judges. 1. Should the ratio in Rivard be construed narrowly? [97] In support of its submission, counsel for Future Inns addresses our attention to an article by Professor Dale Gibson Developments in Tort Law: The 1985-86 Term (1987), The Supreme Court Law Review, 455 and, in particular, the following excerpt at p. 462: All that he [Justice Chouinard] and his majority colleagues did decide was that in the case at bar immunity existed under the legislation because the commissioners, in issuing the report in question, had been acting "in the execution of their duty": [98] would not circumscribe the decision in Rivard as submitted by counsel for Future Inns. The statutory immunity granted to the Board, and to Board members, in the present case, in the light of the restriction determined by the common law to limit the immunity to judicial acts, is comparable to the immunity granted in Rivard. [99] do not agree with counsel’s further submission that the immunity in issue in this case is subject to an implied limitation by which the immunity would be voided if the Board or Board members acted with malice and bad faith. [100] Although such limitation was expressly legislated in the former Justices’ and Magistrates’ Protection Act, the Legislature did not deem it appropriate to include similar limitation in the Acts before us. There is nothing in the Act, or the Public Inquiries Act, to justify implying such limitation. [101] Counsel for Future Inns also refers us to Professor Gibson’s comments at 461: third area of doubt concerns malice. The immunity of superior court judges at common law was said to be "absolute", in the sense that they were not even liable for acting maliciously, so long as the conduct in question was part of genuine exercise of judicial authority. Inferior court judges, on the other hand, were personally responsible for malicious wrongdoing, even within their areas of jurisdiction. Recent remarks by members of the House of Lords suggests that this special liability of inferior court judges should now be regarded as obsolete in England and Wales. The Canadian situation is unclear. [102] These comments, in my opinion, are directed to the immunity of provincially constituted inferior tribunals at common law, and are not relevant to the present issue which is concerned with specific statutory immunity equivalent to that of judge of superior court, or as expressed here, judge "of the Supreme Court". 2. The Issue of the Breach of Public Duty [103] The cases cited in support of this submission are distinguishable, in my opinion, as they deal with the concept of absolute, or unfettered, discretion or authority, rather than the principle of absolute immunity. In each of the three cases, relied upon by Future Inns, (McGillivray v. Kimber, 1915 CanLII 608 (SCC), [1915] 52 S.C.R. 146; Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121; and Gershman v. Manitoba Vegetable Producers’ Marketing Board (1976), 1976 CanLII 1093 (MB CA), 69 D.L.R. (3d) 114 (Man. C. of A)), the defendant was exercising discretionary power and the basis of the defence was that each had unfettered discretion. The question arising under this appeal calls for entirely different considerations. [104] During the hearing in the Rivard case, Justice Chouinard was referred by the respondents’ counsel to McGillivary v. Kimber and Roncarelli v. Duplessis, as well as Chartier v. Attorney General of Canada, 1979 CanLII 17 (SCC), [1979] S.C.R. 474. [105] Justice Chouinard concluded, at p. 726: However, none of these cases dealt with the interpretation of legislation similar to that applicable in the case at Bar. The Constitutional Argument [106] Future Inns submits that s. of the Public Inquiries Act is ultra vires the Nova Scotia Assembly under the Constitution Act, 1867, because it would have the effect of constituting members of the Board as s. 96 judges, capable of determining their own jurisdiction. [107] Although the identical issue was considered by Justice Chouinard in Rivard, counsel for Future Inns submits that his comments were only obiter dicta and hence not binding on this court, as argument was not addressed to the Supreme Court on the Constitutional issue. [108] It is helpful to refer to the full passage in the judgment of Justice Chouinard, which is found at pp. 736-7: Respondent did not argue that the provincial legislator lacks the power to confer on provincial judges or provincial bodies an immunity of the same kind as that enjoyed by superior court judges. The discussion did not turn on this point, though respondent referred to it in passing in the following passage from his submission: [Translation] Clearly, the legislator was familiar with the rules of the common law on the personal liability of public employees and the theory of the "attributes of court of record", and the respondent submits that there would have to be much more specific provision to bring about such radical departure from the common law and confer on the members of an administrative body, exercising their powers of inquiry, the same immunity as superior court judges, assuming that legislator had the constitutional authority to do so. Moreover, consider that the question is one of delictual liability, which falls within the scope of property and civil rights, matters of exclusively provincial jurisdiction, when as here the legislator is legislating on the civil liability of the members of commission which he has the power to appoint. [109] would adopt the comments of Chief Justice Robertson on behalf of the Court of Appeal of Ontario in Ottawa v. Napean Township et al., 1943 CanLII 350 (ON CA), [1943] D.L.R. 802, at 804: What was there said may be obiter, but it was the considered opinion of the Supreme Court of Canada, and we should respect it and follow it even if we are not strictly bound by it. [110] See also the comments of Justice Chouinard on behalf of the court In R. v. Sellars, 1980 CanLII 166 (SCC), [1980] S.C.R. 527, [111] do not agree with Future Inns’ submission. am further of the view that Justice Chouinard’s comments were correct in law. The immunity provisions under s. of the Public Inquiries Act do not grant powers that are "broadly conformable or analogous to jurisdiction or powers exercised and exercisable by courts which are within s. 96", to paraphrase the test expressed in Tomko v. Labour Relations Board (Nova Scotia), 1975 CanLII 183 (SCC), [1977] S.C.R. 112. Conclusions [112] In my opinion, Justice Tidman erred when he:- concluded that all questions of law, including questions where the law is clear, should not be brought before the Court in a s.14.25 application;- determined that the constitutional question posed by Future Inns had not yet been clearly answered by the courts;- determined that the extent of the immunity of the Labour Relations Board, and its members, except for the allegations against chairman Darby, was unclear. [113] In my opinion, the Board and its members are protected from civil action for damages arising out of any acts committed by them, provided the acts are committed in the course of judicial duties, and provided further that member may lose his or her immunity if while acting in bad faith they did something which he or she knew he or she did not have the jurisdiction to do, or while not acting in the course of judicial duties knew that he or she had no jurisdiction to act. [114] I would allow the appeal, strike out the originating notice and statement of claim, except for the allegations against Mr. Darby. Under the circumstances, would not award costs to any of the parties. Pugsley, J.A. Concurred in: Hallett, J.A. Freeman, J.A.

The appellants motion to strike the respondent's statement of claim was dismissed on the ground that questions of law are not matters to be brought before the court on an application to strike. The Chambers judge also accepted the respondent's submission that the extent of the immunity of administrative boards and their members from actions such as this based on their alleged malice and bad faith is, as yet, unclear in Canada. Allowing the appeal in part, that the Chambers judge erred when he concluded that all questions of law, including questions where the law is clear, should not be brought before the court in an application to strike, when he concluded that the constitutional question posed by the respondent had not yet been answered by the courts, and when he determined that the extent of the immunity of the appellant Board and its members, except for the Chair, was unclear. The appeal was allowed with respect to the action against the Board and the individual members, apart from the Chair.

9_1999canlii2477.txt

NOVA SCOTIA COURT OF APPEAL Citation: Electric Ltd. v. Oickle, 2006 NSCA 41 Date: 20060405 Docket: CA 254776 Registry: Halifax Between: Electric Limited, Ross M. Bunnell and Rosemary Fraser v. Larry B. Oickle and Valorie Oickle Respondents Judges: Bateman, Freeman and Hamilton, JJ.A. Appeal Heard: January 20, 2006, in Halifax, Nova Scotia Held: Leave to appeal granted, but appeal dismissed, as per reasons for judgment of Hamilton, J.A.; Bateman and Freeman, JJ.A. concurring. Counsel: Martin C. Dumke Rubin Dexter, for the appellant Victor J. Goldberg Martha L. Mann, for the respondent Reasons for judgment: [1] This appeal involves falling out among shareholders of closely held company, Electric Limited (the “Company”), one of the appellants. Ross M. Bunnell, the other appellant, and Larry B. Oickle, the respondent, each own or claim to own about 40% of the outstanding shares. Mr. Bunnell and Rosemary Fraser, another shareholder, continue to work for the Company. Mr. Oickle no longer works for the Company. The Company sued Mr. Oickle. He filed defence and counterclaim admitting certain allegations in the statement of claim. [2] On application by Mr. Oickle, Justice Gerald R.P. Moir permitted amendment of his defence to withdraw the admissions and to add claim for an “oppression remedy” to Mr. Oickle’s counterclaim for alleged misdeeds of Mr. Bunnell. The judge also granted leave to Mr. Oickle to commence derivative action in the name of the Company for alleged misdeeds of Mr. Bunnell and Ms. Fraser. Mr. Bunnell and the Company appeal the order permitting these alterations to the pleadings. [3] For the reasons hereinafter set out, I would grant leave to appeal, but dismiss the appeal. [4] The judge sets out some facts at the beginning of his decision, reported as (2005), 2005 NSSC 110 (CanLII), 233 N.S.R. (2d) 244: [1] Larry Oickle and Ross Bunnell were in business together for many years. They founded L&B Electric Limited in 1985, split the shares equally and took positions as officers and directors. They lent money to the company and underwrote its bank debts. Oickle provided labour and skill as an electrical technician. Bunnell was the manager. [2] Apparently the business relationship continued amicably until 2002. In the meantime, Oickle’s legal relationship with the company underwent changes. Not long after incorporation, he resigned as director and he transferred his shares to Bunnell to keep the business out of Oickle’s divorce. (His statement of property in the divorce proceedings was false or misleading.) In 1994, Oickle, Bunnell and group of eleven employees entered into an arrangement under which Oickle and Bunnell took 4000 shares and 3900 shares respectively, about 80% of the shares in the company, and the remaining 20% went to eleven employees. Although he claims he attempted to do so, Oickle never regained spot on the board of directors. Instead, Bunnell and the eleven employees elected the company’s controller, Rosemary Fraser, as director and officer along with Bunnell. [3] Mr. Oickle resigned from the company in early 2003. The company claims to have discovered misconduct after Oickle left and it sued him in March 2003. The statement of claim alleges that Oickle surreptitiously competed against the company during his employment, appropriated opportunities that would have been available to the company, and misused company resources to support his competition. The plaintiff claims an accounting, damages and an injunction on account of alleged breaches of fiduciary obligations and it claims declaratory and injunctive relief to give effect to provision in the shareholders agreement by which shares are forfeited upon termination for misconduct. [4] Mr. Oickle’s former solicitor filed defence and counterclaim. The defence denies the alleged competition. It admits averments in the statement of claim underpinning the claim that Oickle owed fiduciary duties to the company that prevented him from competing with it. The defence also denies the applicability of the provision in the shareholder’s agreement respecting forfeiture upon termination for misconduct. [5] The counterclaim seeks declaration that the company is obligated to purchase Oickle’s shares under buyback provision. It also alleges that, from the beginning, Oickle and Bunnell had agreed to draw equally from the company, an agreement allegedly breached by Bunnell or the company in recent years. So, the counterclaim seeks damages to re-balance the salaries. Finally, the counterclaim alleges Bunnell used his position of administrative control to direct funds to Bunnell’s personal use and to charity of his, the South Shore Waldorf School Association, where Ms. Fraser’s son is student. The counterclaim seeks an order for an audit of affairs of the company pertinent to both the Bunnell and the Oickle allegations of misconduct. [6] Mr. Oickle’s new counsel, Mr. Goldberg, applied for orders adding Ms. Fraser as defendant, amending the defence to remove the admissions of fiduciary duty and to include certain admissions about competition and amending the counterclaim to claim additional relief including shareholder oppression remedies. Further, Mr. Oickle applied for leave to bring derivative action on behalf of the company against Bunnell and Fraser. [5] There are additional relevant facts. [6] Mr. Oickle alleges in his counterclaim that his office at the Company was taken away from him without any notice in early 1995 forcing him to work out of his truck from then on. He alleges this led him to resign in February 1995, which resignation he later withdrew. [7] As set out in of the judge’s decision quoted in above, Mr. Oickle again resigned from the Company in early 2003 and the Company sued him. After commencing its law suit, the Company applied for an interim injunction restraining Mr. Oickle from soliciting the Company’s customers or from competing with it. Mr. Oickle applied for an injunction restraining the Company from holding planned shareholder’s meeting at which it was intended that final decision would be made to terminate his employment and invoke the forfeiture provisions respecting his shares of the Company provided for in the 1994 shareholder agreement. [8] Neither application was heard because the parties reached an agreement and consent order dated April 22, 2004 was granted by Stewart, J. That order provided: 1. The Plaintiff, Electric Limited, may proceed to hold the shareholders meeting on Friday, the 28th day of March, 2003 at 3:00 o'clock in the afternoon for the purpose of making final decision to permanently terminate the employment of the Defendant, Larry B. Oickle, and to invoke the token buy‑back share value of 1.00, as per the terms of paragraph 5.03 of the Shareholder Agreement dated the 3rd day of June, 1994. 2. The Defendant, Larry B. Oickle, hereby waives any notice requirement, formal or otherwise, of the said shareholders meeting. 3. The provisions of paragraph 5.03 of the said Shareholder Agreement: "The date of surrender of shares and payout of TOKEN BUY BACK VALUE shall be within 30 days of employment termination." shall be suspended pending the outcome of the within proceeding and the said thirty days shall commence to run only after the determination by this Honourable Court as to whether the Plaintiff, Electric Limited, had the right to terminate the employment of the Defendant, Larry B. Oickle, pursuant to paragraph 5.03 of the said Shareholder Agreement. 4. All other provisions of paragraph 5.03 shall remain in full force and effect and without restricting the generality of the foregoing, the rights of the Defendant, Larry B. Oickle, as shareholder of the Plaintiff, Electric Limited, are hereby suspended, save that the Defendant, Larry B. Oickle, shall be entitled to copies of any and all offers, if any, to purchase the Plaintiff, Electric Limited. 5. Until further order of this Honourable Court, the Plaintiff, Electric Limited, shall continue to operate in its usual and ordinary course. [9] As set out previously, Mr. Oickle subsequently retained new counsel in August of 2004. This was necessitated as result of his former lawyer’s suspension from the practice of law by the Nova Scotia Barristers’ Society. During discovery of Mr. Bunnell in November of 2004, Mr. Oickle’s new counsel sought an adjournment to allow him to bring the application that gave rise to the order under appeal. [10] Later in November of 2004, Mr. Oickle gave to the Company’s directors, Mr. Bunnell and Ms. Fraser, the notice required by s. 4(2)(a) of the Third Schedule to the Companies Act, R.S.N.S. 1989, c.81, indicating that if they did not cause the Company to commence law suit against themselves for alleged wrongdoings, that he intended to apply to the court for leave to commence derivative action in the name of the Company for this purpose. [11] As result of this notice the shareholders of the Company, other than Mr. Oickle, met on November 28, 2004 and unanimously passed resolution rejecting the suggestion that the Company commence law suit against Mr. Bunnell and Ms. Fraser. Mr. Bunnell and Ms. Fraser were present at the meeting but abstained from voting. At the same meeting the shareholders appointed Carolyn Selig, another shareholder and employee, as third director of the Company. [12] On learning of this resolution, Mr. Oickle made the application that gives rise to this appeal. Standard of Review [13] The standard of review on an appeal such as this is well settled: this court will not interfere with the discretionary interlocutory decision of the judge unless wrong principles of law have been applied or patent injustice would result, Minkoff v. Poole and Lambert (1991), 1991 CanLII 2516 (NS CA), 101 N.S.R. (2d) 143 (N.S.C.A.) at p. 145. An appeal from discretionary order is not an occasion that permits this court to re-weigh the various relevant considerations and exercise its discretion in place of that of the judge of first instance. Cluett v. Metro Computerized Bookkeeping Ltd. (2005), 2005 NSCA 84 (CanLII), 233 N.S.R. (2d) 237 at 2. [14] The four grounds of appeal raised by the appellants are that the judge erred in: (1) permitting Mr. Oickle to amend his defence to withdraw certain admissions he made in his defence; (2) permitting Mr. Oickle to amend his counterclaim to include claim for an “oppression remedy” pursuant to s. of the Third Schedule to the Companies Act; (3) granting Mr. Oickle leave to commence derivative action for and on behalf of the Company against Mr. Bunnell and Ms. Fraser pursuant to s. of the Third Schedule; and (4) imposing the terms he did on the derivative action, specifically the retention by Mr. Oickle of an accountant at the Company’s expense and requiring disclosure to the accountant. Withdrawal of Admissions [15] The first ground of appeal is that the judge erred in allowing Mr. Oickle to amend his defence to withdraw certain admissions he made. [16] In 4, and of the Company’s statement of claim, which paragraphs are set out in 13 of the judge’s decision, the Company described the type of work performed by Mr. Oickle for the Company over the years, alleged that an implied term of his employment contract was that he owed duty of good faith and fidelity to the Company and that he was senior and/or key employee of the Company who owed fiduciary duties to the Company. [17] These were the allegations Mr. Oickle admitted in his defence and later sought to withdraw. [18] In granting Mr. Oickle’s application, the judge stated: [18] Mr. Goldberg offers simple reason for withdrawing the admissions and making the other amendments in this case. new solicitor is seeing the defendants' case with different eyes. Mr. and Ms. Oickle cannot be represented by the counsel of their choice. The Barristers' Society has suspended him. Out of necessity, the Oickles have retained new counsel who clearly has different conception of their case. He is dropping cause of action in defamation. He is turning to legislated causes in commercial law. And, he has different assessment of the place Mr. Oickle truly occupied in relation to the company. The affidavits show that there may be real difficulties characterizing Mr. Oickle's legal relation to the company. The paragraphs at issue in the statement of claim allege duties and responsibilities of employment (para. 4), an implied term for good faith and fidelity (para. 5), and fiduciary duties (para. 6). The same lawyer could easily come to different conclusions on the accuracy of these averments as the lawyer becomes more aware of the evidence. Different lawyers could easily come to different conclusions on the same instructions. [19] In the circumstances of this case, new counsel\'s need to defend according to counsel\'s assessment of the facts is a strong reason for concluding that it would be unjust to hold the defendants to the admissions in the defence drawn by former counsel. There are no equities weighing significantly against the justice of the defendants' request. There was no agreement or undertaking. see no detrimental reliance, no estoppel. If counsel's efforts are lost or need to be duplicated for the plaintiff, the Court can adjust when costs are determined. am prepared to exercise my discretion in favour of the defendants request. (Emphasis added) [19] In their factum the appellants reviewed two lines of authorities specifying the test to be applied by court faced with an application to allow the withdrawal of admissions: the cases such as Phil Whittaker Logging Ltd. v. British Columbia Hydro and Power Authority, [1985] B.C.J. No. 2736 (B.C.S.C.) and Antipas v. Coroneos, [1988] O.J. No. 137 (Ont. H.C.J.) and the cases such as Abacus Cities Ltd. v. Port Moody, 1981 CanLII 402 (BC CA), [1981] B.C.J. No. 1668 (CA) and Norlympia Seafoods Ltd. v. Dale and Co. Ltd. (1982), 1982 CanLII 491 (BC CA), 141 D.L.R. (3d) 733 (B.C.C.A.). They noted that in the present case the judge applied what they state is the less restrictive test approved in Abacus, supra: “...a judicial admission should be allowed to be withdrawn if, in the circumstances, the court is satisfied that it is in the interest of justice to withdraw same.” [20] They also noted that the judge chose that test because he determined that it best fit the words used in Civil Procedure Rule 21.02(4): (4) The court may at any time allow any party to withdraw any admission or denial upon such terms as are just. [21] The appellants do not say the judge applied the wrong test but that the only difference between the two lines of cases is one of semantics not substance, relying on Tymkin v. Winnipeg (City) Police Service, [2003] M.J. No. 284, 20. Instead, they take issue with the result reached by the judge. [22] In light of the appellants’ position, have assumed without deciding, that the judge did not err in the test he applied when he determined that Mr. Oickle should be permitted to withdraw his admissions. [23] What the appellants did argue was that the judge erred by making his decision in the absence of evidence indicating that it was just to do so. They argued there was no evidence before the judge that there was triable issue disclosed in 4, 5, and of the statement of claim. They argued the judge allowed these admissions to be withdrawn solely on the basis there was change of counsel, and that this was an error of law. [24] am satisfied there was evidence before the judge on which he could conclude that it was just to grant the amendment and that there was triable issue with respect to the allegations in 4, and of the statement of claim. The judge concluded there was triable issue in 18 of his decision which is quoted at 18 above: “The affidavits show that there may be real difficulties in characterizing Mr. Oickle’s legal relation to the company.” [25] The judge had before him the affidavits of Mr. Oickle, Ms. Selig and Ms. Fraser. Each affiant was cross-examined before him over the course of nearly full day. The affidavits could be interpreted as disclosing that the nature of Mr. Oickle’s position within the Company was uncertain. Ms. Selig’s affidavit refers to Mr. Oickle’s resignation from the Company in early 1995, the resignation Mr. Oickle alleges occurred after his office at the Company was taken away from him without notice, forcing him to work out of his truck from then on. The affidavits could be taken to further suggest that there was refocusing of the Company to service industrial accounts at the instance of Mr. Bunnell. In she states: “Oickle consistently fought against such move.” An inference that could be drawn from the Selig affidavit is that Mr. Bunnell and Ms. Fraser took control of the refocused Company leaving Mr. Oickle behind. [26] Ms. Fraser indicates in 3. h. of her affidavit that she refused to comply with directions given to her by Mr. Oickle. Mr. Oickle’s affidavit refers to the alleged control Mr. Bunnell and Ms. Fraser had over the Company and its money, to his exclusion. Thus there was evidence before the judge from which he could conclude that there was triable issue raised by 4, and of the statement of claim and, therefore, that it was just to grant the amendment sought. [27] In addition to the affidavit evidence before him, the judge had the pleadings which revealed the fundamental nature of Mr. Oickle’s admissions. From this material the judge was aware of the alleged discord among the parties over long period of time causing him to draw an analogy between disputes of this kind among shareholders of closely held company and the acrimony which often accompanies divorce. For example, Mr. Oickle alleged that in 1986 Mr. Bunnell had encouraged him to transfer his shares of the Company to Mr. Bunnell and to resign as director until his divorce was concluded. Mr. Oickle described his unsuccessful attempts to regain his shares and directorship following the conclusion of his divorce, finally obtaining shares in 1994 but never being reinstated as director. [28] The judge was aware that Mr. Oickle was forced to obtain new counsel through no fault of his own after his defence was filed. He knew that it was during the discovery of Mr. Bunnell that Mr. Oickle’s new counsel decided to seek the amendment. The judge was aware that all of the requested amendments to the defence and counterclaim, which included the deletion of Mr. Oickle’s original claim for defamation, indicated significant change in focus for Mr. Oickle. He knew the action was in its early stages and that Mr. Oickle had not been discovered. He knew there was no agreement between counsel and no undertaking regarding the admissions that could give rise to promissory estoppel as it had in Wilson v. Sears Canada Inc. (1990), 1990 CanLII 2446 (NS CA), 96 N.S.R. (2d) 361 (C.A.). He knew any prejudice to the appellants in the form of lost counsel’s efforts could be compensated for in costs. [29] With this information before him am satisfied the judge did not apply wrong principle or make an unjust order in allowing Mr. Oickle to amend his defence to withdraw his admissions. It was not error for the judge to take into account the significant role that Mr. Oickle’s forced change of counsel had played in refocusing his defence. Rule 21.02(4) permits the withdrawal of admissions at any time. It is broad enough to allow judge to weigh the competing policies of the right of party to have triable issue tried with the need for expedient and responsible litigation, in determining what is just. Oppression Remedy [30] The appellants’ second ground of appeal is that the judge erred in permitting Mr. Oickle to amend his counterclaim to include claim for an “oppression remedy” pursuant to s. of the Third Schedule to the Companies Act. [31] Section of the Third Schedule permits “complainant” to seek redress in court for oppressive or unfairly prejudicial conduct or for conduct that unfairly disregards certain interests: (1) complainant may apply to the court for an order under this Section. (2) If, upon an application under subsection (1) of this Section, the court is satisfied that in respect of company or any of its affiliates (a) any act or omission of the company or any of its affiliates effects result; (b) the business or affairs of the company or any of its affiliates are or have been carried on or conducted in manner; or (c) the powers of the directors of the company or any of its affiliates are or have been exercised in manner, that it is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer, the court may make an order to rectify the matters complained of. (Emphasis added) [32] Section 7(5)(b) of the Third Schedule defines the word “complainant”: (b) “complainant” means (i) registered holder or beneficial owner, and former registered holder or beneficial owner, of security of company or any of its affiliates, (ii) director or an officer or former director or officer of company or of any of its affiliates, (iii) the Registrar, or (iv) any other person who, in the discretion of the court, is proper person to make an application under this Section. (Emphasis added) [33] The appellants argued that the judge erred in exercising his discretion in favour of finding that Mr. Oickle was “complainant” under s. 7(5)(b) of the Third Schedule, and hence under s. 5(1), because he (1) misinterpreted the effect of the April 22, 2004 consent order, referred to in above, on Mr. Oickle’s rights as former shareholder, (2) failed to give proper weight to the lack of temporal connection between the time over which Mr. Oickle owned shares of the Company and the impugned acts of oppression, and (3) failed to consider whether Mr. Oickle had “significant interest” in the impugned acts. [34] After considering the effect of the consent order, the judge determined Mr. Oickle was “complainant” within s. 5(1) on the basis that he was former shareholder of the Company: [23] Mr. Oickle's present status as shareholder of L&B is clouded by both the dispute concerning the treatment of his shares and by the consent order suspending his rights as shareholder. However, his past status is clear. Clearly, he was shareholder of L&B. Indeed, he held the most shares. Whether he can presently assert rights as shareholder, he is plainly within the words "a former registered holder or beneficial owner, of security". His ownership of shares was contemporaneous with the events about which he complains. Therefore, he is within the definition of "complainant" and has status to apply for an oppression remedy. (Emphasis added) [35] The appellants admitted that Mr. Oickle was “former registered holder” of shares of the Company but they argued that the provisions of the consent order suspended any rights he had in that capacity, taking him outside the legislated meaning of “complainant.” [36] Clause 4. of the consent order states: All other provisions of paragraph 5.03 shall remain in full force and effect and without restricting the generality of the foregoing, the rights of the Defendant, Larry B. Oickle, as shareholder of the Plaintiff, L&B Electric Limited, are hereby suspended, save that the Defendant, Larry B. Oickle, shall be entitled to copies of any and all offers, if any, to purchase the Plaintiff, L&B Electric Limited. (Emphasis added) [37] The appellants have not satisfied me that the judge erred in rejecting this argument. The words used in clause of the order are that Mr. Oickle’s rights as shareholder “are hereby suspended.” A reasonable interpretation of these words is that which was given to them by the judge: that Mr. Oickle’s rights as an existing shareholder were suspended by the consent order, and not his rights as a former shareholder. In other words, that the order spoke prospectively not retroactively. Had the parties intended to provide for retroactive suspension, such should have been stated. [38] The appellants stated in their factum that Mr. Oickle was only shareholder from October 1985 to July 1986. Therefore, they say, there was no temporal connection between Mr. Oickle’s shareholding and the impugned acts of oppression. They relied on Jacobs Farms Ltd. v. Jacobs, [1992] O.J. No. 813 (Ont. Ct. Gen. Div.) (Q.L.) to support their argument that there must be temporal connection between the impugned acts and the time during which Mr. Oickle owned shares of the Company. [39] In Jacobs Farms, supra, the court refused to grant leave to former shareholders to bring derivative action where the corporate actions complained of took place after they ceased to be shareholders and where the value of the shares was not affected by the impugned acts: Frans Jacobs is former shareholder and former director of Jacobs Farms Limited. On the surface, then, he would appear to qualify as complainant. It could not have been the intention of the Legislature, however, to clothe every former shareholder and every former director with the status of complainant for purposes of bringing derivative action. Such an interpretation could lead to absurd situations. There must be some parameters within which the concepts of "former" shareholder and "former" director are confined. Those parameters can reasonably be drawn by requiring some connection between the timing of the events which are the subject matter of the proposed derivative action and the position of the applicant as shareholder or director. (Emphasis added) [40] While Jacobs Farms, supra, dealt with the question of who was “complainant” under s. 245(b) the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 in the context of derivative action, rather than who was “complainant” with respect to an “oppression remedy,” the issue in this ground of appeal, the case is relevant because s. 7(5)(b) of the Third Schedule defines “complainant” for both purposes and the definition of “complainant” in the Ontario Act is similar to that in the Companies Act. It is only “complainant” within the meaning of s. 7(5)(b) who can claim an “oppression remedy” pursuant to s. or seek the leave of the court to bring derivative action in the name of company pursuant to s. 4. Therefore similar considerations apply. [41] see no merit to the “temporal connection” argument of the appellants. Paragraph 23 of the judge’s decision, quoted in 34 above, makes it clear he considered this issue: “Mr. Oickle’s ownership of shares was contemporaneous with the events about which he complains.” The evidence before the judge could reasonably support the position that Mr. Oickle was registered shareholder from 1985 to 1986 before his divorce arose and that he was beneficial shareholder from 1986 to 1994. There is also no dispute he became registered shareholder again in 1994 and continued to hold shares of the Company until at least 2003. The alleged oppressive actions Mr. Oickle complains of took place during this time when he was shareholder. Therefore there is a temporal connection. [42] also see no merit to the appellants’ “sufficient interest” argument. They rely on the case of Michalak v. Biotech Electronics Ltd., [1986] Q.J. No. 1882 (Q.S.C.(C.D.)) for this argument. [43] In Michalak, supra, the court refused to order an investigation pursuant to s. 222 of the Canada Business Corporations Act, S.C., 1974-76-76, c. 33, into alleged oppressive actions by the company’s management which was sought by former shareholders who felt they had been earlier induced to sell their shares of the company by fraudulent misrepresentations of management. The definition of “complainant” in s. 231 of the CBCA, similar to s. 7(5)(b) of the Third Schedule, was relevant to the issue before the court. In obiter the court stated that in addition to being former shareholder, an applicant must have sufficient interest to justify allowing them to take certain steps under the CBCA: 22 Quite apart from the foregoing there is further test which the application must meet and that is the test of the interest of the applicants to initiate these proceedings. Quite apart from the fact that the applicants, as former shareholders, may enjoy statutory right to bring these proceedings that right, in my respectful view, does not automatically invest them with sufficient interest. Again if that interest does not appear from the face of the proceedings to be viable one then motion to dismiss will lie. (Emphasis added) [44] The “sufficient interest rule” was restated in Schafer v. International Capital Corp., (1996) 1996 CanLII 6845 (SK QB), 153 Sask. R. 241 at 22; Such rule is required to distinguish between applicants who have bona fide potential financial stake through the corporation in the outcome of the derivative action and applicants who seek leave for an improper purpose. [45] Once again, the evidence before the judge could reasonably support the conclusion that Mr. Oickle has sufficient interest in his claim for an “oppression remedy.” Unlike the situation in Jacobs Farms, the oppressive conduct alleged by Mr. Oickle could materially impact the value of his shares. It could also affect his position as current creditor of the Company and as guarantor of the Company’s line of credit to its bank. If the actions of Mr. Bunnell for instance, are found to come within the paragraph of the shareholder agreement giving rise to forfeiture of his shares, the value of the other shares of the Company including those of Mr. Oickle will rise significantly. [46] It should also be remembered that s. of the Third Schedule does not require leave of the court to commence claim for an “oppression remedy.” If the judge had refused to permit the amendment, Mr. Oickle could have commenced separate action. Therefore, as the judge noted in his decision, in essence the matter before him was one of consolidation of actions: [24] Mr. Oickle needs no assistance to apply for an oppression remedy. He could bring separate proceedings. Because the statute so provides, they would have to be started by way of application rather than action. In effect, Mr. Oickle is, by the present application, applying for consolidation and for trial of the oppression issue. The application is well within the principles for consolidation and for amendment of pleadings. [47] am satisfied the judge did not apply wrong principle or make an unjust prder in permitting Mr. Oickle to amend his counterclaim to include claim for an “oppression remedy.” Derivative Action [48] The appellants third ground of appeal is that the judge erred in granting Mr. Oickle leave to commence derivative action for and on behalf of the Company against Mr. Bunnell and Ms. Fraser pursuant to s. of the Third Schedule. [49] Mr. Oickle sought to commence derivative action to address his allegations that Mr. Bunnell and Ms. Fraser, as the only directors of the Company with unfettered control over the Company’s money, used the Company’s money for purposes other than the benefit of its stakeholders; that they used it as their “personal piggy bank.” The judge described the nature of the proposed derivative action: [29] The facts underpinning the cause would involve those asserted in Mr. Oickle’s personal claim against Mr. Bunnell. In summary: the officers permitted Mr. Bunnell to draw funds from the company for personal use (Defence and Counterclaim para.16), they cause the company to pay his personal expenses to be repaid at his discretion (para.16), they failed to account for revenue or expenses in division of the company (para.17), and they allowed the company to cover cash transactions of Mr. Bunnell without particulars (para.18). [50] The statutory authority to bring an action in the name of and on behalf of company is found in s. of the Third Schedule: (1) Subject to subsection (2) of this Section, complainant may apply to the court for leave to bring an action in the name and on behalf of the company or any of its subsidiaries, or intervene in an action to which any such body corporate is party, for the purpose of prosecuting, defending or discontinuing the action on behalf of the body corporate. (2) No action may be brought and no intervention in an action may be made under subsection (1) of this Section unless the court is satisfied that (a) the complainant has given reasonable notice to the directors of the company or its subsidiary of his intention to apply to the court under subsection (1) of this Section if the directors of the company or its subsidiary do not bring, diligently prosecute or defend or discontinue the action; (b) the complainant is acting in good faith; and (c) it appears to be in the interests of the company or its subsidiary that the action be brought, prosecuted, defended or discontinued. (Emphasis added) [51] As stated in 40 above, it is only “complainant” as defined in s. 7(5)(b) of the Third Schedule who can seek the leave of the court to commence derivative action under s. and who can claim an “oppression remedy” under s. 5. have already dealt with the appellants’ status as “complainant” when dealt with the second ground of appeal. will not repeat it here. Suffice it to say that am not satisfied the judge erred in finding Mr. Oickle was “complainant” within s. 7(5)(b) of the Third Schedule for the purpose of commencing derivative action. [52] The appellants agreed Mr. Oickle met the first criterion in s. 4(2)(a) of the Third Schedule of giving reasonable notice to the Company’s directors. They argued however that the judge erred in his determination that Mr. Oickle met the second criterion of “good faith” in s. 4(2)(b) and the third criterion of being in “the interests of the company” in s. 4(2)(c). [53] will deal first with their argument relating to good faith. The judge found that the “onus”on Mr. Oickle to prove that he was acting in good faith was to satisfy the court by preponderance of evidence, not some higher burden: [52] In my respectful opinion, it is not appropriate to require the applicant to meet burden that is any higher than what the statute provides. The statute provides “No action may be brought under subsection (1) unless the court is satisfied that. (b) the complainant is acting in good faith”. This text is consistent with the ordinary rules on onus and burden. The proponent bears the onus of satisfying the Court. The Court will be satisfied by preponderance of evidence. have already discussed the history of this legislation towards ascertaining its purposes and scheme (see para. 34 to 42 above). With great respect for the contrary view expressed by Puddester, J. in Tremblett, the history, purposes and scheme of this legislation do not support the imposition of higher burden than the statutory text provides. Particularly, there is no indication of Parliamentary or Legislative intent to restrict access to the derivative action out of deference to the principles of indoor management or majority rule. [54] The appellants have not argued that the judge erred in applying the ordinary burden. Accordingly, for the purposes of this appeal have assumed, without deciding, that this is the correct burden. [55] The appellants argue, however, that the judge erred in finding that Mr. Oickle was acting in good faith when, they say, there was no evidence before him that could support such conclusion. They argued the only evidence before the judge supported finding that he was not acting in good faith. [56] The judge considered whether Mr. Oickle was acting in good faith: [53] Mr. Dexter's submission emphasises Mr. Oickle's position as defendant in the initial suit. He says that the allegations against Mr. Oickle are such that putting him in charge of litigation on behalf of the company against directors would be like putting fox in charge of the hen house. Self‑interest does not exclude finding of good faith: Richardson Greenshields of Canada v. Kalmacoff (1995), 1995 CanLII 1739 (ON CA), 123 D.L.R. (4th) 628 (ONCA) at p. 638. must consider all of the circumstances, including that the proposal to bring this suit follows upon the proponent having been sued for his alleged wrongdoing towards the company. [54] We have here breakdown of business relationship in closely held corporation. This is where commercial litigation most resembles contested divorce actions. The required findings are so circumstantial and the circumstances are spread over such long time that the disputes need trial to settle the facts. That is one indication that the disputes should be treated as bona fide. [55] have already found that there is enough substance to Mr. Oickle's allegations that suit is in the interests of the corporation. That there appears to be substance to the claims is factor going to good faith. [56] We have allegations of wrongdoing coming out of broken business relationship that had been almost equal. There is apparent substance to the allegations going both ways. That being so, it is unfair that the resources of the company should back one side and not the other. The fairness of having the company's substantial resources made neutral by being made equally supportive is another factor underlying my finding that the proposal for derivative action is made in good faith. (Emphasis added) [57] The judge’s statement in 55 of his decision quoted above in 55 above, that there appears to be substance to Mr. Oickle’s claims, refers to an earlier paragraph in his decision: [47] Mr. Oickle has presented evidence which, if accepted, could reasonably lead to the conclusion that Mr. Bunnell’s salary has been substantially overpaid. The evidence of Ms. Fraser and Ms. Selig is not so compelling that the claim fails to raise genuine issue for trial. On the contrary, if there was shareholders agreement limiting Mr. Bunnell’s salary, the evidence of Ms. Fraser and Ms. Selig might not undermine that agreement even if their evidence is accepted. Mr. Oickle has also presented evidence of unusual transactions that were to Mr. Bunnell’s benefit or that of his charity and at the company’s expense. Evidence of the kind offered by Ms. Fraser and Ms. Selig might show that these transactions were usual to the company and were authorized, albeit in casual way. However, am in no position to say that evidence will be accepted or, if accepted, will lead to finding that the expenditures were legal. am satisfied that the evidence presented by Mr. Oickle, coupled with that offered in reply and on cross-examination, shows that the company has claims that could reasonably be presented and would require trial to resolve. (Emphasis added) [58] The appellants say the evidence conclusively pointed to lack of good faith on Mr. Oickle’s part: He was in competition with the Company; he only wanted money from the Company for his shares and to equalize payments made to Mr. Bunnell and not the opportunity to run the Company himself (which allegation is denied by Mr. Oickle’s counsel); his application was made too late because he knew when he filed his defence and counterclaim that Mr. Bunnell had received more money from the Company than he had; the allegations he made in his proposed derivative action were the same allegations he made in his counterclaim; the relief sought in the derivative action of getting rid of the present management of the Company would “decapitate” it and he brought his application only after he was sued by the Company. [59] As set out by D. H. Peterson, Shareholder Remedies in Canada (Markham, ON: LexisNexis, 1989) at p. 17.22 “good faith” is question of fact: §17.39 Good faith is said to exist where there is prima facie evidence that the applicant is acting with proper motives, such as reasonable belief in its claim, and is ultimately question of fact to be determined on all of the evidence and the particular circumstances of the case. [60] This principle is restated in Winfield v. Daniel (2004), 2004 ABQB 40 (CanLII), 352 A.R. 82: 16 Section 240(2)(b) of the Act requires that the Court be satisfied that the complainant is acting in good faith. Good faith is said to exist where there is prima facie evidence that the complainant is acting with proper motives such as reasonable belief in the merits of the claim. Good faith is question of fact to be determined on the facts of each case. The typical approach by the Courts is not to attempt to define good faith but rather to analyse each set of facts for the existence of bad faith on the part of the applicant. If bad faith is found, then the requirement of good faith has not been met: D.H. Peterson, Shareholder Remedies in Canada, (Markham, ON: LexisNexis, 1989) at 17.39. [61] The determination as to whether Mr. Oickle was acting in good faith was for the judge as the trier of fact. He made his determination after reviewing the pleadings and the affidavits and after hearing the cross-examination and submissions. In 30 of his decision he commented on his advantage in hearing cross-examination of the affiants. This court will not interfere with finding of fact unless there is palpable and overriding error. Housen Nickolasen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235. [62] In reaching his decision the judge considered relevant factors. There was evidence before him from which he could conclude that Mr. Oickle was acting in good faith. The appellants have not satisfied me that this finding by the judge was palpable and overriding error. [63] The judge took into consideration that Mr. Oickle had been sued by the Company. He stated in the last sentence in 53 of his decision quoted above in 55 above; “I must consider all of the circumstances, including that the proposal to bring this suit follows upon the proponent having been sued for his alleged wrongdoing towards the company.” He also considered that Mr. Oickle had self-interest in bringing the derivative action, but found this did not exclude finding of good faith. This position is supported by Title (Estate) v. Harris (1990), 1990 CanLII 6784 (ON SC), 67 D.L.R. (4th) 619 (Ont. H.C.J.); Winfield v. Daniel, supra, 20; and Schafer v. International Capital Corp. (1996), 1996 CanLII 6845 (SK QB), 153 Sask. R. 241 at 32. [64] The judge considered whether there was genuine issue for trial in the derivative action and whether the proposed action was frivolous or vexatious. These are relevant factors in assessing the issue of good faith, Winfield v. Daniel, supra, at 17 and 27; and Re Marc-Jay Investments Inc. and Levy (1974), 1974 CanLII 786 (ON SC), 50 D.L.R. (3d) 45 (Ont. H.C.). In 47 of his decision quoted in 56 above, the judge reviewed the evidence that led him to conclude that there was genuine issue for trial. There is nothing unjust about the judge’s determination on the facts of this case that the Company’s resources should be equally supportive of both parties. [65] The fact some of the claims in the derivative action are the same as those in Mr. Oickle’s counterclaim is not determinative of bad faith, Winfield, supra, 20. While the claims are similar, the remedies sought in the derivative action are different from those sought in the counterclaim. The derivative action seeks declaration that Mr. Bunnell’s and Ms. Fraser’s employment with the Company be terminated for cause and that the termination fell within the section of the shareholders’ agreement that would cause the forfeiture of their shares of the Company. It seeks mandatory injunction requiring Mr. Bunnell and Ms. Fraser to sell their respective shares to the Company for $1.00 in accordance with the forfeiture provisions of the shareholders’ agreement. It seeks permanent injunction restraining Mr. Bunnell and Ms. Fraser from further participation in the affairs of the Company. These remedies were not available to Mr. Oickle in his personal action. [66] In addition, the only avenue available to Mr. Oickle to pursue remedies against Ms. Fraser was through the derivative action because the judge found, and his finding was not appealed, that the rule is Foss v. Harbottle, (1843), Hare 461, 67 E.R. 1989 (Ch.) prevented Mr. Oickle from adding Ms. Fraser as party to his counterclaim as he had sought to do: [10] The facts alleged by Mr. Oickle do not support any cause of action he personally may have against Ms. Fraser personally. [11] The law articulated in Foss v. Harbottle, (1843), Hare 461, 67 E.R. 1989 (Ch.) was under severe criticism by the mid‑twentieth century. Professor Dickerson referred to it as “that infamous doctrine” in Canada, Proposals for New Business Corporations Law for Canada by Robert W. V. Dickerson, John L. Howard and Leon Getz, vol. (Ottawa: Information Canada, 1971) at p. 161. Professor Gower himself wrote of “The major absurdity of the Foss v. Harbottle rule” in L.C.B. Gower, The Principles of Modern Company Law, 3rd ed. (London: Stevens Sons, 1969) at p. 582. However, the problem was not with the basic law in Foss v. Harbottle. The problem was with the lengths to which the courts, including the court in Foss v. Harbottle itself, had gone in making formalized and categorical rules that were supposed to give effect to the basic law in Foss v. Harbottle. The basic law was that shareholder cannot sue for diminished value of shares or for any other recovery on account of wrong done to the corporation. Any suit is to be brought by the corporation “or in the name of someone whom the law has appointed to be its representative” (Foss v. Harbottle at p. 490 in the Hare report or at p. 202 in the English Reports). That element of the common law was re‑affirmed by the Supreme Court of Canada at the very time that legislative reform was coming to Canada: Burrows and others v. Becker and others (1968), 1968 CanLII 57 (SCC), 70 D.L.R. (2d) 433 (SCC), p. 441. And, it remains sound to this day as long as one allows for the modification brought about by legislation creating derivate actions. “[I]ndividual shareholders have no cause of action for any wrongs done to the corporation and...if an action is to be brought in respect of such losses, it must be brought either by the corporation itself (through management) or by way of derivative action.”: Hercules Management Ltd. and others v. Ernst Young and others (1997), 1997 CanLII 345 (SCC), 146 D.L.R. (4th) 577 (SCC), para. 59. [12] The claims against Ms. Fraser allege wrongs she is said to have done to the company. Not one of these allegations involves “a wrong done to shareholder qua shareholder” in the meaning of Hercules Managements at para. 62. The claims allege wrongs done to the corporation which could only affect Mr. Oickle through the value of his shares. Consequently, decline to join Ms. Fraser as defendant in the existing litigation. [67] Accordingly, the appellants have not satisfied me that the judge erred in finding Mr. Oickle had met the second criterion in s. 4(2)(c) of acting in good faith. [68] will now deal with the appellants’ last argument with respect to the third ground of appeal, that the judge erred in determining that Mr. Oickle met the third criterion in s. 4(2)(c) of the Third Schedule, that the action “appears to be in the interests of the company.” [69] The appellants argued that the judge erred by applying the wrong test when he considered whether the derivative action appeared to be in the interests of the Company, by refusing to apply the presumption set out in Schafer, supra: [25] In determining this issue the "Canadian version" of the sound business judgment rule applies. The rule is in effect presumption that if the directors of the corporation make an informed decision that the disadvantages outweigh the advantages of commencing the action, then this is what is in the best interests of the corporation. The decision to commence or not to commence an action is like any other business decision that is ordinarily matter of internal management to be left to the discretion of the directors absent instruction from the shareholders. Courts seldom interfere with such intra vires discretion unless the directors are guilty of misconduct equivalent to breach of trust, or unless they stand in dual relation which prevents an unprejudiced exercise of judgment. If there is misconduct or dual relation then the presumption that the decision of the directors is in the best interests of the corporation will not apply. (Emphasis added) [70] It is clear the judge rejected the presumption approved in Schafer, supra, based on the wording of s. 4(2)(c) and the history of derivative actions in Canada. The judge determined that the history of this type of action in Canada was unique so that the approach of English and American courts to applications to commence derivative actions was not helpful in Canada. (See 33 to 41 of his decision). He set out his conclusion on this point in 42: [42] In my assessment, the broad purpose of s. is to allow minority shareholders to enforce rights of their corporations when management will not do so. There is no purposive reason to read the restraints in s. more restrictively than the text plainly provides. In my assessment, the scheme underlying s. involves the private use of civil remedies to enforce duties, as the alternative to public regulation. Again, this suggests there is no disharmony between the scheme and the plain text. Therefore, respectfully reject the reasoning in Schafer. There is no presumption in favour of the directors' opinion. Mr. Oickle bears the onus of satisfying the Court that he is acting in good faith and his proposed suit on behalf of the corporation appears to be in the interests of the corporation. Nothing less, but nothing more. [71] Despite his rejection of the Schafer presumption it is clear that his decision would have been the same had he applied it. This is so because the presumption referred to in Schafer, supra does not apply if the directors are partial, as suggested in the last sentence in 25 of Schaffer, supra quoted in 68 above and further explained in 28 of Schafer, supra: [28] The court went on at p. 134 to review whether the directors were impartial or independent to enable them to have reasonably concluded that the disadvantages to the company outweighed the advantages. The court held that the Chambers judge could have found that at the time the directors determined not to sue, they stood in dual relation which prevented them from exercising an unprejudiced judgment. [72] The basis of the judge’s decision not to defer to the directors and shareholders views of whether the action was in the interests of the Company, as disclosed by their rejection of Mr. Oickle’s request that they cause the Company to commence an action against Mr. Bunnell and Ms. Fraser, was that he found the directors and shareholders were partial: [43] The views of the directors are not of assistance in this case. None of them are impartial. Two of the three are the proposed defendants. As in Bellman v. Western Approaches Ltd., the recently appointed independent director is not impartial. As with all the other shareholders, she has sided with management's position that Mr. Oickle's shares have been forfeited on account of Mr. Oickle's wrongdoing. She has substantial interest in the outcome of that claim, as do all the shareholders. [45] Having chosen one claim it is not possible for Ms. Selig or any of her allied shareholders to be impartial. Therefore, am giving little weight to the opinions of the directors or the other shareholders. [73] The judge made his decision not to defer to the views of the directors and shareholders on the basis they were not impartial. The presumption referred to in Schafer, supra, does not apply where the directors are not impartial. Therefore, it is not necessary for me to consider if the judge’s decision not to apply the presumption set out in Schafer, supra, was an error unless am satisfied he erred in his conclusion that the directors and shareholders were not impartial. [74] In coming to his conclusion that the directors and shareholders were not impartial, the judge was entitled to draw inferences from the affidavits and cross-examination before him. The tenor of the pleadings and the affidavits and cross-examination of Ms. Selig and Ms. Fraser provided evidence to the judge on which he could infer that they were partial to Mr. Bunnell and opposed to Mr. Oickle. The November 28, 2004 shareholders’ resolution may suggest no other shareholder was willing to challenge Ms. Fraser and Mr. Bunnell, perhaps for fear of losing their jobs. Ms. Selig deposed that the derivative action would “decapitate” the Company. On cross-examination she testified that if Mr. Bunnell was fired (relief that was sought in the derivative action) the Company would not continue and her livelihood would be lost. The reliance of the directors and shareholders, other than Mr. Oickle, on Mr. Bunnell may have prevented them from acting impartially in determining if the derivative would be in the interests of the Company. None of the shareholders, including Ms. Selig, had independent legal advice. The foregoing was evidence upon which the judge could conclude the directors and shareholders were partial. [75] Accordingly, am satisfied that the judge did not commit reviewable error in concluding that they were not impartial. [76] After determining that the shareholders and directors were not impartial, the judge went on to consider whether there was an arguable issue raised by the proposed derivative action and what the amount at issue was, in order to determine whether it was in the interests of the Company to allow Mr. Oickle to commence derivative action. He concluded: [46] Whether the proposed suit will succeed is relevant to whether it is in the interests of the company. The onus is not “particularly heavy”: Henry v. 609897 Saskatchewan Ltd. (2002), 2002 SKQB 491 (CanLII), 31 B.L.R (3d) 36 (SQB) at para. 20. According to the Ontario Court of Appeal in Richardson Greenshields of Canada Ltd. v. Kalmacoff (1995), 1995 CanLII 1739 (ON CA), 123 D.L.R. (4th) 628 (OCA) at p. 636: “The court is not called upon at the leave stage to determine questions of credibility or to resolve the issues in dispute, and ought not to try. These are matters for trial.” The standard is similar to that on summary judgment application. Mr. Goldberg referred me to RE Marc‑Jay Investments Inc. and Levy (1975), 1974 CanLII 786 (ON SC), 50 D.L.R. (3d) 45 (OHC) where the standard was expressed this way at para. 9: “the intended action does not appear frivolous or vexatious and could reasonably succeed”. The British Columbia Court of Appeal referred to an “arguable case” in Bellman at para. 19, which the Court in Primex Investments Ltd. v. Northwest Sports Enterprises Ltd., [1995] BCJ 2262(SC) at para. 39 took to mean “a reasonable argument which would not be dismissed out of hand”. This is similar to our standard on summary judgment where the proponent must show there is no arguable issue to be tried, which is said to be the same as showing there is no genuine issue of material fact requiring trial: for the standard see United Gulf Developments Ltd. v. Iskandar, 2004 NSCA 35 (CanLII), [2004] N.S.J. 66 (CA) at para. 9. The standard is the same but the onus is not, as the proponent bares it. Thus, should assess the prospects of success by asking whether the applicant has presented evidence demonstrating an arguable issue worthy of trial, genuine issue of material fact requiring trial. [47] Mr. Oickle has presented evidence which, if accepted, could reasonably lead to the conclusion that Mr. Bunnell's salary has been substantially overpaid. The evidence of Ms. Fraser and Ms. Selig is not so compelling that the claim fails to raise genuine issue for trial. On the contrary, if there was shareholders agreement limiting Mr. Bunnell's salary, the evidence of Ms. Fraser and Ms. Selig might not undermine that agreement even if their evidence is accepted. Mr. Oickle has also presented evidence of unusual transactions that were to Mr. Bunnell's benefit or that of his charity and at the company's expense. Evidence of the kind offered by Ms. Fraser and Ms. Selig might show that these transactions were usual to the company and were authorized, albeit in casual way. However, am in no position to say that evidence will be accepted or, if accepted, will lead to finding that the expenditures were legal. am satisfied that the evidence presented by Mr. Oickle, coupled with that offered in reply and on cross‑examination, shows that the company has claims that could reasonably be presented and would require trial to resolve. [48] Having assessed negatively the value of the opinion of the directors and having assessed positively the reasonableness of the proposed claim, have to consider whether anything remains by which the proposed suit would be contrary to the interests of the company. It is prudent business not to authorize suit without weighing the financial cost and intangible costs against the potential gains, financial or intangible. Although know of no authority for it, think this has to be part of the inquiry into the interests of the company in the proposed suit. [49] Mr. Goldberg was unable to give me an estimate of the value of this claim. He says the records produced to the Court do not give the full picture and we will not be able to make an assessment until accounts are taken. He says the amount involved could be very high. am satisfied that the amount involved is not so small as to make pursuit of the action frivolous. However, cannot be satisfied that suit would be in the interests of the company if it went forward unconditionally. If leave is to be granted, an order can be made under s. 4(3) controlling the course of the proceeding in such way that concerns over costs and benefits can be alleviated. With that in mind, am satisfied that the proposed suit is in the interest of the company. [77] The judge’s approach of considering whether there was an arguable issue raised by the proposed derivative action to determine whether it is in the interests of the Company, is in accordance with the cases cited by the judge in 46 of his decision set out above including Marc-Jay, supra, where the court stated in that the standard is that “the intended action does not appear frivolous or vexatious and could reasonably succeed.” [78] The appellants have not satisfied me that the judge erred in concluding that Mr. Oickle met the third criterion in s. 4(2)(c) of the Third Schedule, that Mr. Oickle’s proposed derivative action appeared to be in the interests of the Company. [79] The fourth and last ground of appeal is whether the judge erred by imposing the terms he did on the derivative action, specifically the retention by Mr. Oickle of an accountant at the Company’s expense and requiring disclosure to the accountant. [80] The judge ordered: 3. Larry B. Oickle shall retain an expert at reasonable rates to account for the claims set out in the Originating Notice (Action) and Statement of Claim as attached hereto as Schedule “B”. L&B Electric Limited shall pay for the expert and will make all disclosure the expert reasonably requires. The expert will report to Larry Oickle as representative of L&B Electric Limited in the said derivative action. Larry B. Oickle is to promptly deliver the expert’s report to Martine Dumke and Rubin Dexter after which any party may apply to the Court for new directions should the Court be satisfied that the suit as attached hereto as Schedule “B” is not in the interests of L&B Electric Limited in light of the amount involved. [81] The judge’s decision indicates he imposed these terms as protection against the derivative action continuing if the amount in dispute, once determined, is not large enough to make it in the interests of the Company to continue. [82] Section 4(3) of the Third Schedule provides: (3) In connection with any such action brought or intervened in, the court may at any time make any order it thinks fit including, without limiting the generality of the foregoing, (a) an order authorizing the complainant or any other person to control the conduct of the action; (b) an order giving directions for the conduct of the action; (c) an order directing that any amount adjudged payable by defendant in the action shall be paid, in whole or in part, directly to former and present security holders of the company or its subsidiary instead of to the company or its subsidiary; (d) an order requiring the company or its subsidiary to pay reasonable legal fees incurred by the complainant in connection with the action. [83] The appellants agree s. 4(3) gave the judge broad discretion to make orders with respect to derivative actions. They argued however that his error arose from the fact the respondents’ application that was before him did not seek such an order and because the judge failed to give the appellants notice that he was considering granting such relief. [84] The appellants have not satisfied me that the judge erred in ordering these terms. The judge was satisfied from the evidence Mr. Oickle had been able to obtain about the Company, that it appeared there was substantial amount of money at issue making it in the interests of the Company to allow Mr. Oickle to commence the derivative action. Mr. Oickle’s counsel had estimated the amount may be $1,000,000. [85] At the same time the judge recognized the disadvantage Mr. Oickle was under trying to get full financial information from the Company while it continued to be controlled by Mr. Bunnell and Ms. Fraser. The way of determining the amount at issue was to have an audit done by an independent person. This was the next step. The audit is to be conducted in accordance with the scope of the pleadings and therefore the expert does not have unfettered access to the Company’s information. By granting this order the judge was able to ensure that the derivative action continued to be in the interests of the Company. [86] In light of the provisions in s. 4(3) giving the judge the ability to grant wide ranging directions, the appellants should have anticipated when faced with an application for leave to commence derivative action, the possibility of such an order, and requested the judge to give them an opportunity for input if he was going to make such an order. They did not do so. [87] The judge raised his concern about the amount at issue twice during argument at the hearing, once with each counsel. While it would have been preferable for the judge to have raised these specific terms with the parties more clearly to ensure he had their full input, his failure to do more than he did does not amount to reversible error. [88] Accordingly I would grant leave to appeal, but dismiss the appeal and order costs payable by the appellants to the respondents in the amount of $3,000 plus disbursements payable immediately. Hamilton, J.A. Concurred in: Bateman, J.A. Freeman, J.A.

The plaintiff company commenced an action against a former employee/shareholder for breach of fiduciary and employee duty. The shareholder defended and claimed that one of the directors had misappropriated funds from the company. The shareholder later retained a new solicitor, who successfully applied to amend the defence to withdraw certain admissions and amend the counterclaim to add a shareholder oppression remedy and for leave to bring a derivative action. The court found that, in the circumstances, the new counsel's assessment of his client's case was sufficient to allow the admissions in the defence to be withdrawn, the implied undertaking against the collateral use of discovery evidence did not apply because the pleaded material facts were the same facts material to the shareholder oppression action and the applicant bore an ordinary onus to establish the three statutory prerequisites. The court also directed the employee to retain an expert and for the company to pay that expert and make all reasonable disclosure that the expert reasonably required. The plaintiff company appealed. Appeal dismissed; there was evidence before the trial judge on which he could conclude that it was just that the admissions be withdrawn; with respect to the oppression remedies and the employee's status as a complainant, the wording of the earlier consent order could be interpreted as not suspending his rights as a former shareholder; there was a temporal connection between the impugned acts and his ownership of the shares and he had a sufficient interest in the oppression remedies. The terms the judge imposed were within the broad discretion conferred by the Third Schedule of the Companies Act and there was no breach of natural justice by the imposition of them.

5_2006nsca41.txt

nan 1999 SKQB 106 Q.B. A.D. 1996 No. 1329 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: SUSAN GARRETT, Administrator Ad Litem of the Estate of CLIFF ROBERT GARRETT, Deceased; MARGARET ATKINSON, Administrator Ad Litem of the Estate of JOHN SAMUEL ATKINSON, Deceased; SHERRY LYNN PARENTEAU, Administrator Ad Litem of the Estate of FLOYD EDWARD PARENTEAU, Deceased; DAWN WOOD, Administrator Ad Litem of the Estate of ALLAN WOOD, Deceased; MAUREEN BARBARA WHALLEY, Administrator Ad Litem of the Estate of NORMAN VICTOR WHALLEY, Deceased; GEORGE NOOITGEDAGT, Administrator Ad Litem of the Estate of HENRY HILLE NOOITGEDAGT, Deceased; SUSAN DOUGHTY, Administrator Ad Litem of the Estate of KENNETH NORMAN DOUGHTY, Deceased; MARGARET KANE, Administrator Ad Litem of the Estate of WILLIAM BARRY KANE, Deceased; PAULINE WAINWRIGHT, Administrator Ad Litem of the Estate of CHRISTOPHER WAINWRIGHT, Deceased; and SUSAN GARRETT, SUZANNE PEDDLE, MARGARET ATKINSON, SHERRY LYNN PARENTEAU, DAWN WOOD, MAUREEN BARBARA WHALLEY, SUSAN DOUGHTY, MARGARET KANE and PAULINE WAINWRIGHT, who each sue on their behalf; AND ALL OF THE PLAINTIFFS HEREIN who commence this action on behalf of themselves, the Estates of the Deceaseds, and all of the Dependents of the said Estates under The Fatal Accidents Act and CAMECO CORPORATION; CAMECO GOLD INC., LEN HOMENIUK; MAURICE LINDSAY; AL ROSSER; KUMTOR OPERATING GROUP; KUMTOR GOLD INC., and CAMECO CORPORATION, carrying on business under the firm name and style of KUMTOR OPERATING COMPANY, KUMTOR OPERATING GROUP, CAMECO/KUMTOR and CAMECO GOLD; ALTO CONSTRUCTION LTD.; P.T.I. GROUP, INC.; P.T.I. INTERNATIONAL LTD., TRAVCO INDUSTRIAL HOUSING LTD.; KILBORN ENGINEERING (SASKATCHEWAN) LTD., KYRGYZSTANABAZHOLDORU NATIONAL AIRLINE, carrying on business under the firm name and style of KYRGYZSTAN NATIONAL AIRLINE and the said KYRGYZSTAN NATIONAL AIRLINE, CLINTONDALE AVIATION INC.; and FORT SASKATCHEWAN AMBULANCE SERVICES, INC., KUMTOR MOUNTAIN COMPANY, KILBORN ENKA INC. and KILBORN WESTERN INC. DEFENDANTS L.L. Decore E. Onusko for the plaintiffs L.W. Olesen, Q.C. S. Delblanc for the defendants, Cameco, Kumtor Operating Group et al. S. Parthev for the defendant, Kilborn Engineering G. Young, Q.C. for the defendant, Clintondale Aviation FIAT LAING J. September 30, 1999 [1] The applications to be considered hereinafter seek better discovery both testimonial and documentary. The applications include one by the plaintiffs, one by the Cameco/Kumtor Operating Company group of defendants represented by Mr. Olesen, and one by the Kilborn Engineering group of defendants. The objections to questions or production of documents taken at the examinations for discovery fall under the broad categories of relevance, and privilege. Background [2] The action arises out of a helicopter crash which occurred in the Republic of Kyrgyzstan on October 4, 1995 which resulted in the death of three crew members and 12 passengers. The helicopter was owned and operated by the defendant, Kyrgyzstan National Airline. [3] The nine plaintiffs are the legal representatives of deceased passengers who were employed by some of the named corporate defendants who were involved in the construction of gold mine in Kyrgyzstan. The location of the mine site was considerable distance from the base camp, and it was necessary to ferry workers back and forth. For this purpose road (the quality of which is in issue) was constructed to allow for land transportation (a six hour trip), and helicopter transportation was the other method of transporting workers. [4] The Kumtor gold property is owned by Kumtor Gold Company, joint venture company, incorporated in Kyrgyzstan. The Kyrgyzstan government owns two-thirds of the shares, and Kumtor Mountain Corporation owns one-third. Kumtor Mountain Corporation is wholly owned subsidiary of Cameco Gold, which in turn is wholly owned subsidiary of Cameco. [5] The defendant, Kumtor Operating Company (“KOC”) was incorporated in Kyrgyzstan and is wholly owned by Kumtor Mountain Corporation. KOC became the operator of the Kumtor Gold Mine project by an agreement dated September 3, 1993 between itself and Kumtor Gold Company. [6] The defendant, Kilborn Enka Inc. is an engineering firm which entered into services contract with KOC on July 5, 1994, to provide engineering services to the Kumtor Gold project. [7] The plaintiffs allege that one or more of the above defendants carried on a negligent and reckless helicopter shuttle operation to and from the work site. The plaintiffs have pleaded why they allege the helicopter transportation by Kyrgyzstan National Air was unsafe. The allegations include all aspects of maintenance and operations of the helicopter service. They also allege the defendants knew it was unsafe (paragraph 13 of the statement of claim). [8] The statement of claim alleges the “bulk of responsibility for providing transportation in Kyrgyzstan was to be performed by and was assumed by Cameco directly or through KOC” (paragraph 12 of the statement of claim). Kyrgyzstan National Air has not appeared in the action. The plaintiffs plead the helicopter shuttle service was inherently dangerous, and allege that the Cameco group of defendants cannot avoid liability by reason of having hired an independent contractor. The Pleadings [9] The plaintiffs’ have pleaded in paragraph 12 of the statement of claim: The Plaintiffs further state, and the facts are, that the bulk of responsibility, contractual and other duties in regard to the providing of transportation within the Republic of Kyrgyzstan was to be performed by and was assumed by Cameco directly or through K.O.C. Alternatively, same was to be performed jointly by each of the Defendants. KOC as the operating company on site admits in it’s defence that it requested Kyrgyzstan National Airline to transport workers the day of the accident. The defendants’ Cameco Corporation, Cameco Gold Inc. and Kumtor Mountain Company in their collective statement of defence have pleaded in paragraph seven: In answer to the whole of the Claim herein, the Defendants, Cameco, Cameco Gold and Kumtor Mountain deny that they or any of them are or were the alter ego of Kumtor Operating Company (hereinafter referred to as “KOC”) and state that KOC was and is separate and distinct corporation which operates the Kumtor Project independently and of its own will by its own Board of Directors. Any decisions involving transportation made by KOC were made by it independently of Cameco, Cameco Gold and Kumtor Mountain. The foregoing pleadings have placed in issue who was the decision maker with respect to the mode of transportation of helicopter flights, and the selection of Kyrgyzstan Air as the operator of such flights. [10] Paragraph 13 of the statement of claim states in part: .The Plaintiffs state, and the fact is, that the Defendants knew or ought to have known that Kyrgyzstan Air and/or its crews habitually or regularly operated its aircraft negligently and recklessly, as above-mentioned. nan In response to this pleading both Kumtor Operating Company in its statement of defence (paragraph 11) and Cameco Corporation, Cameco Gold Inc. and Kumtor Mountain Company in their collective statement of defence (paragraph 11) do not admit that Kyrgyzstan Air was unsafe, and deny that they knew or ought to have known the airline was unsafe. [11] Based on the joinder of issues set out in the foregoing, the plaintiffs are entitled to question the respective officers of the defendant corporations, and receive production of all documents touching on the issues of: (i) Why helicopter transportation was selected. (ii) Why Kyrgyzstan Air was selected as the helicopter carrier. (iii) Who made the decisions with respect to each of the foregoing. (iv) Is KOC the alter ego or agent for Cameco with respect to the foregoing decisions? (v) Was Kyrgyzstan Air an unsafe airline. (vi) If so, did or should any of the defendants know or have known it was unsafe. (vii) Was the helicopter shuttle service an inherently dangerous operation. (viii) If so, can the defendants rely on the independent contractor defence. The Plaintiffs’ Application [12] The plaintiffs in their brief filed with respect to their application stated: The Plaintiffs will seek to show one or more of the following theories or concepts pointing towards liability of some or all of the Defendants. The theories include: 1. Construction of the road from Tamga to Kumtor site was over budget and use of helicopters was faster and cheaper; 2. Plans, at the outset, called for use of fixed wing aircraft to landing strip at Kumtor site. But construction of the landing strip was cancelled to save money; 3. The road was not fully completed and it took too much time to get workers from Bishkek to the site; 4. KAH helicopters then had to be used because they were faster and cheaper; 5. KOC, Cameco and other Defendants knew the helicopters were unsafe, yet continued to use them; 6. There was resulting saving of cost and time. 7. Were it not for the above (and other actions) the accident would not have occurred. It is submitted that detailed perusal of documents will suggest the possibility of these theories; thus their relevance. [13] Counsel for the Cameco/Kumtor defendants states in his brief as follows: On page of the Memorandum of the Plaintiffs, seven theories are set out. However, only Theory No. which states “KOC, Cameco and the other Defendants knew the helicopters were unsafe, yet continued to use them;” is plead. Questions relating to the other six theories are clearly irrelevant as they are not raised by the pleadings. [14] With respect, the position of the defendants fails to distinguish between facts which must be plead with sufficient particularity to define the issues in controversy and to allow the opposing party to know the case to be met (Vide: Ducharme et al. v. Davies et al. (1983), 1983 CanLII 2310 (SK CA), 29 Sask. R. 54 at p. 68 (Sask. C.A.); Rieger et al. v. Burgess et al. (1988), 1988 CanLII 209 (SK CA), 66 Sask. R. at p. 20-21 (Sask. C.A.)), with right on examination for discovery to explore the pleadings of the opposing party, and the issues raised by such pleadings. [15] Rule 139 states: (1) Every pleading shall contain and contain only statement in summary Form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which the facts are to be proved. pleading shall be as brief as the nature of the case will permit. (2) Where necessary full particulars of any claim, or defence shall be stated in the pleading. It will be observed from the foregoing, that statement of claim is not supposed to set out evidence by which facts are to be proved, or theories which the party has on why the opposing party may have done what the facts allege. Once fact or allegation is placed in issue in the pleadings, questioning on examination for discovery directed at the probabilities of which position or facts are correct, as matter of logic will always occur within framework of one or more theories the party doing the questioning wishes to explore. [16] The only significance of the plaintiffs identifying the theories they may hold behind any questioning with respect to these issues, is that by disclosing the theory it is easier to determine whether such questioning is or could be logically relevant to fact or position in issue. In other words identifying theory in answer to an objection on the basis of relevance, is simply means of identifying the question as broadly relevant to the issue. [17] As noted in Cominco Ltd. v. Phillips Cables Ltd., 1987 CanLII 200 (SK CA), [1987] W.W.R. 562 (Sask. C.A.) at p. 567, wherein the court approved the statement of Haddad J.A. in Czuy v. Mitchell, 1976 ALTASCAD 161 (CanLII), [1976] W.W.R. 676 (Alta. C.A.), at p. 683: In my view, then, it is the scope of the examination for discovery with which we are concerned in this appeal. Wide latitude is permitted. The examination may be searching and exploratory. Questions on discovery are relevant so long as they touch “the matters in question” and fall within bounds that are reasonable. If the questions asked are relevant to the matters in issue or can possibly affect the issues between the parties if they are questions which may be permitted on cross-examination then they must be answered. In the same decision Cameron J.A. speaking on behalf of the court at p. 566: nan [T]he test of relevance is broader on discovery than at trial, and greater latitude is permitted at this stage of the proceedings than later. [18] The parameters of the broader relevance standard with respect to discovery were identified in follow-up decision to Cominco Ltd. v. Phillip Cables Ltd., supra, in the case of Steier v. Univ. Hosp. Bd., 1988 CanLII 215 (SK CA), [1988] W.W.R. 303 (Sask. C.A.) which related to disclosure of documents, and wherein Tallis J.A. stated at p. 306: nan Furthermore, the order, when viewed in the light of the pleadings, comports with the general principle that party is entitled to discovery of document or record if it directly or indirectly enables him to advance his own case or destroy that of his adversary, or may fairly lead to train of inquiry which may have either or these consequences: [authorities omitted]. [original emphasis] The foregoing statement applies equally to questions which may be put on examination for discovery. [19] It follows from the foregoing, that questioning directed at establishing facts from which the trier of fact might be asked to draw inferences is also permissible, as long as such inferences are logically relevant to facts or positions in issue. As noted per Doherty J.A. in the criminal case R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 50 C.R. (4th) 245 (Ont. C.A.) at p. 257: .Relevance as explained in these authorities requires determination of whether as matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A.” If it does then “Fact A” is relevant to “Fact B”. As long as “Fact B” is itself material fact in issue or is relevant to material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible. [20] In the context of the pleadings in this case, questions on the availability of alternative forms of transportation, the cost of such alternatives, the reliability or safety of such alternatives, the dependability of the alternatives, etc. is proper. Answers to all of these questions are logically relevant to the choice made by one or more of the defendants because they are factors one would expect any decision maker to take into account in deciding a specific form of transportation, and are also relevant to test the credibility of answers that may be provided by the corporate officers with respect to the reasons for the choices made. [21] Questions which relate to the topography of the area between the base camp and the mine site, and the location of the road between the two sites are relevant not only as background information to the scene of the accident, but also in support of the plaintiffs’ allegation that the helicopter shuttle service was inherently dangerous. [22] Questions directed at whether the project was over-budget at any particular time prior to the accident are relevant with respect to the issue of transportation. To the extent the plaintiffs’ wish to explore theory that cost was major consideration in the defendants’ continued use of Kyrgyzstan National Air as shuttle service, the issue of costs is relevant to the credibility of whatever other reasons may be offered by one or more of the defendants. Such questioning, no matter what answers are received, does not prove the airline was unsafe, but when combined with other evidence may lead to inferences, the plaintiffs’ will wish to ask the trier of fact to draw. However, allowing questions on whether the project was over-budget at any particular time, does not mean the plaintiffs’ are entitled to question the details of the budget, or why money was spent in certain areas as opposed to other areas. The budget itself is not relevant to any matters in issue. The only relevance is whether cost entered into one or more of the defendants’ choice to utilize Kyrgyzstan Air, and to that extent whether the budget was over or under is relevant. It follows that documents indicating the state of the budget compared to actuals in the period of time prior to the accident are also relevant and producible. [23] The officers of KOC and Cameco who were examined for discovery declined to answer whether liability insurance had been obtained by KOC or Cameco with respect to Kyrgyzstan Air helicopter flights, the details of any such insurance, and if it was obtained who paid the premiums. The defendants’ position is that the question of insurance is irrelevant. Normally whether party is insured or not is irrelevant to the issues of liability and quantum of damage. However, to the extent the questions posed by the plaintiffs are directed at who may have paid for such insurance, such question is directly relevant to paragraph 12 of the statement of claim set out, supra, in which the plaintiffs’ allege the bulk of responsibility in regard to the providing of transportation within Kyrgyzstan was to be performed by and was assumed by Cameco directly or through KOC. Insurance is normal concomitant of transportation, and is relevant if the issue is who may have arranged the transportation. The defendant corporations therefore are obliged to answer questions directed at whether insurance was obtained, and if so who arranged and paid for the same. Requiring the defendant corporations to answer such questions at this time does not mean the questions and answers are automatically admissible at trial. As noted in Cominco v. Phillip Cables Ltd., supra, at p. 568 referring the decision of McLellan J. in Ratner Reality Ltd. v. Sask. Telecommunications, [1981] Sask. D. 3628-01 (Sask. Q.B.) (affirmed Sask. C.A., 14th December 1981). With deference am of the opinion that such ruling should not be made on an application of this nature. It is possible that after having heard the answers to the questions put to the witnesses, counsel for the plaintiff will not attempt to introduce the evidence at trial. If he does, the trial judge will be in better position to judge the admissibility of the evidence in question, and if admissible, under what conditions it should be admitted or the weight to be attached to it. [24] KOC declined to answer question on why two Kyrgyzstan persons were appointed to the Board of Directors of KOC, which company is wholly owned subsidiary of Kumtor Mountain Corporation, which as noted above is wholly owned subsidiary of Cameco Gold, which in turn is wholly owned subsidiary of Cameco. The statement of claim and the statements of defence place in issue the relationship between the various subsidiary corporations particularly with respect to decisions affecting transportation. The purpose of having two Kyrgyzstan persons on the Board of Directors of KOC and the degree of involvement in activities of the Board of Directors of KOC is broadly relevant to the decision making of the Board with respect to issues of transportation, if indeed the Board considered such matters. The defence claim that such question is irrelevant to the pleadings is not accepted and the questions should be answered. [25] The proper officer examined on behalf of Cameco/KOC was instructed by counsel not to answer question whether there was an e-mail system in existence between Cameco and KOC and if so the date it became operational. Plaintiffs’ counsel point out that no e-mail documents were produced in the KOC statement as to documents. The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16 defines “record” as including any information that is recorded or stored by means of any device, including computer. Clearly if there is such record related to matters in issue in this law suit, the same is producible. question directed at when the e-mail system was established is not irrelevant for the simple reason that until such date is known it cannot be known whether such records are in existence during the relevant period of time. Questions related to the e-mail system are properly answerable. [26] The plaintiffs’ asked the defendant corporations to advise when survival gear was placed on board Kyrgyzstan Air helicopters. The witness replied such equipment was on board in September 1995, and counsel for the KOC took the position that when it was placed on board prior to September 1995 was not relevant. The plaintiffs’ have alleged the operations of Kyrgyzstan National Air were unsafe in many respects, and have alleged that various of the corporate defendants knew such operations were unsafe. When survival gear was placed on board the helicopters may not be relevant as to why the helicopter accident occurred, but it is relevant to the overall allegation of unsafe operation. Apparently consultant’s report recommended in April 1995 that such equipment be placed on board each helicopter, and the date this recommendation was implemented is clearly relevant with respect to the issue of unsafe operation, and possibly the defendants’ knowledge of the same. What, if any, inferences flow from the answer to the question is for the trier of fact to eventually determine. If the defendant, KOC is in a position to determine when such survival gear was placed on board the helicopters, the question should be answered. [27] The corporate officer examined on behalf of Cameco was asked to produce records as to when airfare tickets were reserved and purchased by Mr. Vernon Kiss and Mr. Bernard Michel for a meeting which took place in London on April 12, 1995. The response was that when the tickets were reserved or purchased was irrelevant to the issues raised in the pleadings. The refusal to answer this type of question indicates as do some of the other objections noted earlier, an attempt by counsel for the defendants’ to control the avenues of questioning by the solicitor for the plaintiffs. Counsel for the party conducting an examination for discovery is not required to justify why every particular question is asked simply because the reason for the same is not obvious to opposing counsel. As noted earlier herein the relationship between Cameco and its various corporate subsidiaries is in issue in the law suit. If the plaintiffs’ wish to know when the President of Cameco met with certain people or when he arranged to travel to certain locations with respect to the Kumtor Gold Project, such information is broadly relevant. These questions should be answered. [28] The foregoing remarks may not cover all objections made to questions by plaintiffs’ counsel, but hopefully supply sufficient guidance to allow the parties to resolve any additional objections not specifically dealt with. If not, leave is granted to reapply for direction. [29] Following the helicopter accident on October 4, 1995, the defendant corporations caused an investigation to be conducted by number of individuals and corporations. Litigation counsel for Cameco and KOC filed an affidavit stating he was retained to deal with potential litigation issues arising out of the accident on October 5, 1995, and thereafter he gave advice to retain certain consultants in order to assist him to evaluate the liability issues. The consultants retained were Mr. Issenman and Proav International Aviation, and Clintondale Aviation Inc. Litigation privilege is claimed with respect to these reports. Following the accident, general counsel for Cameco Corporation, who is an employee of Cameco, states he advised all relevant employees who might have information with respect to the accident that “all documentation prepared with respect to helicopter transportation by KOC or the subject helicopter crash was to be privileged and confidential for the instruction of either myself as counsel for Cameco or the instruction of litigation counsel for KOC.” considerable number of memoranda were generated by employees following this instruction. [30] The president of KOC also filed an affidavit stating that he understood from the time litigation counsel was retained on October 5, 1995 “. that all documentation, including internal reports, records of interviews, and documentation with respect to the helicopter transportation and the crash was to be confidential and to be made available to legal counsel for advice and instruction.” With respect to this material litigation privilege and solicitor client privilege is claimed. [31] Counsel for the plaintiffs’ takes the position that: (1) Many of the internal memoranda are not properly identified. (2) The claimed privilege is too broad, and effectively prevents him from ascertaining the names of potential witnesses, which may result in him being taken by surprise at trial. (3) Questions how memorandum from one employee to another can be claimed as privileged. (4) Questions if the predominant purpose with respect to all such memoranda and expert reports was contemplated litigation as opposed to the prevention of similar accident in the future. In this respect he asks the court to review the documents for which privilege is claimed. (5) In any event the report of Mr. Eric Rast who was the safety officer at the main camp site prior to the accident is not privileged because he was requested to prepare safety report prior to the accident, but did not get around to it until after the accident. [32] Before reviewing the law of privilege and how it applies in the factual situation outlined in the foregoing, it is worth noting that there was an official aircraft investigation report prepared with respect to the helicopter accident which has been made available to all parties. The conclusions of this investigation are at p. 13 of the report and state as follows: 3. CONCLUSIONS The crash of Mi-8 MTV helicopter No. EX 25179 occurred because the crew was flying in mountains below the safe altitude in poor weather conditions, and this resulted in the helicopter crashing into the mountainside and being completely destroyed. The crash was able to occur because of combination of several unfortunate factors: The crew had deviated from the approved route. The crew did not decide to turn back when they encountered weather worse than the minimum set for VFR flying. The crew improperly decided to drop below the safe altitude while flying in mountainous area out of visual contact with the ground. The weather forecast was wrong about the altitude of the lower edge of the clouds and the visibility, and this made it difficult for the crew to orient themselves visually. As noted earlier, Kyrgyzstan National Air has not filed an appearance in this law suit, and the assumption is it does not intend to defend its liability for the accident. This would not have been known at the time counsel was engaged to advise on litigation issues for KOC and Cameco. In any event, as subsequent events have shown, the other corporate defendants had reason to be concerned that they might be joined in an eventual law suit, and it was not unreasonable that they would wish to conduct their own investigation and retain their own experts under the guidance of litigation counsel. [33] The test in this province to determine if litigation privilege will attach to documents is that set out in Laxton Holdings Ltd. et al. v. Lloyd’s Non-Marine Underwriters et al. (1988), 1988 CanLII 5250 (SK CA), 72 Sask. R. 313 (Sask. C.A.) at p. 316 where Sherstobitoff J.A. noted: The law has come to us from Australia via Great Britain. The principle is stated by the Australian High Court in Grant v. Downs (1976), 135 C.L.R. 674, at p. 677; 11 A.L.R. 577: Having considered the decisions, the writings and the various aspects of the public interest which claim attention, have come to the conclusion that the Court should state the relevant principle as follows: document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection. [34] With the exception of the Rast Report the two parts of the foregoing test are satisfied on the facts of this matter. The affidavit material establishes that the purpose of retaining experts and requesting employees to provide their observations and comments was to assist litigation counsel with respect to anticipated litigation. It cannot be said the prospect of litigation was not real at the time bearing in mind the number of fatalities which occurred in the accident. Plaintiffs’ counsel’s suggestion there might have been an equally dominant purpose of avoiding repetition of such an accident in the future as was found in Waugh v. British Railways Board, [1979] nan All E.R. 1169 (English C.A.) might have more force and require further investigation if KOC or Cameco had been the transporter. One assumes that public carrier involved in an accident would wish to investigate the causes of the accident apart from the liability issues. There is no such reasoning applicable to KOC or Cameco in this matter. [35] There is no reason to doubt the veracity of the affidavits which were submitted in support of the litigation claim, and no basis has been established that would justify this court examining the documents in order to determine whether the predominant purpose of the investigation or expert reports was potential litigation. As noted per Armstrong J. in HMW-Bennett Wright Contractors Ltd. et al. v. BWV Investments Ltd. et al. (1992), 1992 CanLII 7882 (SK QB), 99 Sask. R. 282 (Sask. Q.B.) at p. 284, unless the party challenging the privilege shows some reason why the claim of privilege advanced in the statement as to documents is not conclusive, it will be. In this case the plaintiffs have failed to establish any such reason. [36] With respect to plaintiffs’ counsel’s questioning how memorandum from one employee to another can be claimed as privileged, the answer is as noted in the quote from Grant v. Downs, (1976) 135 C.L.R. 674 at p. 677 quoted by Sherstobitoff J.A. in Laxton Holdings v. Madill et al., supra, document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction whether particular or general, is was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation. nan If senior employees request other colleagues or more junior employees to produce information for the purposes of informing litigation counsel, the privilege attaches. [37] With respect to the privileged documents claimed in the statement as to documents, plaintiffs’ counsel requests the names of the persons who made the documents, and the name of the person to whom or for whom same were presented or prepared, along with the date of the document. Plaintiffs’ counsel is correct that the date of the document is required in order to determine whether it falls within the time frame for which privilege is claimed. The relevant defendants are therefore ordered to date any document for which privilege is claimed. [38] However, counsel’s request that the persons who prepared the document and received the document be named, is simply an attempt to investigate the investigation conducted by the defendants which I noted in Auchstaetter v. Froese, 1995 CanLII 5631 (SK QB), [1995] 4 W.W.R. 716 (Sask. Q.B.) is not permitted for the reasons outlined therein. The Saskatchewan Rules of Court do not require the names of expert witnesses who have prepared reports for which privilege is claimed, and the same rationale applies to non-expert privileged memoranda. All that is required is that the document be sufficiently identified to allow the opposing party to assess whether the claim for privilege should be challenged. As has been noted elsewhere; (Vide: International Minerals Chemical Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al. (1989), 1989 CanLII 5052 (SK QB), 80 Sask. R. 251 (Sask. Q.B.) at p. 254) the facts and observations relevant to matters in issue contained in such documents are disclosable. It is true this procedure places the onus on the questioner to ask the right questions, but this obligation is inherent in the adversarial process. [39] If a person disclosed his or her pre-accident observations to someone in the subsequent investigation which is privileged, that person’s observations are disclosable. Plaintiffs’ counsel is entitled to ask, for example; Did any of your employees have safety concerns with the helicopter shuttle prior to the accident? If so, what concerns did they have? Did such persons communicate these observations to anyone else prior to the accident? If so, who? When? It is at this point, that if affirmative answers are forthcoming, plaintiffs’ counsel, on the facts of this case, is entitled to ask the name of the person making such observations. [40] With respect to disclosure of names of potential witnesses in trial, Soke Farm Equipment Ltd. v. New Holland of Canada Ltd., 1990 CanLII 7811 (SK CA), [1990] W.W.R. 762 (Sask.C.A.) provides discretion to the chamber judge as to when witness names may be ordered. consider this an appropriate case to require disclosure of the names of employees or agents of any of the named corporate defendants who to one or more of the defendants’ knowledge made factual observations or communicated such observations to others with respect to those matters in issue. [41] The accident occurred in remote part of the world. The present plaintiffs, being the legal representatives of the deceased persons, have no personal knowledge of events in Kyrgyzstan prior to the accident. Their only means of knowledge is through persons who were there. To the extent the defendants have knowledge of persons who made observations relevant to the matters in issue, the names of such persons must be disclosed if requested after the answer provided by the defendant corporate officer discloses relevant information emanating from that person. If any employees expressed safety concerns about the helicopter shuttle prior to the accident, these concerns, while matters of opinion only, are nevertheless disclosable. The analogy is “prior complaint”. One of the issues in the pleadings is whether the defendants knew or ought to have known the helicopter flights constituted an unusual danger. As noted in Milton Farms Ltd. et al. v. Dow Chemical Canada Inc. (1987), 1987 CanLII 4690 (SK QB), 63 Sask. R. 144 (Sask. Q.B.) any such concerns expressed are relevant to any one defendants’ knowledge with respect to this issue. [42] Finally, litigation privilege attaches to document only until such time as party determines to utilize the document at trial. As noted in Auchstaetter v. Froese, supra, under our Rules, party must disclose any such document prior to the pre-trial conference. Likewise the Rules provide that existing expert reports must be produced prior to pre-trial conference. The Rast Report [43] Mr. Rast had the title of Safety Superintendent with KOC in Kyrgyzstan. He was apparently requested to prepare report on safety equipment and survival gear on board the Kyrgyzstan Air helicopters prior to October 4, 1995 (pp. 361-362 of the Examination for Discovery of Len Homeniuk). At question 1692 Mr. Homeniuk stated: Mr. Rast was on turnaround. He was out for the 28 days prior to October 5th, that’s why the report wasn’t finished. believe he did the inspection few days prior to his departure from Kyrgyzstan, which would make it early September. And didn’t complete the report until after October 4th? The formal report, correct, yes. Counsel then went on to ask, and was given an undertaking to advise as to what facts and observations were obtained by Mr. Rast as result of his inspection. Mr. Homeniuk has since completed the undertaking, but plaintiffs’ counsel maintains he is entitled to the actual report on the basis that the predominant purpose of the report was not litigation as it had been requested prior to the accident. Plaintiffs’ counsel states the topic and report are relevant to the allegation that KOC and/or Cameco knew that Kyrgyzstan Air was an unsafe operator. [44] Defence counsel resists the request and relies on the Alberta Queen’s Bench decision of Pechiney Metal Service (Canada) Inc. et al. v. Suncor Inc. (1997), 203 A.R. 220, where the report in question had been requested by in house counsel following fire which had occurred at the Suncor Plant before litigation had been threatened but was not altogether unanticipated. By the time the report was prepared litigation had commenced. In that case, the learned chambers judge concluded at p. 225 that the dominant purpose underlying the creation of the report was its use in the litigation then underway. [45] There is not enough information before me to know whether the Rast Report should retain its privileged status. It is not known whether the Report which was prepared after litigation includes matters other than what Mr. Rast was requested to report on prior to the accident. As a result I feel I should review this Report before making a decision with respect to its privileged status. Defence counsel is requested to provide the Local Registrar with copy of this Report for my perusal. Confidentiality Agreements [46] The employment agreement signed by employees of KOC contained a confidentiality clause, the wording of which is not important in view of the ruling I propose to make, and the release documents signed by employees who terminated their employment with KOC also contained a clause in which the employee agreed not to disclose any proprietary information learned during the employment. Part of the definition of “proprietary” included “business information”. At least one former employee has indicated through his lawyer that he is prepared to talk to plaintiffs’ counsel but not without court ordering him to do so for fear of breaching the confidentiality agreements above referred to. [47] The employee in question was an employee of KOC at senior level in Kyrgyzstan. Counsel for KOC does not object to the court making an order, but claims he should be entitled to be present at any interview to ensure that questioning is related to the matters in issue, and to make sure plaintiffs’ counsel does not probe for privileged information. In other words, defendants’ counsel does not wish plaintiffs’ counsel questioning this person on what he knows about the investigation conducted by KOC and the experts retained by it. In view of the fact the employee has contracted not to disclose business information, which is a broad enough category to include privileged investigations carried out by the employer, it does seem reasonable to allow KOC’s counsel and Kilborn’s counsel to be present at any such interview. Defendant counsel’s presence will be solely to object, if necessary, to questions related to the witnesses knowledge of the post-accident investigation, and for no other reason. With the foregoing restriction there will be an order that information given by this employee to plaintiffs’ counsel with respect to the matters in issue does not amount to a breach of the confidentiality clause contained in the employment agreement or the release document signed by him. Clintondale Chronology of Events Pre-dating the Accident [48] The chronology document is privileged on the basis it represents the work product of a privileged investigation. While the material is factual, the choice of what is included and what is not included in the chronology is work product. This document remains privileged. Miscellaneous [49] Plaintiffs’ counsel has not established the necessary criteria pursuant to Rule 222(a) of the Rules of Court to justify examining for discovery the two former employees referred to in the material. With respect to one employee an interview is available as set out in the foregoing. With respect to the other employee the information requested has been forthcoming through undertakings. [50] The request to explore post-accident conduct and activity on the part of senior executives of one or more of the corporate defendants on examination for discovery is also dismissed. have indicated in the foregoing am satisfied the predominant purpose for such post conduct activity was the potential for litigation. If the defendant officers sought to establish alternate forms of transportation following the accident, it is understandable, but nevertheless irrelevant to the issues raised in the pleadings. Cameco/KOC Application [51] Defendants’ counsel’s request pursuant to Rule 142 to obtain from the plaintiffs particulars of the statutes and regulations referred to in the statement of claim including particulars of the sections allegedly breached, is proper. This information should be supplied by plaintiffs’ counsel within 45 days. [52] With respect to questions the plaintiffs’ representatives did not answer on discovery with respect to facts, knowledge, and position the same must be answered for the reasons outlined in the foregoing. Bearing in mind the number of plaintiffs, and the fact that plaintiffs’ counsel is the most informed person with respect to the information requested and the positions to be taken by the plaintiffs with respect to that information, it might be easier if counsel placed the answers on the record and thereafter had one or more of the plaintiffs’ representatives adopt such answers. [53] With respect to the names of potential witnesses, defence counsel are entitled to a reciprocal order to that made in favour of the plaintiffs. The names of persons who have provided facts or observations prior to the accident to counsel for the plaintiffs’ relevant to the issues are to be disclosed in the same circumstances outlined with respect to the order in favour of the plaintiffs. The Kilborn Application [54] To the extent applicable, the remarks made in the foregoing and the orders made in the foregoing with respect to disclosure and names of witnesses apply equally to Kilborn. [55] With respect to the question on whether the wife of a deceased person can be asked if in her opinion her husband would have boarded an aircraft he felt was unsafe, the question calls for a lay opinion, and the only matter the question is relevant to is the character of her late husband. Character evidence is limited to reputation in the community and does not allow for personal opinion. Apart from the issue of whether such character evidence would be admissible at trial, the question as framed is improper. [56] As success has been mixed in this matter, there will be no order as to costs. [57] Orders accordingly.

FIAT. One of the nine plaintiffs, legal representatives of passengers killed in a helicopter crash in 1995, and two defendants sought better testimonial and documentary discovery. Objections to questions or to the production of documents at the examinations for discovery fell under relevance and privilege. The plaintiffs alleged the defendants carried on a negligent and reckless shuttle service to and from the work site and that the Cameco group could not avoid liability by reason of having hired the Kyrgyzstan National Airline as an independent contractor. HELD: 1)Relevancy. The plaintiffs were entitled to question officers of the corporations and receive production of all documents touching on the issues of why the helicopter and the airline were selected; who made these decisions and whether KOC was the alter ego or agent for Cameco in this respect; whether the airline was unsafe; if so, should any of the defendants have known it was unsafe; was it inherently dangerous; and if so, could the defendants rely on the independent contractor defence. Questions relating to availability, cost and reliability of alternative forms of transportation were logically relevant. Questions as to topography were relevant as background information and supported the allegation the shuttle was inherently dangerous. Whether the project was over budget was relevant but the budget itself was not. Although questions directed at whether insurance was arranged and by whom were to be answered, the information is not automatically admissible at trial. Questions relating to the e-mail system and when survival gear was placed on board were properly answerable. Records as to when the tickets were reserved and purchased were to be produced. Counsel is not required to justify why every particular question is asked. The relationship between Cameco and it various subsidiaries was in issue and the information as to when the president met certain people was broadly relevant. Leave was granted to reapply for direction. 2)Privilege:(a)The defendants were ordered to date any document for which privilege was claimed. The document must be sufficiently identified to allow the opposing party to assess whether the claim for privilege should be challenged. (b)The request for names of the persons who prepared documents was simply an attempt to investigate the investigation and was not permitted. The Rules of Court do not require the names of expert witnesses who prepared reports for which privilege is claimed. The same rationale applies to non- expert privileged memoranda. (c)Pre-accident observations disclosed to someone in the subsequent privileged investigation are disclosable. The plaintiff is entitled to ask the name of any employee who expressed safety concerns about the shuttle prior to the accident. While matters of opinion only, such concerns are disclosable. A reciprocal order with respect to the names of potential witnesses was made in favour of the defendants. (d)Litigation privilege attaches only until such time as party determines to utilize the document at trial. Under the Rules of Court party must disclose any such document and produce any existing expert reports prior to the pre-trial conference. (e)The report on safety equipment and survival gear prepared by the KOC Safety Superintendent was to be reviewed by the court to assess whether or to what extent it was privileged. It was not known whether the Report prepared after litigation included matters other than what the Superintendent was requested to report on prior to the accident. (f)It was ordered that information given by a former senior level KOC employee would not amount to a breach of the confidentiality agreement. The agreement not to disclose any proprietary information, including business information, was broad enough to include privileged investigations carried out by the employer. Counsel for KOC and Kilborn were permitted to be present at the interview. (g)The chronology document was privileged on the basis it represented the product of a privileged investigation. 3)The necessary criteria under Rule 222(a) was not established to justify examining for discovery the two former employees. The request to explore post accident conduct of senior executives was dismissed. Seeking to establish alternate forms of transportation was irrelevant to the issues. 4)Particulars of the statutes and regulations referred to in the statement of claim, sought under Rule 142, were to be supplied within 45 days. 5)The question asking the spouse if in her opinion her husband would have boarded an aircraft he felt was unsafe was improper as framed. The question was relevant only to character. Character evidence is limited to reputation in the community and does not allow for personal opinion. 6)There was no order as to costs as success was mixed.

e_1999skqb106.txt

J. Q.B. A.D. 1991 No. 4813 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: MADELON SMID and ROBERT ROOKE and FRANK BIRD DEFENDANTS Reynold A. Robertson and Tracy McManus for the plaintiff Jennifer Bailey for the defendants JUDGMENT KLEBUC J. February 7, 1995 Ms. Smid seeks judgment for damages she suffered as consequence of Mr. Rooke's negligent operation of the motor vehicle owned by Mr. Bird. All of the elements of Ms. Smid's claim have been resolved with the exception as to whether Ms. Smid's injuries were caused by Mr. Rooke's negligence. Theparties propose to resolve the issue of causation by havingthis Court answer the following question:Did the motor vehicle accident cause or contribute to any ofthe plaintiff's injuries or damage? BACKGROUND FACTS Ms. Smid is 46 years of age and her principal occupations are that of writer and home maker. Her claim arises out of motor vehicle collision that occurred on public thoroughfare within the City of Saskatoon on February 4, 1991 (hereinafter called the "collision"). On this date Ms. Smid was driving 1983 Cierra Cutlass Oldsmobile which she had stopped in line of traffic near controlled intersection when 1986 Hyundai Pony motor vehicle owned by Mr. Bird and operated by Mr. Rooke struck the rear bumper of the Cierra. The impact of the collision jarred Ms. Smid and her passenger, and caused loose objects sitting on the seats of the Cierra to fall to the floor, but caused no visible physical damage to either vehicle. Ms. Smid suffers from chronic condition which makes it uncomfortable for her to distribute her upper body weight equally between her left and right buttock while seated in motor vehicle. To avoid discomfort, she turns her body slightly to the left in order to place disproportionate amount of her body weight on her left thigh and left buttock. At the time of the collision she was sitting in such position in the driver's seat of her vehicle and had both hands on the steering wheel. Within hours following the collision, Ms. Smid experienced back pain for which she sought immediate medical treatment. She continued to experience pain and discomfort for protracted period and consulted numerous medical practitioners for treatment of her problems. will discuss the nature of medical consultations and the treatments prescribed only to the extent they are relevant to the issue of causation. The defendants submit the pain and discomfort experienced by Ms. Smid relate to pre-existing injuries and to two mishaps that pre-date the collision. The first of these events occurred in mid-January, 1991 while Ms. Smid was visiting third party in Edmonton, Alberta. On this occasion she "pulled something in her right hip" while moving large wardrobe box (hereinafter called the "box event"). On this occasion she experienced considerable pain in her right hip and lower back but she refrained from seeking medical advice until she returned to Saskatoon on January 18, 1991. On this date she arranged for an appointment to see Dr. Alana Danilkewich, her family physician, on January 28, 1991, such date being the earliest date on which Dr. Danilkewich was available. Shortly before January 28, Ms. Smid slipped and fell to the ground while playing with young children (hereinafter called the "fall event"). While Ms. Smid appeared not to have clear recollection of such event, Dr. Danilkewich's notes covering her examination of Ms. Smid on January 28 confirm that Ms. Smid complained of back pain and pain in her right buttock as result of the fall event and that Ms. Smid could not travel in motor vehicle as result. During the examination, Dr. Danilkewich conducted series of neurological examinations including flexing test, sensation test, strength test, range of motion test, gate test and straight leg test and observed straightening of the back, some tenderness over the right sacroiliac joint, and pain primarily in the right sacroiliac joint. She diagnosed the condition to be pain in the right sacroiliac joint with evidence of muscle spasm in lower back and then referred Ms. Smid to Dr. Michael Sax for chiropractic treatment. In his medical report dated October 4, 1991 (exhibit P-2a), Dr. Sax confirmed that he attended on Ms. Smid and diagnosed her condition as "lateral sacroiliac joint dysfunction" which he treated with three sessions of spinal manipulation. In his report he comments that the manipulation settled much of her lower back pain. Ms. Smid confirmed that shortly after the treatments her pain and discomfort quickly subsided to the point where she could undertake normal activities. Following the collision, Ms. Smid testified she experienced pain in her lower back immediately after the accident and because Dr. Danilkewich was not available, she immediately consulted Dr. Fanner who arranged for her spinal column to be x-rayed. In his medical report dated September 27, 1991 (exhibit P-2b), Dr. Fanner confirmed that the x-rays taken showed no evidence of fracture and that in the absence of x-ray findings, he was of the view the injuries sustained were those of "muscular and ligamental strain, undoubtedly more severe in Ms. Smid's case because of her pre-existing sacroiliac problems". The next day, being February 15, 1991, Ms. Smid consulted Dr. Sax who examined her and found that she had "persistent dysfunction of the left sacroiliac joint" which he treated by series of manipulations of such joint. In his medical report he confirmed that he last saw Ms. Smid on February 25, 1991, at which time no sacroiliac joint dysfunction was evident. Ms. Smid's pain persisted. Therefore, she consulted Dr. Danilkewich on March 8, 1991. Dr. Danilkewich confirmed she examined Ms. Smid on March 8th and observed: straightening of the curvature in her spine due to tightness in her back muscles; that Ms. Smid could only bend forward to within one inch from the floor; change in sensation to touching on the right side of her body; normal reflexes; straight leg raises were limited to 80% rather than 90%; muscle spasms over entire back rather than only on right side; and pain on left side of body rather than the right side as before. Based on her examinations and clinical experience Dr. Danilkewich opined that the lack of sensation indicated nerve injury or continued nerve injury, or that this disc may have herniated and was pushing against the nerve root. However, the diagnosis recorded in her notes at the time of Ms. Smid's complaint is that of "lumbar sprain" for which she prescribed physiotherapy treatment and Moltrine. Despite her alleged pain and discomfort, Ms. Smid accompanied her husband on skiing trip to Kalispell, Montana, where she skied for several days. While skiing, she fell on one occasion and shortly thereafter she had to stop skiing due to back pain. On her return to Saskatoon she continued with physiotherapy treatments and experienced some temporary relief. On March 27, 1991, Ms. Smid was again examined by Dr. Danilkewich who noted that her leg flexion had returned to 90� angle; that her back muscles were less tender; and that her overall condition had markedly improved. She did not revise her earlier diagnosis of lumbar sprain with the possibility of nerve damage. Ms. Smid next attended on Dr. Danilkewich on April 4, 1991, with complaint of back pain. On this occasion Dr. Danilkewich notes that Ms. Smid is writing four hours day and is experiencing pain in the lower lumbar; that her ability to flex is reduced to 75%; that her sacroiliac joint is tender; and that she can raise her legs to 90%. Dr. Danilkewich attributed the lower back pain to Ms. Smid having increased her work load and having discontinued the physiotherapy treatments prescribed earlier. While Ms. Smid consulted Dr. Danilkewich on various occasions subsequent to April 4, the next major attendance was on July 24, 1991, when Ms. Smid complained of tingling sensation in her right foot. During her examination of Ms. Smid, Dr. Danilkewich observed more muscle spasm; tenderness on the right side of her body; an inability to do straight leg raises; and limited back bending. Her diagnosis was "right sided sciatica". Dr. Danilkewich prescribed muscle relaxant called "Flexoril" and referred Ms. Smid to Dr. Dust, an orthopaedic surgeon. Dr. Dust in medical report dated February 29, 1991 (exhibit P-2f) reports as follows: On examination at that time, she moved around with mild to moderate amount of difficulty. She walked with limp and stood with list. She had decreased range of motion in her back. Straight leg raising was positive on the right side at 40 degrees. Cross straight leg raising was positive at 50 to 60 degrees. There was decreased sensation in both the right L5 and S1 dermatomes. Motor strength was correspondingly weak in the L5 distribution with weakness of extensor hallucis longus and tibialis posterior. The right calf musculature was smaller in circumference than the left by cm. X-rays of the pelvis and lumbar spine were normal. My clinical impression at that time was that she was suffering from disc protrusion with right L5 radiculopathy. The picture was somewhat clouded by her previous history of weakness in her right leg raising the possibility that some of these findings were chronic. At that point she had received two courses of physiotherapy and was encouraged to continue on with the exercises as she appeared to be improving. She was seen again August 26th, 1991. She found that the back pain was much improved although it could still be quite severe at times. The leg pain, however, was still present and, if anything, seemed to be getting worse. The pains had flared up two days previously and she started to notice numbness in her left 2nd and 3rd toes. Physical examination at that time was basically unchanged although in addition there was decreased sensation in the left 2nd and 3rd toes. As she was not improving, CT scan of the spine was arranged. The CT scan report was that of slight disc bulging at L4-5, however, on reviewing this there seems to be discreet central L4-5 disc herniation, which is in keeping with her clinical situation. Dr. Dust was not called at trial nor did he express an opinion as to the cause of Ms. Smid's problems in his medical report which makes no mention of the box event or the fall event. At trial Dr. Danilkewich, Dr. Gordon Wyant, Mr. Carl Shiels and Dr. Lawrence M. Elson testified as expert witnesses. Each of them expressed an opinion as to the cause of Ms. Smid's problems. Since the opinion of Dr. Elson contradicts those rendered by Dr. Danilkewich and Dr. Wyant, propose to discuss the qualifications of each expert and the basis for their respective opinions. Dr. Danilkewich is member of the College of Physicians and Surgeons for the Province of Saskatchewan and is certified to practice family medicine, which she has done for period of in excess of 20 years. She also teaches courses in family medicine at the College of Medicine, University of Saskatchewan. During her career she has not participated in any basic research concerning back pain or the causation of back injuries nor has she published on the subject in any recognized medical journal, nor has she undertaken any post graduate studies in the fields of anatomy or neurology. However, she is clinician with many years of experience in treating patients suffering with lower and sacroiliac problems. In preparing to testify she examined no material pertaining to the collision or causation of injuries in low velocity rear-end collisions. Counsel for Ms. Smid put the following question to Dr. Danilkewich: In your opinion as family physician, what event would you look to as precipitating the change in Ms. Smid's condition from January 28 to March 8, 1991? Dr. Danilkewich responded: would assume with the chronology of all the events that it would be the accident of February 14, 1991. Dr. Wyant is licensed medical practitioner and member of the College of Physicians and Surgeons. In addition to taking post-graduate training in anaesthesiology, he has studied and published in the area of pain management. Dr. Danilkewich he has not participated in any basic research relating to the causation of back pain nor pursued post graduate training relating to anatomy or neurology. However, he possesses considerable clinical experience which enabled him to observe the consequences of certain kinds of trauma on different human bodies. Many of these observations he admits were of an anecdotal nature. He likewise has not reviewed the collision in detail nor has he read or studied in the area of the causation of injuries in low velocity rear-end collision. The treatment of pain and not its etiology has always been his primary concern. Based on his examinations of Ms. Smid, review of x-rays, the CT scan report and medical reports provided by Dr. Danilkewich and others, he concluded Ms. Smid's pain involved nerves leading primarily to her right leg. In his opinion the source of the pain could be either Ms. Smid's herniated disc at L4-L5, or an inflammation of the nerve root at the right sacroiliac joint. He opined that if the nerve at sacroiliac joint is irritated, it can cause pain to radiate into the adjoining leg as well as up to the area of the L4-L5 vertebrae in the lower back. In his opinion, the box event or the fall event, or the collision could have given rise to the symptoms Ms. Smid presented. However, because Ms. Smid experienced pain in her right leg and loss of sensation in several toes on her right foot following the collision, but not prior, he concluded some irritation at the L4-L5 area was caused by the collision. He further opined that the collision may have caused the herniation of Ms. Smid's disc at L4-L5, particularly if such disc was unhealthy at the time. In his opinion the force exerted on her body during the collision was sufficient to herniate weakened disc. He produced no calculations or empirical study to support his conclusion. Mr. Carl Shiels was qualified as an expert in the field of mechanical engineering and to limited degree in the field of biomechanics, an area of study that deals with the application of engineering principles to biological material, and specifically with the effect the application of force has on the human body. Mr. Shiels is not medical doctor nor has he any significant training in the area of anatomy or neurology, nor is he qualified to diagnose injuries. Further, he has conducted no basic research or any significant clinical research relating to the causation of injury in the spinal area of the nature and kind before me. However, he is well versed in the application of the principles of physics to the operation and behaviour of motor vehicles while in motion and to some extent, the effect such forces may have on the human body. Mr. Shiels gave two opinions: the first related to the speed of Mr. Rooke's vehicle at the time of impact; the second related to the cause of Ms. Smid's injury. In preparing his opinion regarding speed, Mr. Shiels referred to various technical journals relating to the construction of the bumpers and other material parts of the motor vehicles involved in the collision. He further reviewed the examinations for discovery of Ms. Smid and Mr. Rooke and took into account data published in the July, 1985 edition of Consumers Reports (exhibit D-2 for identification), and the October, 1986 edition of Consumers Reports (exhibit D-3 for identification). These articles principally deal with the ability of the shock absorber mechanism comprising part of the rear bumper of motor vehicles very similar to Ms. Smid's to absorb the force exerted by another motor vehicle striking it. Based on the technical data examined for the vehicles involved, the results published in the aforementioned Consumers Reports and his experience as mechanical engineer, Mr. Shiels opined that the shock absorber mechanism comprising part of the rear bumper of Ms. Smid's vehicle was capable of absorbing the force created by vehicle of the size and type driven by Mr. Rooke at speeds up to eight kilometres per hour without sustaining any damage. Given that Ms. Smid's motor vehicle was stationary at the time of the collision and no damage to its bumper or rear section occurred, he concluded that at the time of impact Mr. Rooke's vehicle was travelling at eight kilometres per hour or less. have no difficulty in accepting Mr. Shiels' opinion in this area given the degree of his expertise as mechanical engineer in the area of accident reconstruction and the research and inquiries he undertook. Mr. Shiels also offered an opinion relating to the causation of Ms. Smid's injury. In preparing his opinion regarding causation he reviewed and relied on the medical reports of Dr. Danilkewich dated April 1, August 27, September 18, October and 23, 1991 and May 3, 1994; the medical report of Dr. Sax dated October 4, 1994; the medical reports of Dr. Fanner dated February 22, and September 27, 1991; the medical reports of Dr. Wyant dated February 13 and 17, 1992; the medical report of Dr. Dust dated February 29, 1992; the medical report of Dr. Majeran dated February 6, 1992; the reports of Sandra Church, physiotherapist, dated May 11 and October 26, 1992. In addition, he reviewed and relied on the data contained in three abstracts of studies conducted concerning low speed rear-end impacts published in several recognized technical journals. The first of such articles is entitled "Analysis of Human Test Subject Kinematic Responses to Low Velocity Rear End Impacts" conducted by Whitman E. McConnell et al (exhibit D-5 for identification) (the "McConnell report"). The McConnell report describes the effect on four volunteer test subjects caused by series of low velocity rear-end collisions. In the McConnell report, the authors conclude, inter alia: The reported results of this low velocity test series suggest compression-tension injury causation mechanism which probably can cause self-limited minor cervical, thoracic and lumbar muscle strains and, possibly, connective tissue and/or vertebral joint micro-contusional injuries and that may account for the discomfort symptoms commonly reported after low velocity rearend collisions. The very mild discomfort symptoms experienced by our three test subjects, after multiple test exposures, indicated that the to kph (4 to mph) struck vehicle test conditions were probably at, or near, typical human threshold for very mild, single event musculoskeletal cervical strain injury. The test results from our small number of test runs and relatively homogeneous test panel [four healthy volunteer males ranging in age from 45 to 56] should be supplemented by further testing. This testing, which should include wider variety of test subjects arranged in different seating positions, various riding postures and restraint system usage, would better define the complete range of expected kinematic responses by the vehicle riding general public to low and very low velocity rearend collisions. The second abstract relied on by Mr. Shiels covers series of tests conducted by D. H. West et al. The abstract is entitled "Low Speed Rear-end Collision Testing Using Human Subjects" (the "West report"). This report deals with the consequences to the cervical spine of occupants in motor vehicle which is struck from behind. The third abstract, entitled "Human Occupant Kinematic Response to Low Speed Rear-end Impacts" (exhibit P-7 for identification), was written by Thomas J. Szabo et al (the "Szabo report"). The Szabo report deals with the effect on the human body of low velocity impact collisions. In the tests conducted, four human volunteers ranging from ages 27 to 58, with various degrees of cervical and lumbar spinal degeneration, were used. Two of the volunteers were male and two were female. Multiple rear-end collisions involving delta velocity of eight kilometres (" of kph") were simulated in which the volunteers occupied the struck vehicle. The term "delta velocity" or V" means the "change in velocity" in the struck motor vehicle following it being hit by another vehicle. The researchers found negligible relative motion in the thoracic and lumbar spines of the human subjects at the time of impact. Based on these tests they concluded the likelihood of significant low back injury for restrained occupant in rear-end impact with of kph or less is remote. Of particular significance is that none of the volunteers who participated in the study complained of any orthopaedic or neurological symptoms, nor were any abnormal findings noted at the time of the pre-test orthopaedic examination but following two rear-end impacts, one of the volunteers reported transient minor neck stiffness the morning following the first test. Mr. Shiels opined that biomechanical injuries are caused by one part of the anatomy being forced to move against another part in an abnormal manner. Based on the McConnell, West and Szabo reports and his own analysis, Mr. Shiels concluded the uniform support provided to Ms. Smid's spinal column by the seat of her motor vehicle, regardless of how she sat, prevented any part of her back to move against another part and thereby give rise to the subject injury. In his opinion, the seat on which Ms. Smid sat would have absorbed most of the force created by the impact with inconsequential rebounding by the seat. He speculated the fall event had greater potential for injury than the collision. have not considered his speculation in these reasons for judgment. In view of the evidence of Dr. Elson, need not rely on Mr. Shiels' opinion as to whether the forces in question could have caused injury to Ms. Smid's back. In my opinion Mr. Shiels is not well qualified to give an opinion as to causation of injury in the human spine because of its complexity and his very limited knowledge of human anatomy and neurology. Further, his research appears to be limited to reviewing the McConnell, West and Szabo reports which may have been prepared by researchers having limited knowledge of human anatomy. Dr. Elson, who described himself as clinical and forensic anatomist, was called to give evidence on behalf of the defendants. He holds doctorate of philosophy in human anatomy, has written extensively regarding spinal injuries and soft tissue damage and their causation in recognized medical journals, has taught anatomy at several medical colleges in the United States, and has consulted with medical doctors in the treatment of patients. His consultations include the review of x-ray films and CT scans for the purposes of determining what is anatomically wrong with patient. He describes the field of anatomy as substrate of medicine that specializes in determining how the human body works rather than on treating patients and their symptoms. He has also taken extensive courses in the area of biomechanics. He is member of the American Academy of Forensic Science, the Society of Forensic Engineers; the Association for the Advancement of Automotive Medicine; the Society of Automotive Engineers; and the American Back Society. He has testified in excess of 50 times and has read most if not all of the medical and mechanics literature pertaining to injury of the lower back. accepted his qualification as an expert in the field of forensic anatomy as it applies to anatomical principles. In preparing his opinions Dr. Elson reviewed: medical summary prepared by the Saskatchewan Department of Health for the purpose of getting an overview of the extent of the medical treatments received by Ms. Smid but not as to any particular injury or management; the medical reports reviewed by Mr. Shiels; the examinations for discovery of Ms. Smid and Mr. Rooke for the purpose of getting background information rather than specific data for the purposes of his opinion; the outpatient report from Royal University Hospital dated March 4, 1993 regarding its treatment of Ms. Smid; the McConnell report, West report and Szabo report including videotapes and measurement taken in connection with the McConnell report; SGI accident reports covering the collision; and report prepared by Mr. Shiels and delivered to Dr. Elson few days prior to the trial. Dr. Elson provided number of opinions. He first opined that the collision occurred at of kph or less and thereby confirmed the opinion of Mr. Shiels. He then opined that where healthy person is seated in the passenger seat of motor vehicle which is struck from behind by another vehicle at speed of not greater than kph, the lower back of such person is not susceptible to injury. In support of his opinion he testified that in such circumstances the struck vehicle, in matter of milliseconds, accelerates its seat and head rest into the body of the person occupying the seat with the result that the body compresses the cushioning and padding forming part of the seat. Upon full compression of the seat padding, the entire seat structure bends back until the vehicle stops or the body and the vehicle commence travelling at the same speed. In either event, the seat rebounds to its pre-collision position but the rebound is of an inconsequential nature from an injury causation point of view, according to Dr. Elson. Dr. Elson advised that he based his opinions on review of 100 or more cases involving rear-end collisions, his clinical observations, the review of files of numerous persons involved in such collisions and the findings reported in the McConnell report, West report, and Szabo report. These studies he noted collectively constitute approximately 60% of the current research in the area. While he generally concurs with the finding in such reports, he disagreed with the conclusion of McConnell that micro- contusion in the cervical spine might occur in low velocity impact. In his opinion such injuries did not occur in the tests conducted by McConnell and will not occur in low velocity rear-end collisions. With respect to Ms. Smid, he opined that she could not have sustained the injury complained of notwithstanding her unusual seating position because her back was uniformly supported by the seat of her motor vehicle, and therefore no part thereof could move against another part and thereby cause an injury of the kind noted by Ms. Smid. Hence, the collision did not cause or contribute to any of Ms. Smid's injuries or damage. He did admit that nerve root can be irritated if encased in degenerated spine, but expressed the view that Ms. Smid's spine had not degenerated to the degree necessary to produce such an injury. During cross-examination he admitted that many persons involved in low velocity rear end collisions complain of lower back pain and that he is unable to explain the cause of such pain. Dr. Elson further opined that the symptoms presented by Ms. Smid relate to the pre-existing conditions identified by Dr. Danilkewich, Dr. Sax and Dr. Fanner and not to the collision. In his view there is way of differentiating the pain allegedly arising from the collision from the events that transpired prior thereto. He further observed that the fall event had greater potential of causing injury to Ms. Smid than the collision because of the substantial change in acceleration caused by such fall. He equated the impact to be equivalent to the human body falling distance of ten inches. gave very little weight to such observation in the absence of detailed calculations and full particulars of the fall involved. Faced with competing and contradicting expert opinions, the Court must decide which of the opinions, or which parts thereof, it is prepared to accept. With respect to the question of the speed of the motor vehicle driven by Mr. Rooke at the time of impact, accept the evidence of Mr. Shiels. therefore conclude Mr. Rooke's vehicle was not travelling more than eight kilometres per hour when it struck Ms. Smid's vehicle. With respect to potential injuries that might arise to the spinal column of person occupying seat in motor vehicle rear-ended by another motor vehicle having of kph, give very little weight to Mr. Shiels' opinion thereon. But do accept without any hesitation Dr. Elson's opinion that healthy person properly seated in the driver's seat of motor vehicle which is struck in the rear by another vehicle travelling at not more than eight kilometres per hour will not sustain any injury to his or her lower back because the lumbar spine is evenly supported, thereby prohibiting the movement of any one part of the lumbar spine against the other. am also well satisfied that Ms. Smid had experienced considerable pain and discomfort in her lower back, her right sacroiliac joint and her right leg before the collision. am further satisfied Ms. Smid suffered from other pre-existing medical problems prior to the collision and consequently was not healthy person. For example, she had weak stomach muscles which Dr. Danilkewich opined made her susceptible to back injury. am further satisfied that she had weak or degenerated disc at L4-L5 and recurring sciatic condition prior to the collision. These conditions would flare up together or separately from time to time causing pain of the kind noted by Ms. Smid but would respond favourably to chiropractic and physiotherapy treatments. find that at the time of the collision both conditions were dormant. believed Ms. Smid when she said that she felt crunch in her lower back at the time of collision and persistent lower back pain. also accept Dr. Danilkewich's observation that Ms. Smid presented with different symptoms following the collision and that those symptoms were referrable to nerve irritation at L4-L5. While a normal healthy person may not haveexperienced a lower back injury in the collision, I amsatisfied that because of her weakened state of health and herpoor sitting position, the collision did contribute in amodest manner to Ms. Smid's injury and damage. In so doing accept the evidence of Dr. Danilkewich over that of Dr. Elson or Mr. Shiels because as the attending physician, she was in the best position to observe the symptoms Ms. Smid presented both before and after the collision and to evaluate the same from clinical perspective having regard to Ms. Smid's unique problems. In summary therefore the answer to the question posedis "yes".

The Plaintiff commenced these proceedings seeking to recover damages for personal injuries alleged to have been suffered in a motor vehicle accident. The Defendants claimed that the Plaintiff's condition related to 2 pre-existing injuries. The only issue which the Court was asked to resolve was whether this accident had caused or contributed to the Plaintiff's injuries. HELD: The question posed was answered in the affirmative. While a normal healthy person might not have been injured in this low speed rear-end collision, the Court was satisfied that, because of the Plaintiff's previous injuries and poor sitting position, the collision did contribute to her current condition in a modest manner.

b_1995canlii6134.txt

Dated: 19980306 Docket: 7283 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Vancise, Sherstobitoff Lane JJ.A. PETER NUSCH and WESTCAN OVERSEAS MARKETING INC. and HER MAJESTY THE QUEEN COUNSEL: Mr. C.R. Stewart for the appellant Mr. Horst H. Dahlem, Q.C. for the Crown DISPOSITION: On Appeal From: Q.B.C.A. 17/96 Appeal Heard: 16 February 1998 Appeal Allowed: 06 March 1998 Written Reasons: 06 March 1998 Reasons By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Sherstobitoff LANE J.A. [1] This is a summary conviction appeal by both accused from a decision of a Summary Conviction Appeal Court Judge ordering a new trial on seven counts against the appellants under ss. 239(1)(a) and (d) of the Income Tax Act. The charges against both pertain to willfully evading the payment of taxes and the unlawfully making of a false or deceptive statement in the return of income. [2] The respondent, Crown, had appealed to the Summary Conviction Appeal Court after the trial judge had acquitted the appellants herein. [3] The appeal judge found the trial judge had come to the conclusion he had reasonable doubt the appellants had deceitfully or falsely made statement in completing the tax returns and reasonable doubt they had willfully evaded the payment of taxes, and that such doubt was rooted at least in part in belief the appellants could legally have avoided the payment of tax. Essentially the appeal judge decided the trial judge erred in failing to determine if the payments involved were income and in focussing only on the criminal intent of the accused. The appeal judge ruled he could not say the trial judge’s conclusion would have been the same if he had first determined, as he ought to have, the payments received by the appellants were in fact income and then ordered new trial. [4] In our view the appeal judge misinterpreted the decision of the trial judge. The trial judge proceeded on the worst case scenario, that is that all payments received by the appellants constituted income and then he considered the issue of criminal intent. Thus in our opinion the trial judge properly considered the issue of income before dealing with mens rea. [5] The Crown argues before us the accounting records upon which the claim for deductions were made were, in fact, false thus obviating the liability for tax. The Crown contends the courts below erred in failing to recognize the falsity of the claims. The Crown did not raise this issue in its grounds of appeal to either the Summary Conviction Appeal Court or this Court. The Crown, however, made it clear the issue was fully before the courts below. [6] The Crown is asking this Court to overturn findings of fact made by the trial judge by arguing the returns were false and therefore the basis for such findings was erroneous. In fact, neither the trial judge nor the appeal judge were prepared to make such finding. The trial judge, in response to the Crown’s argument the retruns were false and the records and record keeping were part of an elaborate scheme of deception to avoid taxes, stated “It is also consistent with simple sloppiness.” The appeal judge stated, “In my opinion, there is some question as to whether either accused willfully evaded the payment of income tax, or whether there was any intent to make statement knowing it to be false or deceptive. The bookkeeping was haphazard and sloppy. [7] Both parties agreed the test is set out in R. v. Redpath Industries Ltd. et al. (1984), 84 D.T.C. 6349 at p. 6351: criminal court is not the forum to determine income taxability and to make determinations as to rights to tax assessment or absence of rights of assessment involved. In tax evasion charge, it must appear prima facie from the evidence that the taxability is clear-cut, obvious, indisputable, unquestionable from lack of reporting, before entering the examination of the other facts of the charge, e.g. whether the undisputable taxability, based on income gained, proven and undeclared, leads to conclusion beyond reasonable doubt that it was wilfully omitted by taxpayer in his tax returns. [8] The evidence of taxability was not clear-cut, obvious or indisputable. [9] On the material before us there is no basis prepared to overturn the findings of fact made by the trial judge. See R. v. Andres, 1979 CanLII 2238 (SK CA), [1982] W.W.R. 249. [10] The appeal is therefore allowed and the acquittals ordered by the trial judge are restored. DATED at the City of Regina, in the Province of Saskatchewan, this 6TH day of March, A.D. 1998. LANE J.A. VANCISE J.A. SHERSTOBITOFF J.A.

Both accused appealed the decision of the Summary Conviction Appeal Court Judge ordering a new trial on seven counts under s239(1)(a) and (d) of the Income Tax Act relating to evasion of payment of taxes and unlawfully making of a false or deceptive statement. The appeal judge decided the trial judge erred in failing to determine if the payments involved were income and in focusing only on the criminal intent of the accused. HELD: The appeal was allowed and the acquittals ordered by the trial judge were restored. There was no basis to overturn the findings of fact made by the trial judge. The appeal judge misinterpreted the decision of the trial judge who properly considered the issue of income before dealing with mens rea. The evidence of taxability was not clear-cut, obvious or indisputable.

9_1998canlii12320.txt

CANADA PROVINCE OF NOVA SCOTIA COUNTY OF CAPE BRETON 1998 SD CR 108171 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN L.S.M. Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on August 14, 2008. DECISION ON VOIR DIRE HEARD: in Sydney, Nova Scotia before The Honourable Mr. Justice Jamie W. S. Saunders on February and 9, 1999 DECISION: February 9, 1999 (Orally) COUNSEL: Andre Arseneau, for the Crown Donald MacLennan, for the defence Saunders, J.: (Orally) The accused is charged by Indictment dated January 5, 1998 that he: between the 1st day of January, 1992 and the 1st day of August, 1995, at or near [...] Street, Sydney; [...]; [...] [...], Sydney; [...] [...] in the Count of Cape Breton, Province of Nova Scotia, did commit sexual assaults on LdW, contrary to Section 271 of the Criminal Code of Canada. He elected trial by jury. His trial began yesterday February 8, 1999. He was arraigned and entered plea of not guilty. As agreed in our Pre-trial Conference held by telephone on January 28, 1999 pursuant to s. 625.1(2) of the Criminal Code of Canada, we proceeded with voir dire before empaneling jury. The purpose of the voir dire was to determine the admissibility of results of an analysis of blood sample taken from the accused by the Cape Breton Regional Police Service on September 29, 1995. The accused challenges the admissibility of that evidence. His objection is framed in two parts. First and primarily, he says that the blood sample was taken pursuant to warrant, proportedly obtained from Provincial Court judge, pursuant to the provisions of s. 487.05(1) of the Code. For reasons that will outline in moment, L.S.M. says the warrant was not lawful warrant, the actions taken by the police were not authorized, and the use to which the sample of his blood was put was illegal. Therefore, or in addition, his Charter Rights protected by s. and s. were breached, and the only appropriate remedy is to exclude the evidence pursuant to s. 24(2) of the Charter. Second, the defence says that written consent provided by the accused on September 14, 1995 is largely irrelevant, but to the extent that it is considered on this voir dire it should be rejected for number of reasons, about which will say more later. The salient facts concerning which there is very little dispute, may be briefly stated. The accused is charged with one count of committing sexual assaults contrary to s. 271 of the Criminal Code. The accused is the step-father of LdW. LdW turned 14 years old [in 1995]. The allegation is that between January 1992 and August 1995 the accused had sexual intercourse with LdW on numerous occasions. [In 1995] LdW gave birth to full-term baby girl. On August 18, 1995 the accused was interviewed by Constable Mike Kennedy and Sergeant Myles Burke. In his statement the accused denied the allegations of LdW and consented to provide blood samples for comparison purposes. On September 14, 1995 the accused signed consent form to have blood drawn. On September 27, 1995 Sergeant Burke applied for and received warrant to obtain bodily substances from the accused. blood sample was drawn from the accused on September 29, 1995 by Sergeant Dave Morrison. The Crown relies on the warrant and, in the alternative, the consent of the accused, for the authority to draw the blood. With the consent of LdW, blood was drawn from LdW and her infant daughter, TdW. All three blood samples were sent to the Biology Section of the R.C.M.P. Forensic Lab for analysis. The Crown will seek to introduce into evidence the results of Forensic DNA analysis and the opinion of Gary Verret interpreting the results. Mr. Arseneau for the Crown said that the relevance of the analysis of the accused’s blood is beyond question. He allowed that it may be “completely determinative”. Further, it meets, he says, the reliability requirement for admissibility, in that it is scientifically provable. Consequently, being both relevant and reliable, it ought to be admitted unless there is some particular exclusionary bar to its reception. It is to that issue now turn because accept the Crown’s submission that the proposed evidence meets the requirements for both relevance and reliability. The accused, has the burden of proving that his Charter rights were violated on balance of probability. If such violation is proven, then must decide the appropriate remedy pursuant to s. 24 of the Charter. Having reviewed the pre-hearing briefs and cases filed by counsel and having considered the evidence presented on the voir dire, together with the able oral submissions of counsel, am not satisfied that the accused has demonstrated any violation of either his right to be protected from self-incrimination pursuant to s. 7, or his right to be secure from unreasonable search and seizure pursuant to s. 8. Consequently, need not go on to consider any remedial action under s. 24. In arriving at that conclusion have largely accepted the accused’s initial submission that the written consent he provided to the police may be ignored. have done so, because as Sergeant Miles Burke the lead investigator acknowledged, the blood sample they obtained from the accused was not taken pursuant to the consent, but rather pursuant to the warrant issued by Provincial Court Judge Campbell. Therefore, except to the extent that it became part of the material considered by Judge Campbell which will discuss in more detail in moment need not address, for the purposes of this case, such nice legal questions as the sweep of the accused’s consent; or whether its effect carried forward from September 14 to September 29; or whether there was sufficient nexus between the specific consent given by the accused and the circumstances of the taking of the blood sample so as to characterize the seizure as validly consensual. All will say is that when he provided his warned statement to the police on August 18, 1995 (recorded on audio tape, Exhibit VD Number 2) and when he provided his signed consent to Sergeant Burke on September 14, 1995 (included within Exhibit VD Number 4) the accused had, on several occasions, been given the police caution and his Charter rights. He understood those rights. He chose not to consult lawyer. Further, he clearly understood that he was being accused of having sexual assaulted LdW and having caused her to become pregnant with the baby she was then carrying. The accused knew that the blood sample he was offering, willingly, would be used in the investigation of that alleged crime. Nothing the accused did or said was prompted by any promises, threats or inducements by Sergeant Burke or any other persons in authority. In the result, up until and on September 14, 1995, the day he supplied his detailed written consent to provide bodily substance for testing, the accused’s actions were fully informed and voluntary. Applying R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265, search will be reasonable if it is: a) authorized by law, b) if the law itself is reasonable, and c) if the manner in which the search is carried out is reasonable. On the evidence before me the warrant, upon which the police obtained their sample, was issued by the Provincial Court on September 27, 1995. am satisfied that the manner in which the warrant was executed by Sergeant Burke and Sergeant Morrison two days later, on September 29th, was perfectly reasonable. There is no challenge to the constitutional validity of the law, and so the remaining issue is whether the sample taken from L.S.M. was authorized by law? find that it was, for reasons that would include the following: 487.05 (1) Information for warrant to obtain bodily substances for forensic DNA analysis provincial court judge who on ex parte application is satisfied by information on oath that there are reasonable grounds to believe (a) that designated offence has been committed, (b) that bodily substance has been found (i) at the place where the offence was committed, (ii) on or within the body of the victim of the offence, (iii) on anything worn or carried by the victim at the time when the offence was committed, or (iv) on or within the body of any person or things or at any place associated with the commission of the offence (c) that person was party to the offence, and (d) that forensic DNA analysis of bodily substance from the person will provide evidence about whether the bodily substance referred to in paragraph (b) was from that person and who is satisfied that it is in the best interests of the administration of justice to do so may issue warrant in writing authorizing peace officer to obtain, or cause to be obtained under the direction of the peace officer, bodily substance from that person, by means of an investigative procedure described in subsection 487.06(1), for the purpose of forensic DNA analysis. (2) Criteria In considering whether to issue the warrant, the provincial court judge shall have regard to all relevant matters, including (a) the nature of the designated offence and the circumstances of its commission; and (b) whether there is (i) peace officer who is able, by virtue of training or experience, to obtain bodily substance from the person, by means of an investigative procedure described in subsection 487.06(91), or (ii) another person who is able, by virtue of training or experience, to obtain under the direction of peace officer bodily substance from the person, by means of such an investigative procedure. It is important to note that in assessing the basis upon which the warrant was granted, my role is not to ask what would have done if the application were presented to me, nor is it to substitute my views for those of the learned Provincial Court Judge. Rather must decide whether there was an evidentiary basis supplied by information upon oath, that would permit reasonably grounded belief of the matters described in sub-sections (a) (d) and that it would be in the best interest of the administration of justice to issue the warrant. am so satisfied. Mr. MacLennan complains that the application to Judge Campbell is nothing more than the same application, dressed up as something else, which the police had initially taken before Judge Ross and which Judge Ross had rejected. Thus, it is argued, that the second application put the Provincial Court Judge in the position of reviewing, in effect reversing, the decision of another Provincial Court Judge, something which they neither have the power, nor discretion, to do. With respect, do not consider Judge Campbell’s decision as simply review of what Judge Ross had considered and rejected seven weeks earlier. find that it was fresh application, materially different than the first, in important aspects and which was proper for the police to bring forward, after consulting as they did with another Crown attorney. Sergeant Burke disclosed to Judge Campbell as one would expect that he had made an earlier unsuccessful application before Judge Ross. While that did not come to be included in Sergeant Burke’s information sworn September 27, 1995, it was made clear during yesterday’s voir dire that the disclosure was declared upon oath when the officer applied ex parte to the Court. The legislation was very new. It was the first time Sergeant Burke had sought such warrant and, to his knowledge, the first time such request had been undertaken by his Department. He consulted with the Crown on the substance and manner of presentation as well as the supporting documentation or detail to be included. There is almost twice as much information provided on oath to Judge Campbell, including very detailed information with respect to: DNA; it’s makeup; the techniques to be used in analysis; the procedure to obtain sample; the accusation of sexual assault against the accused; the purpose for which the sample would be used; that the circumstances qualified for analysis pursuant to warrant under s. 487.05; and that the suspect consented to provide blood sample. commented earlier on Mr. MacLennan’s submission that because the sample was as Sergeant Burke acknowledged taken pursuant to warrant and not L.S.M.’s consent, the fact of his having consented was nothing more than to ease or bolster the application for warrant and was, therefore, (to quote Mr. MacLennan) “extraneous” and should be ignored. It is enough for the purposes of my decision this morning to observe that Judge Campbell was obliged to have regard to all relevant factors in deciding whether or not to issue the warrant. The list of criteria in s-s (2) is not an exhaustive or exclusive list. Therefore, think it entirely logical and proper for the “consents” both in audio taped statement and subsequently obtained written version to have been disclosed to Judge Campbell in order for him to decide the application. They were very relevant to that issue. It would strike me as odd and suspect if they were not disclosed as part of the information placed before him upon oath by the investigator. In conducting my review of the reasonableness of this search warrant, have excised and so ignored factually erroneous information. That only relates to paragraph 30 when Sergeant Burke swore that the child was said to have been born three months pre-mature. It is now an acknowledged fact that the baby girl was born full term. Nothing turns on that correction. The accused argues that should apply restrictive interpretation to the provisions of s. 487.05. He says that the Code contemplates analysis of a sample taken from a suspect for comparison purposes with a bodily substance “found” in circumstances described in s. 487.05 (b) and that because, in this case, no such bodily substance was “found”, one cannot bring these unique circumstances within the very strict requirements and parameters of the authorizing section. For example, Mr. MacLennan argued that the Code contemplates bodily substance to be in some manifestation beyond its mere chemical composition in order for it to qualify as being “found”. Something, he said, like a smear of blood or a semen stain, but not, as here, the bodily substance created as it were by virtue of the conception of a child said to be associated with (in the sense of a product of) the commission of the offence. cannot accept the restricted interpretation urged upon me by counsel for the accused. For example, as Mr. Arseneau for the Crown pointed out in reply, had Parliament intended such limited application, it could easily have added such limiting word as “directly”, which does appear in other parts of the Code, but not here. Further, were it as Mr. MacLennan has suggested, then an accused such as L.S.M. in similar circumstances could never be subjected to warrant to provide sample of bodily substance and would only ever be part of comparative analysis if he or she consented to such production and testing. Mr. MacLennan acknowledged that was the effect and result of his arguments. With respect, reject such proposition. find that the information of Sergeant Burke, in particular paragraphs 2, 28, 29, 31 and 32 provide the evidentiary basis for Judge Campbell’s reasonably grounded belief as to the issuance of this warrant. Specifically, Sergeant Burke placed sworn information before the Court justifying the reasonable belief that the infant T.dW. was, as LdW.’s baby, person associated with the commission of an offence, ie. the product of conception following sexual intercourse with the accused, and that forensic DNA analysis of the accused’s blood would provide evidence about whether the bodily substance found within the infant, came from the accused. These would be some of my reasons for concluding that the blood sample taken from the accused was obtained reasonably and lawfully pursuant to duly authorized and lawfully executed warrant. Further, it has been put to proper purpose. There was no violation of the accused’s s. or s. Charter Rights. The evidence is ruled admissible for the purpose of Mr. MacDonald=s trial. J. CASE NO. VOL. NO. Her Majesty the Queen L.S.M. Saunders, J. Sydney, Nova Scotia SD. CR 108071 LIBRARY HEADING HEARD: Sydney, Nova Scotia, on February 8, 1999 DECISION: February 9, 1999 (Orally) SUBJECT: DNA analysis. S. 487.05 of the Criminal Code. Admissibility of evidence. Voir dire. S. and s. of the Canadian Charter of Rights and Freedoms. Sexual assault, s. 271 of the Criminal Code. SUMMARY: Accused charged with the sexual assault (which led to the impregnation) of his step-daughter who, at age 13, gave birth to full term baby girl. Accused sought to exclude DNA evidence on the basis that his s. and s. Charter Rights were breached when the police took sample of his blood. Following voir dire, held that the accused had failed to show any violation of his Charter Rights. DNA evidence ruled admissible. Accused then re-elected to be tried by Supreme Court Justice alone and changed his plea to guilty. Remanded into custody and sentencing scheduled for April 6, 1999. PUBLISHERS PLEASE NOTE THAT THIS DECISION IS SUBJECT TO PUBLICATION BAN OF ANY INFORMATION TENDING TO REVEAL THE IDENTITY OF THE VICTIM THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT FROM THIS COVER SHEET.

The accused was charged with the sexual assault of his 13 year old step-daughter, which led to her impregnation. Blood was drawn from the complainant and her infant daughter, as well as the accused pursuant to a warrant. The accused challenged the validity of the warrant. He contended that a warrant could only be issued for comparison purposes with a bodily substance found in circumstances described in section 487.05(b) of the Criminal Code, which, he alleged, did not include a bodily substance created by virtue of the conception of a child. Admitting the evidence, that the DNA of a baby born as a result of a sexual assault is a bodily substance for the purposes of section 487.05(b) despite the fact that the child did not exist at the time of the offence.

2_1999canlii18445.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 534 Date: 2006 12 14 Docket: D.I.V. 331/99 Judicial Centre: Regina, Family Law Division BETWEEN: KIMBERLY SUZANE SMITH (formerly GOETHALS) and JEFFREY MAURICE GOETHALS Counsel: Terence G. Graf, Q.C. for the petitioner W. Timothy Stodalka for the respondent JUDGMENT SANDOMIRSKY J. December 14, 2006 HISTORICAL REVIEW [1] The respondent applies to vary the child support orders of Mr. Justice Kraus dated September 10, 1999, and December 7, 1999, and/or the alleged agreement struck by the petitioner and respondent in or about July, 2003. The respondent seeks this variation pursuant to s. 17(1) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) and also pursuant to s. 10 of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. In addition to variation of the amount of child support, the respondent asks that the variation order apply retroactively to July 1, 2003. Finally, the respondent seeks costs to be assessed on solicitor/client basis. This application to vary is opposed in many, but not all, respects by the petitioner. [2] The petitioner and respondent consented to the order of Kraus J. dated September 10, 1999. At that point in time the petitioner and respondent were sharing the custody and care of both of their children, Meghan Elizabeth Goethals, born July 4, 1988, and Ryan Nicholas Goethals, born April 17, 1991. The children resided an equal amount of time with each party. Having agreed upon the division of the Canada Child Tax Benefit and GST quarterly rebate, the manner in which income credits (equivalent to spousal deduction) and the respondent having accepted exclusive responsibility for Ryan’s child care costs and other extraordinary expenses, the petitioner and respondent agreed that despite the petitioner having an annual income of $21,000.00 and the respondent having an annual income of $47,000.00, no interim basic Table child maintenance would be paid as between the parties. The respondent agreed to pay to the petitioner $250.00 per month as his share of Meghan’s special and/or extraordinary costs. [3] The consent order of Kraus J. dated November 25, 1999, varied the earlier consent order of September 10, 1999, when the respondent became unemployed and received employment insurance only. It was agreed that each of the petitioner and the respondent each had equal incomes of $21,000.00 and that as consequence of their equal sharing of parental care, neither the petitioner nor the respondent would pay basic nor special/extraordinary child support to the other. [4] The third consent order of Kraus J., dated December 7, 1999, arose as consequence of pre-trial conference conducted that day. The previous two consent orders were agreed to become permanent rather than interim orders. [5] On July 4, 2000, the parties were divorced. [6] fourth consent order was granted on July 6, 2001, and was captioned as an “Order Amended Pursuant to Q.B. Rule 343A”. This order amended the earlier shared custody and parenting regime upon which the previous orders were based. The primary residence of both children changed to be with the respondent. The petitioner was provided reasonable access only. The petitioner’s annual Federal Child Support Guidelines [SOR/97-175, as am.] (the “Guidelines”) income was agreed to be $25,000.00 and she was therefore ordered to pay to the respondent child support for both children in the amount of $375.00 per month, commencing August 1, 2001. [7] The petitioner appealed this fourth order, dated July 6, 2001, to the Saskatchewan Court of Appeal. The Court of Appeal rendered judgment on November 16, 2001, remitting the following issues back to the Court of Queen’s Bench (a) Should the consent order of Kraus, J. dated December 7, 1999, be varied? and; (b) If there is no variation, for determination how to access specified in the order of Kraus, J. shall be specifically exercised. The Court of Appeal restored the order of Kraus J. dated September 10, 1999, pending the further determination of those issues by the Court of Queen’s Bench. [8] review of the transcript of the oral reasons of the Court of Appeal stated the panel of judges were unanimous in granting the petitioner’s appeal. The transcript reads, nan In our opinion, the trial judge failed to properly consider the issue of access and the underlying reasons for the appellant being unable to exercise the access specified in the consent order of December 7, 1999. [3] The order of Kraus J. dated September 10, 1999 is hereby restored pending the determination of the issues by the Court of Queen’s Bench. [9] Without further explanation or evidence, the court record is silent until the present application for variation was filed. The court assumes that the petitioner and respondent continued to equally share the responsibility of caring for Meghan and Ryan pursuant to the order of Kraus J. dated December 10, 1999, for the ensuing years of 2002 and 2003. No rehearing occurred pursuant to the Court of Appeal judgment. The Court of Appeal had in part found no material change of circumstance had occurred triggering the application to vary at Queen’s Bench. [10] In or about the month of May, 2003, the respondent and both children chose to move to the province of Manitoba thereby ending the shared parenting regime. This clearly represents material change of circumstance (Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27). Rather than returning to the court to assess and determine the petitioner’s responsibility to pay child support to the respondent, the parties negotiated through their lawyers corresponding, as well as the petitioner and respondent personally discussing the child support issue. It is based upon this dialogue that the respondent today alleges an agreement was struck, whereas the petitioner denies such an agreement. An examination of the correspondence exchanged between counsel on the following dates was, therefore, undertaken: 1) MacLean Keith (for the respondent) to Ms. Duncan (for the petitioner), June 4, 2003; 2) Ms. Duncan to MacLean Keith, July 2, 2003; 3) MacLean Keith to Ms. Duncan, July 14, 2003, with draft consent order unexecuted enclosed; 4) Ms. Duncan to MacLean Keith, September 11, 2003; and 5) MacLean Keith to the petitioner, July 18, 2006. [11] To summarize the essential and relevant components of each of the above letters, find the following material facts: 1) On June 4, 2003, the respondent requested child support be paid by the petitioner in the sum of $460.00 per month per the Guideline Tables. The respondent refused the petitioner’s suggestion that the said Table amount be reduced due to the alleged hardship of excessive access costs claimed by the petitioner. 2) On July 2, 2003, Ms. Duncan wrote indicating the petitioner and respondent had agreed between themselves the following: (a) They shall continue to have joint custody of the children; (b) Ms. Smith shall have reasonable access; (c) Ms. Smith shall pay child support to Mr. Goethals in the sum of $380.00 per month commencing July 1, 2003. Ms. Smith will be sending Mr. Goethals cheque in this amount tomorrow. Mr. Goethals has agreed to accept less than the Guideline amount given Ms. Smith’s cost in exercising access. Consequently Ms. Smith will bear all of the costs of exercising access; (d) The Heritage Scholarship Trust accounts will be equally divided. Each parent will hold one half in trust for the post secondary education requirements of the children. Meghan’s account number is: 7008554 and Ryan’s is 7390629. 3) On July 14, 2003, MacLean Keith replied to Ms. Duncan enclosing draft consent order for consideration. The respondent acknowledged his acceptance of the sum of $380.00 per month as child support to be paid by the petitioner. This represented reduction of $80.00 from the Table amount to offset access costs between Saskatchewan and Manitoba. However, the respondent asserted such payment would have to be effective June 1, 2003, and not July 1, 2003, as the petitioner had proposed. The respondent also introduced into the draft order clause providing that the petitioner provide copy of her annual tax return and notice of assessment by June 30, 2004, and each June 30 thereafter to monitor whether child support should be adjusted. 4) On September 11, 2003, Ms. Duncan replied to MacLean Keith disagreeing that the proposed child support of $380.00 per month commence June 1, 2003, as opposed to July 1, 2003. She asserted that the petitioner and respondent verbally agreed to start date of July 1, 2003. In the second paragraph of her letter Ms. Duncan states: Therefore, we are prepared to execute Consent Order on the basis that the child support commencement date would be July 1, 2003. We suggest that the Order contain provision that both parties exchange income information in the form of tax returns and notices of assessment by May 15th of each year. 5) Communications ceased until MacLean Keith wrote to the petitioner on July 18, 2006, in which Mr. Stodalka stated, at paragraph 2: As you may recall, although we negotiated an agreement in September of 2003 which provided that you would pay child maintenance of $380.00 per month for Ryan and Meghan Goethals, no actual court order was ever taken out. Mr. Goethals acknowledges that you continued to pay this amount. CONCLUSION RE ALLEGED 2003 AGREEMENT [12] It is clear to the court that no legal and binding agreement was created in the year 2003. Offers and counter-offers were exchanged as summarized above. No counter-offer was ever unconditionally accepted upon which binding agreement arose at law. The petitioner and respondent proceeded forth on an informal basis which provided that the petitioner would pay to the respondent $380.00 per month commencing July 1, 2003, and on the first day of each month thereafter until August, 2006. The evidence establishes that Meghan concluded high school and registered to attend Red River College to take health care aide program commencing in September, 2006. [13] While Meghan’s status as child of the marriage has been continuous, the evidence establishes that Meghan left her father’s home and took up residence in Selkirk, Manitoba, with view to attending Red River College. The petitioner’s obligation to pay child support at the level of $380.00 per month for both children ceased. Here material change of circumstance again arises permitting this Court to proceed in fresh review of matters including evidence of the change in circumstances. [14] In Chambers the petitioner and respondent agreed that commencing September 1, 2006, the petitioner would be responsible for the maintenance of Meghan and the respondent would be responsible for the maintenance of Ryan. The parties agree that Meghan should complete her course of studies by the end of February, 2007. Therefore, commencing March 1, 2007, the petitioner would be obliged to pay to the respondent child support for Ryan. REMAINING ISSUES [15] What the parties vigorously dispute is: 1) The respondent’s claim to retroactive support commencing July 1, 2004, a date the respondent advances rather than July, 2003. 2) Whether the petitioner’s obligation to pay child support for Ryan commencing March 1, 2007, should be reduced given her allegation that undue hardship would accrue to her given the cost of exercising access between the provinces. THE LAW OF RETROACTIVITY [16] Counsel agreed with the court that the recent decision of the Supreme Court of Canada in D.B.S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37 (CanLII); (2006), 270 D.L.R. (4th) 297, hereinafter referred to as “DBS”, is the applicable law on the topic of retroactive child support. This proceeding was brought under s. 17 of the Divorce Act and DBS therefore has application to this action. [17] have previously found that there was no agreement which legally obliged the petitioner to disclose her income tax return and notice of assessment annually as the respondent alleges. Therefore, s. 25 of the Guidelines applies: 25(1) Every spouse against whom child support order has been made must, on the written request of the other spouse or the order assignee, not more than once year after the making of the order and as long as the child is child within the meaning of these Guidelines, provide that other spouse or the order assignee with (a) the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents; (b) as applicable, any current information, in writing, about the status of any expenses included in the order pursuant to subsection 7(1); and (c) as applicable, any current information, in writing, about the circumstances relied on by the court in determination of undue hardship. (2) Where court has determined that the spouse against whom child support order is sought does not have to pay child support because his or her income level is below the minimum amount required for application of the tables, that spouse must, on the written request of the other spouse, not more than once year after the determination and as long as the child is child within the meaning of these Guidelines, provide the other spouse with the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents. (3) Where the income information of the spouse in favour of whom child support order is made is used to determine the amount of the order, the spouse must, not more than once year after the making of the order and as long as the child is child within the meaning of these Guidelines, on the written request of the other spouse, provide the other spouse with the documents and information referred to in subsection (1). [18] At paragraph 61 of DBS the Supreme Court of Canada states that there are three separate situations in which it may be appropriate for court to order that retroactive support order be made. [19] At paragraph 62 the Supreme Court describes the first situation as being, ¶62 where there has already been court order for child support, but this amount has been inadequate for some time. The most common cause for an application of this variety would be an increase in the payor parent’s income that is not reflected by an increase in the amount of child support paid. In addition to request for prospective variation, parent in this situation would ask for retroactive award representing an additional amount due. [20] The Supreme Court then addresses the concern for certainty from the payor’s perspective versus the parent’s responsibility to continually insure that their children receive the appropriate amount of support. The court summarizes the balancing of these interests at paragraph 74 of DBS. ¶74 In summary, payor parent who diligently pays the child support amount ordered by court must be presumed to have fulfilled his/her support obligation towards his/her children. Acting consistently with the court order should provide the payor parent with the benefit of predictability, and degree of certainty in managing his/her affairs. However, the court order does not absolve the payor parent or the recipient parent, for that matter of the responsibility of continually ensuring that the children are receiving an appropriate amount of support. As the circumstances underlying the original award change, the value of that award in defining parents’ obligations necessarily diminishes. In situation where the payor parent is found to be deficient in his/her support obligation to his/her children, it will be open for court, acting pursuant to the Divorce Act or the Parentage and Maintenance Act, to vary an existing order retroactively. The consequence will be that amounts that should have been paid earlier will become immediately enforceable. [21] The second scenario identified by the Supreme Court of Canada in DBS is that where there has been previous agreement between the parties. The Supreme Court of Canada reasoning for the second scenario is also important in this application given the hybrid situation which the unique facts of this case present. The hybrid is that we commence the variation analysis afresh using the 1999 child support orders to be varied. Yet, the petitioner and respondent made an informal adjustment to the monthly quantum of child support to become $380.00 effective July 2003. This became the prevailing course of conduct without the formality of either court order or formal agreement. The reasoning of the Supreme Court of Canada under the second scenario is necessary and therefore quote paragraphs 75 to 78 inclusive, from DBS: ¶75 similar, but not identical, situation arises where child support obligations have previously been set out in an agreement between the parents. While many of the same considerations apply to this situation that applied to the situation of previous court order e.g., the payor or parent’s expectation that his/her support obligations have been fully defined the difference between an agreement and court order cannot be ignored. ¶76 In Miglin v. Miglin, [2003] S.C.R. 303, 2003 SCC 24 (CanLII), and Hartshorne v. Hartshorne, [2004] S.C.R. 550, 2004 SCC 22 (CanLII), (along with Arbour J. in the former case) discussed the importance of encouraging spouses to resolve their own affairs, as well as the complementary importance of having courts defer to that resolution. These cases dealt with spousal support issues, but many of the same considerations apply in the child support context. Prolonged and adversarial litigation is just as troubling if not more so in the child support context as in the spousal support context. ¶77 The fact that we are dealing with children must remain of primary significance in court’s analysis. Thus in the Divorce Act, Parliament has provided that court may depart form the Guidelines if both parents consent, but only “if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates”: s. 15.1(7). What is “reasonable” will be determined with reference to the Guidelines: s. 15.1(8). Because of this, payor parent who adheres to separation agreement that has not been endorsed by court should not have the same expectation that (s)he is fulfilling his/her legal obligations as does payor parent acting pursuant to court order. ¶78 In most circumstances, however, agreements reached by the parents should be given considerable weight. In so doing, courts should recognize that these agreements were likely considered holistically by the parents, such that smaller amount of child support may be explained by larger amount of spousal support for the custodial parent. Therefore, it is often unwise for courts to disrupt the equilibrium achieved by parents. However, as is the case with court orders, where circumstances have changed (or were never as they first appeared) and the actual support obligations of the payor parent have not been met, courts may order retroactive award so long as the applicable statutory regime permits it: compare C.(S.E.) v. G.(D.C.) 2003 BCSC 896 (CanLII), 2003, 43 R.F.L. (5th) 41, 203 BCSC 896. [22] What the Supreme Court of Canada demonstrates in the above quotations is the need for trial court or Chambers judge to balance certainty and predictability, particularly from the payor’s perspective, against the right of children to be supported at level commensurate with the payor parent’s prevailing economic ability, ergo, income. [23] The third scenario, one of awarding retroactive support when there has not already been court order for child support to be paid, need not be pursued by me upon the facts of this application. have now defined the balancing of interests underlying this application. Next turn to the factors which are relevant in this application so as to determine whether retroactive child support should be ordered. [24] None of the factors discussed in DBS is decisive of the question whether retroactive child support should be ordered. At paragraph 99 the Supreme Court states, “at all times, court should strive for holistic view of the matter and decide each case on the basis of its particular factual matrix”. This caveat being stated, DBS then explores four factors: (a) Reasonable excuse for why support was not sought earlier (paras. 100–104); (b) Conduct of the payor parent (paras. 105–109); (c) Circumstances of the child (paras. 110–113); and (d) Hardship occasioned by retroactive award (paras. 114–117). [25] This judgment need not restate the Supreme Court of Canada’s reasoning as set forth in paragraphs 100–117. The reader can do that for him or herself. will consider each factor in light of the particular facts of this application. [26] There is no evidence before me that the respondent’s delay between June, 2004 and July, 2006 (the first time the respondent broached the issue of revising child support by sending letter to the petitioner) is reasonable excuse for inaction. First, there was no agreement that the petitioner disclosed her tax return on June 30, 2004 and each June 30 thereafter, as the respondent alleges. The respondent has been content to accept $380.00 per month as fair level of child support for both Meghan and Ryan. What precipitated the respondent’s review in July 2006 was Meghan’s departure from his home where she began to live independently with the prospect of attending college. What further propelled the continued action on the respondent’s part believe was the publicity attendant with the Supreme Court of Canada’s release of its judgment in DBS on July 31, 2006. I cannot find any reasonable excuse as to why the respondent did not seek a variation earlier, other than concluding that the respondent accepted $380.00 per month as reasonable in the circumstances that prevailed from July, 2003 until July, 2006. [27] The second factor is to examine the conduct of the petitioner as the payor parent. Is there evidence of blameworthy conduct on the petitioner’s part? The respondent argues that the failure to disclose her tax returns on June 30, 2004 and each subsequent year constituted a breach of their alleged 2003 agreement. I have found that there was no such agreement or obligation to disclose. Section 25 of the Guidelines therefore applies in the absence of covenant to disclose. No written request was made by the respondent within the meaning of s. 25. No verbal request was made by the respondent which might fall within Justice Bastarache’s definition of “effective notice”, that is the mere broaching of the subject of reviewing child support. [28] The increase in the petitioner’s level of income over the years 2002 to 2005, inclusive, is not so dramatic in my opinion as to constitute blameworthy conduct that privileges the petitioner’s own interests over her children’s right to an appropriate amount of support. The petitioner earned the following annual amounts for child support and Guideline purposes: 2002 $32,800.00 2003 $36,262.00 2004 $44,299.00 2005 $43,310.00 An increase of these proportions would not lead me to conclude that the petitioner was not contributing to her children’s support in a satisfactory manner. The respondent calculates the alleged shortfall from strict annual adjusted Guideline between July 1, 2004 to August 30, 2006, amounts to $4,322.00. This is the equivalent of $172.00 per month shortfall on the average. [29] am troubled by the definition of “blameworthy conduct” which Bastarache J. provides at paragraph 106 of DBS. He states, “I would characterize as blameworthy conduct anything that privileges the payor parent’s own interests over his/her children’s right to an appropriate amount of support”. That definition is far too wide in my respectful opinion. It blurs the line of demarcation between majority and minority opinions in DBS. Given that liberal and generous definition, virtually all increases of the payor’s income would privilege the payor’s own interests over the children’s right to an appropriate amount of child support. am certain that Justice Bastarache did not intend minute or even slightly modest increases in the payor’s income would trigger blameworthy conduct. Deminimus non curat lex. My view of the evidence in this application is that the annual increases equivalent to roughly 10% per annum, when adjusted for the annual rate of inflation, are not so significant that the petitioner would have reasonably thought that she was feathering her own nest at the expense of her children. [30] When considering the circumstances of Meghan and Ryan over the same period of years, 2003 to 2005, no evidence was provided that their standard of living was compromised as a direct consequence of the petitioner not taking the initiative to adjust her child support payments annually. Nor was there evidence of financial hardship experienced by the children in this time period. [31] Finally, must consider the probability of hardship which might be occasioned to the petitioner if were to order her to pay the sum of $4,322.00 as retroactive adjustment of child support. At paragraph 116 DBS confirms that “the courts should attempt to craft retroactive award in way that minimizes hardship While hardship for the payor parent is much less of concern where it is the product of his/her own blameworthy conduct, it remains strong one where this is not the case”. [32] I do not find the petitioner’s conduct blameworthy. To order retroactive support of $4,322.00, whether payable in a lump sum or by installments over time, would, in my opinion, represent a hardship to a wage earner in the petitioner’s category. [33] The court file discloses that the respondent’s income was $67,986.00 in 1996. In 1997 his income was $59,375.00. In 1998 his income was $61,870.00. By 2000 his income had dropped to $37,771.00 and currently it is estimated to be $22,272.00 in this year. The respondent appears to have experienced steady and remarkable decline in his personal income since the commencement of these proceedings in 1999. Since 2003 the respondent’s income is not relevant consideration in that he has been the custodial parent. However, the respondent’s declining income can be considered as evidence when the court surveys the circumstances of the children over period where retroactive child support is being sought. am neither blindfolded nor required to use tunnel vision when interpreting the evidence as pursue an understanding of the relevant financial history of this family. However, must not draw any improper or unwarranted inferences from the evidence available. [34] The effective date in this case find to be July 18, 2006. This is when the matter of financial disclosure and review of child support was first raised or broached by the respondent. None of the factors reviewed above require that look behind the effective date. The petitioner has not engaged in blameworthy conduct. have attempted to balance the petitioner’s interest in certainty with the need for fairness and flexibility. I, therefore, dismiss the respondent’s application for retroactive child support. [35] In DBS the Supreme Court summarized this point at paragraph 133: ¶133 In determining whether to make retroactive award, court will need to look at all the relevant circumstances of the case in front of it. The payor parent’s interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, court should consider whether the recipient parent has supplied reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail. PROSPECTIVE CHILD SUPPORT [36] The parties have agreed that the petitioner will support Meghan and the respondent will support Ryan without further adjustment befitting split custody arrangement for the period between September 1, 2006, and February 28, 2007. Absent such an agreement, s. of the Guidelines would require set-off based upon the parents’ respective incomes. The petitioner, with the higher income, would have to pay the respondent child support, the latter having the lower income. [37] The parties ask the court to determine the prospective amount of child support commencing March 1, 2007. This assumes Meghan will cease to have status as child of the marriage at that date. If that fact materializes, then the petitioner will have an obligation to pay child support for her son, Ryan, based upon her current income. The evidence establishes her income to be approximately $52,000.00 in year 2006 (para. 11 of her affidavit). That income extrapolates to monthly obligation of $443.00 payable by the petitioner to the respondent for Ryan’s maintenance, commencing March 1, 2007, and payable on the first day of each month thereafter while Ryan is child of the marriage. Ryan will be 16 years old on April 17, 2007. No claim has been advanced for s. contribution toward special or extraordinary expenses incurred for Ryan. [38] further find that reduction in the amount of child support is not warranted in the absence of the petitioner establishing claim that she would suffer undue hardship under s. 10(2)(b) of the Guidelines that is an unusually high expense in relation to exercising access to Ryan. Section 10(3) of the Guidelines states: 10(3) Despite determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections to 5, or 9, have higher standard of living than the household of the other spouse. [39] The petitioner has significantly higher income than the respondent alleges he will earn, that is $52,000.00 versus $22,000.00. Neither the petitioner nor respondent have testified to any other household income other than the Canada Child Tax Benefit or GST rebate. cannot conceive that the petitioner could demonstrate that the standard of living in her household would be lower than the standard of living in the respondent’s household. The plaintiff’s claim for reduction in the Table amount of child support must, therefore, fail. [40] The arguments of each of the parties were meritorious and the success mixed upon the two issues left to the court. In these circumstances there shall be no order as to costs. J. N.S. Sandomirsky

The primary issue in this application is the respondent's claim to retroactive support. HELD: 1) The Court reviewed the cases from the Supreme Court of Canada regarding retroactive child support and in particular D.B.S. v. S.R.G. et al, 2006 SCC 37. 2) The respondent has been content to accept $380 per month as fair level of child support for both children. What precipitated the respondent's review in July 2006 was Meghan's departure from his home where she began to live independently with the prospect of attending college. What further propelled the continued action on the respondent's part was the publicity attendant with the Supreme Court of Canada's release of its judgment in July 2006. There is no reasonable excuse as to why the respondent did not seek a variation earlier, other than concluding that the respondent accepted $380 per month as reasonable in the circumstances that prevailed from July 2003 to July 2006. 3) There is no evidence of blameworthy conduct on the petitioner's part. There was no agreement or obligation to disclose tax returns. No written request was made pursuant to s. 25 of the Guidelines. No verbal request was made by the respondent which might fall within the definition of 'effective notice'. The increase in the petitioner's level of income over the years 2002 to 2005 is not so dramatic as to constitute blameworthy conduct that privileges the petitioner's own interests over her children's right to an appropriate amount of support. In 2002, the petitioner earned $32,800 and, by 2005, she earned $43,310. An increase of these proportions would not lead the Court to conclude that the petitioner was not contributing to her children's support in a satisfactory manner. The Court's view of the evidence is that the annual increases equivalent to roughly 10% per annum, when adjusted for the annual rate of inflation, are not so significant that the petitioner would have reasonably thought that she was feathering her own nest at the expense of her children. 4) There was no evidence that the children's standard of living was compromised as a direct consequence of the petitioner not taking the initiative to adjust her child support payments annually. Nor was there evidence of financial hardship experienced by the children. 5) To order retroactive support of $4,322, whether payable in a lump sum or by installments over time, would represent a hardship to a wage earner in the petitioner's category. The application for retroactive child support is dismissed.

e_2006skqb534.txt

J. Editor's Note: Addendum released August 6, 1997. Text of addendum appended to original judgment. Q.B. A.D.1993 No. 783 J.C. P.A. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: CHERYL SUCHORAB and STEVEN SUCHORAB DR. P. URBANSKI DEFENDANT Allan T. Logue for the plaintiff Christine J. Glazer for the defendant JUDGMENT ARCHAMBAULT J. June 11, 1997 This case exemplifies how positive and joyous event, the birth of healthy baby girl, would eventually be marred by rather tragic consequences for the plaintiff, Cheryl Suchorab ("Cheryl"), and her family. On August 25, 1992,Cheryl was delivered of her baby by caesarian section,following what has been described as an uneventful and evenexcellent pregnancy. Cheryl's recovery appeared to be progressing normally; she described herself as feeling and getting along fine. On September 29, 1992, some 34 daysfollowing the birth of her daughter, Cheryl was admitted on anemergency basis at the Victoria Union Hospital in PrinceAlbert, as a result of the sudden onset of profuse vaginalbleeding. The defendant, Dr. Gerry P. Urbanski ("Dr. Urbanski") who had performed the caesarian section delivery operation, was called in and attended to Cheryl's needs. Following initial examination and diagnosis, given the seriousness of the problem, Dr. Urbanski called in Dr. Colin Eric Clark ("Dr. Clark") and Dr. A. Zaidan ("Dr. Zaidan") to assist him. When satisfied that they had contained the bleeding and stabilized Cheryl as best they could under the exigent circumstances, she was transferred to the intensive care unit, where she could be closely monitored and followed. Initially, although not out of the woods, she appeared to be improving as well as could be expected despite the seriousness of her condition, which was of life threatening nature as result of extensive blood loss. However, on October 3, 1992, it became obvious that hemorrhaging had recurred. She was returned to the operatingroom where Dr. Urbanski eventually had to perform ahysterectomy. THE ISSUES The hysterectomy is the primary source of the problem in this case. Cheryl alleges that Dr. Urbanski was negligent in the performance of his professional duties and services upon her with the result that the hysterectomy, which could otherwise have been avoided, became inevitable. Central tothe plaintiff's allegations of negligence on the part of thedefendant is that the likely cause of Cheryl's ongoing orrecurring bleeding, on and after September 29, 1997, wasretained products of conception, which Dr. Urbanski failed toremove from her uterus by a dilation and curettage procedure("D & C"). Dr. Urbanski's credibility is challenged on theissue as to whether or not he actually performed the D & C, aprocedure which Cheryl alleges would have remedied thehemorrhaging which in turn would have obviated the necessityof performing the hysterectomy. As she was only 33 years of age at the time, had only the one child and was desirous, as was her husband, Steven Suchorab ("Steven"), of having more children, she was seriously traumatized by this result. Cheryl accordingly seeks damages from the defendant for her irretrievable loss, as well as for the pain and suffering resulting from her treatment and surgery. This action was commenced by both Cheryl and Steven, as joint plaintiffs, however, at the opening of trial, notice of discontinuance was filed on behalf of Steven. BURDEN OF PROOF AND STANDARD OF CARE It is trite law that in order to succeed it is incumbent upon the plaintiff to prove, on balance of probabilities, firstly, that Dr. Urbanski failed in the duty of care expected of him in the circumstances and secondly, that this failure caused the damages suffered by her. The standard of care which the defendant must meet is as stipulated in Quintal v. Datta, 1988 CanLII 5084 (SK CA), [1988] W.W.R. 481 (Sask. C.A.) (headnote p. 483): The standard of care for physician is the skill, knowledge and judgment of the average practitioner in the special group to which he belongs, and where there is more than one approved method of diagnosis or treatment physician is not negligent if, in exercising his best judgment, he selects an approved method which later turns out to be wrong or one not favoured by certain other practitioners. In this case, in addition to the oral testimony, the parties by agreement, filed an exhibit book (Document Book Exhibit P-1 D-1) essentially containing the large number of medical and hospital records pertaining to this case. As to the weight to be attached to such records, the Supreme Court of Canada held in Ares v. Venner (1970), 1970 CanLII (SCC), 73 W.W.R. 347, that they are admissible as prima facie proof of the facts stated therein. Hall J. speaking for the court stated at p. 362: Hospital records, including nurses' notes, made contemporaneously by someone having personal knowledge of the matters then being recorded and under duty to make the entry or record, should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses' notes, the nurses were present in Court and available to be called as witnesses if the respondent had so wished. The Manitoba Court of Appeal in the case of Kaban v. Sett and Salvation Army Grace General Hospital (1995), 107 Man. R. (2d) 225 in applying Ares v. Venner rejected the view that "nurses' notes are only prima facie evidence and that, if there is sworn testimony contrary to the notes, the notes cease to be prima facie evidence." Scott C.J.M. speaking for the court stated at para. 24: In this case, there is no evidence to suggest that the nurses' notes were prepared in circumstances any different from those in Ares v. Venner. While in that case the nurses were present in court and available for cross-examination, McLachlin, J., noted in R. v. Khan, 1990 CanLII 77 (SCC), [1990] S.C.R. 531; 113 N.R. 53; 1990 CanLII 77 (SCC), 41 O.A.C. 353; 1990 CanLII 77 (SCC), 59 C.C.C. (3d) 92; 1990 CanLII 77 (SCC), 79 C.R. (3d) (p. 105), that having the maker of the hearsay statement available for cross-examination is not prerequisite to statement being admissible. adopt the reasoning in Ares v. Venner and find that the prerequisites of reliability and necessity have been established in the current case, so that the nurses' notes are admissible as evidence of the statements contained therein. Necessity and reliability having been established, the nurses' notes are to be treated as substantive evidence and weighed against all other admissible evidence in deciding the issues raised in this case. The determination of the issue of liability and quantum of damages, if applicable, calls for more detailed finding of facts and analyses of the circumstances of this case. FINDING OF FACTS Dr. Urbanski, at all times material to this case, was qualified gynaecologist and obstetrician duly licensed to practice in the Province of Saskatchewan. Although his experience as specialist was relatively short, having been licensed to so practice in January, 1991, he had been surgeon for number of years, initially in Poland, his country of origin from 1977 to 1980, and subsequently, in Canada where he immigrated in 1980, and commenced practicing in 1984. He initially attended on Cheryl on August 25, 1992, when he was called in by her family doctor to assist in what was an obstructed labour problem. He determined that Cheryl would not be able to deliver her baby through natural childbirth and that caesarian section was necessary. He performed the caesarian section operation successfully. No issue is taken with the quality of his diagnosis and treatment in this regard. On September 29, 1992, Cheryl suffered sudden and massive hemorrhage. She was taken to the Victoria Union Hospital by ambulance, attended to, on an emergency basis, by Dr. Urbanski who had been called to emergency for this purpose. Cheryl was pale, cold, clammy and weak and diagnosed to be suffering from hypervolemic shock resulting from an acute loss of blood. In the emergency room she was stabilized by resuscitation procedures and transfused. Initial examination revealed that she was bleeding from the cervix. She was taken to the operating room for further examination and remedial surgery. Meanwhile an ultrasound was performed to assist in the determination of whether there were retained products of conception which might be the cause of the bleeding. The report of the radiologist, Dr. R. T. McKay, indicates that the pelvic ultrasound revealed the following: Large bulky uterus with internal hyper-echoic areas consistent with the results of retained products. There is evidence of some surrounding clot. No other abnormalities were found. (Exhibit P-1 D-1 VUH Doc. 19) It was Dr. Urbanski's plan, as indicated in his physician's clinical record (Exhibit P-1 D-1 VUH Doc. 12) to perform and laparotomy. In his oral testimony he stated that the plan should have indicated C, laparoscopy with possible laparotomy. He acknowledged in cross- examination that major cause of post-partum hemorrhage is retained products of conception, hence his request for the pelvic ultrasound and his initial plan to perform C. However, upon further examination after Cheryl had been anaesthetized in the operating room he detected bleeding from cervical artery. The bleeding had to be contained before anything else could be done. This was accomplished by the use of sponge forceps. He had called in to assist him Dr. Clark and Dr. Zaidan. He stated that after he temporarily stopped the bleeding and while waiting for his colleagues to arrive, he performed (a fact which is challenged by Cheryl). An exploration by way of laparoscopy revealed that there was fresh blood in the peritoneal cavity. After the arrival of Dr. Clark and Dr. Zaidan, because of the detection of fresh blood in the peritoneal cavity and the discovery of the necrotic cervix, they decided to proceed with laparotomy to further investigate the situation. The cause of the bleeding was confirmed to be the cervical artery. It was noted that the cervix was almost non- existent, friable and necrotic. The cervix extended only approximately four to five millimetres into the vaginal vault, making suturing almost impossible. As result of the laparotomy, Dr. Zaidan was able to manually push the uterus downward toward the cervix so that Dr. Urbanski could access the cervix for the purpose of suturing the bleeder. He was able to put in five to six sutures which stopped the bleeding. As result of the laparotomy, Dr. Clark and Dr. Zaidan were able to carefully check for retrocervical bleeding. When none was observed during half hour inspection and no other cause of bleeding was evident, the incision was closed and Cheryl was transferred to the intensive care unit. will, at this point, deal with Cheryl's allegation that no procedure was ever performed. The main argument for the plaintiff, in urging the Court to so conclude, are firstly, that Dr. Urbanski made no mention of having performed in the narrative portion of his report of operation (Exhibit P-1 D-1 VUH Doc. 21) and secondly, that given that retained products of conception were the likely cause of the post-partum hemorrhage, if had been performed it would likely have fully remedied the problem on September 29, 1997. It is the position of the plaintiff that the continuation or recurrence of bleeding after September 29, 1992, indicates that no was in fact performed by Dr. Urbanski. Counsel for Cheryl argued that the medical records "established conclusively" that no was performed. With all due deference do not find that to be the case. The report of operation under the heading "Operation" indicates the following procedures: "LAPAROSCOPY, SUCTION D&C, LAPAROTOMY TO RULE OUT INTRA-ABDOMINAL COMPLICATION, SUTURING OF FRIABLE, NECROTIC, ALMOST NON-EXISTENT CERVIX. RESUSCITATION." However in the more detailed, narrative portion of the report, while all other procedures are described, there is no further description or reference to the C. It is argued that because Dr. Urbanski usually renders fairly detailed description of operations and in view of his admission that the procedure should have been described, this omission is telling one. Furthermore, it appears from Dr. Clark's portion of the report that he was only advised of an "attempted C", by Dr. Urbanski. In addition, Dr. Clark expressed the opinion during his cross- examination at trial that he did not think it possible to perform while the sponge clamps were fixed to the cervix (a view which was not shared by Dr. Turnell). Admittedly these points are valid and, standing alone, might well justify the conclusion suggested by the plaintiff. At the very least they raise suspicion which calls for closer scrutiny of the evidence. In his testimony at trial, Dr. Urbanski indicated that he had, in fact, performed the after initially arresting the bleeding and before the arrival of Dr. Clark. His only explanation for his failure to detail the procedure in his report of operation is that it was an oversight, in the midst of the numerous procedures that he and his colleagues performed on this patient. At least two of the other medical doctors, who testified in this case, felt that this was, in the circumstances of this case, plausible explanation. Despite the fact that found Dr. Urbanski to be very defensive at times in giving his evidence, it is quite another matter to conclude that he was lying, especially when one considers his assertion in the light of all the evidence presented at trial. Other medical and hospital records forming part of Exhibit P-1 D-1 referred to the as procedure performed on Cheryl. See for example Physician's Clinical Report (Discharge Summary) (VUH Doc. 12, p. 12a) where it is indicated that was performed and that, "Suction did not reveal any product of conception ." This document was dictated and transcribed on October 13, 1992. As well, Dr. Urbanski's handwritten notes in Physician's Clinical Report (VUH Doc. 13) under date of September 29, 1992, reveal the following: Laparoscopy, laparotomy, C, Suturing of the cervix, B.B.L. 1500 Dr. Urbanski, Clark, Zaidan. Also of significance are the report and testimony of Dr. Marjory Theresa Jurgens, who was the anaesthetist attending on Cheryl for the operations performed on September 29, 1992. Her report (Exhibit P-1 D-1 VUH Doc. 22) indicates that was among the procedures performed. Counsel for Cheryl suggested in his closing argument that should consider Dr. Jurgens' report merely as "listing of the planned and expected procedures". That, however, goes contrary to Dr. Jurgens' oral testimony. While she admitted that she had no independent recollection as to the taking place, she indicated that her procedure in completing her report of operation is to record each procedure performed on patient only after its completion. She further stated that given the equipment required to perform and the characteristic noise of the suction pump, it is highly improbable that one would miss its happening or be mistaken as to whether or not it did occur. This view was supported by Dr. Roger Turnell ("Dr. Turnell"), qualified expert, obstetrician and gynaecologist, called by the defendant. The fact that on her report she listed the prior to the laparoscopy is hardly conclusive, despite the fact that she was not able to explain the listing order. It is interesting to note that the report of the operating room nurses (Exhibit P-1 D-1 VUH Doc. 23), which also specifies the as one of the operative procedures performed, has it listed after the laparoscopy and the laparotomy, when in fact the evidence does establish that no was performed after the laparotomy. Dr. Urbanski's several reports list the in varying order with the other procedures performed. It strikes me that in these succinct reports, the authors are perhaps more intent on listing what occurred rather than necessarily listing them in the exact order of occurrence. Does the plaintiff, in these circumstances, expect the Court to find that the operating room nurses' notes are fabrication of something that did not happen? There is no evidence to suggest that. The nurses were not called to explore any possibility of error. In my view, the report must be received as prima facie proof of the facts stated therein in accordance with Ares v. Venner. In the final analysis it is Cheryl who has the burden of proving on balance of probabilities that Dr. Urbanski failed to perform C. Not only has Cheryl failed to do so, but overall notwithstanding the weaknesses in the evidence, it does point to the contrary conclusion as the greater probability. It was further argued on behalf of Cheryl that, given that retained products of conception was the most likely cause of the hemorrhage, and the fact that the bleeding subsequently recurred, the Court should infer or conclude that it is highly unlikely that was performed. believe it is common ground among the several medical experts who testified at the trial that retained products of conception is the most common cause of post-partum hemorrhage. Dr. Mark Alexander Sheridan ("Dr. Sheridan"), an expert witness, obstetrician and gynaecologist, called by the plaintiff, stated that, in his opinion, that would apply to 80% of the cases. Dr. Phillip Bruce Victor Clement ("Dr. Clement"), an expert in gynaecological pathology, called by the defendant, and Dr. Turnell were of the view that the incidents of post-partum hemorrhage caused by retained products of conception were significantly lower. Dr. Turnell put it at 50% of the cases. While they differed on the frequency of this occurrence, believe that all of the medical experts were of the view that there are other causes of post-partum bleeding. Dr. Sheridan was particularly adamant about the high frequency of retained products being the cause and the fact that the solution should almost invariably be C. found him to be very dogmatic in his views. Given the difference of opinion of the many highly qualified medical experts who testified in this case, one must consider with caution such black and white opinions. believe Dr. Sheridan lessened his credibility by putting forth his opinions so stringently, despite the prevailing circumstances and complexity of this case. He engaged in good deal of rationalization and speculation, to endeavour to justify his conclusion that the post-partum hemorrhage, in this case, was caused by retained products of conception. He virtually ignored or took issue with facts which were conclusively established in evidence. While upon initial examination the most obvious diagnosis was undoubtedly that the hemorrhage was due to retained products of conception, cannot accept that it remained so after the further examination and investigation performed by Doctors Urbanski, Clark and Zaidan. In any event, believe there was general consensus among the experts that normally doctor faced with post- partum hemorrhage problem would, given that the most common cause thereof is retained products of conception, proceed to perform C. This was obviously Dr. Urbanski's initial intention, reinforced as it was by the ultrasound report (Exhibit P-1 D-1 Doc. 19). However, after his detection of the cervical artery bleeder and the further investigation by way of the laparoscopy and laparotomy, he concluded that the bleeding artery was the cause of the hemorrhage. Hemostasis was achieved by suturing the cervical artery and further investigation indicated no internal or other source of bleeding. In my view, his diagnosis and treatment, which were done in consultation with Dr. Clark and Dr. Zaidan, were proper and reasonable in the circumstances. In light of their observations, it was clinical decision call, as indicated by Dr. Clement. It strikes me that in so proceeding, in consultation with two other qualified obstetricians and gynaecologists, Dr. Urbanski acted in very professional manner and in accordance with the requisite standard of care expected of such specialists. Dr. Sheridan conceded that the most common cause is not always the correct diagnosis. The situation must be analyzed in light of the extremely significant finding of the very rare condition of necrosis of the cervix. It was immediately noted by both Dr. Urbanski and Dr. Clark that Cheryl's cervix was necrotic and very friable. Given the advanced stage of the necrosis and degree of deterioration it is readily apparent that the condition had been in existence for some time. This was confirmed by the opinion of Dr. Turnell who observed that the necrosis was "several weeks old not few weeks old three weeks or older." This type of necrosis is extremely rare and very few cases have been documented (see Exhibit P- 3). Dr. Turnell explained that this was an extremely rare phenomena, describing it as "one of these super rare conditions", the nature and cause of which have yet to be determined. Dr. Clement observed that in 20 years of practice, "I had never seen anything like this before". Cheryl testified that after performing the hysterectomy, in expressing his regrets and indicating that he had done nothing wrong, Dr. Urbanski advised her that "her case was unique, one in million that he had never saw, read or experienced anything like it before." Given the necrotic condition of Cheryl's cervix and the consequent deterioration of the artery at the lower cervical level, the diagnosis by Dr. Urbanski and Dr. Clark in consultation with Dr. Zaidan, as to the cause of the hemorrhaging was, in my view, both realistic and reasonable. Dr. Urbanski was able to stop the bleeding by suturing the cervical artery. Further investigation (laparotomy allowing visual observation) discounted any other source of internal hemorrhage. believe it highly unlikely that the collegial view of three specialists in gynaecology and obstetrics would, in these circumstances, constitute such diagnostic error as to be tantamount to negligence of duty and care. Based on the foregoing reasons find that it was most unlikely that the cause of the bleeding was retained products of conception. Hence, even if no had been performed, it would not likely have made any difference. Assuming no had been performed prior to the laparoscopy and laparotomy, it is my view, given the further investigation and findings of Dr. Urbanski and Dr. Clark, that any intended could have been cancelled as unnecessary. Dr. Turnell expressed the opinion that whether or not was performed on September 29, 1992, it would have had no effect on what eventually transpired. The necrosis of the cervix had nothing to do with any retained products of conception, if such there were. Before concluding my consideration of the cervical necrosis, should perhaps comment briefly on the evidence concerning when the necrotic portion of the cervix became detached and from what part of the cervix it originated. Dr. Urbanski indicated that it probably fell off during the suturing of the cervix. found him hedging on that point and that his evidence was rather weak. It is more likely that the necrotic piece fell off earlier in his intervention. The manner in which the medical reports of both Dr. Urbanski and Dr. Clark are drafted would support that as well as the testimony of Dr. Clark, who did not observe any piece of the cervix break off during suturing. Although find the medical evidence somewhat ambivalent on the point, it appears to me that the preponderant view of the medical experts is that the detached portion probably came from the lower part of the cervix and likely, for the most part, from the portion extending into the vaginal vault. In any event, in view of my other findings herein, do not believe that the specific determination of that point would affect or change the resolution of the causation issue. There is further evidence to show that retained products of conception was, in this case, unlikely to be the cause of the post-partum hemorrhage which occurred on September 29, 1992, and October 3, 1992. Both Dr. Urbanski and Dr. Jurgens testified that the performed on September 29, 1992, did not produce any products of conception but only blood products which were not retained by the filter sac. While most procedures generate tissue, it was acknowledged by all of the medical experts that in small number of cases nothing is produced. While Dr. Sheridan made much of this, Drs. Clark, Jurgens and Turnell all testified to the effect that suction procedure does not always produce pathology specimens. Where only blood products are produced, they are not usually submitted to pathology. The only tissue sent to the pathologist for analysis was the necrotic portion of the lower cervix which had broken away at some point during the examination and operations. It was identified as "necrotic tissue portion of cervix" (Exhibit P1 D-1 VUH Doc. 25). In corroboration of these findings is the fact that the tissue analysis of the uterus and cervix following the hysterectomy performed on October 3, 1992, does not indicate retained products of conception (see tissue report Exhibit P-1 D-1 VUH Doc. 31). This was confirmed by the histological examinations conducted by Dr. Turnell. believe another significant aspect of the evidence is the fact that the delivery of Cheryl's baby on August 25, 1992, was realized by way of caesarian section. As the medical evidence indicates, in such cases, because the placenta is hand delivered and the uterus is visually and manually cleaned, it is unlikely that retained products of conception will remain. refer to the Report of Operation (Exhibit P-1 D-1, HFH Doc. 21), wherein Dr. Urbanski stated in the first paragraph that the "[c]omplete placenta and membranes were delivered after the baby was delivered." In the second paragraph he adds ". the uterine cavity has palpated and the placenta removed manually. The uterus was then cleaned of all blood and clots. ." Clearly in the case of caesarian section birth the possibility of post-partum hemorrhage caused by retained products is accordingly diminished. This again supports the defendant's position that the hemorrhage in this case was not caused by retained products of conception. The opinion of Dr. John Allan Loewy ("Dr. Loewy"), radiologist and expert in the interpretation of ultrasound, called by the defendant, is interesting in this regard. He studied the films of the ultrasound performed on Cheryl on September 29, 1992 and expressed the view that there was no objective evidence of retained products of conception. While he conceded that their existence was still possibility, it was "not very probable". From what he observed on the films he felt it was the least likely explanation; blood products (clot) being more likely. Dr. Turnell also made an interesting observation with respect to retained products of conception being the cause of the hemorrhage. He stated that at this stage (34 days after birth) any remaining piece of placenta would be highly calcified and would show up brightly on the ultrasound. The ultrasound films do not show that. My view of the overall import of the evidence in this case is that it does not support the plaintiff's theory of causation (post-partum hemorrhage caused by retained products of conception and failure to perform C) resulting in the ultimate hysterectomy. The most likely hypothesis is the one propounded by Dr. Turnell, that the post-partum hemorrhage in this case was caused by the necrosis of the cervix. Given therarity of this condition and the paucity of documented medicalknowledge thereon, I do not believe that Dr. Urbanski can befaulted for what he did and for what eventually occurred. The best that can be expected is that medical practitioners will benefit from the knowledge gained in this case and in the future may more effectively address this uncommon problem. Regrettably this does not help Cheryl for whom the Court has great deal of empathy, given the tragic denouement to this unfortunate situation. There is no doubt that it has been painful experience for her, both physically and psychologically, and that she may well continue to suffer the after effects for some time to come. However, do not think that the blame for that should be laid at the feet of Dr. Urbanski. Given my finding, do not believe that the principles governing the determination of causation, as enunciated by the Supreme Court of Canada in Snell v. Farrell (1990), 1990 CanLII 70 (SCC), 72 D.L.R. (4th) 289, assists Cheryl in this case. In my estimation there is sufficient evidence refuting the plaintiff's theory as to what occurred such that the Court ought not to draw an inference of causation adverse to the defendant. do not think it necessary to discuss in great detail what occurred between September 29 and October 3, 1992. Dr. Urbanski believed that the cause of the bleeding had been found and rectified. As the patient was still in critical condition due to the massive blood loss, reasonable measures were taken to stabilize her condition. She was put in the intensive care unit where she could be closely observed and monitored. There was no reason to believe that hemorrhaging had recurred until significant fall in hemoglobin count for the second day in row as detected on October 3, 1992. Prior thereto, the count was consistent with the post-operative condition of patient who had lost massive amount of blood, had undergone surgery and was being treated with blood transfusions and I.V's. Despite the very deep concerns of Cheryl's husband and her mother as to what they perceived to be an apparent lack of progress, it must be noted that because of the seriousness of her condition, recovery was inevitably painful and slow. Having reviewed all the medical and hospital records in detail, Dr. Turnell expressed the view that she was making progress. He noted that her vital signs were stabilizing and that she was taking in fluid and starting bowel action. Even the reduced hemoglobin count up to and including October 2, 1992, was within the expected toleration limits in the circumstances of this patient. Of particular significance is the fact that an abdominal and pelvic ultrasound was conducted on October 2, 1992, and proved negative (Exhibit P-1 D-1 VUH Doc. 19a). Dr. Loewy indicated that there would be less than teaspoon of fluid present. On the other hand, the pelvic ultrasound of October 3, 1992, indicated that there was ". quite large fluid collections in both subdiaphragmatic regions posteriorly with evidence of blood and clot formation. Similar findings are found in both flanks and iliac fossa but not much actual blood was found in the pelvis. The size and shape of the uterus remain unchanged" (Exhibit P-1 D-1 VUH Doc. 19b). While Dr. Sheridan indicated that ultrasound is not effective in identifying fluids or blood in the pelvis or uterus, Dr. Loewy disagreed with him indicating that while ultrasound may not differentiate between blood and water, it is very accurate in identifying the presence of fluids be it blood or otherwise. Furthermore, Dr. Turnell indicated that there was nothing in the hospital records to indicate that significant amount of blood passed or that retained products of conception were found at any time between September 29 and October 3, 1992. Dr. Urbanski, in consultation with Dr. Walker who was called in at the request of Cheryl's mother, reacted with all due dispatch. Cheryl was returned to the operating room and the inevitable hysterectomy was performed. No issue is taken with the fact that at this stage, given the prevailing circumstances and Cheryl's deteriorated condition, that the hysterectomy was unavoidable. The operation was successfully completed and the plaintiff was eventually discharged from hospital on October 13, 1992. The evidence failed to establish whether Dr. Urbanski ordered transfusion on October as result of Steven's insistence or because of the result of the hemoglobin count; the timing is such that it could be and probably was both. Dr. Urbanski said that he ordered transfusion because of the continuing decline in the hemoglobin count. Frankly don't think much turns on that. In the throes of the situation, both Cheryl and her mother were extremely concerned; both feared for her life. Given their anxiety and that of Steven, they might well have somewhat overreacted in challenging Dr. Urbanski's management of Cheryl's case. That is understandable. He obviously took it as lack of confidence in his ability and manner of handling her case. This created some tension between Dr. Urbanski and Cheryl and her family. Dr. Urbanski, as professional, might have been more understanding of their feelings and hence less abrupt in reacting to their suggestions and concerns. If the theory of the plaintiff is accepted to the effect that the source of the bleeding was not resolved on September 29, 1992, the ongoing bleeding, as result of the previous extensive loss of blood, would undoubtedly have precipitated decline in the hemoglobin count earlier and put Cheryl's life in imminent danger. According to Dr. Sheridan, ongoing bleeding would have resulted in death within one or two days. Dr. Jurgens, on the other hand, was of the view that death would have occurred much sooner. That is another factor which supports the conclusion that it is unlikely there was ongoing hemorrhage from and after the operative procedures performed on Cheryl on September 29, 1992. This is borne out by the hospital records. It is argued on behalf of Cheryl that because necrosis of the cervix is rare and unexplained condition that it would be unreasonable to conclude that it was the cause of the hemorrhage in this case as opposed to the most common cause of retained products of conception. Despite the fact that necrosis of the cervix is an extremely rare and little understood phenomena, the fact remains that it definitely existed in this case; it was there and real and is not matter of speculation. Dr. Urbanski's evidence in this regard is corroborated by that of Dr. Clark and certified by the pathologist's tissue report and the evidence of Dr. Turnell. The fact that it is rare condition does not in any way make it less likely, when present, that it can cause hemorrhaging just as well as retained products of conception. The fact is that necrotic cervix is one where the cervical tissue is deteriorating, i.e., dying, including the blood vessels; hence the high probability that bleeding may result. Common sense alone will lead to such conclusion. While bleeding may be arrested, as was done here, it is probable that future bleeding could occur as result of the ongoing necrosis. That, in this case, is more likely cause of the recurrence of the post-partum hemorrhage experienced by Cheryl on October 3, 1992, than retained products of conception, which on the whole of the evidence is contra indicated. am somewhat at loss as to why Dr. Sheridan would so categorically reject such view. find the opinion of Dr. Turnell to be more realistic and reasonable given the prevailing conditions and the fact that he appeared to take all factors into account. To state that the performance of the laparoscopy and laparotomy in this case constituted negligence, in my view, is to ignore the bleeding cervical artery and the necrotic condition of the cervix. The evidencedoes not support the suggestion that in this case, a D & Cwould have cured the hemorrhage, originating as it did fromthe lower cervix. Surely these two conditions called for further investigation. Looking at it in retrospect, these procedures were clearly justified. accept Dr. Turnell's views in this regard. As he stated the laparoscopy is the definitive test, not the ultrasound. Contrary to the allegations of Cheryl, Dr. Urbanski stated that he did not suture the cervix shut. In that, his testimony is supported by that of Dr. Clark. He did concede however, as did other medical experts, that the cervical os may have become constrained (not patent) as result of inflammation and the accumulation of granulated tissue and blood clot; thus, renewed bleeding on October 3, 1992, or sometime between October and 3, could have resulted in the accumulation of blood in the uterus. CONCLUSION In summary the Court concludes as follows: 1. The plaintiff has failed to prove that the defendantwas negligent in his treatment of her. 2. The plaintiff has failed to prove that the cause ofthe post-partum hemorrhage experienced by her on September 29,1992 and subsequently, was retained products of conception. 3. The plaintiff has failed to prove that thehysterectomy she had to undergo on October 3, 1992, was theresult of Dr. Urbanski's failure to perform a D & C onSeptember 29, 1992, or because of any other negligent act oromission on his part. 4. Dr. Urbanski's care and treatment of the plaintiffmet the standard of care expected of the average physician andsurgeon, specializing in gynaecology and obstetrics. Accordingly, the plaintiff's claim is dismissed withcosts. J. Q.B. A.D.1993 No. 783 J.C. P.A. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: CHERYL SUCHORAB and STEVEN SUCHORAB DR. P. URBANSKI DEFENDANT Allan T. Logue for the plaintiff Christine J. Glazer for the defendant August 6, 1997 ADDENDUM ARCHAMBAULT J. to Judgment dated June 11, 1997 The first portion of the first full paragraph on p. is deleted and the following substituted therefor: The Manitoba Court of Queen's Bench in the case of Kaban v. Sett and Salvation Army Grace General Hospital (1993), 1993 CanLII 14765 (MB QB), 90 Man. R. (2d) 26 in applying Ares v. Venner rejected the view that "nurses' notes are only prima facie evidence and that, if there is sworn testimony contrary to the notes, the notes cease to be prima facie evidence." Beard J. stated at p. 32, para. 24. The quote following the paragraph remains the same. In addition, the following paragraph is added after the quote on p. 4: The Manitoba Court of Appeal, in dismissing the plaintiff's appeal, agreed with the trial judge's determination of the issue of the admissibility of the nurse's notes ((1995), 1994 CanLII 16696 (MB CA), 97 Man. R. (2d) 185).

A month following the birth of the plaintiff's only child by caesarian section, she underwent a hysterectomy on an emergency basis. She believed that the post-partum haemorrhage was caused by retained products of conception and that failure to perform a dilation and curettage procedure resulted in the hysterectomy. HELD: The plaintiff's claim was dismissed with costs. 1)The plaintiff failed to prove that the defendant was negligent in his treatment of her. The doctor's treatment and care met the standard of care expected of the average physician and surgeon, specializing in gynaecology and obstetrics. 2)She failed to prove that the cause of the post-partum haemorrhage was retained products of conception or that his failure to perform a D&C resulted in the necessity of a hysterectomy or because of any other negligent act or omission on his part. The most likely hypothesis was that the post-partum hemorrhage was caused in this case by the necrosis of the cervix. Given the rarity of this condition and paucity of documented medical knowledge the defendant doctor could not be faulted. The evidence did not support the suggestion that a D&C would have cured the hemorrhage. ADDENDUM: 1)The first paragraph was deleted and a new paragraph substituted: Kaban v. Sett in applying Ares v. Venner rejected the view that nurse's notes are only prima facie evidence and, if there is sworn testimony contrary to the notes, the notes cease to be prima facie evidence. 2)A paragraph was added after the quote on page 4: The Manitoba Court of Appeal, in dismissing the plaintiff's appeal, agreed with the trial judge's determination of the admissibility of the nurse's notes.

b_1997canlii11437.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Pottie v. Nova Scotia (Real Estate Commission), 2005 NSSC 177 Date: 20050627 Docket: S.H. 223574A Registry: Halifax v. The Nova Scotia Real Estate Commission Respondent Judge: The Honourable Justice Gregory M. Warner. Heard: June 9, 2005, in Halifax, Nova Scotia Counsel: J. Brian Church, Q.C., counsel for the Appellant. Alan J. Stern, Q.C., counsel for the Respondent. By the Court: [1] Pat Pottie, a licensed realtor, appeals the finding of unprofessional conduct made by a discipline sub-committee (“Committee”) of the Nova Scotia Real Estate Commission (“Commission”), and the sanctions imposed, including a two year license suspension and order to pay costs of $9,980.08. [2] Four grounds of appeal are set out: (a) the decision was quickly made which did not reflect the time needed to consider the totality of the evidence presented. (b) the decision of the Commission was arbitrary and contrary to the principles of natural justice resulting in denial of the principles of fairness. (c) the Commission erred in law by having no juristic basis to apply such harsh and severe penalty. (d) The penalty of the board was excessive having regard to this case. [3] In the fall of 2002 Pottie arranged for the purchase by Helen Howell of Texas of condominium on Hammonds Plains Road, Halifax, Nova Scotia. He also agreed to act as her rental agent for the condominium, as she was not immediately moving from Texas. [4] As of October 1, 2002, he had rented the condominium to tenant who had paid him $500.00 security deposit and rent of $1,000.00 per month (of which his fee was $175.00 per month). [5] Mr. Pottie did not set up or use trust account, but rather deposited the security deposit and the monthly rental cheques in his personal account. [6] Ms. Howell did not receive rent or copy of the lease and was having difficulty getting Mr. Pottie to answer her inquiries. In December, 2002, she asked her brother-in-law, Mr. Cormier, who resided in Sydney, Nova Scotia, to make inquiries for her. Mr. Pottie provided Mr. Cormier with false lease showing that the premises were rented as of December 1, 2002; thereafter he apparently began remitting some rent payments to Ms. Howell. [7] By May or June, 2003, Ms. Howell still had not received all the expected rent and Mr. Pottie was not answering her messages. At this point Mr. Cormier contacted the tenant and learned that she had rented the condominium since October 1st. On the advise of lawyer, Ms. Howell instructed Mr. Cormier to complain to the police, the Commission, and Mr. Pottie's broker. [8] At this point Mr. Pottie made arrangements to pay what he claimed was owed (approximately $4,000.00). As part of the arrangement to pay he requested Ms. Howell to withdraw her complaint to the police, to the Commission and to his broker. Further untruthful advice by Pottie was uncovered, and led to revised formal settlement agreement by which the full $8,500.00 paid by the tenant was remitted to Ms. Howell in exchange for release and agreement to drop the complaints. [9] The Commission did not drop the matter and continued the investigation. Mr. Pottie did not co-operate. Eventually the Commission subpoenaed Mr. Pottie's personal bank records, which records confirmed that he had deposited all rent cheques and the security deposit in his personal account and had used them for personal living expenses. [10] Mr. Pottie blamed the failure to advance to Ms. Howell the rent when due, and properly account for the rent, on bookkeeper he said he met at Tim Hortons and who had experience in rentals but who was out of work and homeless; he hired her out of sympathy to give her bit of start”.. He stated that he was busy and delegated to her (for the commission of $175.00 per month) the job of remitting the rent to Ms. Howell and providing an accounting. Because she advised him that she did not have bank account, he decided to use his personal account to process the rent cheques. Initially he advised Mr. Cormier that the name of the bookkeeper was “Donna”. At the hearing before the Committee he advised that her name was “Kathy Hynes”. He met her only at Tim Hortons and could only contact her by cellphone that belonged to her or her friend. Pottie could not provide phone number or address for Ms Hynes during the investigation or hearing; he advised that when he attempted to contact her at the time of the initial complaint to the Commission, he was told she had moved to Korea and he was unable to locate her. He also blamed her for the false lease that showed the rental starting on December (not the real date of October 1). [11] On April 19, 2004, hearing was held before the Committee on six allegations of misconduct. The Commission withdrew one of them. Three of the remaining allegations related to the false lease and the failure to remit rent to Ms. Howell. The other two allegations related to Pottie’s failure to co-operate with the investigation and giving false and misleading information to the investigator. [12] At the end of the hearing, both counsel submitted that the decision of the Committee hinged primarily on the credibility of the witnesses and in particular, Mr. Pottie. After hearing evidence and representations from both sides, the Committee adjourned for twenty minutes and returned to declare Mr. Pottie guilty of all five allegations of misconduct. The Committee stated that it did not believe Mr. Pottie. After the Committee's decision, counsel made representations with regards to sanctions and the Committee adjourned. [13] In his submissions, Mr. Stern advised the Committee of their obligation to provide reasons for any sanctions. It was clear from the submissions of both counsel that the circumstances of the case before the Committee were unique and that no precedent existed in Nova Scotia to provide guidance. Mr. Stern did provide the Committee with summary of some discipline sanctions from other jurisdictions (which summary was not included in the record submitted to this Court); he represented that these decisions were too inconsistent to provide any guidence, and that it was entirely in the discretion of the Committee to impose the appropriate sanction. [14] In a written decision filed on May 6, 2004, the Committee imposed sanctions. The entire written decision with respect to sanctions reads as follows: .Due to the seriousness of these violations it is the hearing panel's decision that Mr. Pottie's rights and entitlement to hold license to trade in real estate in Nova Scotia in any capacity be suspended. It is the Hearing Panel\'s unanimous decision that the following sanctions be implemented: 1. Mr. Pottie\'s license to trade in real estate be suspended for a period of two years effective immediately. 2. Mr. Pottie must complete the new Salesperson Licensing course prior to applying for license re-instatement. 3. Mr. Pottie is to pay the hearing costs of $9980.08 within 30 days of the date of this decision. 4. letter of reprimand is to go in Mr. Pottie's file. STANDARD OF REVIEW Statuatory Provision [15] The Real Estate Trading Act, S.N.S. 1996, Chapter 28, as amended, creates the framework for the regulation of real estate brokers and salespersons in Nova Scotia. It creates Commission of ten persons, most of whom are members of the Real Estate Association or licensed persons, to act as an independent self-governing authority for the real estate profession. [16] The Commission is authorized to, and has, prescribed bylaws setting the standards for professional conduct and the procedures for investigation of complaints and disciplinary action. [17] For the purposes of this proceeding, subsections 22, 24 (1), and 24 (2), of the Act are relevant and read as follows: 22 (1) Unprofessional conduct is question of fact, but any matter, conduct or thing, whether or not disgraceful or dishonourable, is unprofessional conduct within the meaning of this Act if it is (a) harmful to the best interests of the public, licensed persons or the Commission; (b) fraudulent; (c) breach of this Act, the regulations or the by-laws or any terms or restrictions to which licence is subject; or (d) failure to comply with an order of the Discipline Committee (2) Whether or not person is in breach of this Act, the regulations or the by-laws is question of fact, but if person displays (a) lack of knowledge, skill or judgment; or (b) disregard for the welfare of members of the public served by the real estate industry, of nature or to an extent that demonstrates that the person is unfit to continue to be licensed pursuant to this Act, that person is in breach of this Act, the regulations or the by-laws for the purpose of this Act. 24 (1) Any person may appeal from any order made by the Discipline Committee to judge of the Supreme Court of Nova Scotia within thirty days after the order is made, and the judge, on hearing the appeal, may make such order either confirming, amending or setting aside the order appealed from or for further inquiries by the Discipline Committee into the facts of the case as to the judge seems right. (2) The appeal shall be by motion, notice of which shall be served upon the registrar at least fourteen days before the time fixed for hearing the appeal, and shall be founded ;upon copy of the proceedings before the Discipline Committee, the evidence taken and the decision or report of the Discipline Committee in the matter, certified by the registrar and the Registrar shall, upon the request of any person desiring to appeal, at the expense of that person, furnish that person with certified copy of all evidence, proceedings, reports, orders and papers upon which the Discipline Committee has acted. [18] The Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia 2003 SCC 19 (CanLII), Ryan v. Law Society (New Brunswick) 2003 SCC 20 (CanLII), and Re Cartaway Resources Corp. 2004 SCC 26 (CanLII), established that there are three standards of review of administrative decisions: correctness, reasonableness simpliciter and patent unreasonableness. [19] The appropriate standard to be applied to particular issue will vary with the degree of deference that the reviewing court should give to the particular administrative decision. [20] The Supreme Court emphasized that the degree of deference results from pragmatic and functional analysis that begins with the weighing, in each case, of four contextual factors, described in Pushpanathan v. Canada (Minister of Employment Immigration), 1998 CanLII 778 (SCC), [1998] S.C.R. 982, as: the presence or absence of privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and the nature of the question law, fact, or mixed law and fact. [21] As noted by McLachlin, C.J., in Dr. Q., the factors may overlap and the overall aim is to discern the legislative intent. FIRST GROUND OF APPEAL [22] The central feature of the appellant's first ground is that it appears to have taken very short time for the Committee to reach decision that the appellant was guilty of five acts of professional misconduct. From page 238 of the transcript it appears the Committee recessed for twenty minutes after full day hearing, before returning with decision. [23] Because the Committee's function was quasi-judicial one, it owed duty of fairness to the appellant. [24] Section 22 of the Real Estate Trading Act expressly states that questions of unprofessional conduct are questions of fact. The Act does not contain privative clause. Subsection 24(1) provides for an appeal; on hearing the appeal, the judge may confirm, amend, or set aside the order appealed from or order further inquiry by the Committee into the facts “as to the judge seems right”. By subsection 24(2), the appeal is on the record of the Committee proceedings. [25] Bastarache, J., in Pushpanathan, at paragraph 26, stated that the central inquiry in determining the standard of review is the legislative intent creating the tribunal whose decision is being reviewed. [26] To the extent that the first ground of appeal challenges the factual findings of the Committee, this Court finds that, based on section 22 of the Act and, more specifically, on the credibility of the witnesses, the standard of review is reasonableness. [27] review of the transcript supports the Committee’s finding that Mr. Pottie lied to Ms. Howell about when the rental started, and provided her with fraudulent lease to back up his lie, and failed to pay her the rent owed to her either at all (with respect to October and November, 2002) and late (with respect to December, 2002 to May, 2003); and that Pottie intentionally failed to co-operate with, and mislead, the Commission in its investigation. Not only does the reasoning as whole logically flow from the evidence, but each element of the reasoning given by the Committee, is easily justified. [28] To the extent that the first ground of appeal may constitute submission that the Committee could not, acting judiciously, make decision on the allegation so quickly and that this constitutes evidence that the Committee acted unfairly or with bias, the issue is question of mixed law and fact. [29] The standard of review most often applied in situations analogous to this (questions of mixed law and fact) is reasonableness. An application of this standard to this case cannot support the appeal. The Court disagrees with counsel for the appellant that the Committee could not make such determination in short order, and, by finding the appellant to be not credible, satisfy themselves that he was guilty of all the allegations of misconduct. [30] The Commission's counsel, in his submission to the Committee, quoted at length from Farnya v. Chorny (1952) 1951 CanLII 252 (BC CA), D.L.R. 354 (B.C.C.A.), with respect to advice to triers of fact on determining credibility. The appellant's credibility was central to all five allegations. Both Counsel made credibility the issue for the Committee to determine. [31] The short time it took to make their decision is not evidence of bias or unfairness. The evidence was straightforward and uncomplicated; both the fraud committed on Ms. Howell, and the cover up during the Commission's investigation, were resolved primarily by their finding on the appellant's credibility, or lack of credibility. [32] In Dr. Q., the Court held that the reviewing judge erred in applying two exacting standard of review and for substituting her own view of the evidence for that of the Committee. In that case the Committee's decision involved issues of credibility. This Court finds no factual basis for questioning the Committee’s finding on credibility, or the length of time it took them to reach it. SECOND, THIRD FOURTH GROUNDS OF APPEAL [33] The third ground of appeal incorporates the relevant issues set out in the second and fourth grounds, and are dealt with as one issue. [34] The Committee did not explain the reason for its sanctions against the appellant except in the preface to the first statement which reads: “Due to the seriousness of these violations .”. [35] The standard of review as it applies to the imposition of sanctions by administrative tribunals has been discussed by the Supreme Court of Canada in Cartaway, and Ryan, and by the Nova Scotia Court of Appeal in Creager v. Nova Scotia (Provincial Dental Board) 2005 NSCA (CanLII). [36] In Cartaway, the British Columbia Securities Commission fined two brokers/directors $100,000.00 each for violations of the Securities Act. The British Columbia Court of Appeal found the fines inappropriate, given the penalties imposed on other brokers involved in the matter. The Supreme Court overturned the Court of Appeal and upheld the Commission’s fines. The Court determined that the standard of review was one of reasonableness. Like the case at bar, no privative clause prevented appeals of the Commission’s decision. The Supreme Court held that determining whether general deterrence was an appropriate consideration in formulating penalty fell within the Commission's expertise, and the Court found their determination was reasonable. [37] In Ryan, the Law Society disbarred lawyer for fabricating documents to cover negligence in conducting his client's legal action. The New Brunswick Court of Appeal held that because of the seriousness of the sanction, while the standard of review was reasonableness simpliciter, that less deference should be given to the decision than just reasonableness; it should come closer to correctness than to patent unreasonableness. The Supreme Court overturned the Court of Appeal. It made clear that there were only three standards of review and that reasonableness simpliciter set out single standard and the standard did not “float”. The Supreme Court set out how reviewing court should test for unreasonableness at paragraphs 54 to 56. decision will be unreasonable only if, after careful review of the reasons given by the tribunal, there is no line of analysis that could reasonably lead to the tribunal’s conclusion; that means the reasoning is considered as whole not each element separately. [38] In Creager, discipline committee found that Creager committed unprofessional conduct in the treatment of six patients. The committee imposed sanction of fourteen months suspension, and ordered the appellant to pay the hearing costs of almost $100,000.00. The Nova Scotia Court of Appeal made the following relevant findings: (a) in selecting and applying the standard of care for unprofessional conduct, the standard of review was reasonableness; (b) on questions of law or procedural fairness (such as whether the Committee had the power to define the standard of care), or with respect to the question of the giving of reasons for the sanctions, the standard of review was correctness; (c) on the question of the quantum of sanctions, the standard of review was reasonableness. [39] Fichaud, J.A., beginning at paragraph 23, makes the further point that issues of procedural fairness such as failure to give reasons to explain sanction or substantial costs award, do not merit any deferential standard of review; that is, that the standard is one of correctness. He cites in support of this position: Moreau-Berube v. New Brunswick, 2002 SCC 11 (CanLII), [2002] S.C.R. 249; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29 (CanLII), [2003] S.C.R. 539; and Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] S.C.R. 817. Duty to Give Reasons [40] The traditional common law position is that statutory authorities were not obliged to provide reasons for their decisions. [41] In Yarmouth Housing Ltd. v. Rent Review Commission (1982) 1982 CanLII 2887 (NS CA), 54 N.S.R.(2d) 28, and in RDR Construction Co. Ltd. v. Rent Review Commission (1982) 1982 CanLII 3265 (NS CA), 55 N.S.R.(2d) 71, the Appeal Division of the Nova Scotia Supreme Court held that providing reasons was necessary in cases where there was statutory right of appeal. [42] In Future Inns Canada Ltd. v. Nova Scotia (Labour Relations Board), (1997) 1997 CanLII 9861 (NS CA), 160 N.S.R.(2d) 241, the Nova Scotia Court of Appeal held, at paragraphs 76 and 77, that since judicial review for jurisdictional error was a constitutionally guaranteed right, it was patently unreasonable and contrary to the principles of natural justice and fair play for an administrative board not to give reasons for its decisions. [43] The Supreme Court of Canada accepted the position that the failure to give reasons could breach the duty of fairness in Baker v. Canada (Minister of Citizenship Immigration) 1999 CanLII 699 (SCC), [1999] S.C.R. 817. Among the reasons for giving reasons, the Court listed: (a) the discipline of giving reasons promotes better decision making; (b) reasons inspire greater public confidence in the integrity of the decision and (c) reasons facilitate the rights of appeal and judicial review. [44] More recently the Supreme Court in R. v. Sheppard 2002 SCC 26 (CanLII), [2002] S.C.R. 869, emphasized, in the criminal law context, the bases for requiring reasons. While careful to note at paragraph 19 that there are differences between criminal courts and administrative tribunals and that the rationale for giving reasons may therefore differ, the analysis of Binnie, J., is, in general terms, applicable to judicial review of administrative decision-making. [45] Of some significance in Sheppard is Binnie J.’s analysis of situations where no reasons are given and situations where inadequate reasons are given. The Court considered “generic” or “boilerplate” reasons to be no reasons. The Court emphasized that reasons had to be meaningful in the sense of providing some proper basis for review. [46] Relevant legal textbooks on the subject matter include: (a) Administrative Law by David J. Mullan, (looseleaf: Irwin Law, Toronto), Chapter 13, section (4) “Content of Reasons”; and (c) Judicial Review of Administrative Action in Canada by Brown and Evans, at sections 12:5000 to 12:5330. [47] Section 12:5212 in Brown Evans’ text is inciteful: while the absence of reasons should not lead reviewing court infer bad faith or that no legally valid reasons existed, it can be taken into account in considering whether the administrative tribunal complied with requirement to consider various factors. [48] While adequacy depends upon the context and there may be no precise single test of adequacy, reasons must be sufficiently clear, precise and intelligible as to set out the reasoning process of the tribunal and demonstrate a consideration of all of the relevant factors. [49] Inadequate reasons and the failure to give reasons offends the principle of procedural fairness. [50] In determining the degree of deference to be given to the Committee's failure to give reasons, this Court notes (a) there is no privative clause and that there is statutory right of appeal, and (b) the issue of procedural fairness is matter of law and something for which the Committee has no special expertise. For these reasons, this Court finds that, on the issue of the absence or adequacy of reasons, the standard of review is one of correctness. For the appropriateness of reasons that are given, the standard of review is reasonableness. [51] The decision of the Committee, other than noting that the seriousness of the violation, does not provide the appellant, or other persons who may be subject to the Act, or the public, or the reviewing Court, clear explanation of how it arrived at the sanctions it imposed. It does not disclose what factors (aggravating or mitigating) with regards to the acts of misconduct or Mr. Pottie it considered. [52] The imposition of sanctions by Discipline Committee should not be standardized or generic. There is requirement for the provision of reasons demonstrating consideration of the factors relevant to the particular circumstances of each case. The fact that the type of infractions committed in this case are unique an unusual to the Commission, is all the more reason that the appellant, and others who are subject to the Act, and the public, are entitled to an explanation. The sanctions imposed do not speak for themselves. [53] It is for the Commission, whose members have the expertise and the knowledge of their industry to outline framework for the imposition of penalties and sanctions. It is not function for this Court, even if this Court has the record and transcript of the proceedings before the Committee, to usurp its role. [54] Having stated that the standard of review on matters of law is correctness, this Court finds that the complete inadequacy of the explanation of the suspension, and the absence of any explanation for the imposition of the other sanctions, fails to meet the standards placed on the Committee. [55] The options available to the Court include: (a) imposing the appropriate sanction or (b) remitting the matter to the Committee to state reasons, or (c) remitting the matter to the Committee with direction that it redetermine the appropriate sanctions after hearing any new evidence the parties may submit and after receiving full representations from both the Commission and the appellant as to the various factors that are relevant to the imposition of sanctions. [56] The court rejects the first option. The Commission is self-governing body with power to make rules and enforce them because it is in better position to do so. The court rejects the second option. The Committee from which this appeal was taken was directed by Mr. Stern to state its reasons and failed to do so; the Committee was not given sufficient guidance by either counsel on how it should carry out its task, especially since the circumstances were unique and more serious that the Commission had experienced before. [57] The court adopts the third option. As Brown and Evans state, at section 12:6300, it is matter of fairness, after the sanctions have been quashed, that the decision be reconsidered, taking into account all the relevant factors. FACTORS RELEVANT TO SANCTIONS [58] The Commission's counsel requested the Court to provide some guidance to the Commission. Because it is the Commission itself that has the expertise to determine what is in the best interests of the public when dealing with its members, it is not appropriate for Court to give directions that may fetter the exercise of the discretion given to the Commission to set standards and enforce them. [59] The imposition of sanctions is not mechanical exercise. While it is not improper for Discipline Committee to take into account informal rules or guidelines and previous decisions for which written reasons have been given all of which increase certainty, reduce inconsistency and raise the level of accountability to the public the Discipline Committee must treat each case according to its own circumstances; that is, in accordance with the nature of the offence and the unique circumstances of the offender. It must not feel bound to automatically follow rule, policy, guideline or precedent. [60] While proceedings before the Discipline Committee are not criminal, but rather civil, the object of the imposition of sanctions resulting from breaches of the Act or of professional misconduct are not dissimilar to the purpose and principles of sentencing contained in the Criminal Code beginning with s. 718, 718.1 and 718.2. The principles of sentencing in the criminal context reflect the requirement to protect the public by the denunciation of unlawful conduct, specific deterrence, general deterrence, rehabilitation, and the promotion of sense of responsibility by the offender. [61] The process of sentencing requires the decision maker to consider the particular gravity of the offence itself and the degree of responsibility of the offender. In respect of both of these factors there may be aggravating or mitigating circumstances. [62] While the criminal law clearly prohibits “cookie cutter” approach to sentencing, it is factor that, in similar circumstances involving similar offences and similar offenders, consideration of precedent is one factor that promotes fairness, certainty and consistency. [63] Without intending in any way to restrict or direct the redetermination to be made by the Committee in the case at bar, it is relevant for the Committee to consider not only the seriousness of the offence itself (which its decision stated it had), but also the factors related to the appellant himself. Is he first time offender? Is he person with long record of good behaviour who can provide logical and credible explanation for this glitch in his behaviour? These may constitute mitigating factors. On the other hand, if the offender has extensive business experience, does not have long record of good behaviour, and has no credible excuse (such as an some unusual personal crisis that is unlikely to be repeated), then these may constitute aggravating factors. [64] With regards to the offence itself, offences of the nature that adversely affect the public, or are deliberate (as opposed to negligent or careless) might be aggravating factors. Certainly the seriousness of the offence is an aggravating factor. [65] The decision of Green, J. (as he then was) of the Newfoundland Supreme Court in Jaswal v. Newfoundland Medical Board [1996] N.J. 50, is instructive; in particular, the thirteen factors set out in paragraph 36 of his decision, which paraphrase as follows: 1. The nature and gravity of the proven allegations 2. The age and experience of the offender 3. The previous character of the offender and in particular the presence or absence of any prior complaints or convictions 4. The age and circumstances of the victim (if there was one) 5. The number of times the offence was proven to have occurred 6. The role of the offender in acknowledging what had occurred 7. Whether the offender had already suffered other serious financial or other penalties as result of the allegations having been made 8. The impact of the incident on the victim (if there was one) 9. The presence or absence of any mitigating circumstances 10. The need to promote specific and general deterrence and, thereby, to protect the public and ensure the safe and proper conduct of the real estate profession 11. The need to maintain the public’s confidence in the integrity of the real estate profession 12. The degree to which the offensive conduct that was found to have occurred was clearly regarded, by consensus, as being the type of conduct that would fall outside the range of permitted conduct 13. The range of sentence in other similar cases [66] With regards to the issue of the costs of the discipline proceeding, several factors might be relevant in any particular case. One of them obviously is the quantum of the costs as described by Fichaud J.A. in Creager. Factors that might be relevant on the circumstances of the case at bar include the evidence which appears to show that the appellant is impecunious, that he is 52 years old with dependant spouse, and that he will be unable to pursue his occupation for two years or such other period as the Committee may decide). What is the likelihood that the appellant has or will have the resources to pay the costs. Again, the decision in Jaswal, supra, beginning at paragraph 40, and in Creager at paragraphs 96 and 97, are relevant. CONCLUSION [67] Applying the standard of review of reasonableness to the Committee’s findings of unprofessional conduct, the court dismisses the appeal. [68] Applying the standard of review of correctness to the Committee’s failure to explain its reasons for the sanctions (including costs), the court grants the appeal, and remits the issue of sanctions back to the Committee with a direction that it reconsider its decision. This will involve hearing such additional evidence as the parties may wish to present on matters relevant to the possible sanctions, considering all relevant factors, both aggravating and mitigating, as to the offences themselves and as to the circumstances of the offender, and giving reasons for whatever sanction the Committee may impose. [69] This court makes no comment on the appropriateness of the sanctions that were imposed. The absence of reasons makes it impossible to assess the decision. No one should take this decision as implying that the sanctions imposed were too heavy or too light or just right, or that this court intended to place any restriction on the range of sanctions that the Committee may, after considering all relevant factors, impose on Mr. Pottie. Obviously, however, primary concern should be the protection of the public and thereby the integrity of the real estate profession. [70] The court will hear the parties with respect to costs if requested.

A real estate agent sold a condominium to an American and agreed to rent it for her for a fee. He deposited a security deposit and rent in his personal account and used it for personal living expenses. When the owner inquired, he caused a false lease to be provided to her showing the rental commencing two months later than it actually did; he then failed to remit some rent and was late remitting other rent. He entered into a settlement with the owner after she complained to the Real Estate Commission but misled and did not cooperate with the Commission. At the discipline hearing, his evidence was found not credible. The Committee gave a written decision outlining the reasons for finding him guilty of five counts of professional misconduct, but failed to provide reasons for the sanctions imposed, which included a two year licence suspension and hearing costs of $10,000. The realtor appealed both the findings of professional misconduct and the sanctions imposed. Applying the standard of review of reasonableness, appeal from the findings of misconduct dismissed; applying the standard of review of correctness, appeal granted on the issue of the sanctions imposed; matter remitted back to the Committee for reconsideration, based on the principles of sanctioning outlined in the decision. It is patently unreasonable and contrary to the principles of natural justice and fair play for an administrative board not to give reasons for its decisions; reasons must be sufficiently clear, precise and intelligible as to set out the reasoning process of the tribunal and demonstrate a consideration of all of the relevant factors.

2_2005nssc177.txt

1994 S.H. No. 94‑102428 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: JOHN D. CARROLL and WAG‑AERO INC., body corporate, and AERO FABRICATORS INC., body corporate DECISION HEARD: Before the Honourable Justice D.W. Gruchy on November 10, 1994, in Chambers at Halifax, Nova Scotia DECISION: November 10, 1994 (Orally) RELEASE OF ORAL: November 28, 1994 COUNSEL: Donald L. Shewfelt, Esq., and Timothy J.C. Hall, Esq., Solicitors for the plaintiff Richard F. Southcott, Esq., Solicitor for the defendants GRUCHY, J. (Orally) The plaintiff alleges that in 1988 he purchased aircraft parts from the defendants, such parts being Piper PA‑11 fuselage. The defendant is in the business of manufacturing and selling such parts in Lyons, Wisconsin, U.S.A. The plaintiff constructed the aircraft and first flew it in August, 1991. The aircraft crashed in August, 1992, and the plaintiff alleges the crash was due to faulty and substandard materials used by the defendant in the manufacture or construction of the PA‑11 package. He says that the fuselage was not up to the standards promised by the defendant and was "...not certified as warranted by the Defendants...." He says only the defendant had full knowledge of the materials used in the construction of the fuselage. The defendants have applied either to have the service of the Originating Notice and Statement of Claim set aside as this Court has no jurisdiction, or to have the action stayed on the basis of forum non conveniens. In the application it has described its business as receiving orders by mail order and telephone which are then processed in Wisconsin for either pick up there or delivery to the customer. It distributes catalogues to potential customers. It has no presence in Nova Scotia, other than through the possibility of receiving orders, presumably through its catalogues. According to the defendants the parts used by them are all inspected by various agencies in the United States. Their entire quality control is in the United States. All their employees are in the United States. In this specific case the defendant acknowledges that they received the order from the plaintiff and shipped the items ordered to him in June, 1988. The order was custom manufactured in Lyons, Wisconsin, specifically for delivery to the plaintiff in Nova Scotia. According to the defendants, in order to defend this action it will be necessary to obtain evidence from at least employees, various Aero fabricators concerning the FAA approval, surveillances, manufacturing and inspections, FAA employees, specific FAA inspector and various expert witnesses. According to the defendant, the plaintiff\'s primary cause of action revolves around his loss arising from what he was was negligence in the manufacture and inspection of the aircraft parts. That places some of the evidentiary situs of the action in Wisconsin, or more generally, in the United States. On the basis of the pleadings, that is where "...there is real and substantial connection..." between the ultimate event and this action. (See DeSavoye v. Morguard Investments Limited, 1990 CanLII 29 (SCC), [1991] W.W.R. 217). But the plaintiff complains of his loss in Nova Scotia and shows competing connection with this jurisdiction. He says that the real connection centers around the site of delivery, the residence of the plaintiff, the site of the crash, the location of the aircraft remains and the location of the majority of lay and expert witnesses. The plaintiff's affidavit cites both his view as to the number of witnesses anticipated without specificity. While may have some reservations about the number of witnesses anticipated by the plaintiff, it is not for me to second‑guess his statement. The defendant is in the business of manufacturing and selling aircraft parts all over the United Stated (and Canada). It must be taken to have accepted that its product may ultimately cause injury to its customers. It must, therefore, have assumed that its product "...is likely to be purchased by customer in the jurisdiction where it will be used...." find it very difficult, if not impossible, to distinguish this case from Moran et al v. Pyle National (Canada) Ltd., 1973 CanLII 192 (SCC), [1974] W.W.R. 586. The works of Dickson, J. in that case, found at pp.597‑ 598, are appropriate: Generally speaking, in determining where tort has been committed, it is unnecessary, and unwise, to have resort to any arbitrary set of rules. The place of acting and the place of harm theories are too arbitrary and inflexible to be recognized in contemporary jurisprudence. In the Distillers' case and again in the Cordova case real and substantial connection test was hinted at. Cheshire, 8th ed. p.281, has suggested test very similar to this; the author says it would not be inappropriate to regard tort as having occurred in any country substantially affected by the defendant's activities or its consequences and the law of which is likely to have been in the reasonable contemplation of the parties. Applying this test to case of careless manufacture, the following rule can be formulated: where foreign defendant carelessly manufactures product in foreign jurisdiction which enters into the normal channels of trade and he knows or ought to know both that as result of his carelessness consumer may well be injured and it is reasonably foreseeable that the product would be used or consumed where the plaintiff used or consumed it, then the forum in which the plaintiff suffered damage is entitled to exercise judicial jurisdiction over that foreign defendant. This rule recognizes the important interest state has in injuries suffered by persons within its territory. It recognizes that the purpose of negligence as tort is to protect against carelessly inflicted injury and thus that the predominating element is damage suffered. By tendering his products in the market place directly or through normal distributive channels, manufacturer ought to assume the burden of defending those products wherever they cause harm as long as the forum into which the manufacturer is taken is one that he reasonably ought to have had in his contemplation when he so tendered his goods. This is particularly true of dangerously defective goods placed in the inter‑provincial flow of commerce. In this case the defendant had the specific knowledge that goods it had manufactured were to be exported to this jurisdiction. On the basis of the competing affidavits and submission, I conclude that there is a real and substantial connection in this case to both jurisdictions. therefore decline to strike the service of the Statement of Claim and turn to the question of balance of convenience, or forum conveniens. Forum Non Comveniens In this regard it is necessary to determine which jurisdiction is more convenient for the respective parties. must consider the location of prospective witnesses, the location of evidence and the effect those factors will have on the convenience and expense of the trial to each of the parties. It was said in Garson Holdings Ltd. v. Wade (Norman) Co. Ltd. (1991), 111 N.S.R. (2d) 32, at p.34 in quoting English authorities: In order to justify stay two conditions must be satisfied, one positive and the other negative: (a) The defendant must satisfy the court that there is another forum to whose jurisdiction he is amenable in which justice can be done between the parties at substantially less inconvenience or expense, and (b) The stay must not deprive the plaintiff of legitimate personal or juridical advantage which would be available to him if he invoked the jurisdiction of the English court. also refer to Monohan et al v. Trahan et al (1993), 1992 CanLII 4497 (NS SC), 117 N.S.R. (2d) 393 in which J.‑G. Castel's Canadian Conflict of Laws (2nd Ed., 1986), 225, were cited: The question whether the forum is appropriate is one of degree and the answer will vary from case to case. Unless the balance is strongly in favour of the defendant the plaintiff's choice of forum should rarely be disturbed. In this case the plaintiff has chosen Nova Scotia as his forum. He has probably done so with recognition of the extreme costs he may face in attempting to obtain the evidence in Wisconsin and elsewhere in the United States to substantiate his allegations and to import that evidence to Nova Scotia. He has presumably balanced that risk of costs against such savings as he may effect by his local witnesses and evidence. In doing so, he has not apparently indulged in forum shopping. Indeed, convincing argument might be made that Wisconsin might be kinder forum for him. No real issue exists as to difficulty in establishing Wisconsin law, and if such issue does in fact arise, that can be addressed no more expensively than calling any other expert. If it develops that the law relative to the contract between the parties is the law of Wisconsin, then this Court may, upon advice, apply that law. The same applies to the law of tort. It is not necessary to outline the parties' competing lists of witnesses. At this early stage of the proceeding, such list is of dubious value. can only conclude there will be witnesses from both jurisdictions. cannot reach any firm conclusion as to which forum will be the least convenient situation unlike that in Ryle (S.G.) Associates Ltd. v. Resources Management International Inc. (1988), 86 N.S.R. (2d) 171. finally refer to Castel's Canadian Conflict of Laws, pp. 233‑234, and the list of factors to be taken into account in assessing the appropriate forum. In exercising its discretion to grant or refuse stay, the court will consider all the circumstances of the particular case, especially: (1) In what province or foreign state the evidence on the issues of fact is situated, or more readily available, and its effect on the relative convenience and expense of trial as between the local and foreign courts; (2) Whether the law of the foreign court applies, and, if so, whether it differs from local law in any material respects; (3) With what province or state either party is connected, and how closely; (4) Whether the defendant genuinely desires trial in the other province or foreign state, or is only seeking procedural advantages; (5) Whether the plaintiff would be prejudiced by having to sue in the foreign court because he would: (i) be deprived of security for his claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with time bar not applicable here; or (iv) for political, racial, religious or other reasons be unlikely to get fair trial; and (6) Whether the foreign court is able to deal with the issues. I have considered all these factors and have concluded that the plaintiffs choice of forum is a reasonable one and should not be disturbed. The application is therefore dismissed. Costs will be costs in the cause. J. Halifax, N.S.

The plaintiff purchased aircraft parts from the American defendant. The plane crashed in Nova Scotia and the plaintiff, claiming negligence by the defendants in the manufacture of the parts, commenced an action in Nova Scotia. The defendants applied to declare Nova Scotia forum non conveniens. Dismissing the application, that there is a real and substantial connection to both jurisdictions and the plaintiff's forum choice appeared reasonable and should not be disturbed.

1994canlii4214.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 406 Date: 2007 11 06 Docket: Q.B.G. 2036/2005 Judicial Centre: Regina BETWEEN: ELIZABETH AUBICHON, MELVINA AUBICHON, THERESE AUBICHON, TERRY BEKKATLA, THOMAS BEKKATLA, VICTOR BOUVIER, AMBROSE CAISSE, MARTIN CHARTIER, VITAL VICTOR CORRIGAL, RICHARD DESJARDIN, PAUL DESJARLAIS, MARIE ANTOINETTE DIACHINSKY, ARTHUR DUROCHER, LOUISE DUROCHER, JOSEPH MARIUS FAVEL, FRANCINE GUETRE, RENE GUETRE, RONNE GUETRE, SARAH HANTERMAN, JOSEPH JANVIER, RENE JANVIER, GEORGE LALIBERTE, RONALD LAPRISE, NORMAN JOSEPH LARIVIERE, THERESA MALBOUEF, ELIZABETH MAURICE, JAMES MAURICE, EMERY McCALLUM, MARIE ANGE McCALLUM, MARY ROSE McCALLUM, CHRISTOPHER McKAY, ERIC McKAY, ALAN MERASTY, FELIX MERASTY, BRENDA MONTGRAND, BRENDA MONTGRAND, DONALD MORIN, FLOYD MORIN, JOHN HENRY MORIN, PETER MORIN, RODERICK MORIN, HERB NORTON, MORLEY NORTON, FRANCIS JOSEPH PETITE, NORMAN THOMAS ROY, LORRAINE SUTHERLAND, GARY SYLVESTRE, MATILDA WAGNER, ALICE WOODS, as representatives and claimants on behalf of all Metis individuals and person who are not status Indians who attended Ile la Crosse, including but not limited to all clients of the proposed Class Counsel, and the John and Jane Does named herein, and such further John and Jane Does and other individuals belonging to the proposed class, including JOHN DOE I, JANE DOE I, JOHN DOE II, JANE DOE II, JOHN DOE III, JANE DOE III, JOHN DOE IV, JANE DOE IV, JOHN DOE V, JANE DOE V, JOHN DOE VI, JANE DOE VI, JOHN DOE VII, JANE DOE VII, JOHN DOE VIII, JANE DOE VIII, JOHN DOE IX, JANE DOE IX, JOHN DOE X, JANE DOE X, JOHN DONE XI JANE DOE XI, JOHN DOE XII, JANE DOE XII, JOHN DOE XIII, JANE DOE XIII, being Jane and John Doe who attended Ile La Crosse and resides in each Canadian province and territory, and other John and Jane Does Individuals, Estates, Next-of-Kin and Entities to be added PLAINTIFFS(APPLICANTS) and ATTORNEY GENERAL OF CANADA and THE GOVERNMENT OF SASKATCHEWAN DEFENDANTS (RESPONDENTS) Counsel: E.F. Anthony Merchant, Q.C. for the plaintiffs Dale K. Beck for the Government of Saskatchewan Scott R. Moffat for the Attorney General of Canada FIAT BALL J. November 6, 2007 [1] The plaintiffs are former students of school at Ile La Crosse, Saskatchewan. They commenced this proposed class action against the Attorney General of Canada on December 9, 2005. On January 20, 2007, plaintiffs’ counsel filed an amended statement of claim which added the Government of Saskatchewan (herein “Saskatchewan”) as a second defendant. Saskatchewan then applied for an order disallowing the amendments to the statement of claim. THE PLAINTIFFS’ CLAIM [2] The plaintiffs claim to represent “All Metis persons, status Indians, and persons who are not status Indians who attended Ile la Crosse”. The first 74 paragraphs of the amended statement of claim lists 47 plaintiffs by name plus another 25 “John Does” and “Jane Does”. All 72 of those individuals are alleged to have been residents or students at Ile la Crosse from as early as 1937 to as late as 1979. [3] The original claim asserts that the plaintiffs are members of proposed “Student Class”. The amended claim adds the following paragraphs 76(b), 76(c) and 76(d) to the initial pleading: Sibling Class 76(b) The sibling class includes all of the parents and siblings of the student class members. Family Class 76(c) The family class includes the spouses and children of the student class members. 76(d) The Plaintiffs anticipate that pursuant to decision of certification Judge they will be divided into subclasses based on the types of abuse they suffered. By means of amendments to the statement of claim it is alleged that the Sibling Class and Family Class members suffered loss of culture, language and traditional ways of living. There is no claim that any of the plaintiffs are members of either the proposed Sibling Class or the proposed Family Class, or that the plaintiffs represent the members of those proposed classes. [4] The amended claim alleges that the first defendant (referred to in the pleadings as “the Government”) and the added defendant (referred to as “Saskatchewan”) funded and were responsible for Ile la Crosse school in supervisory and oversight capacity. Paragraph 95 of the amended claim states that the defendants are liable to the plaintiffs, inter alia, for: physical and sexual abuse visited upon them; cultural abuse; failing to provide them with an adequate education; and holding them against their will and the will of their parents. [5] Paragraph 105(a) of the amended statement of claim states: 105(a) The Plaintiffs specifically plead the following causes of action against the Defendants: (a) Systemic negligence in failing to adequately protect the Plaintiffs from physical and sexual abuse and loss of culture; (b) Breach of fiduciary duty resulting in injury to the student class; (c) Breach of fiduciary duty resulting in injury to the sibling and family classes; (d) Breach of non-delegable duty to protect the Plaintiffs; (e) Unlawful confinement; (f) Breach of Charter rights of freedom of expression and freedom of religion; (g) Vicarious liability of the Defendants for the tortuous[sic] acts of its servants and agents; (h) Breach of aboriginal rights. [6] Paragraph 133 of the amended statement of claim indicates that the plaintiffs were alive to the possibility that some of their claims may be statute barred. Paragraph 133 states: 133. In the event that the Defendants attempt to rely upon the Public Officers Protection Act (now repealed) then the Plaintiffs plead s. 2(1)(b) of that Act and ask this Honourable Court to extend the time for commencing this action on nunc pro tunc basis. APPLICATIONS AND SUBMISSIONS [7] The delivery of the plaintiffs’ amended claim resulted in back and forth series of submissions which, when unravelled, can be summarized as follows: • Saskatchewan applied pursuant to Queen’s Bench Rule 168 for an order disallowing the amendments which added Saskatchewan as a defendant, arguing that s. 20 of The Limitations Act, S.S. 2004, c. L-16.1 requires the plaintiffs to obtain leave of the court before adding a new defendant to an existing action. Counsel for the plaintiffs responded that the amendments to the claim were permitted by Queen’s Bench Rule 66 and that leave of the court under s. 20 of The Limitations Act was not required. In the alternative, counsel for the plaintiffs submitted that if leave to add Saskatchewan as defendant was required by s. 20 of The Limitations Act, then the court should grant such leave. Saskatchewan opposed the plaintiffs request for leave to amend the claim, arguing that the portion of the plaintiffs’ claim based in negligence is barred by the limitation period in The Public Officers Protection Act, R.S.S. 1978, c. P-40 (repealed by The Limitations Act effective May 1, 2005), and that other portions of the claim should be struck out as disclosing no reasonable cause of action or constituting an abuse of process. Counsel for the plaintiffs responded that the limitation period set forth in s. 2(1) of in The Public Officers Protection Act (“POPA”) does not bar the claim in negligence against Saskatchewan, or, if it does that, an order nunc pro tunc should be granted extending the time in which the plaintiffs may bring their action. Counsel for Saskatchewan replied that if the plaintiffs were applying to extend the time for bringing an action under the POPA, then their application must be dismissed because the plaintiffs gave no explanation for their delay in commencing their action against Saskatchewan and filed no evidence to support an extension. ISSUES [8] Although both parties ask the court to make a number of legal and factual determinations and orders, on the material filed there is only one application capable of being heard and determined: Saskatchewan applies pursuant to Queen’s Bench Rule 168 for an order disallowing the amendments to the plaintiffs’ statement of claim which added Saskatchewan as a defendant. That application is based on the proposition that s. 20 of The Limitations Act applies and requires the plaintiffs to obtain leave to amend the claim by adding Saskatchewan as a new party. [9] It will be helpful to identify issues that, although alluded to by the parties in argument, are not raised by Saskatchewan’s application and will not be addressed in this fiat. Saskatchewan has not applied for an order striking some or all of the plaintiffs claims on the basis that the pleadings disclose no reasonable cause of action. Although in argument Saskatchewan references s. 2(1) of the POPA as potential bar to unspecified portions of the plaintiffs’ claims based in negligence, its motion is based on the proposition that s. 20 of The Limitations Act applies to the amendments. Saskatchewan acknowledges that there is no limitation period for claims of physical or sexual assault within the purview of s. 16 of The Limitations Act, and offers little guidance as to which of the remaining claims should be struck out on the basis that they are statute barred. [10] Counsel for the plaintiffs has not filed an application for an order under s. of the POPA allowing an action in negligence to be brought against either of the defendants and has not offered any evidentiary or legal support for such an order. Neither the plaintiffs’ reference to the POPA in paragraph 33 of the statement of claim, nor the spontaneous request for an order under the POPA made by plaintiffs’ counsel during argument, are substitutes for an application brought on proper notice and supported by relevant evidence. [11] In summary, number of issues were raised in argument but not placed before the court in form and substance that could fairly be considered and decided. The only issues raised by the motion and to be dealt with in this fiat will be identified as: (a) Are the plaintiffs required by s. 20 of The Limitations Act to apply for leave to add Saskatchewan as defendant in this action? (b) If the plaintiffs are required to apply for leave to add Saskatchewan as defendant, should such leave be granted on the pleadings and the material filed? ANALYSIS Rules of Court [12] Counsel for the plaintiffs submits that Queen’s Bench Rules of Court Rule 166 confers a right to add claims and/or defendants to an original claim, without leave, at any time prior to the close of pleadings. Rule 166 states: 166 party may amend any pleading filed by him in proceeding once, without leave, at any time prior to the close of pleadings, and at any other time with the written consent of all the parties. [13] However, Rule 166 must be read in conjunction with Rule 168, which states: 168 Where party has amended pleading without leave of the court, the other party may, within eight days after the service on him of the amended pleading, apply to the court to disallow the amendment or any part thereof or for the imposition of terms, and the court may grant such order as may seem just. [14] It is apparent that where leave to amend is not obtained under Rule 166, the other party may apply to the court to disallow the amendment. More substantively, both Rules (and all Rules of Court) are subject to statutory provisions. If claim is barred by statutory time limitation period, an amendment pursuant to Rule 166 will not, in itself, transform the claim into viable one. Statutory Limitation Periods [15] Accepting the allegations in the plaintiffs’ pleadings as true for the purposes of this motion, The Limitations Act contains number of provisions which are prima facie relevant. The plaintiffs (and all members of the proposed student class) are alleged to have been residents or students at Ile la Crosse from as early as 1937 to as late as 1979. The claims, therefore, arose during those years. [16] Section 3(4) of The Limitations Act provides: 3(4) This Act does not apply to claim that is subject to limitation provision in another Act or regulation if that Actor regulation states that the limitation provision applies notwithstanding this Act. [17] Section of The Limitations Act establishes basic two year time limitation period which operates from the day on which claim is discovered and is subject to other provisions of the Act. [18] Section of The Limitations Act contains the following rules relating to discoverability: 6(1) Unless otherwise provided in this Act and subject to subsection (2), claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (a) that the injury, loss or damage had occurred; (b) that the injury, loss or damage appeared to have been caused by or contributed to by an act or omission that is the subject of the claim; (c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (d) that, having regard to the nature of the injury, loss or damage, proceeding would be an appropriate means to seek to remedy it. (2) claimant is presumed to have known of the matters mentioned in clauses (1)(a) to (d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved. [19] Section of The Limitations Act bars the commencement of any claim to which limitation period applies after 15 years from the day on which the act or omission on which the claim is based took place. [20] No limitation period applies with respect to claims within the scope of s. 16 of The Limitations Act, which provides: 16(1) There is no limitation period with respect to claim in the nature of trespass to the person, assault or battery if: (a) the claim is based on misconduct of sexual nature; or (b) at the time of the injury on which the claim is based: (ii) the claimant was in relationship of financial, emotional, physical or other dependency with one of the parties who caused the injury. (2) Subsection (1) applies whether or not the claimant’s right to commence the proceeding was at any time governed by limitation period pursuant to the former Act or any other Act. [21] Sections 19 and 20 of The Limitations Act are fundamental to Saskatchewan’s application. Section 19 applies where limitation period expires before proceeding is commenced: 19 If, after the commencement of proceeding, it is established that limitation period applicable to the clam had expired before the commencement of the proceeding, the claim is barred and the proceeding shall not be maintained. Section 20 applies where the limitation period expires after the proceeding is commenced and before new claim is asserted or new party is added: 20 Notwithstanding the expiry of limitation period after the commencement of proceeding, judge may allow an amendment to the pleadings that asserts new claim or adds or substitutes parties if: (a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (b) the judge is satisfied that no party will suffer actual prejudice as result of the amendment. [22] The statutory predecessor to s. 20 of The Limitations Act was s. 30 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 which stated: 30 Notwithstanding the expiry of limitation period after the commencement of an action, judge may allow an amendment to the pleadings that asserts new claim or adds or substitutes parties, if: (a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (b) the judge is satisfied that no party will suffer actual prejudice as result of the amendment. The only difference between the wording of s. 20 of The Limitations Act and the predecessor s. 30 in The Queen’s Bench Act, 1998, is that the former applies to “a proceeding” whereas the latter applied to “an action”. [23] Section 20 of The Limitations Act must be interpreted in manner which is compatible with the other provisions of the Act. If s. 19 of the Act precludes the court from extending the time for bringing an action where the original claim is statute barred, an “add on” claim arising out of the same transaction or occurrence is similarly statute barred. By its clear and literal meaning, s. 20 enables the court to extend the time for bringing new claim in an existing action only where limitation period expires after the original claim is commenced. [24] In Stoddard v. Watson, 1993 CanLII 59 (SCC), [1993] S.C.R. 1069 the Supreme Court of Canada confirmed that court has discretion to allow statement of claim to be amended to add new plaintiff after limitation period expires. However, for the purposes of statute of limitations, the new plaintiffs’ claim must be assessed as of the date of the commencement of the original action. If the original claim was filed too late to be brought by the new plaintiff, the later “add on” claim will also be barred. The principle is the same whether the proposed amendment seeks to add new plaintiff or, as in this case, new defendant. [25] Accordingly, both the original claim and the amended claim which added Saskatchewan as new defendant are identical from the perspective of limitation periods. Section 19 of The Limitations Act applies to both. This means that, with certain exceptions, the claims are prima facie barred by the ultimate 15 year time limitation period set forth in s. of The Limitations Act. The exceptions include claims within the purview of s. 16 of The Limitations Act to which no limitation applies; claims to which (as stated in s. 3(4) of The Limitations Act) limitation provision in another act or regulation applies; and claims which the court may determine are subject to an extended time limitation period or should be allowed to proceed. [26] Where limitation period is raised against plaintiff, s. 18 of The Limitations Act places the onus on the plaintiff to prove that the limitation period had not expired, or that no limitation applies to the claim: 18 If, in proceeding, limitation period is raised against claimant, the claimant has the burden of proving that: (a) the limitation period has not expired; or (b) there is no limitation period that applies to the claim. [27] With reference to limitation periods in another Act, paragraph 133 of the claim indicates that the plaintiffs were aware of the time limitation period in s. 2(1) of the POPA when their action as commenced. Section 2(1) of the POPA (which was repealed by The Limitations Act and replaced by other provisions effective May, 2005) states: 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. [28] If the plaintiffs wish to apply on proper notice and with supporting evidence for orders determining that their claims are not statute barred, or that their claims should be allowed to proceed, they may do so. If they do not, they may spend considerable time and money attempting to litigate statute barred claims. [29] Similarly, Saskatchewan’s options for raising applicable time limitation periods and/or striking out pleadings include, for example, an application to strike out some or all of the plaintiffs’ claims under Rule 173, or an application to determine point of law under Rule 188. (See Popowich Saskatchewan 2001 SKQB 148 (CanLII); [2001] W.W.R. 308 (Sask. Q.B.)). CONCLUSION [30] This application is based on the proposition that s. 20 of The Limitations Act applies to the plaintiffs’ amended claim. However, s. 20 does not apply because no limitation period expired after the original claim was commenced and before the claim was amended to add Saskatchewan as a defendant. Section 19 of The Limitations Act applies to the original and the amended claims. The application is therefore dismissed. [31] Accepting the pleadings as true, a number of the plaintiffs’ claims are prima facie statute barred. The plaintiffs may choose to apply for orders determining that no time limitation period applies or allowing the claims to be brought. Alternately, the defendants may apply for orders determining that some or all of the claims are statute barred. In either case, the applications must satisfy the applicable legislation and the Rules of Court.

FIAT: The plaintiffs are former students of a school at Ile a La Crosse, Saskatchewan. They commenced this proposed class action against the Attorney General of Canada (the Government) in December 2005. In January 2007 the plaintiffs' counsel filed an amended statement of claim which added the Government of Saskatchewan (Saskatchewan) as a second defendant. Saskatchewan applies for an order pursuant to Rule 166 and 168 of the Queen's Bench Rules disallowing the amendments to the statement of claim. The amended claim alleges that the Government and Saskatchewan funded and were responsible for the school in a supervisory and oversight capacity and that they are liable to the plaintiffs for physical and sexual abuse, loss of language and culture, failing to provide an adequate education and holding them against their will and the will of their parents. HELD: 1) This application is based on the proposition that s. 20 of The Limitations Act applies to the plaintiffs' amended claim. However, s. 20 does not apply because no limitation period expired after the original claim was commenced and before the claim was amended to add Saskatchewan as a defendant. Section 19 of The Limitations Act applies to the original and the amended claims. The application is dismissed. 2) Accepting the pleadings as true, a number of the plaintiffs' claims are prima facie statute-barred. The plaintiff may choose to apply for orders determining that no time limitation period applies or allowing the claims to be brought. Alternatively, the defendants may apply for orders determining that some or all of the claims are statute-barred. In either case, the applications must satisfy the applicable legislation and the Rules of Court.

d_2007skqb406.txt

2003 SKQB 115 Q.B. A.D. 2002 No. 332 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ARLEN DIENO and BLAIR’S FERTILIZER LTD. DEFENDANT M. W. Owens for the plaintiff J. C. Will for the defendant FIAT WILKINSON J. March 11, 2003 [1] This is a motion for summary judgment under Rule 485 of The Queen’s Bench Rules of Court governing simplified procedure. The plaintiff says his creditor wrongfully converted monies after full and final settlement of his account was agreed upon. In addition, the plaintiff seeks punitive damages for the defendant’s “high-handed and malicious behavior”. [2] The plaintiff owed the defendant monies for chemicals and fertilizer. In May, 2001 the plaintiff assigned to the defendant his future crop insurance benefits and Canadian Wheat Board payments for application on his outstanding account. Subsequent to this, the parties agreed to settle the debt for lesser sum. The defendant says it was induced to settle by the plaintiff’s false representation that: 1. Saskatchewan Government Insurance was suing him for between $250,000 and $300,000; 2. That the plaintiff would be found liable; and 3. That the plaintiff would likely make an assignment in bankruptcy rendering the defendant’s account uncollectible. [3] On June 8, 2001 the plaintiff’s farmhand had an accident while operating his employer’s unlicensed vehicle. An occupant of the other vehicle involved in the accident was critically injured and died. The plaintiff says that SGI advised him he would be personally responsible for all damages as the owner of an uninsured vehicle, and that damages in the range of $250,000 to $300,000 would not be uncommon in the circumstances but it would be ultimately head office decision. The plaintiff gave statement to SGI on June 26, 2001 and accepted responsibility, acknowledging it was his truck involved and it was unplated. [4] According to the plaintiff, in early July, 2001, he told the defendant’s manager that he had no money, and with the impending action by SGI against him for the recovery of damages due to his unlicensed vehicle being involved in fatal accident, he was not to pay anything to anyone given his impending bankruptcy. The plaintiff then offered the defendant $2,000 in full and final settlement of his account. [5] What follows is the defendant’s version of events. The defendant says he asked the plaintiff if he was being sued for sure, and the plaintiff responded it was going to happen. The defendant’s manager said he advised the plaintiff they would not be prepared to accept $2,000 to settle $15,600 account if there was no law suit. The plaintiff again represented that he was definitely being sued by SGI. It was only then that the defendant’s manager said it would accept the $2,000 offer. The manager says that on August 2, 2001 the plaintiff came into the defendant’s office and presented the $2,000 cheque. At that time, he again asked the plaintiff if the court case was happening and the plaintiff told him that it was. The defendant’s manager issued the receipt for the cheque, and, at the plaintiff’s request, signed the receipt “paid in full”. He says he did so on the understanding, and on the plaintiff’s representations, that the plaintiff was definitely being sued by SGI. He says he later learned that SGI had not commenced legal action against the plaintiff for $300,000, or any amount. In November, 2001 the plaintiff contacted him requesting cancellation of the crop insurance assignment. The defendant’s manager said he advised the plaintiff they were not prepared to forfeit the assignment if they were not sure the court case would ever happen. On December 13 the plaintiff’s counsel wrote to the defendant referring to the settlement that had been reached and requesting release of the assignment. In January, 2002 the defendant, who was by then in possession of cheques from crop insurance pursuant to the assignment, purported to treat the settlement as null and void and applied some of the funds to retire the plaintiff’s total indebtedness. The plaintiff seeks to recover all monies retained by the defendant in excess of the $2,000 settlement, as well as punitive damages for the defendant’s allegedly reprehensible conduct. [6] As it transpired, SGI did not initiate proceedings against the plaintiff until May 22, 2002. The amount ultimately claimed from the plaintiff was $17,660, far cry from the original estimate of potential liability. [7] The defendant says if there was an accord and satisfaction, it was avoided due to mistake of fact or misrepresentation. Some brief summaries of the applicable law can be found in the following citations: 1. compromise may be impeached where there is misapprehension of fact, which goes to the root of the compromise and is shared by both parties: See Foskett, The Law and Practice of Compromise, (3d ed.) (London: Sweet Maxwell, 1991) page 43, referred to in Vandekerhove v. Litchfield (1993), 1993 CanLII 660 (BC SC), 84 B.C.L.R. (2d) 252 (B.C. S.C.); and 2. An accord and satisfaction may be vitiated by misrepresentation, whether fraudulent or innocent: See: Chitty on Contacts (25th ed.) 1983, page 816; MacLeod v. Ruck (1985), 1985 CanLII 527 (BC CA), B.C.L.R. (2d) 35 (B.C. C.A.); Mahadeen v. Hassan, [1958] O.J. No. 187 (QL) (Ont. C.A.). [8] On the pleadings and materials before me, the defendant is relying on misrepresentation as the ground for vitiating the settlement agreement rather than mutual mistake, although this was raised in argument. If misrepresentation is the issue in the present case, then it is question whether the plaintiff made an active misrepresentation or was merely conveying an honestly held belief [formed on the basis of information provided to him by SGI], that certain result would follow in the future. It is question of whether he said he was currently being sued by SGI for $250,000 to $300,000, as the defendant asserts, or whether he merely indicated he was facing the prospect of such claim. Case law suggests that in order for the defendant to succeed, there must have been an operative misrepresentation regarding matter of fact. For example, it has been said that an erroneous statement of opinion honestly held by person qualified to hold such an opinion cannot constitute an innocent misrepresentation founding an action for rescission. See: Mayer v. Mayer (1993), 1993 CanLII 6861 (BC CA), 83 B.C.L.R. (2d) 87 (B.C. C.A.). [9] As noted in Mayer, it is in the nature of an opinion that it may later turn out to be wrong and those who rely on an expression of opinion must be taken to do so, accepting that it may be wrong. The Court of Appeal in that case said it may sometimes be difficult to decide whether representation was reasonably understood as statement of fact, rather than of opinion. [10] The following statement is found in Halsbury’s Laws of England, Vol. 31, 4th ed. (London: Butterworths, 1980) at 621, para. 1012 and illustrates the difficulty in even narrower terms. It states: If person who has only an opinion or information as to matter chooses to state it as fact, the statement is representation of the matter stated and the falsity of the representation is established by proof that the matter is not as stated, even though the representor may have genuinely held the opinion or believed the information. Sometimes statement which is apparently in the form of an opinion, or uses words tending to suggest that it is only an opinion, may be held to contain or imply statement of fact, and even from an expression of opinion there may be an implication that the speaker knows facts which justify the opinion or at least knows no facts showing it to be unjustified. [11] The difficulty in distinguishing between representation as to future events or expectations and representation as to existing facts is explored in different context in Kelly v. Lundgard (2001), 2001 ABCA 185 (CanLII), 95 Alta. L.R. (3d) 11 (Alta. C.A.) (whether medical report predicting full recovery in the future could constitute negligent misrepresentation) and in Douglas J. Queen v. Cognos Incorporated, 1993 CanLII 146 (SCC), [1993] S.C.R. 87 (whether remarks made by an employer to prospective employee related to “future expectations” or the outcome of future events rather than to an existing state of facts and, thus, could not constitute actionable misrepresentation). [12] In motion for summary judgment under the simplified procedure rules, the question is whether the issue can be resolved in the absence of cross-examination. In Freeman v. General Motors Acceptance Corp. of Canada Ltd. (1999), 1999 SKQB 193 (CanLII), 186 Sask. R. 104 (Q.B.), Barclay J. noted that Rule 485 is the departure from the ordinary test for summary judgment and has lower threshold. Summary judgment is to be granted notwithstanding there may be triable issue, unless the court is unable to decide the issues in the absence of cross-examination, or it would be otherwise unjust. [13] The fundamental tension in the evidence is on the issue of misrepresentation. The subtleties involved in making the distinction, factually and legally, as to whether the plaintiff’s remarks constituted an operative misrepresentation cannot, in my view, be resolved in the absence of cross-examination. The test set out in Caudle v. Louisville Sales Service Inc. et al. (1999), 1999 SKQB 276 (CanLII), 190 Sask. R. 73 (Q.B.) does not assist the plaintiff. In that case, Laing J. said at para. 4: ...the test is not whether there is contradictory evidence in the affidavit material filed, but rather, whether despite the contradictory evidence, the issue(s) can be decided in the absence of cross-examination and it would not otherwise be unjust to do so. One way that contradictory evidence can be decided in the absence of cross-examination is where for the purposes of the application the court accepts the defendant’s evidence wherever it conflicts with that of the plaintiff and still concludes the plaintiff is entitled to judgment.... [14] If accept the defendant’s evidence, then must assume the plaintiff represented, as statement of fact, that he was being sued by SGI for damages in the range of $250,000 to $300,000, even if the remaining remarks (that he would be found liable, and that he would likely make an assignment in bankruptcy rendering the defendant’s account uncollectible) were merely prognostic, or mere statement of opinion. [15] The plaintiff’s application for summary judgment is dismissed. A summary trial is hereby ordered. [16] Costs will remain in the cause.

Creditor and Debtor - Conversion - Punitive Damages FIAT. A motion for summary judgment under Queen's Bench Rule 485 governing simplified procedure. The plaintiff claimed the creditor wrongfully converted monies after a full and final settlement of his account for a lesser sum ($2,000 on a $15,600 account). He sought punitive damages for 'high-handed and malicious behaviour'. The plaintiff assigned his future crop insurance benefits and Canadian Wheat Board payments for application to his outstanding account in May 2001. In June 2001 a farmhand had an accident, while operating his employer's unlicensed vehicle. An occupant of the other vehicle in the accident was critically injured and died. The defendant says it was subsequently induced to settle the debt for a lesser sum by the plaintiff's false representation that SGI was suing him for between $200,000 and $300,000; that he would be found liable and would likely make an assignment in bankruptcy, making the account uncollectible. SGI initiated proceedings against the plaintiff in May 2002 claiming $17,660. The defendant contended that, if there was an accord and satisfaction, it was avoided due to mistake of fact or misrepresentation. HELD: The application for summary judgment was dismissed. A summary trial was ordered. Costs in the cause. Whether the plaintiff's remarks constituted an operative misrepresentation could not be resolved in the absence of cross-examination.

5_2003skqb115.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 95 Date: 2014-09-15 Between: Docket: CACV2582 Shirley Mae deBalinhard Appellant (Respondent) and John Canagy deBalinhard Respondent (Petitioner) Before: Caldwell J.A. (in Chambers) Counsel: Gerald Heinrichs, for the appellant Thomas Campbell, for the respondent Application: From: 2014 SKQB 239 (CanLII) Heard: September 10, 2014 Disposition: Dismissed Written Reasons: September 15, 2014 Caldwell J.A. [1] Shirley Mae deBalinhard wishes to appeal from the decision of the chambers judge (indexed as 2014 SKQB 239 (CanLII)), made pursuant to s. 47 of The Queen’s Bench Act, 1998, SS 1998, c Q-1.01, not to vacate a certificate of pending litigation registered on behalf of her estranged husband, John Canagy deBalinhard, against title to certain lands. [2] Mr. deBalinhard is deceased and his estate is represented by his executors. Just prior to his death, Mr. deBalinhard filed petition for the division of family property. When he died, his solicitors filed the certificate of pending litigation. Ms. deBalinhard subsequently transferred the lands into her own name and then entered into an agreement to sell them, which sale will not proceed until the certificate of pending litigation is vacated. [3] When Ms. deBalinhard filed her notice of appeal, she did not consider whether the order appealed from was interlocutory or final in nature. She subsequently filed notice of motion seeking either leave to appeal or directions from chambers judge that leave was not required. Accordingly, as preliminary matter, Ms. deBalinhard was put to elect either to proceed with her appeal or to proceed with her leave application, as she may not do both (see: Mann Hawkins, 2011 SKCA (CanLII) (per Klebuc C.J.S. (as he then was) in chambers)). Since she had filed her notice of appeal and application before reasons were made available in O’Connor Garden, 2014 SKCA 90 (CanLII) (where Whitmore J.A., in chambers, dealt with an application for leave to appeal from decision not to vacate certificate of pending litigation), she elected to seek leave to appeal and, with no objection from counsel for the respondent, her application proceeded on that basis alone, with her notice of appeal deemed to be “draft” notice of appeal. [4] The power to grant or withhold leave to appeal, as contemplated by s. 8(1) of The Court of Appeal Act, 2000, SS 2000, C-42.1, is exercised on the basis of the criteria set forth in Rothmans, Benson Hedges Inc. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask 121, where Cameron J.A. said: [6] The power to grant leave has been taken to be discretionary power exercisable upon set of criteria which, on balance, must be shown by the applicant to weigh decisively in favour of leave being granted: Steier v. University Hospital Board, 1988 CanLII 215 (SK CA), [1988] W.W.R. 303 (Sask. C.A., per Tallis J.A., in Chambers). The governing criteria may be reduced to two each of which features subset of considerations provided it be understood that they constitute conventional considerations rather than fixed rules, that they are case sensitive, and that their point by point reduction is not exhaustive. Generally, leave is granted or withheld on considerations of merit and importance, as follows: First: Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? Is it prima facie frivolous or vexatious? Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? Is it apt to add unduly or disproportionately to the cost of the proceedings? Second: Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal? does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? does it raise new or controversial or unusual issue of practice? does it raise new or uncertain or unsettled point of law? does it transcend the particular in its implications? (Emphasis in original) [5] Turning to the first criterion, given the circumstances of this matter the proposed appeal is not prima facie frivolous or vexatious. Nor can say the proposed appeal is apt to unduly delay the proceedings, although an interlocutory appeal necessarily adds to the overall duration of an action. In addition, given what is at stake, an appeal would not, relatively speaking, add unduly or disproportionately to the cost of the proceedings. [6] However, as Whitmore J.A. noted in O’Connor Garden, orders of the nature under consideration in this matter are discretionary orders. This means there is genuine question as to whether the proposed appeal is prima facie destined to fail by reason of the nature of the adjudicative framework pertaining to the exercise of discretionary powers. Cameron J.A. set out that adjudicative framework in Rimmer Adshead, 2002 SKCA 12 (CanLII), [2002] WWR 119, where he said: [58] In turning to this issue, it is necessary to bear in mind that the powers in issue are discretionary and therefore fall to be exercised as the judge vested with them thinks fit, having regard for such criteria as bear upon their proper exercise. The discretion is that of the judge of first instance, not ours. Hence, our function, at least at the outset, is one of review only: review to determine if, in light of such criteria, the judge abused his or her discretion. Did the judge err in principle, disregard material matter of fact, or fail to act judicially? Only if some such failing is present are we free to override the decision of the judge and do as we think fit. Either that, or the result must be so plainly wrong as to amount to an injustice and invite intervention on that basis. (See, for example, McKinnon Industries Ltd. v. Walker, 1951 CanLII 308 (UK JCPC), [1951] D.L.R. 577, at 579 (P.C.) and Saskatchewan Power Corporation v. John Doe, 1988 CanLII 216 (SK CA), [1988] W.W.R. 634 (Sask. C.A.)). [7] Ms. deBalinhard’s draft notice of appeal could be interpreted as setting out two grounds of appeal that appear to allege the chambers judge either committed an error in principle or disregarded material facts when he decided not to vacate the certificates of pending litigation against the lands in question. However, the draft notice of appeal is not confined, as it should be, to whether the chambers judge exercised his discretion within the criteria which bear upon the proper exercise of his judicial discretion. Rather, the broadly-framed draft notice of appeal invites the Court to retry matters and, to some extent, reweigh evidence so as to supplant the chambers judge’s findings and conclusions. Appellate review of discretionary decision is one of review for vitiating error; it is not hearing de novo. So while the proposed appeal might be of sufficient merit, the draft notice of appeal would have to be revised to frame the grounds of appeal as falling within the adjudicative framework applicable to appeals from discretionary orders. [8] Turning to considerations of importance, am hard pressed to conclude the proposed appeal is of sufficient importance to the proceedings before the Court of Queen’s Bench, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by panel of the Court of Appeal. [9] At its heart, the proposed appeal would involve revisiting an interlocutory order that preserves the status quo pending final decision after trial. The proposed appeal does not raise a new or controversial or unusual issue of practice. Nor does it raise new or uncertain or unsettled point of law; albeit the proposed appeal may raise valid question of law based on the facts of this matter, it does not transcend the particular in its implications. Further, given the nature of the impugned order, it does not bear heavily or potentially prejudicially upon the course or outcome of the action. understand money realised from the sale of other lands formerly subject to the certificate of pending litigation will be held for the benefit of the parties pending the trial in the within action. presume then that if the lands in question are later sold for less than the price at which Ms. deBalinhard proposes to sell them, or if later sold at that price and it is found to be less than fair market value, the party suffering the loss might have ready recourse to set off the loss. In sum, while there may be legitimate issues raised in the prospective appeal, on the whole, I find the issues would be better resolved by a judge of the Court of Queen’s Bench after hearing viva voce evidence at trial. [10] In short, while the proposed appeal might be of sufficient merit, it is not of sufficient importance to warrant determination by a panel of this Court. The application for leave is dismissed. The Registrar may close the appeal file opened upon the filing of the now draft notice of appeal. [11] As to costs, Ms. deBalinhard shall pay Mr. deBalinhard’s costs in this application, in the usual manner. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of September, A.D. 2014. “Caldwell J.A.” Caldwell J.A.

Civil Procedure – Appeal – Leave to AppealLand – Certificate of Pending Litigation The appellant sought leave to appeal the chambers decision not to vacate the certificate of pending litigation registered on behalf of her estranged husband, who was deceased. The respondent’s solicitors filed the certificate of pending litigation after his death. The appellant transferred the land subject to the certificate of pending litigation into her name only and entered into an agreement to sell the land, which could not proceed with the certificate of pending litigation. HELD: The appeal was of sufficient merit and it was not prima facie frivolous or vexatious. The appeal, however, was not found to be of sufficient importance to the practice of law or the Court of Queen’s Bench to warrant determination by the Court of Appeal. There was no new, controversial or unusual issue of practice raised by the appeal. The issues were determined to be better left for resolution by the Court of Queen’s Bench after hearing vive voce evidence at trial.

5_2014skca95.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 349 Date: 2010 09 29 Docket: Q.B.G. 1578 of 2010 and Q.B. 1581 of 2010 Judicial Centre: Regina BETWEEN: Q.B.G. 1578 of 2010 RONALD WARSABA, PATRICIA WARSABA and SPENCER WARSABA (suing by his Litigation Guardians Ronald Warsaba and Patricia Warsaba) and BOARD OF EDUCATION OF THE REGINA SCHOOL DIVISION NO. OF SASKATCHEWAN DEFENDANT AND BETWEEN: Q.B.G. 1581 of 2010 MICHAEL TULLOCH, an infant, suing by his litigation guardian, David Tulloch and BOARD OF EDUCATION OF THE REGINA SCHOOL DIVISION NO. OF SASKATCHEWAN Counsel: Reginald Watson, Q.C. for the plaintiffs Warsaba N. Tulloch for the plaintiff Tulloch J. McLellan for the defendant F.W.. Johnson, Q.C. for the Regina Leader-Post JUDGMENT KRAUS J. September 29, 2010 [1] The defendant applies for an order sealing the affidavits of two young persons. Counsel for the plaintiffs consent to the order. Counsel for the Regina Leader-Post, granted leave to speak to the matter, opposes the application. [2] The defendant submits that the young persons, JP and JR, now in Grade 9, were victims of a brutal hazing assault conducted by senior students, including the plaintiffs, and that public disclosure of information in their affidavits would exacerbate the harm which has been done to them. [3] Counsel for the Regina Leader-Post submits that sealing order is at the top of the range of the hierarchy of protections which the court may afford to individuals in our society and that the onus is on the applicant to establish on continuing basis that this remedy is required. Counsel refers to the two part test set out by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] S.C.R. 835 (S.C.C.) and R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] S.C.R. 442 (S.C.C.) to determine whether restrictive publication should be ordered: the necessity to prevent serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and, the positive effects on the rights and interests of the parties and public, including the right to free expression. [per Iacobucci J. at para. 32, R. v. Mentuck, supra] [4] Bearing in mind the efficacy of the high school grapevine in this electronic age, publication of the factual accounts of the young persons in their affidavits will not cause further harm to them in my view. The public, including fellow students of the young persons, have the right to know their version of the facts. However, I am satisfied that other portions of the affidavits which speak to the effects of the assault on the two young persons and ramifications to others should be sealed since there is a real and serious risk of further harm to the young persons and to others. The evidence of Don Hoium, Director of Education and former educational psychologist, brings home the point: 5. am concerned that if the evidence of the Children were to be made public, it may provoke harassment and acts of retaliation against the Children and their families, possibly by other students. am concerned that such disclosure would put both the physical and psychological well-being of the students and their families at further risk. 6. am aware that the Children and their families have been the subject of negative comments on the social networking site Facebook. 7. Based on my education and experience, believe that any further publication or disclosure of the details of the assaults or the related legal proceedings would add to and aggravate the psychological harm already suffered by the Children and their families. 8. In particular, the dissemination of the verbal or visual evidence of the assaults in the media or on social networking sites may result in significant prejudice to the Children’s privacy and sense of personal dignity. believe that the Children are particularly vulnerable to these types of harm due to their young age. In my experience, both privacy and peer acceptance tend to be particularly crucial to the self-esteem and psychological well-being of adolescents. 9. The Division has attempted to normalize the Children’s introduction into Campbell Collegiate to the greatest extent possible. It is my view that further publicity and disclosure of the Children’s evidence would jeopardize the Children’s integration into Campbell Collegiate by stigmatizing and alienating the Children from their peers. 10. Furthermore, it is my view that disclosure of the evidence would be disruptive to the learning environment at Campbell Collegiate for the student body as whole. The assaults and the related proceedings have already generated strong emotions on all sides. In my opinion, any further publicity of the allegations made by the Children can only serve to aggravate the controversy and detract from the education and well-being of the student body as whole. ... [Affidavit of Don Hoium, sworn September 9, 2010] [5] To balance the rights and interests of the two young persons, the plaintiffs and the public, portions of the affidavits of the young persons must be sealed as follows: the affidavit of JR: paragraphs 9-13 inclusive; Exhibit “B” thereto, depicting physical injuries; and Exhibit “D” thereto, victim impact statement of HR. the affidavit of JP: paragraphs 8-14 inclusive; Exhibit “A” thereto, victim impact statement of JP; Exhibit “B” thereto, victim impact statement of SP; and Exhibit “E” thereto, apology of RL. [6] Otherwise, the remaining balance of the two affidavits need not be sealed. [7] As everyone knows, Parliament prohibits publication of the identity of young person by ss. 110 and 111 of the Youth Criminal Justice Act, S.D. 2002, c. 1. [8] There is no order as to costs which were not put in issue. J. G. M. KRAUS

The defendant applied for an order sealing the affidavits of two young people who were the victims of a brutal hazing assault conducted at a high school by senior students, including the plaintiffs. The defendant argued that public disclosure of the affidavits would exacerbate the harm that was done to the young people. The Leader-Post was granted leave to speak to the matter and opposed the application. HELD: Bearing in mind the efficacy of the high school grapevine, particularly in an electronic age, publication of the factual accounts of the young persons in their affidavits will not cause further harm to them. The public, including fellow students, have the right to know their version of the facts. However, other portions of the affidavits that refer to the effects of the assault on the young men and their ramifications to others should be sealed because there is a real risk of further harm to the young persons and to others.

d_2010skqb349.txt

/jmj Q.B.J. A.D. 1996 No. 991 J.C. Y. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: HER MAJESTY THE QUEEN and LORRY RICHARD SMITH D.A. Halvorsen for Her Majesty the Queen T.J. Brown for Lorry Richard Smith JUDGMENT McINTYRE J. May 26, 1999 [1] The accused, Lorry Richard Smith ("Smith"), is charged: 1. on or about the 22nd day of November, A.D. 1995 at Moosomin District, in the Province of Saskatchewan, did unlawfully traffic in narcotic, to wit: cannabis marihuana contrary to Section 4(1) of the Narcotic Control Act; 2. on or about the 22nd day of November, A.D. 1995, at Moosomin District, in the Province of Saskatchewan, did unlawfully have in his possession narcotic to wit: Cannabis (Marihuana) for the purpose of trafficking, contrary to Section 4(2) of the Narcotic Control Act; 3. on or about the 22nd day of November, A.D. 1995, at Moosomin District, in the Province of Saskatchewan, did unlawfully cultivate Cannabis (Marihuana) without authority contrary to Section 6(1) of the Narcotic Control Act. [2] A voir dire was conducted to determine the admissibility of marihuana plants seized by a police officer as a result of a warrantless search. [3] On November 22, 1995, Cst. Ken McLaughlin of the RCMP was on highway patrol travelling east on the number highway approaching the Manitoba border when he noticed Ryder rental van with Ontario licence plates stopped on grid road leading to Saskatchewan tourist information booth just off the highway. As he was approaching the Manitoba border and had to turn around, Cst. McLaughlin testified he turned on to the grid road and drove up to the van. He noticed Smith standing at the rear of the van. [4] At this point Cst. McLaughlin said he had no reason to believe an offence had been committed and he approached Smith to see if he required any assistance. Cst. McLaughlin says he will stop couple of times month to offer assistance to motorists. Cst. McLaughlin says he was seated in an unmarked police cruiser wearing an RCMP uniform, being parka with crests on each shoulder. It was approximately 1:20 p.m. in the afternoon. [5] Cst. McLaughlin testified he was the first to speak. It is to be noted that as result of voir dire conducted within this voir dire it was determined that the conversation between the accused and Cst. McLaughlin is admissible under common law principles as part of the Crown's case that there was reasonable and probable cause for warrantless search. Cst. McLaughlin said hello, or words to that effect. He could not recall the response of the accused. [6] Cst. McLaughlin asked if there were any problems with the vehicle and as he recalls it the accused responded he was looking for place to relieve himself. Cst. McLaughlin asked Smith where he was going and was told British Columbia. Cst. McLaughlin then asked Smith what he had in the back of the van. Cst. McLaughlin says that at this point he had no reason to believe an offence had been committed. [7] Cst. McLaughlin says that Smith's answer was two cases of wine. In cross-examination counsel suggested the answer may have been "A case of wine". The notation in Cst. McLaughlin's notebook was "case of wine". While counsel suggested there were prior inconsistent statements, none were established. Counsel called John Williams, who had been Smith's counsel at the time. Mr. Williams testified that two days after the incident Cst. McLaughlin told him the accused's answer was two cases of wine. am satisfied the response was two cases of wine. In the end result, whether the answer was two cases of wine or case of wine is not determinative of this case. [8] At this point Cst. McLaughlin testified that Smith was no longer free to go as he now had reason to believe Smith had committed an offence under The Alcohol and Gaming Regulation Act, S.S. 1988-89, c. A-18.01, although this was not communicated to Smith at this point in the events as they unfolded. [9] The Alcohol and Gaming Regulation Act, provides: 108(2) person who is not minor may: ... (e) bring into Saskatchewan beverage alcohol legally purchased or acquired in any part of Canada other than Saskatchewan not exceeding the kind and quantity prescribed in the regulations. Section 50 of The Alcohol Control Regulations, 1994, R.R.S., c. A-18.01, Reg. provides: 50 For the purposes of clause 108(2)(e) of the Act, the maximum quantity of beverage alcohol purchased or acquired in any part of Canada other than Saskatchewan that person may bring into Saskatchewan is, in the case of: (a) spirits, 1.14 litres; (b) wine, 1.14 litres; and (c) either beer, coolers or any combination of beer and coolers, nine litres. [10] Cst. McLaughlin testified that he then asked Smith to open the back of the van. note that the van in question is one in which the cargo portion of the van is separate from the passenger compartment. Smith opened the back of the van and Cst. McLaughlin entered. He testified that the back of the van was divided in half by blue tarp suspended from the roof. Cst. McLaughlin proceeded to examine that portion in the van behind the blue tarp. He observed black box about the size of trunk. There were some items on top of the box and temperature and humidity gauge on top of these items. There was propane tank and propane tree. There was carton containing eight 750 ml. bottles of wine. There was another carton containing other miscellaneous items such as duct tape and can of black spray paint. [11] It was Cst. McLaughlin's recollection it had been about minus 10 degrees centigrade that morning. He believed the propane heater was operating. The wine was situated between the black box and the propane tank. Cst. McLaughlin testified he wanted to examine the black box for the second case of wine. He was not able to open the box, as it was padlocked. [12] Cst. McLaughlin and Smith then exited the van. The accused was allowed to relieve himself. Cst. McLaughlin searched the accused for the key to the black box and to ensure his own safety. Smith was arrested and placed in the back of the patrol car. The accused was arrested for bringing into Saskatchewan quantity of alcohol in excess of that permitted. Cst. McLaughlin testified that when he arrested Smith he read to him from card he carries for that purpose and advised Smith of his right to call lawyer. [13] Cst. McLaughlin testified he then told Smith it was his practice to ask persons suspected of bringing in an over quantity of alcohol to relinquish the same in which event the person would not be charged. [14] Cst. McLaughlin contacted Cst. Ross, then of the Moosomin detachment of the RCMP, for assistance and asked Cst. Ross to contact the highway traffic board and have two officers dispatched to Cst. McLaughlin's location. The highway traffic board officers arrived and one of them proceeded to drive the Ryder van to the highway traffic board weigh scale some two or three kilometres from the tourist information booth. Cst. McLaughlin transported the accused to the weigh scales in his patrol vehicle where Cst. McLaughlin and the highway traffic board officers were met by Cst. Ross. [15] Cst. McLaughlin testified that Smith was then given an opportunity to call lawyer and to afford him privacy for that purpose Smith was put in room by himself. After placing call Smith then received call on the highway traffic board office phone. After concluding his call Smith was placed in the back of the patrol car. [16] Cst. Ross testified he was to be the exhibit person. He went to get camera and then proceeded to try and open the black box. Cst. Ross acknowledged there were two justices of the peace in the Moosomin area but he did not know if justice of the peace was available at that time. Cst. Ross testified obtaining warrant never crossed his mind. He said he had done many searches of vehicle for liquor. [17] Cst. Ross removed two padlocks which were on the black box but found this did not provide entry to the box. It was determined the lid of the box had been screwed to the body of the box by 16 to 20 screws. Cst. McLaughlin instructed Cst. Ross to remove the screws, which he did. Inside the box Cst. Ross found what appeared to be 524 marihuana plants ranging from three to nine inches in height. [18] After opening the box, Cst. Ross then searched the cab of the van where he found brief case. He opened the brief case in which he found note book and numerous receipts. He also seized screw gun and the can of spray paint. [19] The accused was then arrested for offences under the Narcotic Control Act, R.S.C. 1985, c. N-1. [20] Cst. McLaughlin testified that search warrant did not cross his mind as they were searching pursuant to The Alcohol and Gaming Regulation Act which provides: 143 Any officer may arrest, without warrant, any person who he finds committing an offence against this Act. 145.1(1) In this section and in section 147, "conveyance" includes vehicle, aircraft, boat or other means of transport. (2) justice may issue warrant to search conveyance named in the warrant and seize anything that may be evidence of an offence against this Act or the regulations on the oath of an officer that there are reasonable and probable grounds to believe that: (a) an offence against this Act or the regulations has occurred; and (b) evidence of an offence is likely to be found in the conveyance. (3) An officer with warrant issued pursuant to subsection (2) may: (a) enter and search any conveyance named in the warrant; (b) open and examine any trunk, box, bag, parcel, closet, cupboard or receptacle that he or she finds in the conveyance named in the warrant; (c) seize anything that may be evidence of an offence against this Act or the regulations; (d) seize and remove any beverage alcohol and the containers in which it is found. 146(1) In this section and in section 147, "exigent circumstances" means circumstances in which an officer has reasonable and probable grounds to believe that the delay necessary to obtain warrant pursuant to section 145 or 145.1 would result in danger to human life or safety or the loss, removal or destruction of evidence. (2) Subject to subsection (3), an officer may exercise any of the powers mentioned in subsection 145(2) or 145.1(3) without warrant issued pursuant to that section if the conditions for obtaining the warrant exist and there are exigent circumstances. (3) No officer shall enter private place within the meaning of clause 107(1)(a) without warrant issued pursuant to section 145 or 145.1 unless the occupant of the private place consents to the entry. 147(2) An officer: (a) with warrant issued pursuant to section 145 or 145.1; or (b) where conditions for obtaining warrant exist but there are exigent circumstances; may seize any conveyance in which he finds beverage alcohol that he believes, on reasonable and probable grounds, is intended for sale or has been purchased or obtained in violation of this Act. [21] Cst. McLaughlin testified he did not require warrant as he felt that exigent circumstances existed. He felt that if he left the accused and the van on the grid road while he went to get warrant neither the accused nor the van would be there when he got back. Cst. McLaughlin indicated that there were no officers working in the Moosomin detachment that day. Cst. Ross was on call. There were officers in the Broadview detachment. [22] In cross-examination Cst. McLaughlin testified it was his understanding that if you had grounds to obtain warrant you could conduct warrantless search. He acknowledged that Cst. Ross could have gotten search warrant and brought it out to the location where he had encountered Smith by the tourist information booth. He also acknowledged that once the accused had been arrested there were no longer exigent circumstances. He says at that point there would be an issue of the continuity of the evidence. [23] In re-examination, Cst. McLaughlin offered the further observation that once he had arrested someone he could perform search incidental to the arrest. [24] Counsel for the accused sought to exclude the evidence of the marihuana plants. The Crown stipulated it was not arguing that the accused had consented to the search. Counsel raises the following issues arising from the Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (U.K.), 1982, c. 11 (the "Charter"): 1. Was there an arbitrary detention contrary to s. of the Charter; 2. Was there violation of Mr. Smith's rights to counsel contrary to s. 10(b) of the Charter; 3. The residual right to silence pursuant to s. of the Charter; or 4. Was the search unreasonable contrary to s. of the Charter. [25] begin by summarizing counsel's argument with respect to these issues: 1. Was there an arbitrary detention contrary to s. of the Charter. [26] Counsel acknowledges that any detention in this instance did not arise as result of the exercise of physical control over an individual's movements or demand made where non-compliance carries with it criminal consequence. It is argued that detention arises out of "psychological compulsion". Counsel relies upon the following comments of LeDain J. in R. v. Therens (1985), 18 C.C.C. (3d) 480 (S.C.C.) at p. 505: Although it is not strictly necessary for purposes of this case, would go further. In my opinion, it is not realistic, as general rule, to regard compliance with demand or direction by police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist. [27] Counsel argues the accused was asked two pointed investigative questions, "Where are you going?" and "What is in the back of the van?". It is argued that in context where the peace officer has approached an individual to speak to him, asking these questions, the average motorist would perceive they were compelled to co-operate. [28] Cst. McLaughlin acknowledged that smuggling of cigarettes into Saskatchewan is an issue for the RCMP. Counsel argues the officer was not simply engaged in innocuous social conversation but had pulled up to question the accused in an investigative mode. [29] Counsel also argued on the basis of R. v. Young (1997), 1997 CanLII 1455 (ON CA), 116 C.C.C. (3d) 350 (Ont. C.A.) that search presupposes detention and suggests that like Young the search began with the questioning of the accused. On the basis of Young and R. v. Mellenthin, 1992 CanLII 50 (SCC), [1992] S.C.R. 615 counsel takes the position that in the context of warrantless search detention arises the moment the questioning that leads to the search begins. [30] The Crown did not suggest that prior to the information provided by the accused there was either reasonable or probable grounds nor any articuable cause for detention as discussed in R. v. Simpson (1993), 1993 CanLII 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.). 2. Was there violation of Mr. Smith's rights to counsel contrary to s. 10(b) of the Charter. [31] Counsel argues once it has been established there has been detention the police officer must provide the accused with an opportunity to retain and instruct counsel without delay. They must further refrain from attempting to elicit any evidence from the accused until he has had reasonable opportunity to retain and instruct counsel. It is argued the accused had been detained and asked to participate in the seizure of evidence and as result should have been advised of his right to retain and instruct counsel. 3. The residual right to silence pursuant to s. of the Charter. [32] It is argued the court has also recognized the right to silence as right protected as principle of fundamental justice pursuant to s. 7. It is said to be broader than the common law confession rule and the rule against self-incrimination. The concept is rooted in the notion that once an individual has been placed in jeopardy by the criminal justice system, he should have the right to choose whether to speak or remain silent. The issue to be decided is whether the conduct of the authorities, considered on an objective basis effectively and unfairly deprived the accused of the right to make this choice: R. v. Hebert (1990), 1990 CanLII 118 (SCC), 57 C.C.C. (3d) (S.C.C.). 4. Was the search unreasonable contrary to s. of the Charter. [33] Counsel suggests the present case is on all fours with Mellenthin, supra. The Supreme Court of Canada recognized that the random stop of motor vehicle amounts to an arbitrary detention. It is further argued the court recognized there is an atmosphere of police authority and compulsion when motorist is stopped by police officer. The present situation did not involve roadside check stop. The Crown acknowledged there was no argument advanced that Cst. McLaughlin was exercising authority under The Highway Traffic Act. Counsel's position is that there is no difference between police officer stopping motorist on the highway to ask questions and police officer who pulls up to stopped vehicle to ask questions. [34] In Mellenthin, supra, the police directed the accused to check stop set up as part of program to check vehicles. The officer approached the vehicle, shone his flashlight into the window of the vehicle and noticed gym bag on the seat beside the driver. The officer asked what was inside the gym bag. The driver told him that the bag contained food and held up paper bag, which contained plastic bag containing glass vials, which are commonly used in connection with the trafficking of cannabis resin. On the belief he had reasonable and probable grounds to search the vehicle under The Narcotic Control Act, the officer asked the accused to step outside the vehicle so he could perform search. During the search, the officer found small amount of cannabis resin and charged the accused with possession of narcotic. [35] In that context counsel relies upon the following comments of Cory J. at p. 624: ... 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. Further, at p. 625: The police questions pertaining to the appellant's gym bag, the search of the bag and of the appellant's vehicle were all elements of search. Furthermore, that search was made without the requisite foundation of reasonable and probable grounds. It was therefore an unreasonable search in contravention of s. of the Charter. [36] Counsel relies upon R. v. Acciavatti (1993), 1993 CanLII 14704 (ON CA), 80 C.C.C. (3d) 109 (Ont. C.A.), Simpson, supra, and Young, supra, as examples of the application of Mellenthin. [37] Counsel argues the search was unreasonable as it was not authorized by law. It is said the search itself began when Cst. McLaughlin without any legal authority turned the roadside encounter into general inquisition to satisfy his curiosity as to what was in the back of the van. [38] In my view the issue is to be determined by examining two questions. Was the accused "detained" at some point in the exchange, prior to the question "what is in the back of the van"? When did the initial search of the back of the van commence? If the accused was not detained, nor any search begun, until after the accused had said he had two cases of wine in the van, then Cst. McLaughlin had reasonable and probable grounds for conducting at least the initial warrantless search on the roadside as he had reasonable and probable grounds to believe the accused had committed the offence of bringing more than 1.14 litres of wine into the province and exigent circumstances existed in that it was necessary to conduct search before the accused drove away with the evidence. [39] In reviewing the authorities there is an element of overlap between the two questions. There are observations which are not necessarily exclusive to the issue under which may review various authorities. [40] On the issue of detention, as identified in the quotation from LeDain J. in Therens, supra, the question is whether person would have "reasonable perception of suspension of freedom of choice". The issue was put into perspective by Doherty J.A. in Simpson, supra. series of decisions culminating in Mellenthin, supra, established that the stopping of vehicle as part of random check stop constitutes detention of the operator of the vehicle. As noted at p. 492: Once, as in this case, road safety concerns are removed as basis for the stop, then powers associated with and predicated upon those particular concerns cannot be relied on to legitimize the stop. Where the stop and the detention are unrelated to the operation of the vehicle or other road safety matters, the fact that the target of the detention is in an automobile cannot enhance the police power to detain that individual. [41] Doherty J.A. goes on to quote with approval at p. 494 from R. v. Dedman, 1985 CanLII 41 (SCC), [1985] S.C.R. as follows: .. Although police officer is entitled to question any person in order to obtain information with respect to suspected offence, he has no lawful power to compel the person questioned to answer. Moreover, police officer has no right to detain person for questioning or for further investigation. No one is entitled to impose any physical restraint upon the citizen except as authorized by law, and this principle applies as much to police officers as to anyone else. [42] He goes on to identify the limitations of the common law power of police officer to detain an individual for investigatory purposes. That issue does not arise in this instance. What is of interest is his comments with respect to the nature of the encounter between police officer and citizen which was before him, at p. 500: In addressing this requirement, it is also essential to keep in mind the context of the particular police-citizen confrontation. Constable Wilkin was investigating the appellant and the driver of the car. They were his targets. Constable Wilkin interfered with the appellant's liberty in the hope that he would acquire grounds to arrest him. He was not performing any service-related police function and the detention was not aimed at protecting or assisting the detainee. It was an adversarial and confrontational process intended to bring the force of the criminal justice process into operation against the appellant. The validity of the stop and the detention must be addressed with that purpose in mind. Different criteria may well govern detentions which occur in non-adversarial setting not involving the exercise of the police crime prevention function. In my opinion, where an individual is detained by the police in the course of efforts to determine whether that individual is involved in criminal activity being investigated by the police, that detention can only be justified if the detaining officer has some "articulable cause" for the detention. [Emphasis added] [43] He went on to note at p. 501 that an investigative detention cannot be based upon "hunch" even if based on intuition garnered by experience. [44] Whether an individual reasonably believes he has no choice but to answer the questions of police officer will depend on all of the circumstances. Counsel for the accused would describe the circumstances as follows. Cst. McLaughlin, knowing that smuggling of cigarettes into Saskatchewan is concern, sees an out-of-province rental van just inside the Saskatchewan border. He decides to ask questions and, in particular, questions of an investigative nature to see whether he might discover anything of suspicious nature. [45] The Crown would suggest Cst. McLaughlin, coming upon vehicle stopped on the side of the road offers assistance and engages in innocuous conversation as result of which the accused makes comment which gives the police officer reasonable and probable grounds to believe an offence has been committed under The Alcohol and Gaming Regulation Act. [46] find that Cst. McLaughlin was aware that the smuggling of cigarettes into Saskatchewan was concern for Saskatchewan police officers. However, do not accept that Cst. McLaughlin pulled up to the rental van in an investigative mode. Cst. McLaughlin pulled up to see if he could offer assistance. However, once Cst. McLaughlin had asked if there was problem and had been told in effect, there was no problem; that the accused has stopped to relieve himself, am satisfied that even if the question "where are you going" was innocuous social conversation, that by asking the question "what is in back of the van" Cst. McLaughlin was fishing to see what answer he got. There can be no other explanation for the question. The question has nothing to do with determining whether the accused required any assistance. [47] Where in the spectrum does this encounter between police officer and citizen fall? In Simpson, stopping vehicle observed at suspected "crack house" was an arbitrary detention from the moment the vehicle was pulled over. In Young, supra, the police officer observed the accused about block from business premises which had been broken into. The accused appeared to be intoxicated. The police officer questioned the accused "asking him for his name, address and where he had been". The police officer became suspicious because the accused was not taking the most direct route to his home. The police officer noted that one of the pockets of the accused's jeans appeared to be bulging and asked the accused if he would empty his pockets. The court held the accused had been detained arbitrarily whether the detention commenced when the constable stopped him on the street, when he requested him to empty his pockets, or when he put him in the rear of the cruiser. [48] R. v. Lawrence (1990), 1990 CanLII 11016 (ON CA), 59 C.C.C. (3d) 55 (Ont. C.A.) would appear to be on the other end of the spectrum. police officer, having received report of break and enter was patrolling in the area when he spotted the accused. He stopped the accused by maneuvering his police cruiser across the path of the sidewalk where the accused was riding her bicycle. The accused did not match the description of the person believed to have committed the offence. The police officer asked if he could speak to the accused and asked where she lived. When he received answers which he believed to be false he asked what was in her knapsack, which she offered to him. Inside he found items which could have come from the break and enter. It was found there was no detention until she was placed in the police cruiser. Prior to this the search and questioning had lasted for approximately 25 minutes. The court found that the accused could have ridden around the cruiser and left at any time prior to being placed in the cruiser. [49] Tarnopalsky J.A. relied upon his judgment in R. v. Moran (1987), 1987 CanLII 124 (ON CA), 36 C.C.C. (3d) 225 (Ont. C.A.). At pp. 258-9 the court observed: ... [L]anguage used by police officer, although phrased in the form of request, may, depending on the circumstances, be reasonably construed by the person to whom the request is made to be direction or command. All the circumstances must be considered. See R. v. Soares (a judgment of this court, released March 27, 1987). In determining whether person, who subsequently becomes an accused, was detained at the time he was interviewed by the police, it is important to bear in mind that police officer when endeavouring to discover whether or by whom an offence has been committed, is entitled to question any person, whether suspected or not, from whom he thinks useful information can be obtained. Although police officer is entitled to question any person in order to obtain information with respect to suspected offence, as general rule, he has no power to compel the person questioned to answer. Moreover, he has no power to detain person for questioning and if the person questioned declines to answer, the police officer must allow him to proceed on his way unless he arrests him on reasonable and probable grounds: see R. v. Esposito (1986), 1985 CanLII 118 (ON CA), 24 C.C.C. (3d) 88 at 94 (Ont. C.A.); (leave to appeal to the Supreme Court of Canada refused February 24, 1986). venture to suggest that in determining whether person who subsequently is an accused was detained at the time he or she was questioned at police station by the police, the following factors are relevant. do not mean to imply, however, that they are an exhaustive list of the relevant factors nor that any one factor or combination of factors or their absence is necessarily determinative in particular case. These factors are as follows: 1. The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to the police station, and whether the accused was given choice or expressed preference that the interview be conducted at the police station, rather than at his or her home; 2. Whether the accused was escorted to the police station by police officer or came himself or herself in response to police request; 3. Whether the accused left at the conclusion of the interview or whether he or she was arrested; 4. The stage of the investigation, that is, whether the questioning was part of the general investigation of crime or possible crime or whether the police had already decided that crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused; 5. Whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated; 6. The nature of the questions: whether they were questions of general nature designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt; 7. The subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed that he or she was detained. Personal circumstances relating to the accused, such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had subjective belief that he was detained. [50] In Lawrence, supra, the principles he enunciated in Moran, supra, led Tarnopolsky J.A. to conclude at pp. 61-62: .. The questions of the police officers were still "part of the general investigation"; he could not yet have decided that the appellant "was the perpetrator"; it could not yet be said that his "questioning was conducted for the purpose of obtaining incriminating statements from the accused"; he did not yet have "reasonable and probable grounds to believe that the accused had committed the crime being investigated"; the nature of his questions were of general nature designed to obtain information" rather than nature where "the accused was confronted with evidence pointing to...her guilt". It is true that in all the circumstances Constable Dankert would probably have been considered at least naive, if not negligent, if he had not tried to ask her some questions. That was his duty: to investigate reported offence and, to this end, to try to ask questions of anyone who might seem to be possible source of such information. However, if police officer who questions person who might appear suspicious must always provide s. 10(b) warnings, there would be far more detentions and arrests than our society would tolerate. ... Considering the interference with the appellant's bicycle passage by the cruiser, one might have concluded that there was psychological detention. There was, however, no evidence that the appellant felt compelled to remain at the police officer's cruiser. The seventh Martin test in Moran is not met in this case. The absence of psychological compulsion at that point in time is one of the factors that distinguishes this case from R. v. Voss [(1989), 1989 CanLII 7167 (ON CA), 50 C.C.C. (3d) 58 (Ont. C.A.)]. In Voss there was evidence by the accused himself and there was observable external evidence supporting the contention that the accused felt psychologically detained from the moment the interrogating officer received forensic information about possible causes of death. Moreover, in Voss, from the moment that information was received which, considering the alternatives, led to the conclusion that the death was homicide, there was only one major suspect the accused. In fact, he was the only suspect. Here, the investigation was at much earlier stage and the focus could not yet reasonably have been on the appellant, at least until her answers indicated prevarication and search of her knapsack revealed suspicious articles. At that time the suspicion focused on her, at that time she was invited into the police cruiser and, as the learned trial judge found, only at that time was she detained within the meaning of the Charter. ... Similarly, there is no basis for concluding that s. of the Charter was violated. In fact, the appellant did not urge this ground very strenuously. Just as there was no demand or direction to remain to answer questions so as to indicate detention, so too there was no demand or direction to offer up her knapsack for search. She was asked what was in it; in response she offered it to him to look in. Although that may be an impolite question for complete stranger to ask woman, and poor manners to look in, it cannot be characterized as demand or direction. She gave him her knapsack for "look-see" voluntarily, even if without any great joy. There cannot have been s. contravention. [51] It is to be noted that in Young, supra, at 357 the Ontario Court of Appeal observed that Lawrence, supra, must be considered as superseded by Mellenthin, supra, in the context of what constitutes an illegal search. In this context the court at 358 quoted from Cory J. in Mellenthin, supra, The police questions pertaining to the appellant's gym bag, the search of the bag and of the appellant's vehicle were all elements of search. Furthermore, that search was made without the requisite foundation of reasonable and probable grounds. It was therefore an unreasonable search in contravention of s. of the Charter. The court went on to say: [15] In Simpson, supra, similar point arose and Doherty J.A. concluded as follows at p. 506: The appellant's reliance on s. 101 of the Criminal Code also assumes that the search of the appellant began when Constable Wilkin felt the appellant's front pant pocket. The reasons in Mellenthin, supra, indicate that the search cannot be so limited but must be taken as having commenced when the appellant was initially questioned by the police officer. The search proceeded from that point until the cocaine was recovered. Once the questioning of the appellant is taken as part of the search, then s. 101 of the Criminal Code cannot provide any authority for the search. [16] Once it is concluded that the search begins with the questioning and that there was no reasonable basis for search then, on the facts of this case, the officer put into motion what became an illegal search by simply inviting the appellant to permit an intrusion on his person in the form of emptying his pockets. It is the same as if the officer had reached out and physically emptied the pockets. [17] As to the specific moment when there was detention, the Crown conceded in its factum that it commenced with the questioning, and in oral argument switched to reliance on Lawrence, supra, as pointing to the time when the appellant was in the cruiser. The appellant did not press illegal detention in his argument, relying rather on unreasonable search and seizure, and to the extent detention may have any bearing on this analysis it seems sensible to conclude that search presupposes detention. [52] Not every encounter between police officer and citizen in which the police officer asks questions will by that fact alone constitute detention. Whether or not there is detention must depend on all of the circumstances. The list of factors as identified in Moran, supra, are relevant, although not exhaustive. [53] Does every conversation with police officer in which an accused makes an incriminating statement constitute, in retrospect, detention of the accused that commenced with the questions being asked. There is no such blanket proposition. It all depends on the circumstances. [54] In the circumstances at hand when the encounter between Cst. McLaughlin and the accused commenced the constable was not investigating crime and had no reason to suspect the accused was involved in any crime. Cst. McLaughlin stopped to render assistance if required. There was no detention of the accused prior to the question "What's in the back of the van?" However, as noted earlier am satisfied that when Cst. McLaughlin asked what was in the van he was fishing for an incriminating answer. base this conclusion not only on the fact there is no other reasonable explanation for the quesiton in the context in which it was asked but also the demeanour of the witness as he answered questions throughout the voir dire. [55] will now consider the initial warrantless search conducted by Cst. McLaughlin on the roadside. As noted in R. v. Caslake (1998), 131 C.C.C. (3rd) 97 (S.C.C.) warrantless search is prima facie unreasonable and violation of an individuals Charter rights. The Crown has the burden of showing that the search was, on the balance of probabilities, reasonable. In order to be reasonable the search must be authorized by law. Lamer C.J.C. had the following to say at p. 105: [12] ...First, the state authority conducting the search must be able to point to specific statute or common law rule that authorizes the search. If they cannot do so, the search cannot be said to be authorized by law. Second, the search must be carried out in accordance with the procedural and substantive requirements the law provides. For example, s. 487 of the Criminal Code, R.S.C. 1985, C. C-46, authorizes searches, but only with warrant issued by justice on the basis of sworn information setting out reasonable and probable grounds. failure to meet one of these requirements will result in search which has not been authorized by law. Third, and in the same vein, the scope of the search is limited to the area and to those items for which the law has granted the authority to search. To the extent that search exceeds these limits, it is not authorized by law. [56] As noted by Lamer C.J.C. s. of the Charter which guarantees the right to be secure against unreasonable search or seizure is intended to protect an individuals reasonable expectation of privacy, and that such expectation is to be evaluated by balancing this privacy interest against the state's interest in law enforcement. [57] The question is whether the initial search conducted by Cst. McLaughlin can be said to have begun with the question "what's in the back of the van?" If the search did not commence with this question then the answer provided reasonable and probable grounds for at least the initial search and the question would become the status of the subsequent search conducted at the weigh scales. [58] As observed earlier, when the encounter between Cst. McLaughlin and the accused commenced Cst. McLaughlin was not investigating crime, he was not on the lookout for suspect with respect to any reported crime and he had no reason to believe the accused was involved in any crime. He stopped to see if the accused required any assistance. [59] It could be described as chance encounter between citizen and police officer. There can be no detention in stopping to see if the citizen requires assistance. There can be no detention in asking the question whether assistance is required and even asking motorist where he is headed, in the absence of other circumstances, whether it be in what an officer might say or do, which might cause the citizen to reasonably believe he has no choice but to answer. No such circumstances existed in this instance. [60] The question in whether Cst. McLaughlin can ask the accused what is in the back of the van? On the one hand it could be suggested that the circumstances can be distinguished from cases such as Mellenthin, supra, Simpson, supra, and Young, supra. They involved either random check stop (Mellenthin) or the officer had stopped the citizen in circumstances where crime had been committed (Young) or the officer had some suspicion an offence may have been committed (Simpson). In the aforementioned circumstances the police officer was not entitled to ask; what is in the gym bag (Mellenthin); the accused to empty his pockets (Young); or what was in the accused's pocket (Simpson). [61] It could be said that these cases involved detention of the accused from the outset. As noted in Mellenthin random check stop involves an atmosphere of police authority and compulsion. [62] On the other hand, in Lawrence, supra, there was no detention of the accused. While in Lawrence the Ontario Court of Appeal found there had been no search begun when the accused was asked what was in her knapsack, the court subsequently observed in Young, supra, that Lawrence must be considered to have been superseded on the search issue by the Supreme Court of Canada in Mellenthin. take this to mean that even though there may be no initial detention of citizen, police officer is not entitled (in the absence of reasonable and probable grounds) to ask what is in knapsack. [63] am satisfied Mellenthin, Young and Simpson cannot be distinguished. If person who has been detained cannot be asked what is in their gym bag or their pocket how can citizen who is not detained be asked similar question. As observed in Caslake, supra, s. guarantee against unreasonable search and seizure involves balancing the citizen's reasonable expectation of privacy against the states interest in law enforcement. [64] citizen may well make statements to police officer in the context of chance encounter, or otherwise innocuous conversation, which are incriminating in nature and where no Charter rights may be violated. However, can police officer ask questions, albeit in context which starts off rather innocuous, which are intended to see whether an incriminatory response might be elicited. [65] As noted, Cst. McLaughlin's question as to what was in the back of the van was unrelated to the purpose for which he had engaged the accused in conversation. The fact is Cst. McLaughlin was attempting to determine what was in the back of the van. He was searching to see what answer he would get. [66] am satisfied that the warrantless search began when Cst. McLaughlin asked the accused what was in the back of the van. As a warrantless search the onus is on the Crown. The Crown has not established that the search was authorized by law. The accused\'s right under s. 8 of the Charter to be secure against unreasonable search and seizure was violated. [67] Insofar as the issue of detention is concerned, adopt the observation in Young, supra, at p. 358 that once it has been found that search has begun it is sensible to conclude that search presupposes detention. Cst. McLaughlin acknowledged that at the point in time when he asked what was in the back of the van he had no reasonable and probable grounds to believe an offence had been committed. The Crown did not suggest it was circumstance involving an investigative detention. [68] Having found violation of the accused's rights under s. of the Charter it is unnecessary to deal with the issue of right to counsel. SHOULD THE EVIDENCE BE EXCLUDED PURSUANT TO S. 24(2) OF THE CHARTER [69] Section 24 of the Charter provides: 24(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. [70] As result of R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 and R. v. Stillman, 1997 CanLII 384 (SCC), [1997] S.C.R. 607 there are three factors to be considered in determining whether the admission of constitutionally tainted evidence would bring the administration of justice into disrepute: (1) Fairness of the trial in admitting the evidence; (2) The seriousness of the violation; and (3) The effect of excluding the evidence on the administration of justice. It must also be noted that the focus on trial fairness has shifted from question of whether or not the evidence was real evidence to question of whether the evidence was conscripted from the accused. [71] From the analysis in Stillman evidence is conscriptive if the accused is compelled to participate in the creation or discovery of the evidence. Otherwise, the evidence is non-conscriptive and its admissibility would not render the trial unfair, although the seriousness of the violation and the effect of its admission must then be considered. Even if evidence is conscriptive, its admission will not render the trial unfair if the Crown establishes that the evidence would likely have been discovered in any event. [72] Mellenthin, supra, was decided prior to Stillman, supra. Mellenthin involved narcotics found in the gym bag because of road stop check. On the question of whether or not the evidence obtained as the result of an unreasonable search should be admitted into evidence and, in particular, on the issue of trial fairness Cory J. said at p. 626: Collins, supra, made it apparent that the admission of real evidence which was obtained in manner that violated the Charter will rarely operate unfairly in the conduct of the trial. There can be no doubt that in this case the cannabis which was discovered constituted real evidence. However, it must also be remembered that in R. v. Ross, [1989] S.C.R. 4, it was said at p. 16 that: ...the use of any evidence that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial would tend to render the trial process unfair. The trial judge recognized these competing principles. She found that the evidence, although real, could never have been discovered but for the illegal search... He further observed at p. 629: It would surely affect the fairness of the trial should check stops be accepted as basis for warrantless searches and the evidence derived from them was to be automatically admitted. To admit evidence obtained in an unreasonable and unjustified search carried out while motorist was detained in check stop would adversely and unfairly affect the trial process and most surely bring the administration of justice into disrepute. [73] In Young, supra, the search of the accused's pocket was found to be unreasonable. However, at p. 360 the Ontario Court of Appeal concluded that the discovery of the cash as result of the illegal search did not affect fairness of the trial as it had been found that the accused was legitimately arrested for intoxication and the inevitability of search to assure that what was in the pocket was not weapon would have lead to discovery of the cash. [74] In the circumstances I am satisfied the evidence was conscriptive in that the accused was compelled to participate in the discovery of the evidence as a result of the unreasonable search which began with Cst. McLaughlin asking the accused what was in the back of the van. As a result, admission of the marihuana into evidence would render the trial unfair and bring the administration of justice into disrepute unless the Crown establishes that the evidence would likely have been discovered in any event. The Crown suggested no basis upon which the evidence would likely have been discovered in any event. The situation is not analogous to Young where it was reasonable to conclude that the evidence would likely have been discovered by other means. If the question had not been asked there would have been no search of the back of the van. Mr. Smith would have driven on and there is no basis to conclude the evidence would likely have been discovered by other means. [75] Having concluded that the evidence ought to be excluded on the basis that its admission would render the trial unfair, it is unnecessary to consider the other two factors.

The accused was charged with three offences under the Narcotic Control Act. The accused contests the admissibility of marijuana plants seized by the police. A police officer on highway patrol approaching the Manitoba border noticed a rental van with Ontario license plates stopped on the road. The police officer stated he had no reason to believe an offence had been committed and he approached the accused to see if he required any assistance. The officer stated it was his practice to offer assistance to motorists. The officer asked the accused if there were any problems with the vehicle and the accused answered he was looking for a place to relieve himself. The officer asked him where he was going and was told BC. He then asked the accused what he had in the back of the van and was told two cases of wine. The officer testified the accused was no longer free to go as he had believed the accused committed an offence under the Alcohol and Gaming Regulation Act. The officer searched the vehicle without a warrant and discovered 524 marijuana plants ranging in size from three to nine inches. HELD: The evidence is excluded. The police officer when he pulled up to the van was not in investigative mode but pulled up to see if he could offer assistance. The officer had no reason to suspect the accused was involved in a crime. When he asked what was in the back of the van the officer was fishing to see what answer he got. The Court is satisfied by the cases of Mellenthin, Young and Simpson, that if a person who has been detained cannot be asked what is in their gym bag or their pocket, how can a citizen who is not detained be asked a similar question. The s.8 right against unreasonable search and seizure involves balancing the citizen's reasonable expectation of privacy against the states interest in law enforcement. The police officer's question as to what was in the back of the van was unrelated to the purpose for which he had engaged the accused in conversation. The fact is the officer was attempting to determine what was in the back of the van and searching to see what answer he would get. The Court is satisfied the warrantless search began when the police officer asked the accused what was in the back of the van. The onus of a warrantless search is on the crown which has not established the search was authorized by law. The accused's right to unreasonable search and seizure was violated. The evidence was conscriptive in that the accused was compelled to participate in the discovery of the evidence as a result of the unreasonable search which began when the officer asked what was in the back of the van. The result is the admission of the marijuana into evidence would render the trial unfair and bring the administration of justice into disrepute unless the crown establishes that the evidence would likely have been discovered in any event. The crown suggested no basis upon which the evidence would likely have been discovered in any event.

1999canlii12687.txt

THE COURT OF APPEAL FOR SASKATCHEWAN GUARDIAN INSURANCE COMPANY OF CANADA and ROYAL INSURANCE COMPANY OF CANADA and KELLOGG CANADA INC. CORAM: The Honourable Mr. Justice Wakeling The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson COUNSEL: Mr. K. Stevenson, Q.C. for the Appellant Mr. S. Parthev Ms. M. Ouellette for the Respondent Royal Insurance Mr. A. McIntyre for the Respondent Kellogg Canada Inc. DISPOSITION: Appeal Heard: November 10, 1995 Appeal Dismissed: July 9, 1996 Reasons: July 9, 1996 On Appeal From: QB 1418/95 Judicial Centre of Saskatoon Appeal File: 2203 Reasons by: (1) The Honourable Mr. Justice Lane (2) The Honourable Mr. Justice Wakeling The Honourable Madam Justice Jackson LANE J.A. This appeal arises from an application for directions made pursuant to s. 209 of The Saskatchewan Insurance Act ("the Act"), R.S.S. 1978, c.S-26. The appellant, Guardian Insurance Company of Canada, ("Guardian") is the general liability insurer of the respondent Kellogg Canada Inc. ("Kellogg"). The respondent, Royal Insurance Company of Canada, ("Royal") is the primary insurer as the holder of the blanket fleet coverage of Kellogg. Mr. McLeod is an employee of Kellogg. On November 19, 1993, McLeod was involved in a motor vehicle accident. At the time of the accident, McLeod was on company business and was driving his wife's Honda because his company car had a deflated tire. McLeod, Kellogg and McLeod's wife were sued as result of the accident. Royal denied coverage and refused to defend the action in the name and on behalf of the insured on the basis of an exclusionary provision in its policy. Guardian agreed it had an obligation to defend but submitted that Royal also had duty to defend in the name and on behalf of the insured. As result of the differences between the insurers, Guardian made the application for directions to determine whether Royal had an obligation to defend. The application was heard by a Court of Queen's Bench judge in chambers who ruled Royal was not obligated to participate in defending the action "because the Honda involved is not insured by Royal". The two issues to be resolved on appeal are as follows: 1. Whether the chambers judge incorrectly decided the issue of indemnity when he engaged in determination of which insurer is obligated to defend the action; and, 2. Whether the chambers judge erred in his application of the principles of contract interpretation when he decided the Honda was not "temporary substitute automobile" within the terms of the Royal policy. Relevant Legislative Provisions Section 199 of The Saskatchewan Insurance Act: 199 Every contract evidenced by motor vehicle liability policy shall provide that, where person insured by the contract is involved in an accident resulting from the ownership, use or operation of an automobile in respect of which insurance is provided under the contract and resulting in loss or damage to persons or property, the insurer shall: (b) defend in the name and on behalf of the insured and at the cost of the insurer any civil action that is at any time brought against the insured on account of loss or damage to persons or property; 209(1) Where person is insured under more than one contract evidenced by motor vehicle liability policy, whether the insurance is first loss insurance or excess, and question arises under clause 199(b) between an insurer and the insured or between the insurers as to which insurer shall undertake the obligation to defend in the name and on behalf of the insured, whether or not any insurer denies liability under its contract, the insured or any insurer may apply to the court and the court shall give such directions as may appear proper with respect to the performance of the obligation. (2) On an application under subsection (1), the only parties entitled to notice thereof and to be heard thereon are the insured and his insurers, and no material or evidence used or taken upon such an application is admissible upon the trial of an action brought against the insured for loss or damage to persons or property arising out of the use or operation of the automobile in respect of which the insurance is provided. (3) An order under subsection (1) does not affect the rights and obligations of the insurers in respect of payment of any indemnity under their respective policies. Relevant Provisions of the Royal Insurance Policy GENERAL PROVISIONS, DEFINITIONS AND EXCLUSIONS 5. AUTOMOBILE DEFINED In this Policy except where stated to the contrary the words "the automobile" mean: Under Sections (Third Part Liability), (Accident Benefits), (Loss of or Damage to insured Automobile): (a) The Described Automobile an automobile, trailer or semi-trailer specifically described in the Policy or within the description of insured automobiles set forth therein; (b) Newly Acquired Automobile an automobile, ownership of which is acquired by the Insured and, within fourteen days following the date of its delivery to him, notified the Insurer in respect of which the Insured has no other valid insurance, if either it replaces an automobile described in the application or the Insurer insures (in respect of the section or subsection of the Insuring Agreements under which claim is made) all automobiles owned by the Insured at such delivery date and in respect of which the Insured pays any additional premium required; provided however, that insurance hereunder shall not apply if the Insured is engaged in the business of selling automobiles; and under Sections (Third Party Liability), (Accident Benefits) only: (c) Temporary Substitute Automobile an automobile not owned by the Insured, nor by any person or persons residing in the same dwelling premises as the Insured, while temporarily used as the substitute for the described automobile which is not in use by any person insured by this Policy, because of its breakdown, repair, servicing, loss, destruction or sale; (e) If the Insured is corporation, unincorporated association or registered co-partnership, any automobile of the private passenger car, private van, private truck, motorhome or farm truck type, other than the described automobile, while personally driven by the employee or partner for whose regular use the described automobile is furnished, or by his or her spouse if residing in the same dwelling premises as such employee or partner, provided that: (i) neither such employee or partner or his or her spouse is the owner of an automobile of the private passenger car, private van, private truck, motorhome or farm truck type; (ii) neither such employee, partner or spouse is driving the automobile in connection with the business of selling, repairing, maintaining, servicing, storing or parking automobiles; (iii) such other automobile is not owned, hired or leased or regularly or frequently used by the Insured or such employee or by any partner of the Insured of by any persons residing in the same dwelling premises as any of the aforementioned persons; (iv) such other automobile is not used for carrying passengers for compensation or hire or commercial delivery. Positions of the Parties Guardian acknowledges its obligation to defend but contends Royal's policy, as fleet insurer, also provides coverage for the substitute vehicle and therefore Royal has an obligation to defend McLeod in the pending action. Guardian contends the chambers judge erred by misconstruing the judicial function established by s. 209(1) of the Act by deciding the issue of indemnity when s. 209(3) of the Act makes it clear an application under s.209(1) does not affect the rights and obligations of the insurers in respect of the payment of any indemnity under their respective policies. Guardian maintains the chambers judge continued the error by failing to make determination requiring Royal to defend Kellogg. Guardian argues the chambers judge misconstrued and misapplied the standard by which the obligation of Royal to defend Kellogg is determined. Guardian contends the test is merely one that if it can be shown the claim arguably falls within the coverage of the policy the insurer has the duty to defend the claim on behalf of the insured. Guardian maintains the chambers judge determined the policy was ambiguous and any ambiguity in the coverage provision ought to be resolved in favour of the “insured” which Guardian contends is Kellogg. Guardian asserts that once the chambers judge found clause 5(c) of the policy to be ambiguous he ought to have ended his inquiry and ordered Royal to defend. Simply put, Guardian contends it need only raise an arguable point, that is, the Royal policy “might” provide coverage for the Honda in order for Royal's obligation to defend to arise. Royal on the other hand asserts the chambers judge made no error and the appropriate scope of the inquiry is broader than that envisaged by Guardian. Royal maintains the duty to defend arises when claim alleges facts which, if proven, would fall within the coverage of the policy. Thus, the chambers judge was required to embark on an extensive review of the policy. In order to decide whether an insurer has duty to defend, the chambers judge must interpret the policy provisions and determine whether or not the Honda was included in the definition of automobile in clause 5(c). Having engaged in this analysis, the chambers judge did not err. Royal maintains the term “insured” in clause 5(c) clearly refers to McLeod and not Kellogg as Kellogg is corporation and could not have “dwelling premises”. Any other interpretation is absurd. Royal states there is no ambiguity in the term "insured" and the intention of the policy was clearly to exclude such vehicles. Royal suggests Kellogg may have taken out the Guardian policy, at least, in part, because of the Royal exclusions. Royal contends that before it owes duty to defend, Guardian must show Royal's policy would cover the Honda if the plaintiff's allegations are proven. As Guardian has failed to do so, Royal has no duty to defend. Kellogg's Position Kellogg supports Guardian's position and contends it paid for the Royal insurance policy and it ought to be covered. On appeal, and for the first time, Kellogg argued there was no evidence in the affidavits filed before the chambers judge that the McLeods resided together. Therefore, the chambers judge did not have the factual basis before him to support his interpretation of the policy and form his conclusions. Decision The duty to defend arises only when the pleadings disclose claim which, if proven at trial, would be covered by provisions in the insurance policy. When the provisions of the policy are "unambiguous" or "clearly" do not provide coverage for that which is alleged by statement of claim there is no duty to defend. (Nichols v. American Home Assurance Co., 1990 CanLII 144 (SCC), [1990] S.C.R. 801). In the present case, the chambers judge construed the Royal policy and determined the policy did not provide coverage for that which was alleged in the pleadings. Therefore, Royal was under no obligation to defend McLeod in the pending action. Although Guardian strenuously argued the policy was "ambiguous" and should be construed in favour of the insured, the chambers judge rejected this argument and clearly did not find ambiguity in the coverage provided. An examination of the duty to defend in light of the Nichols decision would appear to be beneficial. review of the case law reveals that while several Courts of Appeal, including Ontario, British Columbia, Manitoba and Newfoundland, have confirmed the "would" test as articulated by Madam Justice McLachlin in Nichols this Court of Appeal has not rendered its interpretation of the decision. Furthermore, it appears that on occasion, some lower courts in various jurisdictions have misconstrued Nichols as proposing that the duty to defend arises when policy "might provide coverage". Nichols and the Duty to Defend Neither party takes issue with the proposition that the duty to defend is broader than and independent of the duty to indemnify. Furthermore, any declaration which imposes duty to defend on the insurer is not determinative of the right of an insured to be indemnified under policy. (See Broadhurst and Ball v. American Home Assurance Co. (1990), 1990 CanLII 6981 (ON CA), O.R. (3d) 225 (C.A.); Great West Steel Industries Ltd. v. Simcoe Erie General Insurance Co. (1979), 1979 CanLII 1968 (ON CA), 27 O.R. (2d) 379 (C.A.)). However, the insurer has no duty to defend when its policy does not provide coverage for that which is alleged in the pleadings. The Supreme Court of Canada in Nichols v. American Home Assurance, 1990 CanLII 144 (SCC), [1990] S.C.R. 801 has expressly stated that no duty to defend arises when policy clearly does not provide coverage for that which is alleged in the pleadings. McLachlin J. writing for the court, articulates this position at p. 808 of her judgment as follows: The respondent also relies in this connection on the contention that the duty to defend is broader than and independent of the duty to indemnify. This is so, in the sense that the duty to defend arises where the claim alleges acts or omissions falling within the policy coverage, while the duty to indemnify arises only where such allegations are proven at trial. But is does not follow that the duty to defend is so broad that is arises with respect to allegations which are clearly beyond the scope of the policy. conclude that the duty to defend imposed by the defence clause is unambiguously restricted to claims for damages which fall within the scope of the policy. [Underline mine]. In Nichols, lawyer sought declaration that his liability insurer had an obligation to defend him in an action alleging he had committed fraud. The insurer maintained that it had no duty to defend. In support of its position the insurer relied on an exclusion clause in the policy that denied coverage "to any dishonest, fraudulent, criminal or malicious act or omission of an Insured." As the only cause of action disclosed in the pleadings alleged fraud, the insured asserted that it did not owe duty to defend the action. The Supreme Court agreed with the insurer's position. To determine whether an insurer has duty to defend, one must determine whether the pleadings raise claims that would be covered by the policy. This analysis requires two stage process, first one must examine the causes of action and the material facts alleged in the pleadings. As noted by McLachlin J. in Nichols at p. 812, when examining the statement of claim, "...the widest latitude should be given to the allegations in the pleadings in determining whether they raise claim within the policy". Nichols adopted the conclusion reached by the British Columbia Supreme Court in Bacon v. McBride (1984), 1984 CanLII 692 (BC SC), 51 B.C.L.R. 228, D.L.R. (4th) 96, C.C.L.I. 146. Wallace J, writing for the court concluded the following proposition at p. 232 of his judgment: The pleadings govern the duty to defend not the insurer's view of the validity or nature of the claim or of the possible outcome of the litigation. If the claim alleges state of facts which, if proven, would fall within the coverage of the policy the insurer is obliged to defend the suit regardless of the truth or falsity of such allegations. If the allegations do not come within the policy coverage the insurer has no such obligation... In the present case, the statement of claim specifically refers to "...the vehicle owned by the Defendant, Valerie McLeod, and operated by the Defendant, Ross Lee McLeod...". The pleadings allege this as material fact of the case. The court must determine whether this vehicle was insured under the Royal policy before it can determine whether the insurer is under duty to defend. The second stage of the analysis, which requires judge to determine whether the policy in question provides coverage for that which is alleged in the claim, is articulated in Nichols. At p. 810 of her reasons, McLachlin J. cited Opron Maritimes Construction Ltd. v. Canadian Indemnity Co. (1987) 1986 CanLII 89 (NB CA), 19 C.C.L.I. 168 (N.B.C.A.), for the following proposition: Where it is clear from the pleadings that the suit falls outside the coverage of the policy by reason of an exclusion clause, the duty to defend has been held not to arise:.. In Opron, the New Brunswick Court of Appeal was forced to consider whether an insured was entitled to have its insurer take over and bear the expense of lawsuit brought against it for the improper design and manufacturing of arches used in construction contact. Hoyt J.A. writing for the court made the following observation at p. 173 of his decision, While the insurer's obligation to defend is separate from its duty to indemnify, there is no duty on it to defend an action against its insured if there is clearly no liability to indemnify under the policy. The pleadings must be examined to see if they disclose facts or contain allegations which bring the incident within the terms of the indemnity provisions of the policy. The pleadings must be examined to see if they disclose facts or contain allegations which bring the incident within the terms of the indemnity provisions of the policy. If, of course, the claim against the insured is not related to subject-matter covered by the policy there is no obligation on the insurer to defend. Any doubt as to whether the pleadings bring the incident within the coverage of the policy ought to be resolved in favour of the insured. In determining coverage exclusionary clauses must be considered. Any claim clearly within such clause would not require defence as the insurer must only defend claims which allege loss within the terms of the policy when read as whole. [Emphasis mine] Guardian contends that the mere possibility that claim advanced will fall within the terms of the Royal policy imposes on Royal duty to defend. Guardian relies on the Ontario High Court decision in Re Thames Steel Construction Ltd. and Northern Assurance Co. Ltd. (1987), 1987 CanLII 4371 (ON SC), 59 O.R. (2d) 449 (H.C.) for the proposition that where it is unclear whether an insurance policy provides coverage for claims alleged the insurer is under duty to defend. In Thames, Hollingworth J. writing for the court found as fact that the provision in the policy was ambiguous. He then followed the reasoning of Mahoney J. in the unreported case of Hermanson v. Phoenix Assurance Co. of Canada, June 29, 1982 quoting at p. 453 as follows: ..."... where is unclear whether the insurance policy in question affords coverage, the insured should be entitled to Declaration directing the insurance company to defend". He then goes on: "In case where the insurer could be liable it should defend." (His emphasis.) However, Hollingworth J.'s decision was overturned on appeal. (See: Thames Steel Construction Ltd. v. Northern Assurance Co. (1989), 1988 CanLII 4657 (ON CA), 67 O.R. (2d) 158.) Houlden J.A. writing for the Ontario Court of Appeal concluded at p. 160 that: Although the appellant's obligation to defend is separate form its duty to indemnify, there is no duty to defend an action against an insured if there is clearly no obligation to indemnify: see Opron Maritimes Construction Ltd. v. Canadian Indemnity Co., [supra] [Emphasis mine]. The case law reveals some inconsistencies with respect to the relationship between the duty to defend and the coverage provided by the policy. Where the policy clearly does not provide coverage, the insurer has no duty to defend. (See: Nichols v. American Home Assurance Co., supra; Opron Maritimes Construction Ltd. v. Canadian Indemnity Co., supra; Bacon v. McBride, supra.; Wellington Guarantee v. Evangelical Lutheran Church of Canada [1996] B.C.J. No. 872 (C.A.); Kitchener Silco Inc. v. Cigna Insurance Co. of Canada [1991] O.J. No. 280 (Gen. Div.); Wisebrod v. American Home Assurance Co. 1996 CanLII 8003 (ON SC), [1996] O.J. No. 1896 (Gen. Div.)). Conversely, where the policy does provide coverage for claims, the insurer has duty to defend. (See: Kamco Installation Ltd. v. Chilliwack (District) [1991] B.C.J. No. 2438 (S.C.); Malik v. Ontario Assn. of Architects [1993] O.J. No. 3046 (Gen. Div.); Moncton Wesleyan Church (Trustees of) [1992] N.B.J. No. 497 (Q.B.); Bird Construction Co. v. Allstate Insurance Co. of Canada [1996] M.J. No. 106 (Q.B.)). Furthermore, where policy only provides coverage for some allegations made in statement of claim, the insurer is only obligated to defend those allegations which may trigger the obligation to indemnify. (See: Surrey (District) v. General Accident Assurance Co. of Canada (1994) 1994 CanLII 16683 (BC SC), 92 B.C.L.R. (2d) 115 (S.C.); St. Andrew's Service Co. v. McCubbin (1987), 1987 CanLII 2397 (BC SC), 22 B.C.L.R. (2d) 38 (S.C.); Continental Insurance Co. v. Dia Met Minerals Ltd. 1995] B.C.L.R. (3d) 231 (S.C.); Mercer v. Paradise (Town) [1991] N.J. No. 126 (S.C.)). When policy is ambiguous and an argument may be made the policy provides coverage, some courts appear to have adopted the interpretation as expressed by Hollingworth J. in Thames and have stated the mere possibility that the policy may provide coverage is sufficient to oblige the insurer to defend. (Canada Inc. v. Comco Service Station Construction Maintenance Ltd. (1990), 1990 CanLII 6870 (ON SC), 73 O.R. (2d) 317 (H.C.); Slough Estates Canada Ltd. v. Federal Pioneer Ltd. (1995), 1994 CanLII 7313 (ON SC), 20 O.R. (3d) 429 (Gen. Div); March Elevator Co. v. Canadian General Insurance Co. [1995] O.J. No. 1900 (Gen. Div); T.W. v. K.R.J.W. 1996 CanLII 8005 (ON SC), [1996] O.J. No. 2102 (Gen. Div.); Strata Plan NW3341 Riverwest v. Royal Insurance Co. of Canada [1996] B.C.J. No. 618 (S.C.). However, where true ambiguity is found in these policy's provisions, many of these courts have then engaged in process of contract interpretation to determine whether or not the policy does indeed provide coverage. When the court concludes there is no coverage, the insurer is under no duty to defend. (See: Slough Estates Canada Ltd. v. Federal Pioneer Ltd., supra; March Elevator Co. v. Canadian General Insurance Co., supra; T.W. v. K.R.J.W., supra; Strata Plan NW3341 Riverwest v. Royal Insurance Co. of Canada, supra). In Privest Properties v. Foundation Co. of Canada (1992), C.C.L.I.(2d) (B.C.S.C.), the British Columbia Supreme Court was forced to consider whether an insurer was obliged to defend its insured when it was unclear whether policy would provide coverage for claims advanced against the insured. In Privest, the applicant's argued that the Supreme Court in Nichols had modified the test to be applied when ascertaining the duty to defend from "would fall" to "may be argued to fall". Drost J. concluded that Nichols did not modify the test. Rather he expressed his conclusion at p. 33 as follows: The Supreme Court has expressly approved the test as laid down in Bacon v. McBride and Opron. think it is clear that what Madam Justice McLachlin had in mind when she used the phrases "which may be argued and "there is possibility" was the proof of the claim, not its character. This observation appears most consistent with the majority of the case law and the tenor of the Nichols decision. judge must decide whether the policy before him "would" cover the claim in question. Such an inquiry, of course, necessitates complete analysis of the applicability of any relevant exclusion or definition provision in the insurance policy. Such an analysis was in fact carried out by the chambers judge in the case before us. Policy Interpretation and Final Determination of Indemnity Section 209 of the Act provides no guidelines as to the scope of the inquiry the judge hearing the application for directions may engage in. It does not articulate whether chambers judge is precluded from examining the policy and determining whether it provides coverage for that which is asserted in the pleadings. The chambers judge recognized this but did not define the scope of his inquiry. He simply said in response to Guardian's argument it merely must raise “an arguable point” that the standard suggestion by Guardian was “off target.” In disagreeing with the position of Guardian the chambers judge held, ...this court is in as good position as any court will ever be to interpret the meaning of “insured” in clause 5(c). The fact that the question is arguable should not be conclusive. It would be rare application for directions which contain no arguable point. The difficulty with chambers judge engaging in an extensive inquiry into policy coverage in an application for directions arises when he or she ultimately rules there is no obligation to defend and after the trial, the trial judge concludes that the insurer has an obligation to indemnify the insured. This may put the insurer in the difficult position of having ruling there was no obligation to defend by one judge and an obligation to indemnify being determined by the trial judge without the insurer having appeared at the trial because of the earlier ruling. more restricted inquiry on s.209(1) application could reduce the potential for inconsistent judgments created by the operation ss. 209(1) and 209(3) of the Act. However, s. 209(1) requires court to "...give directions as may appear proper with respect to the performance of the obligation {to defend}". To determine whether an insurer has the obligation to defend an insured, chambers judge must examine the coverage provided by the insurance policy. When policy does not provide coverage for that which is alleged in the pleadings, judge may conclude that there is no duty to defend. If the provisions of the policy are ambiguous, the judge must construe the contract and determine whether coverage is provided. The limits s. 209(3) place on judge's final decision may merely be stating what the court has concluded in Nichols. final determination of whether an insurer will be liable to indemnify insured will depend upon what facts are proven at trial. If several claims are alleged in the pleadings but only one is successful, the court must determine if the policy provides coverage for that claim which is proven. However, this does not preclude judge sitting at the outset from interpreting policy and determining whether the policy would provide any coverage for allegations made in the pleadings. If policy does not provide coverage for alleged claims it cannot provide indemnity for proven claims unless the pleadings are amended during the trial to include facts or causes of action that were not present when the original s. 209(1) application was made. Furthermore, the doctrine of res judicata would prevent trial judge from re-interpreting the policy at the conclusion of the trial and rendering an interpretation inconsistent with the chambers judge’s conclusion. However, the doctrine of res judicata would not estop trial judge from re-examining the coverage provided by the policy if the pleadings were amended during trial to include new claims. It is clear from Nichols, however, no matter the scope of the inquiry the duty to defend does not arise with respect to claims which are clearly beyond the scope of the policy. At p. 808 McLachlin J. states: But it does not follow that the duty to defend is so broad that it arises with respect to allegations which are clearly beyond the scope of the policy. [emphasis added] In my view Guardian misconstrues the chambers judge's comments when it contends he, in fact, found the policy was ambiguous. The chambers judge began his analysis of the policy's clause 5(c) with reference to Guardian's interpretation of the term “insured” in clause 5(c) as Kellogg and not McLeod. He states: “This interpretation causes some strain to the words and to the mind, but Guardian contends any ambiguity must resolve against Royal as draftsman of the clause”. This clearly is not finding of ambiguity. The chambers judge made the following observation about Royal's position: Royal maintains this interpretation is absurd. The plain meaning of the words indicates Kellogg is not the insured. If Kellogg was intended to be the insured, there would be no reference to dwelling. As see it, the major weakness of this simplistic approach is that this standard form of policy could be used for both corporate and individual customers. do not see this statement as acknowledging the provision is ambiguous. He continues: It is apparent that the arguable issue submission is off target. This Court is in as good position as any court will ever be to interpret the meaning of “Insured” in clause 5(c). The fact that the question is arguable should be conclusive. It would be rare application for directions which contain no arguable point. If the construction to be placed on “Insured” clearly favours Royal, there would be no sense in forcing Royal to defend and then recoup its costs in subsequent disposition of the issue. read this comment that there is an arguable point as simply statement of the obvious. It would be rare application for direction which does not contain an arguable point. But this does not mean necessarily there is substance to the argument. He further remarks; The critical question remains whether “Insured” in clause 5(c) includes the employee, or is restricted to Kellogg. Authorities have said consistently that the whole policy must be analysed when searching for the intended meaning of unclear words. Michael Parkinton et al., MacGillivray and Parkington on Insurance Law, 8th ed. (London: Sweet Maxwell, 1988) described the principle as follows at p. 448, para. 1091: Where there is doubt as to the meaning of clause or phrase, the whole of the policy should be examined in order to see what intention the parties appear to have had concerning the matters governed by the words in questions. This is simply statement of the law but is not finding of any ambiguity. The chambers judge then considers other provisions in the policy and in particular clauses 5(d), (e) and Endorsement No. A3 and comes to this conclusion: In the face of clauses 5(d), 5(e) and A3, all excluding coverage for automobiles owned by persons residing in the same dwelling as the insured, it would seem odd if the parties intended to reverse their thinking in clause 5(c). am satisfied the intention remained consistent throughout. This being so, conclude that “Insured” in clause 5(c) is not limited to Kellogg. The opposite construction would be manifestly contrary to the intention of the parties because it would have the effect of insuring, in this clause only, an automobile owned by person residing in the same premises as the insured. [emphasis mine]. Thus having embarked on a wide review of the policy the chambers judge concluded there was no ambiguity in the exclusionary provision. He made no finding of ambiguity and was simply responding in his analysis to Guardian's argument there was, in fact, ambiguity. He clearly came to the conclusion the Honda was not covered by the Royal policy and the duty to defend is not “so broad that it arises with respect to allegations which are clearly beyond the scope of the policy.” (See: Nichols, p. 808.). Guardian's contention the chambers judge erred by deciding the issue of indemnity is not valid. The chambers judge simply determined the Honda was not covered by the Royal policy. The courts have long recognized the commercial reasons for the exclusion of such family owned temporary substitute automobile. For example, the Supreme Court of Canada dealt with such substitute policy in Wawanesa Mutual Insurance Co. v. Bell and Bell, 1957 CanLII 16 (SCC), [1957] S.C.R. 581. The court acknowledged the exception was designed to prevent claims arising from common use of each others cars by members of family. Rand J. at p. 583 stated: In the case before us the reason for the exception of the substituted car where it is owned by person "of the household" of which the insured is member seems to be the tendency of and the opportunity afforded to the members of such group to make common use of their cars and thus limit the insurance taken out. In other ways more or less freedom in the common use of cars tends to be prejudicial to the insurance business, such as by creating favourable conditions for collusion on claims; and the exception against theft clearly regards the special opportunities furnished for that offence. [Emphasis mine]. further example is McBride v. Farmers Ins. Group 42 A.L.R. 4th 1139, decision out of the state of California where the court stated at pp.1143-1144 of its decision; There are compelling policy reasons for excluding from the definition of both "nonowned automobile" and "substitute automobile" car owned by member of the same household, not the least of which is to prevent members of family who own more that one car from using them interchangeably yet insuring only one such vehicle. (See Southern Farm Bur. Cas. Ins. Co. v. Williams (1976) 260 Ark. 659 [543 S.W.2d 467, 470].) Moreover, these exclusions prevent situation which might otherwise provide windfall double coverage to the insured. [Emphasis mine] Finally, Kellogg's argument, first raised on appeal, that there was no evidence before the chambers judge to show the McLeods lived in the same premises is without merit. The affidavit evidence indicates otherwise and the parties do not dispute that the McLeods lived in the same premises. The appeal is therefore dismissed with costs on double Column V. DATED at the City of Regina, in the Province of Saskatchewan, this 9th day of July, A.D. 1996. LANE J.A. WAKELING J.A. have had the opportunity of reading the judgment of my colleague Justice Lane and while agree with much that he has written, conclude the issue in this appeal is better approached from somewhat different angle and have therefore written this judgment. The facts are well outlined in his judgment and are only summarized here to the extent necessary to provide foundation for my comments. Kellogg Canada Inc. (Kellogg) owned fleet of automobiles for use by its employees and insured these automobiles through Royal Insurance Company of Canada (Royal). Kellogg also had general liability insurance policy with Guardian Insurance Company of Canada (Guardian) which provided coverage for Kellogg’s public liability which included liability incurred as result of the operation of any automobile by one of its employees for which coverage was not provided by Royal’s policy. On November 19, 1993 an employee of Kellogg named McLeod intended to drive to work from his home in one of Kellogg’s automobiles, as he would normally do, but found one of its tires was partially deflated. Rather than change the tire he took his wife’s automobile and proceeded to drive away on Kellogg’s business. That same day he was involved in an accident in which pedestrian was seriously injured. As result of the accident, the injured party sued Kellogg, McLeod and McLeod’s wife who was the owner of the automobile involved in the accident. The question that arises is whether the Royal policy provides coverage when McLeod was not driving one of Kelloggs’ automobiles. It is accepted that if there was no coverage under the Royal policy, Guardian’s policy would fill the void and provide that coverage. Guardian is now facing the responsibility of providing the defence to this action because Royal has denied that its policy provides any coverage. As consequence, Guardian has brought this application under the following section of The Saskatchewan Insurance Act, R.S.S. 1978 c. S-26 for ruling that Royal should be directed to provide, or at least participate in, the defence of this action: 209(1) Where person is insured under more than one contract evidenced by motor vehicle liability policy, whether the insurance is first loss insurance or excess, and question arises under clause (b) of section 199 between an insurer and the insured or between the insurers as to which insurer shall undertake the obligation to defend in the name and on behalf of the insured, whether or not any insurer denies liability under its contract, the insured or any insurer may apply to the court and the court shall give such directions as may appear proper with respect to the performance of the obligation. (3) An order under subsection (1) does not affect the rights and obligations of the insurers in respect of payment of any indemnity under their respective policies.. This application was duly considered by Halvorson J. who concluded that Royal’s policy did not provide coverage and dismissed Guardian’s application. Guardian has appealed that decision on several grounds but the basic issues are: (1) Did the chamber judge fail to recognize that Guardian need only show that it was arguable that Royal’s policy provide coverage in order to succeed? (2) Was Royal’s policy correctly interpreted in accordance with that limited or restricted approach to the question of whether coverage was provided by their policy? The obvious problem that arises in an application of this nature is that it seems to almost inevitably reduce itself to judicial interpretation of the policy in question when the ultimate determination of liability under the policy is not what the section is designed to accomplish. Subsection 209(3) makes it clear that the order made by Halvorson J. and subsequently by this Court is not determinative of the rights and obligations of the parties under these policies. The recognition of this anomalous situation does nothing to avoid the need to make detailed analysis of the coverage provided by the Royal policy in order to make an assessment of whether Royal must participate in the defence of this action. The nature of the anomaly have described does however support the necessity of deciding how far the chamber judge should go in determining whether there exists sufficient probability of coverage under policy to warrant requiring an insurer to defend an action. At one end of the spectrum where there is no coverage, an insurer should obviously not be expected to provide defence. At the other end of the spectrum where the policy does provide coverage, an insurer should not be able to avoid defending claim against its insured. The middle ground between these extremes has now been judicially considered frequently enough that there has developed an acceptance of the general concept that the duty to defend is broader than the duty to indemnify. That is, to order an insurer to defend an action chamber judge need be less sure the policy provides coverage than would be the case for an actual determination of liability under the policy. The most recent support for this proposition has been provided by McLachlin J. on behalf of the Court in Nicols v. American Home Assurance Company, [1991] S.C.R. 801 at 810-811: At the same time, it is not necessary to prove that the obligation to indemnify will in fact arise in order to trigger the duty to defend. The mere possibility that claim within the policy may succeed suffices. In this sense, as noted earlier, the duty to defend is broader than the duty to indemnify. O’Sullivan J.A. wrote in Prudential Life Insurance Co. v. Manitoba Public Insurance Corp. (1976), 1976 CanLII 1099 (MB CA), 67 D.L.R. (3d) 521 (Man. C.A.), at p. 524: Furthermore, the duty to indemnify against the costs of an action and to defend does not depend on the judgment obtained in the action. The existence of the duty to defend depends on the nature of the claim made, not on the judgment that results from the claim. The duty to defend is normally much broader than the duty to indemnify against judgment. {Emphasis added.] In the case it was unclear whether the insurer might be liable to indemnify under the policy, so the duty to defend was held to apply. In the court’s view it would have been unjust for the insurers to be able to assert that “the claim is probably groundless, or will probably end up falling outside of the indemnity coverage. Since we have no proof that we own an indemnity in this case, we take the position that we owe no duty to defend”. The Nicols case comes closest to giving instruction on how to deal with this middle ground when it states at p. 812: conclude that considerations related to insurance law and practice, as well as the authorities, overwhelmingly support the view that the duty to defend should, unless the contract of insurance indicates otherwise, be confined to the defence of claims which may be argued to fall under the policy. That said, the widest latitude should be given to the allegations in the pleadings to determining whether they raise claim within the policy. It is this quotation which supports the appellant’s contention that it need only be arguable that the Royal policy provides coverage. While that statement is technically correct, it must be tempered by the practical consideration of the nature and strength of the argument presented, bearing in mind the imagination and ingenuity of counsel can almost always present an argument supporting virtually untenable position. The Nicols case does not indicate how one should decide how strong the argument must be before there will be an obligation to defend, but there is some instruction available from the example that was set. That example starts with the affirmation of the obligation to make determination of whether the pleadings have indicated claim for which coverage has been provided under the policy. It was put in this way by McLachlin J. at p. 811: Other Canadian authority overwhelmingly supports the view that normally the duty to defend arises only with respect to claims, which if proven, could fall within the scope of coverage provided by the policy: see Dobish v. Garies (1985), 1985 CanLII 1338 (AB QB), 15 C.C.L.I. 69 (Alta. Q.B.) Thames Steel Construction Ltd. v. Northern Assurance Co., [1989] I.L.R. l-2399 (Ont. C.A.); Vancouver General Hospital v. Scottish York Insurance Co. (1987), 1987 CanLII 2601 (BC SC), 15 B.C.L.R. (2d) 178 (B.C.S.C.) The Nicols case obviously has different factual foundation which makes it inappropriate to apply it directly to this case. Nonetheless having acknowledged that, it does have application in the sense that it is obvious the Court in the Nicols case was faced with question involving the interpretation of an insurance contract which was sufficiently ambiguous to have been the object of different judicial interpretations. The Supreme Court clearly felt the need and therefore the obligation to conduct review of the terms of the policy to see if it provided coverage for the claim that had been asserted in the pleadings and concluded there was not coverage and consequently no duty to defend. This then leads to the conclusion that there must in this case be review of the Royal policy to assess the strength of the argument that it has provided coverage for the claim that the pleadings allege. Before proceeding to more detailed examination of the Royal policy, it is to be recognized that there is factual element in this question which cannot be addressed on this application. For instance, there might be need to decide whether partially deflated tire constitutes `breakdown’ within the meaning of the policy. If this matter goes to trial, the eventual determination of that issue, if it is considered relevant, will have to made at that time when the availability of more facts will permit more accurate assessment of the situation. In addition, for the purposes of this judgment, am assuming that the automobile McLeod was driving was owned by someone living in the same dwelling premises as Macleod. If that is not an accepted fact, as have assumed it to be, it is matter which will be clarified at trial. now turn to review of the provisions of the Royal policy as starting point, the policy describes the coverage in this way: It is hereby understood and agreed that: (a) The Policy shall provide insurance, except in those Canadian jurisdictions where prohibited by legislation, with respect to all automobiles: (i) Owned by and licensed in the name of the Insured and .... [Emphasis added] The Insured referred to here must mean Kellogg as the purpose of the policy was to provide coverage to Kellogg’s automobiles which would be those licensed in the name of Kellogg. The more specific nature of the coverage is found in portion of Section of the policy which reads as follows: The Insurer agrees to indemnify the Insured and, in the same manner and to the same extent as if named herein as the Insured, every other person who with his consent personally drives the automobile, or personally operates any part thereof, against the liability imposed by law upon the Insured or upon any such other person for loss or damage arising from the ownership, use or operation of the automobile and resulting from ... This extends coverage to liability incurred by others who drove Kellogg’s vehicles with its consent. The pronoun `his’ is used in this paragraph when “its’” should be used as the reference is to Kellogg. find this inaccurate use of the possessive pronoun to be of no consequence. It probably arises through the use of printed standard form and certainly does not support concern that the identity of the entity referred to as Insured has somehow been made uncertain. take it as clear the policy insured Kellogg as the named insured and its employees as the unnamed insured when they drive one of Kellogg’s automobiles with its consent. The Royal policy therefore provided coverage had the employee McLeod been driving one of Kellogg’s automobiles rather than the substitute vehicle owned by his wife. Since McLeod was not driving one of Kellogg’s automobiles, the question then centres on the interpretation of clause 5(c) of the policy under the heading dealing with the coverage provided when temporary substitute vehicle is being utilized. The provision in question is as follows: 5(c) Temporary Substitute Automobile an automobile not owned by the Insured, nor by any person or persons residing in the same dwelling premises as the Insured, while temporarily used as the substitute for the described automobile which is not in use by any person insured by this policy, because of its breakdown, repair, servicing, loss, destruction or sale...” The issue that arises from consideration of paragraph 5(c) involves determination of whether or not the word Insured means Kellogg as the named insured, McLeod as the unnamed insured or both of them. There are only these three alternatives available when deciding on the interpretation to be given this section, given the assumption that Insured has the same meaning in the two places where it is used in this paragraph, an assumption readily make. An analysis of what follows when each of these alternatives is considered is useful. The first alternative would have `Insured’ refer only to Kellogg which would have paragraph 5(c) read as follows: Temporary Substitute Automobile an automobile not owned by Kellogg, nor by any person or persons residing in the same dwelling premises as Kellogg... The absurdity this alternative leads to is obvious and indicates the need to either reject the idea that Insured refers only to Kellogg or to reject the reference to living in the same dwelling house. am reluctant to reject the reference to living in the same dwelling house because that seems to be fairly standard reference in policies of this nature Indeed, another policy with this same reference found its way to the Supreme Court of Canada in The Wawanesa Mutual Insurance Company vs. Bell, 1957 CanLII 16 (SCC), [1957] S.C.R. 581. There is also similar reference to be found in paragraphs 5(d) and (e) of this policy so that one cannot conclude it is meaningless or idle comment which was not intended to have any useful application. Since cannot readily ignore the reference to living in the same dwelling house, must assume Insured in this case does not relate only to Kellogg. am supported in this view by my recognition that if it was intended that Insured refer only to the named insured Kellogg, it would mean that the coverage under 5(c), would not be the same for corporate insured as for personal insured. That difference in coverage would be very hard to justify. Surely the extent of the coverage provided for substitute vehicle should not depend on whether the insured is an individual or corporation. The second alternative would have the Insured refer to both Kellogg as the named insured and McLeod as the unnamed insured. The relevant portion of 5(c) would then read as follows: Temporary Substitute Automobile an automobile not owned by Kellogg or McLeod, nor by any person or persons residing in the same dwelling premises as Kellogg or McLeod. ... Obviously the absurdity which was apparent in the first alterative has been eliminated or at the very least greatly diminished. Firstly, the automobile would not be one owned by Kellogg or there would not be substitute vehicle involved. The automobile must also not be owned by McLeod as otherwise the restriction relating to an auto owned by anyone living in the same dwelling house would be meaningless. If the intention is that anyone an employee lives with cannot rely on the protection this policy provides, then neither can the employee. There is nothing irrational which arises from the assumption the first reference to Insured refers to both Kellogg and McLeod. The second reference to Insured can only apply to McLeod since once again Kellogg cannot be said to live in the same dwelling house with anyone. That is, in my view, minor concern so long as it has reasonable application to either Kellogg or McLeod. The fact this reference to living in the same dwelling house can and does apply to McLeod makes it impossible to suggest it should be viewed as surplusage and of no application at all. As referred to earlier, the inclusion of Kellogg is satisfactorily explained on the basis that this is printed form which was meant to have general application to both corporations and individuals and it does so when both Kellogg as corporate entity and McLeod as an individual are taken to be included in the second reference to Insured. The third alternative would have `Insured’ mean only McLeod as the unnamed insured and in that case, the same relevant portion of s.5(c) would read as follows: Temporary Substitute Automobile an automobile not owned by McLeod nor by any person or persons residing in the same dwelling premises as McLeod... There is no difficulty in reading the provision in this fashion. In that event the provision indicates substitute automobile cannot be owned by McLeod or by anyone living in the same dwelling house as McLeod which indicates the automobile driven by McLeod was not covered by the Royal policy. This alternative is obviously not supported by Guardian and for my part am left to wonder why Insured here would mean only Macleod when there is reference later on in the same paragraph to “any person insured by this policy” which is clearly reference to McLeod. The inconsistency in the terminology is not easily explained. My view of these alternatives causes me to reject the first and third alternatives as leading to unacceptable results either in the nature of an absurdity or to substantial and unacceptable inconsistency. take it to be clear that Royal’s policy intended that if substitute automobile was involved, it would also be insured under this policy so long as it was not owned by an employee or by some one living in the same dwelling house as that employee. What the rationale for that restriction may be am unable to say, but perhaps it is no more complex than statement that if an employee wishes to use his own or family member’s automobile as substitute for the employer’s automobile, that employee must be prepared to rely on the insurance the owner has obtained for that automobile and not on the insurance provided by the employer. Having given the issue this consideration conclude that it is only the first alternative that could support the contention that Royal’s policy provides coverage and cannot accept that it represents strong enough argument to provide basis for the order sought by Guardian. am not prepared to accept that this policy should be interpreted as though the restriction it contains on what automobile can be used as temporary substitute should be ignored. Before concluding, add that am largely in agreement with the view of this matter taken by the chamber judge. would have rested my position on that foundation had not done certain amount of analysis of my own to establish to my satisfaction the nature of the coverage the Royal policy provided. Having done that, it seems useful to add my views as expressed in this judgment. In the result, the appeal is dismissed with costs on double column V. DATED at the City of Regina. in the Province of Saskatchewan, this 9th day of July, A.D. 1996. WAKELING J.A. concur JACKSON J.A.

Guardian was the general liability insurer for Kellogg. Royal was the primary insurer as holder of Kellogg's blanket fleet coverage. Kellogg's employee was involved in a motor vehicle accident while on company business but was driving his wife's vehicle at the time of the accident. Royal denied coverage and refused to defend on the basis of an exclusionary provision regarding the use of substitute automobiles. It was held at trial that Royal was not obligated to participate. HELD: 1)The case law reveals some inconsistencies with respect to the relationship between the duty to defend and the coverage provided by the policy. Where the policy clearly does not provide coverage, the insurer had no duty to defend. Where a policy only provides coverage for some allegations the insurer is only obligated to defend those allegations which may trigger the obligation to indemnify. When a policy is ambiguous some courts have adopted Thames and have stated the mere possibility that the policy may provide coverage is sufficient to oblige the insurer to defend. 2)Section 209 provides no guidelines as to the scope of the inquiry the judge may engage in. The chamber judge did not define the scope of his inquiry and stated that the standard suggestion that Guardian must raise an arguable point was 'off target'. To determine whether an insurer has the obligation to defend a chamber judge must examine the coverage provided by the policy. The judge made no finding of ambiguity in the exclusionary provision. He simply determined the Honda was not covered by the Royal policy and did not decide the issue of indemnity. 3)The affidavit evidence indicated that the parties lived in the same premises thus that argument was without merit. CONCURRING JUDGMENT: The appeal was dismissed for different reasons. 1)There has been an acceptance of the general concept that the duty to defend is broader than the duty to indemnify. To order an insurer to defend a chamber judge need be less sure the policy provides coverage than would be the case for an actual determination of liability under the policy. 2)There was a factual element which could not be determined on this application such as whether a partially deflated tire constitutes a breakdown within the meaning of the policy and whether the automobile the employee was driving was owned by someone living in the same dwelling. 3)The question centered around the words used in clause 5 of the policy and who it referred to. There were inconsistencies in terminology. The policy should not be interpreted as though the restriction it contains on what automobile can be used as a temporary substitute should be ignored.

b_1996canlii5028.txt

2003 SKQB F.L.D. A.D. 2002 No. 60 J.C.H. IN THE QUEEN’S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF HUMBOLDT RESPONDENT Marilyn M. Scott for the petitioner Lynne G. Greenhorn for the respondent FIAT BAYNTON J. January 8, 2003 Nature of the Applications [1] The petitioner father applies for an order pursuant to s. 29(1)(a) of The Children’s Law Act, 1997, S.S. 1997, c. C-8.2 finding the respondent in contempt of court for deliberately disobeying the terms of the August 15, 2002 access order of Koch J. respecting the child of the parties, [A.K.L.], born […], 2000. He seeks a fine and an order that the respondent bring the child to Saskatoon for access visits. The respondent applies for an order varying the terms of that access order. She seeks to restrict access visits to supervised visits in Brandon, Manitoba. [2] At the outset of the applications raised jurisdiction, service and time issues. To avoid an adjournment, counsel for both parties consented to the court’s jurisdiction, the acknowledgement of service and the abridgement of time. [3] The first issue is whether the respondent is in contempt of court and the nature of the appropriate penalty. The second is what disposition should be made respecting ongoing access. Background Facts [4] The parties never cohabited. The child was born from brief sexual encounter. The respondent subsequently married another man on October 19, 2002 and is pregnant with another child. Despite paying child support, the petitioner has enjoyed virtually no access. He was required to bring an application and obtained the supervised access order in issue. But even under that order, he was only successful in obtaining supervised access visits on two occasions, one on October 26, 2002 and the other on November 2, 2002. The supervised access reports indicate that the visits went very well and that [A.K.L.] enjoyed being with his father. [5] The petitioner lives and works in Saskatoon but attends trade school in Moose Jaw for much of the time. His parents live in Bruno, Saskatchewan and are valuable resource to him and to [A.K.L.], their grandson. [A.K.L.] is almost two and one-half years of age. Analysis [6] I am satisfied beyond a reasonable doubt that the respondent deliberately disobeyed the court order by repeatedly refusing without lawful excuse to comply with the terms of the order. Almost without exception, she refused to make the child available for the supervised access visits that were ordered to take place every two weeks over a four-month period from August to December, 2002. She continued to be in contempt when she moved with the child to Brandon, Manitoba without prior notice to the petitioner. She purported to terminate access and refused to return the child for the remainder of the visits that had been ordered. [7] But the respondent did not abduct the child. am of the view that the respondent will not again disobey court orders so that fine is not called for in the circumstances. more appropriate penalty is to award the petitioner solicitor and client costs for the two applications which fix at $1,500.00. Should the respondent be found in contempt for future breach, she will likely be facing fine or even term of imprisonment. [8] The limited access proposal of the respondent is not realistic because it virtually guarantees that the petitioner and his parents will never be able to develop any relationship with his son, child that the petitioner has been supporting financially on voluntary basis since birth. Nor is the access proposal of the petitioner realistic because the respondent does not have the financial ability to bring the child to Saskatoon for access visits. As well, had she applied for variation in the terms of the order before she left Saskatchewan, she likely would have been successful in obtaining an order that would require the petitioner to be responsible to exercise access at his own expense with some reduction in child support to take into account the cost of exercising access. [9] In the circumstances of this case, it is in the best interests of the child that future access visits be unsupervised and as well that they be of sufficient duration so that the significant travel time involved does not from practical perspective thwart the access that is ordered. fix the costs of the petitioner in exercising access at $60.00 per month even though his costs will significantly exceed this amount. have considered the availability and benefit of the extended family of the petitioner to the child during the access visits. have also considered the benefit of telephone access to the child by his mother during the access visits. Due to the present age of the child, it will provide limited communication value, but it will enable the respondent to keep in touch with the child and his whereabouts and activities while he is away from home during the access visits. [10] The application of the petitioner is allowed and the application of the respondent is denied. It is ordered as follows: 1. The respondent is found to be in contempt of court and is ordered to purge her contempt by paying the solicitor and client costs of the petitioner respecting the two applications fixed at $1,500.00 and by obeying the access terms of this order. The petitioner is not entitled to judgment for such costs but may apply the monthly child support toward payment of such costs until they are fully paid. 2. The petitioner shall have access to the child, [A.K.L.], born […], 2000, on alternate week-ends, commencing January 10, 2003, from 4:00 p.m. Friday to 7:00 p.m. Sunday. Access need not be supervised. The petitioner may bring the child to Saskatchewan for such access visits but shall not remove the child from Saskatchewan or Manitoba without the written consent of the respondent. 3. The petitioner shall bear the costs of his exercise of access but shall be entitled to an allowance of $60.00 per month as a partial reimbursement of those costs. He may deduct such sum from the monthly ongoing child support otherwise payable to the respondent. 4. The petitioner shall promptly exercise access on each occasion. He shall give the respondent at least seven days notice each time he is unable to exercise access. If he fails to do so, he shall forfeit the next access date. 5. The respondent shall have reasonable telephone access to the child during each access visit. The petitioner shall provide the respondent on each access date with number where the child can be reached by the respondent by telephone during the access visit. 6. The August 15, 2002 order of Koch J. is vacated.

FIAT. The father applied for an order pursuant to the Children's Law Act s.29(1)(a) finding the mother in contempt of court for deliberately disobeying the terms of the August 15, 2002 access order. He sought a fine and an order that she bring the child to Saskatoon for access visits. He applied to vary the terms of the access order. The Court raised jurisdiction, service and time issues.HELD: 1)To avoid adjournment counsel consented to the court's jurisdiction, the acknowledgement of service and the abridgement of time. 2)The mother was found to be in contempt of court for deliberately disobeying the order by repeatedly refusing, without lawful excuse, to comply with its terms. Almost without exception she refused to make the child available for the bi-weekly supervised access visits. She did not abduct the child. The mother was to purge her contempt by paying the father's solicitor and client costs respecting the two applications fixed at $1,500 and by obeying the access terms of this order. The August 15, 2002 order was vacated. 3)The father was to have unsupervised access on alternate weekends. He may bring the child to Saskatchewan but shall not remove her from this province or Manitoba without the mother's written consent. The father shall bear the costs of access with partial reimbursement in the amount of $60 per month, which may be deducted from ongoing child support. He shall give at least seven days notice if he is unable to exercise access. The mother shall have reasonable telephone access.

d_2003skqb4.txt

S.C.A. 00259 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION MacKeigan, C.J.N.S., Hart and Macdonald, JJ.A. N: MARY J. GILLIS and MICHAEL DAN GILLIS Respondent Harold A. MacIsaac for the appellant Hugh R. MacLeod for the respondent Appeal Heard: March 14, 1979 Judgment Delivered: March 23, 1979 MACDONALD, J.A. (MacKeigan, C.J.N.S. and Hart, J.A. concurring) The appellant and respondent are adjoining landowners in Gillisdale, Inverness County. In these proceedings both claim title to or ownership of a certain portion of meadowland abutting the Margaree River and containing approximately six acres. Both petitioned Mr. Justice Hugh J. MacPherson, local Judge of the Trial Division of the Supreme Court for certificate of title to such land under the Quieting Titles Act, R.S.N.S. 1967, c.259. In a reserved decision Mr. Justice MacPherson found that the respondent was entitled to a certificate of title under the Act to certain lands including the six acre portion in dispute and to a permanent injunction restraining the appellant and her assigns from using "the said lands in any way whatsoever". From such decision and the order based thereon the appellant appeals, contending that for the following reasons her claim to the disputed lands has been established. (1) conveyance of her late husband (and subsequently to her) which she submits vests title in her to the land in dispute; (2) The existence of conventional line separating her lands (including the six acres in dispute) from those of the respondent. (3) Alternatively, that if the respondent did have title to the disputed lands such title has been extinguished by possession thereof by herself alone and in privity with others in possession before her. The parties apparently agree that the lands involved, including the six acres in dispute, were originally comprised in tract approximately 133 acres owned by Angus Gillis and given by him to his two sons, John A. Gillis (or Donald) and Roderick (gory) Gillis sometime prior to 1915. Either Angus Gillis or his two sons divided the lands, with Roderick taking the southern portion and John A. (or Donald) the northern portion. The contention of the appellant with respect to the line dividing the land, as contained in paragraph 4(c) of the defence filed on her behalf is as follows: ..the dividing line was straight line running from the Crown land toward the said river except where it came to the meadow on the West side of the said river. Here it was decided that since the portion of the meadow which would fall to Rory Gillis if straight line were followed would be useless due to the steep bank and smaller because of the curve westward in the river, that the boundary line on the meadow would be shifted northward so as to give Rory Gillis approximately onehalf of the usable portion of the meadow." Both parties filed an abstract of title as required by s.5 of the Quieting Titles Act. The abstracts reveal that both parties are relying on tax deeds. The respondent's abstract shows that by deed dated August 4, 1915, and registered in the Registry of Deeds office at Port Hood on October 30, 1917, in Book 28 at page 294, John A. Gillis conveyed to Donald A. Gillis (sometimes referred to in the transcript of evidence as Dan A. Gillis) the following lands: "All that certain tract, piece or parcel of land, situate, lying and being at Gillisdale, aforesaid, and abutted and bounded as follows; On the East by the waters of the South West Branch of the Margaree River; On the South by lands in possession of Roderick A. Gillis; On the North by lands in possession of Ronald D. Gillis; and On the West by Crown lands, containing seventythree acres, more or less." Donald A. Gillis and his wife, Sarah, conveyed the foregoing lands to the respondent Michael Dan Gillis by deed dated May 18, 1961 and registered at the Registry of Deeds office at Port Hood on January 17, 1962. The metes and bounds description in this deed are as follows: "On the east by the waters of the South West Branch of Margaree River, Bounded on the south by lands of Alex Joseph Gillis, Bounded on the north by lands of Duncan Gillis, Bounded on the west by Crown land." The appellant's abstract indicates documentary title going back to 1936. By deed dated August 29, 1947 and registered in the Registry of Deeds office at Port Hood on September 29, 1954, in Book 60, page 430, Malcolm A. Gillis (a son of Roderick) conveyed the following lands to the husband of the appellant, Alexander Joseph Gillis: "ALL that certain piece, parcel or tract of land situate, lying and being at Gillisdale in the said County of Inverness, and more particularly described as follows: Bounded on the North by lands of Donald Gillis; on the South by lands of Gillis Gillis; on the East by the River and on the west by Crown lands, containing sixty-three acres, more or less, the same being the land conveyed by Dan Hugh Gillis to Malcolm A. Gillis by deed dated the 18th day of January, A.D., 1936, and recorded in the Registry of Deeds at Port Hood in Book No. 46, page 769." Although the appellant's abstract of title makes no reference to it deed entered as Exhibit 10 and dated November 27, 1956 and registered in the Registry of Deeds office at Port Hood on May 17, 1973, was given by Dan Hugh Gillis and his wife, Emily Agnes to Alexander Joseph Gillis of the following lands: "ALL that certain lot, piece and parcel of land and premises, situate, lying and being at Gillisdale, in the said County of Inverness, now or formerly bounded and described as follows: on the North by lands of Donald Gillis; On the South by lands of Gillis Gillis, on the East by the Margaree River; and on the West by Crown lands, said description including the southern one-half of interval lands owned by Angus Gillis and divided by him between Donald Gillis and Rorey A. ,Gillis, the father of the Grantor herein. And also that lot of land conveyed to Malcolm Gillis by Archie Gillis, by deed dated October 23rd, 1947, and recorded in the Registry of Deeds at Port Hood. Said above described lot being part of the lot first above described." This deed is crucial to the appellant's case and more will be said about it later in these reasons. refer to it now as part of the chronological narrative. On December 6, 1966 the property as described in the deed from Malcolm A. Gillis to Alexander Joseph Gillis was purchased by the Municipality of the County of Inverness at tax sale. By indenture dated May 8, 1973 and recorded in the Registry of Deeds office at Port Hood on May 17, 1973, in Book 116 at pages 278-9, the Municipality conveyed such lands to Josephine Gillis, the appellant herein and widow of Alexander Joseph Gillis. It is interesting to note that the deed from the Municipality to Josephine Gillis and that from Dan Hugh Gillis to Alexander Joseph Gillis, were both registered at nine o'clock on the forenoon on May 17, 1973. From the recording particulars it is obvious that the latter deed was recorded first, followed immediately by that from the County. Since the former deed was executed on November 27, 1956, it was probably registered in 1973 after the deed from the County in.order to record something which might support Josephine's claim to title to the six acres of meadowland in dispute. During the years following the conveyance in 1947 from Malcolm A. Gillis to Alexander Joseph Gillis, the latter, and later his heirs, continually laid claim to the meadowland in dispute. As result the respondent, on the advice of his solicitor, decided to allow the taxes on his property to fall into arrears and then bid the property in at tax sale. He hoped thereby to clear up the title problem and the dispute with his neighbour, Alexander Joseph Gillis, and later with the heirs ,of the latter. On November 20, 1974 tax sale of the respondent's lands was held by the Municipality of the County of Inverness. Both the appellant and respondent bid at the sale with the latter being the successful bidder. By indenture dated March 31, 1976, but not registered, the County conveyed the lands to the respondent describing them as follows: "Bounded on the North by lands of Duncan R. Gillis; on the East by South West Branch of the Margaree River; on the South by the lands of the Est. of Alex Gillis and on the West by Crown land. This is approximately 73 acres located at Gillisdale." This description is similar to that contained in the 1915 deed from John A. Gillis to Donald A. Gillis and in the 1961 deed from the latter and his wife to the respondent. The tax deed therefore did nothing to solve the problem and was considered unsatisfactory by. the respondent who, through his solicitor, requested the Municipality to give him deed to the 73-acre tract of land using the following description: "BEGINNING at the point of intersection of the west bank of the southwest branch of the Margaree River with the southwest line of Duncan Ronald Gillis; THENCE by the magnet of the year 1817, 65° 00' W, 103 chains to the Crown lands; THENCE 3° 45' distance of 7.33 chains and 7.33 links to point; THENCE 65° 00' to the west bank of the Margaree River; THENCE northwest following the various courses of southwest branch of the Margaree River to the Place of beginning. BEING approximately the middle 1/3 of Lot 25 of the lands granted to Donald Gillis in Grant Book Q, Page 78." The County refused to use such description in the deed because, as its counsel put it: "...it is felt by the County of Inverness that when we issue deed after tax sale we should issue deed that has the same description in it as the land had when it went up for sale. We feel that if we start varying from that description and start issuing deeds by the county for other descriptions that might or might not conform to the original boundaries of the property then we'll be getting the County of Inverness into serious trouble in lawsuits." This brought the matter to head and the respondent commenced action under the Quieting Titles Act and also for an order in the nature of mandamus compelling the Municipality to issue deed to him of lands as described in the description last referred to above. The appellant filed defence and counter-claimed for certificate of title under the Act to lands that would include the disputed meadowlands. This brings me to consideration of what lands are encompassed by the two tax deeds. The previous deeds to the parties are relevant only in aid of such determination. The. respondent relies on the deed to himself and to his predecessors in title and says that he has good documentary title to the 73-acre piece of land back to 1915 and that such lands by description contain the six acres of meadowland in dispute. The appellant, in support of her contention that she has good documentary title to the six acres in contention, relies on the deed from Dan Hugh Gillis and his wife to her husband, Alexander Joseph Gillis, dated November 27, 1956 and registered on May 17, 1973. The description contained in that deed is similar to the description of the 63 acres conveyed to Alexander Joseph Gillis by Malcolm A. Gillis by deed dated August 29, 1947 and recorded on September 29, 1954 with, however, the addition of the following words: "...said description including the southern one-half of interval lands owned by Angus Gillis and divided by him between Donald Gillis and Rory A. Gillis, the father of the grantor herein." It is to be noted that none of the other deeds before us contains such an explanation. The, appellant contends that such explanation of her 63 acres establishes that included therein is the interval or meadowland in dispute. The evidence however does not, in my opinion, support this contention. Dan Hugh Gillis testified at the trial and said that (1) the deed purporting to be from himself to his brother Malcolm A. Gillis dated January 18, 1936 and registered on April 10, 1941 of the 63 acres subsequently conveyed to Alexander Joseph Gillis was not signed by him and hence was forgery; and (2) the circumstances surrounding the giving by him and his wife of the deed to Alexander Joseph Gillis were that it was not until after his brother Malcolm was killed in the Northwest Territories in 1956 that he became aware that Malcolm had sold the 63 acres to Alexander Joseph Gillis and that such came as surprise to him because his father had said that he wished Dan Hugh to have the property with the right to Malcolm to reside there if he wished. He contacted lawyer in Truro and was advised either to ask Alexander Joseph Gillis and his family to vacate the lands or to give them deed to it. He elected the latter course. In the effects of his brother Malcom was deed, or copy, (not registered) from their father to Dan Hugh. He took this deed to lawyer in Inverness who prepared the deed dated November 27, 1956 to Alexander Joseph Gillis. Dan Hugh Gillis said that he did not realize that in such deed he was convey­ing the southern one-half of the interval lands and that he never claimed ownership of the meadowlands in dispute and that he never knew of anyone claiming them except his uncle, Donald A. Gillis. Mrs. Agnes Gillis, the wife of Duncan Alex Ronald Gillis, and mother of the respondent Michael Dan Gillis, testified that she and her husband owned approximately 135 acres of land lying immediately to the north of that of the respondent. They have lived there for thirty-four years. She is now sixty-five years of age and has lived practically all of her life up to the present time in Gillisdale. She testified that her husband and Donald (Dan) A. Gillis worked the meadowlands together until 1946. She said that her husband always asked permission from Donald to go on the meadowlands and "nobody ever went down there without permission from Dan A. Gillis, even Duncan, his father". Mrs. Gillis went on to testify that Alex Joseph Gillis moved to the area in 1949 and that thereafter he always asked permission of Donald A. (Dan) Gillis to go on the disputed lands to cut hay or fish for gaspereaux. She said that she never knew that the meadowland in dispute belonged to anybody other than her son or Donald A. Gillis. Mrs. Gillis testified that Rory Gillis never claimed the meadow but did make hay there with Donald A. Gillis' permission as far back as 1915 and that "Rory never had an interval in his life". If the word "interval" did not appear in the explanation of the lands conveyed by the deed from Dan Hugh Gillis to Alexander Joseph Gillis no problem would arise because it is not disputed that such lands are the southern one-half of lands formerly owned by Angus Gillis. The various witnesses, including Dan Hugh Gillis and Agnes Gillis, appear to consider interval lands as those immediately adjacent to the river. The Shorter Oxford English Dictionary defines "intervale" as inter alia "in N. America: low level tract of land, esp. along river ...by intervals we mean those low lands which are adjacent to the rivers ...." am not convinced that the whole of the 133-acre tract owned by Angus Gillis and divided between his sons Rory and John A. (or Donald) cannot be considered an interval. Be that as it may, am satisfied from the evidence accepted by the trial judge that Rory Gillis never had title, documentary or possessory, of the meadowlands in dispute, from which it follows that Dan Hugh Gillis had no interest in the lands that he could convey to Alexander Joseph Gillis. believe that this is what the trial judge had in mind when, in referring to such deed, he said at p.49 of his decision "that deed by itself proves nothing with respect to the meadowland as far as am concerned without further evidence such as an earlier deed or last will". The trial judge stated at pale 50 of his decision that in concluding that the claim of Mary Josephine Gillis failed, "...I accept the evidence of Mrs. Duncan R. Gillis throughout her testimony. She impressed me with her statements which accept as reliable and credible. The same as far as they assisted can be said for Mr. and Mrs. Michael Dan Gillis and Dan Hugh Gillis." This, of course, is finding of credibility and one that cannot be disturbed unless very cogent reasons exist for doing so. No such reasons have been advanced here. At page 48 of his decision the trial judge said: "I conclude from the testimony and other observations that when the side lines of the Dan A. Gillis (Domhgain) lands are followed from West to East to the waters of the Southwest branch of the Margaree river those include the meadow lot in dispute." "The Defendant must show title by documentary proof, by clear evidence of conventional line or by adverse possession. am not satisfied that she has adduced evidence in support of any of the above to the degree required by law." "...The adverse possession claimed has not been established and so find because it was not adverse, continuous, open and notorious." "I cannot accept the submission that there was conventional line although Counsel of the Defendant worked hard in representing his client to make this out." In my opinion there was ample evidence to support these conclusions or findings and would not disturb them. would but add that the kind of possession that is necessary to extinguish the title of the true owner is stated as follows in Anger and Honsberger, Canadian Law of Real Property 1959 at p.789: "The possession that is necessary to extinguish the title of the true owner must be 'actual, constant, open, visible and notorious occupation' or 'open, visible and continuous possession, known or which might have been known' to the owner, by some person or persons not necessarily in privity with one another, to the exclusion of the owner for the full statutory period, and not merely possession which is 'equivocal, occasional or for special or temporary purpose.'" And see judgment of this Court in Taylor v. Willigar et al. (S.C.A. No. 00258 judgment delivered March 13, 1979 not yet reported.) The question in any given case whether the adverse possession relied on is such as will extinguish the/ title of the true owner is one of fact for the trial judge and should not be disturbed by an appellate court unless, as Mr. Justice Ritchie said in Stein v. The Ship "Kathy K", 1975 CanLII 146 (SCC), [1976] S.C.R. 802 at p.808, the trial judge "made some palpable and overriding error which affected his assessment of the facts". See also Metivier v. Cadorette, 1975 CanLII (SCC), [1977] S.C.R. 371. With respect to the allegation that there was conventional line dividing the properties of the. appellant and respondent the evidence of the surveyors, Harvey and Aucoin, was that there was indeed an old fence in the area in dispute but that it was south of the line dividing the lands of the appellant and respondent. Mr. Aucoin testified that halfway between the road and the river the old fence was thirty feet south of the line but that "as we progressed or proceeded down the fence line to the top of the embankment it's approximately sixty feet to Mr. Harvey's line". If this fence marked conventional line between the properties then the respondent might well be entitled to portion of the appellant's land. He, however, through his counsel, has stated that he is not making such claim. Finally, there is no question but that when the lands of Angus Gillis were divided between his sons Rory and John A. (or Donald), that Rory received approximately 63 acres being the southerly half and John (or Donald) received 73 acres more or less being the northerly half of such lands. This being so, it becomes obvious that the division was straight line division and the acreage shortfall sustained by Rory was due to the bend in the river. If the appellant's contention that it was not straight line division were correct should have expected to find in the deeds relating to the southern one-half reference not to 63 acres but to something like 70 acres and corresponding reduction in the acreage reference in the older deeds pertaining to the respondent's land. I reiterate that in my view the evidence more than amply supports the decision of the trial judge and I therefore would dismiss the appeal with costs. J. A. Concurred in: MacKeigan, .J Hart, J.A. S.C.A. 00259 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: MARY J. GILLIS and MICHAEL DAN GILLIS REASONS FOR JUDGMENT BY: MACDONALD, J.A.

The appellant and respondent were adjoining landowners both claiming title to a portion of meadowland described as interval. Both held their property by deeds obtained at tax sales. Dismissing the appeal, that the respondent was entitled to a certificate of title to the land and a permanent injunction restraining the appellant from using said lands. The meaning of the word interval in describing lands in North America was discussed.

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Q.B. A.D. 1998 No. 2272 J.C.R. IN THE QUEEN`S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: GERTRUDE RUSSELL and ROBERT HARVEY MacFARLANE and VIVIAN JUNE MacFARLANE RESPONDENTS J.P. Malone for the applicant G.J. Tkach for the respondents JUDGMENT HUNTER J. August 27, 1998 [1] The landlord, Gertrude Russell ("Russell"), appliesfor an order for a writ of possession pursuant to s. 50 of TheLandlord and Tenant Act, R.S.S. 1978, c. L-6, as am. S.S. 1979-80, c 92. [2] The respondents, Robert Harvey MacFarlane and Vivian June MacFarlane ("MacFarlanes"), entered into lease dated October 13, 1995, with Russell and her now deceased husband (date of death, September 13, 1997) with respect to land legally described as Section 30, Township 16, Range 6, West of the Second Meridian ("the land") together with the buildings on the land including house, barn and granaries and, in addition, equipment described in Schedule "A" to the lease (including tractors, swathers, balers, etc.). The lease was for term of 41 months up to and including April 30, 1999. [3] The MacFarlanes covenanted to pay monthly rental of $500.00 per month for the first five months of the lease and thereafter the rental payments were to be made by equal semi- annual payments of $5,000.00, the first payment to be made on May 1, 1996, and thereafter the rental payment to be made on the first day of each six month period during the term of the lease. The MacFarlane\'s have not paid any rent in 1998. Five thousand dollars should have been paid May 1, 1998. [4] Russell alleges she is entitled to writ of possession on the following grounds: (a) The MacFarlanes are in arrears of rent by more than two months. (b) The MacFarlanes are in breach of their covenantto obtain and maintain suitable insurance uponthe leased premises. (c) The MacFarlanes are in breach of their covenantnot to make any alterations or additions to thedemised premises because they have installedalternating stalls in the barn. (d) The MacFarlanes are in breach of their expressedand implied covenants to keep the demisedpremises in good condition and tenantable repairand to use and occupy the demised premises in agood husband like manner by virtue of theirfailure to:-- remove and properly dispose of baler twine;-- maintain proper weed control;-- remove manure buildup in the calf barn. [5] The MacFarlanes filed affidavit evidence in response to the allegations made by Russell and there are factual disputes with respect to the alleged breaches of the covenants in the lease. Where there are involved questions of fact orlaw, the matter should not be decided summarily but should bedecided in an action (Vogelgesang and Kennedy v. WilliamsHoldings Ltd. (1981), 1981 CanLII 2300 (SK QB), 15 Sask. R. 336 (Sask. Q.B.)). Accordingly, only two issues need to be addressed, namely, the non-payment of rent and the alleged failure to maintain proper weed control. [6] The MacFarlanes admit the payment due May 1, 1998, wasnot made because, they allege, Russell has breached the lease(clause 5.2) and because there was a pre-condition to thelease wherein Russell\'s husband promised to repair the damageto the premises from a hail storm which occurred in August,1995, and the damage has never been repaired. [7] Under the landlord's covenants in the lease, clause 5.2 To keep the building insured against loss or damage by fire and other insurance cause and to build and reinstate them whenever damaged by fire or other insured cause. If as result of fire other than damage for which the Tenant is responsible, the Leased Premises is unfit for carrying on the Tenant's business the rent shall abate until the Leased Premises are again fit for the Tenant's business. If part only of the Leased Premises are unfit for the Tenant's business the rent abates pro rata until the whole of the Leased Premises are fit for the Tenant's business. [8] With respect to the hail damage which occurred in August, 1995, and prior to the execution of the lease, this matter was addressed in the lease in paragraph 3.1 as follows: 3.1 The Parties agree that the Tenant shall be solely responsible to repair and maintain the land, buildings and equipment except for the hail damage to the house siding and shingles on the barn addition which shall be replaced by the Lessor. [9] The MacFarlane's now allege that the Russells did not repair the hail damage to the house, barn, milk house/calf barn, and shed at the back of the barn. The claims for repair now being made by the MacFarlanes are far in excess of those provided for in clause 3.1 of the lease. [10] In The Landlord and Tenant Act, s. 27, tenant is entitled to set off against rent due debt owed to the tenant by the landlord. The tenant is required to give notice of the claim of set off to the landlord. The issues with respect tothe hail damage may allow the MacFarlanes to claim in damagesagainst Russell but it cannot be construed as a debt due forthe purposes of s. 27 of The Landlord and Tenant Act. [11] Accordingly, the MacFarlanes are in breach of thecovenant to pay rent and the rent is outstanding for more thantwo calendar months. For this reason Russell is entitled to awrit of possession directed to the sheriff to put Russell inpossession of Section 30, Township 16, Range 6, West of theSecond Meridian, Saskatchewan. [12] The remaining allegations made by Russell with respectto the other alleged breaches of the covenants by theMacFarlanes may not be determined summarily. The MacFarlanes have failed to respond to the allegation that one quarter section of land has not been seeded and therefore is entirely covered with wild millet (a weed). However, based on the evidence before me in this application, am not prepared to draw the inference that that is failure on the part of the MacFarlanes to use and occupy the premises in good husband like manner. With respect to all of the other allegations raised, it would be necessary to have trial of the issue to determine whether or not Russell is entitled to writ of possession for any of those other reasons. [13] Accordingly, a trial of the issue is directed todetermine whether the respondents are in breach of thecovenants of their lease as alleged with respect to thegrounds stated by Russell in paragraphs (b), (c) and (d),supra. Russell shall be the plaintiff and the MacFarlanes the defendants in any such action and the Rules of Court generally will govern the conduct of that action. [14] writ of possession in accordance with Form "C" of The Landlord and Tenant Act may issue with costs of this application to Russell in any event of the cause.

Landlord and Tenant - Writ of Possession_____ The landlord applied for an order for a writ of possession pursuant to s50 of the Landlord and Tenant Act. The 41 month lease required a monthly rental of $500 for the first five months and thereafter semi-annual payments of $5,000. The tenants had not paid any rent in 1998 nor had they maintained insurance; they installed alternating stalls in the barn in breach of their covenant not to make any alterations or additions to the premises; breached the express and implied covenants to keep the premises in good condition and tenantable repair by their failure to remove and properly dispose of baler twine, to maintain proper weed control or to remove manure buildup in the calf barn. The tenants admitted the rental payment was due in May but claimed the landlord breached the pre-condition wherein Russell's husband promised to repair the damage caused by a 1995 hail storm. The claims for repair was far in excess of those provided for in the lease which were the tenant's responsibility._____ HELD: 1)The landlord was entitled to a writ of possession since the tenants were in breach of the covenant to pay rent for more than two calendar months. 2)A trial of the issue was ordered to determine whether the tenants were in breach of covenants in the lease. The matter should not be decided summarily where there are questions of fact or law. The hail damage may allow the tenants to claim in damages against the landlord but it could not be construed as a debt due for the purposes of s27 of the Landlord and Tenant Act. The remaining alleged breaches could not be determined summarily. 3)Costs of the application were awarded to the landlord in any event of the cause.

5_1998canlii13934.txt

A.D. 1998 No. 40 J.C.S. IN THE QUEEN`S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: IVAN JOSEPH MORIN and HER MAJESTY THE QUEEN as represented by the Attorney General of Saskatchewan RESPONDENT R.P. Piche for the accused J.L. Halyk for the Crown FIAT LAING J. December 8, 1998 [1] The accused seeks an order for a judicial stay ofproceedings pursuant to ss. 24(1) and (2) of the CanadianCharter of Rights and Freedoms (Charter) on the basis hisright under s. 11(b) of the Charter to be tried within areasonable time has been breached. BACKGROUND FACTS [2] The background facts are as follows: 1. The date of the alleged offence is May 17, 1996. 2. The date of the Information is October 10, 1996 andcharges that the accused "on or about the 17th day of May,A.D. 1996 . . . did unlawfully traffic in a narcotic, to wit:morphine, contrary to section 4(1) of the Narcotic ControlAct." 3. The accused`s first appearance on the charge was January 20, 1997. At that time he was remanded to January 24 by consent at his request, and then further remanded by consent to January 27, 1997 for show cause hearing. On January 27 he was released on cash bail and the matter was set over to February 11, 1997 for election. On February 11, 1997 preliminary hearing date was set for October 27, 1997 by 4. On October 24, 1997, the accused`s lawyer telecopied letter to the then prosecutor, Mr. Dale Kohlenberg, further to telephone conversation he presumably had with Mr. Kohlenberg earlier that day. The letter said in part: scheduling conflict the writer has for Monday would be greatly resolved if, upon your review of the enclosed you indicate you will not be able to proceed with the preliminary inquiry. For absolute clarity, will intend on advancing argument pursuant to the Lindskog case (R. v. Lindskog (1997), 117 C.C.C. (3d) 551 (Sask. Q.B.)), in advance of the commencement of the preliminary inquiry. Obviously, no notice has been given as this matter just came to light on today`s date. So in any event, if you are not disposed to absenting yourself, will be asking for an adjournment in order to provide the appropriate notice. 5. On October 27, 1997, the date scheduled for the preliminary inquiry, defence counsel advised the Court that he was objecting to Mr. Kohlenberg continuing as prosecutor because Mr. Kohlenberg had represented the accused three to four years ago on show cause hearing when he was in private practice. He indicated he wished to bring an application to have Mr. Kohlenberg removed and requested date for such application to be heard. At that point both counsel were sent back to docket court to have date set for hearing the application. 6. Before the docket court judge Crown counsel indicated that as far as dates for hearing the application were concerned he was at defence counsel`s "leisure". Counsel then met with the court coordinator to find suitable date for the one-half day argument. Crown counsel then advised the Court: My learned friend and have reached an agreement as to date that is available, being March 5, 1998, at 9:30 in Courtroom #9, for the hearing of the Charter application. He also indicated to the court that second date of April 15 at 2:00 p.m. had been selected for the preliminary inquiry 7. With respect to the appearances before both judges defence counsel stated he was not waiving delay. On the appearance before the docket judge defence counsel stated: Your Honour, think I`d like it clearly noted, or at least endorsed on the Information, that but for this we were prepared to proceed with the preliminary inquiry today. And certainly it`s something that was raised, and think the endorsement should read that Defence is not waiving delay on this. Defence counsel was asked by the Judge when he became aware of the problem and he indicated the previous Friday, being October 24, 1997. 8. On March 5, 1997, at the opening of court, defence counsel advised the court that he had just received the previous day the Crown`s affidavit in opposition to his application, and had only recently received the Crown`s memorandum of law. Defence counsel asked for an adjournment to prepare response because he understood the Crown was now objecting to the jurisdiction of the Provincial Court to hear the application. Crown counsel advised the Court this was not the case. At that point the Court raised the issue of whether the Law Society should be requested to provide input with respect to the alleged conflict of interest. Defence counsel indicated he thought that was good idea. After further discussion the Court went on to state as follows: Could word it this way, that the court and please endorse it and it will be with this exact wording that the Court has asked the parties` counsel to contact the Law Society of Saskatchewan to determine if they are able to offer any don`t want to say opinion any information on this point, and if they have any interest in this question before the Court. The application was adjourned to the date selected for the preliminary inquiry being April 15, 1997, and new date was set for the preliminary inquiry on June 2, 9. On April 15, 1998, the court was advised that Mr. Kohlenberg had been transferred to the Civil Law Division of the Department of Justice, and new prosecutor had been assigned to the file. The Court was advised the application was now moot. The record indicates the Court was simply advised there was no need to proceed with the argument and the matter was adjourned to the preliminary inquiry date of June 2, 1998. 10. On June 2, 1998, the preliminary inquiry hearing took place and the accused was committed for trial. 11. On August 7, 1998, pretrial conference was held after receipt of the transcript from the preliminary inquiry and trial date of November 13, 1998 was 12. This motion was argued on November 13, 1998. The accused was arraigned and pleaded not guilty. He then testified on voire dire with respect to this application. The accused`s evidence was directed at trying to emphasize he was genuinely concerned that he would be prejudiced in his defence if Mr. Kohlenberg remained on the file. He testified he anticipated testifying at his own trial. He outlined what he recalled he would have discussed with Mr. Kohlenberg including his personal background. He estimated he would have spoken to Mr. Kohlenberg for approximately one-half hour. [3] With respect to the issue of prejudice, Mr. Morin indicated he is married with three children and states the delay has been hard on him and his family not knowing what will eventually happen over this period of time. He states the condition attached to his recognizance which restricts him from leaving Saskatchewan has prevented him from attending meetings out of the Province on at least four occasions which he wanted to attend. He indicated that his employment with company he referred to as Aboriginal Consulting Services has been affected over the two years because he is not able to take on longer term contracts as he does not know what will eventually happen with respect to his guilt. Finally, Mr. Morin indicated he has been an opiate addict for the last 20 years, and in recent years has been on methadone maintenance program. He indicates the stress of the last two years has kept him at reasonably high maintenance level, which he would otherwise have hoped to reduce to lower level by this time, but has not been able to do so due to the uncertainty associated with the delay. He agreed he has not been prejudiced in his ability to make full answer and defence to the charges by reason of the delay. POSITION OF DEFENCE COUNSEL [4] Defence counsel takes the position that at no point along the way did he waive delay, and the delay of approximately seven months which resulted from his desire to have ruling made on the conflict of interest alleged is solely attributable to the Crown. Defence counsel had been counsel for Mr. Lindskog in the case above referred to which had been decided in July 1997. On the facts of that case McLellan J. of this Court held Crown counsel was in conflict of interest as he had earlier represented the accused three and one-half years earlier on theft charge. He found: am satisfied that reasonably informed person would find it offensive to his or her standards of fairness that lawyer who acted on behalf of client would be allowed to prosecute that same client for an unrelated offence committed less than two years following the retainer. McLellan J. also held at p. 565: there is clearly the risk that the insights he [Crown counsel] gained will be used to the prejudice of the former client if the applicant elects to testify. Defence counsel`s position in this matter is that the facts in the Lindskog case are indistinguishable from the facts in this case, and it should have been obvious to Crown counsel the Charter application would be successful and Crown counsel would be removed. POSITION OF THE CROWN [5] Crown counsel filed an affidavit by Mr. Kohlenberg, in which he indicated he had the vaguest of memories of having acted for Mr. Morin on show cause hearing number of years before but had no recollection of what transpired at that time, and that he had not acted for Mr. Morin beyond the show cause hearing. The affidavit indicates why Mr. Kohlenberg opposed the request that he remove himself from the file. Paragraph 19 of his affidavit states as follows: 19. THAT from the research of case authorities which conducted in respect of this matter, it appeared to me that there was conflicting judicial opinion upon this issue, and some question as to court`s authority to rule on the application proposed to be brought by the Accused`s counsel at the preliminary hearing stage. Even if the judicial authorities then applicable in Saskatchewan were accepted, there appeared to be sound reason for distinguishing them in the particular circumstances of this case, at least at the preliminary hearing stage of the prosecution. Attached to this Affidavit and marked as Exhibit "B" is copy of the Memorandum of Law and Argument which had helped to prepare in respect of these legal issues. [6] Crown counsel takes the position the opposition by Mr. Kohlenberg to defence counsel`s request was prompted by good faith, and was not without merit. She takes the position that all consent adjournments from October 24 on were at the request of both counsel and cannot be attributed solely to the Crown. With respect to defence counsel`s statements along the way that he was not waiving delay, Crown counsel states the incantation of such words is not conclusive, and in each case where delay is alleged, it is necessary for the Court to go through the Morin analysis (R. v. Morin (1992), 71 C.C.C. (3d) (S.C.C.), Sopinka J. at p. 13). ANALYSIS [7] For the reasons which follow the application isdismissed. [8] The 25 months between when the charge was laid on October 10, 1996, and the trial date of November 13, 1998, is sufficient delay to raise the issue of the reasonableness of [9] It will be observed from the foregoing chronology that three and one-half months of the delay (October 10, 1996 to January 27, 1997) occurred after the information was sworn and before the accused was arrested. Seven months of thedelay is due to the scheduling delays which occurred as aresult of defence counsel`s application to remove theprosecution counsel prior to the preliminary hearing (October27, 1997 - June 2, 1998). All other proceedings are withinthe systemic guidelines. (Vide: R. v. Morin, supra, at p. 21, per Sopinka J., where he indicated 8-10 months in Provincial Court, and for trial, 6-8 months in addition to the delay prior to committal). [10] Defence counsel is correct in stating the accused did not explicitly or implicitly waive delay (Vide: R. v. Morin, supra, per Sopinka J., at p. 15). The issues left to be determined in deciding if the delay of 25 months was unreasonable, are the actions of the Crown, the actions of the accused, and prejudice to the accused. Three Months Between Information and Arrest [11] The case law holds that the time for measuring delay is from the time the charge is laid until the date of trial (R. v. Kalanj (1989), 1989 CanLII 63 (SCC), 70 C.R. (3d) 260 at p. 272 (S.C.C.), R. v. Tindale (1997), 1997 CanLII 632 (ON CA), 47 C.R.R. (2d) 304 (Ont. C.A.)). In the foregoing cases the issue was precharge delay and its relevance to s. 11(b) of the Charter. The cases did not specifically address the situation where there is delay between the time the information is sworn and the accused is arrested or summoned to Court. It is not too fanciful to imagine there are cases where the time between laying the information and the accused`s arrest could be considerably longer than the three months in this case. For this reason, am of the opinion, that the foregoing cases establish that the earliest time delay will be considered pursuant to s. 11(b) is the time of swearing the information, but this does not mean that is the only time from which the length of delay is to be [12] As noted by Sopinka J. in R. v. Morin, supra, at p. 12: The individual rights which the section seeks to protect are: (1) the right to security of the person; (2) the right to liberty, and (3) the right to fair trial. The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pretrial incarceration and restrictive bail conditions. The right to fair trial is protected by attempting to insure that proceedings take place while evidence is available and fresh. When there is delay between the laying of the information and the first appearance of the accused, the only one of the three individual rights above referred to that could possibly be affected is the right to fair trial. [13] If the delay from the time the information is sworn to the first appearance is substantial, it may be reasonable to embark on an inquiry why the delay occurred and specifically whether fair trial had been adversely affected by such delay. In this case there is no evidence on the reason for this three- month delay. It is not known whether it was due to actions of the accused, or to the actions of the Crown. What is known, is the accused`s right to afair trial has not been prejudiced by the total timedelay involved. As noted above, his right tosecurity of the person and his right to liberty werenot affected during this period. Seven Month Delay Due to Application to Remove Prosecutor [14] The application brought by defence counsel to have Mr. Kohlenberg removed falls into the category in the Morin analysis of "actions of the accused". As noted by Sopinka J. at pp. 17-18 of that decision: (b) Actions of the accused This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this section am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable. It was defence choice to make an issue of the prosecutor`s involvement at the last minute prior to the scheduled preliminary inquiry date when it would be unreasonable to expect quick answer from the Crown on such matter, and when there would have been ample time to have the question resolved following committal and prior to trial without any real prejudice to the accused in the interval. [15] It is not for me on this application to decide how the motion would have been decided had it proceeded. It is sufficient to say that the Crown`s position that the issue of conflict of interest being raised at the preliminary inquiry stage as opposed to the trial stage was sufficient distinction from the ratio decidendi in Lindskog, supra, to justify the Crown`s opposition. Secondly, the Crown`s position that any ruling made by the preliminary inquiry judge would be restricted to the conduct of the proceedings at the preliminary inquiry (s. 537(i) C.C.C.) and could not extend to binding the trial judge following any committal was also valid point. This point is mentioned simply to indicate there was another reason why the application could have been postponed and dealt with by the trial judge thus avoiding the possibility of the matter being argued twice. [16] The foregoing points cause me to conclude the Crownin opposing the application did so in good faith,and it did have a meritorious position (regardlessof whether it was a winning position) (Vide: R. v.Sander (1995), 1995 CanLII 1229 (BC CA), 30 C.R.R. (2d) 359 (B.C.C.A.), perFinch J.A., at pp. 368-69). The foregoing points also cause me to conclude the Crown does not share in the responsibility for this period of delay. Prejudice to the Accused [17] The accused has been on bail since shortly after hisarrest. He agrees the delay has not resulted in a diminutionof his ability to make full answer and defence. He has been employed throughout the period of time since his release. The prejudice he refers to in not being able to enter into long term contracts or travel out of the Province on several occasions would have existed only for 21-1/2 months of the 25- month delay, and would have existed in any event for at least 15 months of that period of time. I thus describe theprejudice to his liberty interest as minor. [18] No evidence was offered by the accused of stress or damage to his reputation, and in fact arguably the evidence he did give suggested his reputation was not affected at all by the charge he was facing. The prejudice he described of individual stress and family stress over the eventual outcome of the charge is the expected and normal prejudice faced by every person charged with an offence. The absence of any special prejudice again causes me to describe the prejudice to his security interest as minor. CONCLUSION [19] Taking the foregoing factors into account I concludethe delay in the circumstances outlined above was notunreasonable. Further, and in any event, the minor prejudicesuffered by the accused beyond the expected and normal is notsufficient to outweigh society`s interest in bringing thosecharged with criminal offences to trial. [20] The application is dismissed.

FIAT. The accused, charged with trafficking in a narcotic, sought an order for a judicial stay of proceedings pursuant to s.24(1) and (2) of the Charter on the basis his right under s.11(b) to be tried within a reasonable time has been breached. HELD: The application was dismissed. The delay was not unreasonable. 1)The 25 months between when the charge was laid in May 1996 and the trial date in November 1998 was sufficiant delay to raise the issue of the reasonableness of the delay. Defence did not waive delay. 2)There was no reason given for the three and one-half month delay between the swearing of the information and the arrest. The accused's right to a fair trial had not been prejudiced by the total time delay. His right to security of person and to liberty were not affected. 3)Seven months delay was due to scheduling delays resulting from defence's application to remove prosecution counsel who had previously represented the accused. The Crown acted in good faith in opposing the application and had a meritorious position. 4)All other proceedings were within the systemic guidelines. 5)Prejudice to his liberty was minor as he was on bail since shortly after his arrest. He was able to make full answer and defence. He was employed throughout since his release. His inability to enter long term contracts or travel out of province would have existed for 21-1/2 months of the 25 month delay in any event. 6)Individual and family stress is to be expected. The minor prejudice beyond the normal and expected was not sufficient to outweigh society's interest in bringing those charged with criminal offences to trial.

d_1998canlii13884.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 497 Date: 2009 12 18 Docket: Q. B. G. 211 of 2009 Judicial Centre: Regina BETWEEN: STACEY KARDASH PLAINTIFF (RESPONDENT) and DAN LEONARD AUTO SALES LTD. DEFENDANT (APPELLANT) Appearing: S. McLean for the appellant Stacey Kardash, the respondent, self-represented JUDGMENT KRAUS J. December 18, 2009 [1] The appellant appeals the judgment of the Provincial Court made January 19, 2009, pursuant to s. 39 of The Small Claims Act, 1997, S. S. 1997, c. S-50.11, as am. (the “Act”). [2] The notice of appeal asserts the following grounds: ... a) The Judgment is contrary to the law, the evidence and the weight of evidence. b) The learned Judge erred in allowing the Plaintiffs [sic] claim against DAN LEONARD AUTO SALES LTD. body corporate duly registered in the Province of Saskatchewan when it had agreed to honour its warranty by repairing the transmission provided the Plaintiff KARDASH bring the same to the Defendant to have it repaired. c) The Plaintiff and Defendant agreed as term and condition of the sale of the said vehicle, which had an odometer reading in excess of 300,000 kilometers, that the Defendant would reduce the sale price from $4,995.00 to $3,360.00 provided the Plaintiff accept the vehicle which needed some repair to the steering mechanism. d) Such other grounds as may come to the attention of the appellant upon receipt of the transcript of the evidence given at the trial. [3] An appeal is not trial de novo but an appeal on the record and the findings of fact by the trial judge must be given high degree of appellate deference. Kitzul v. Ungar (1991), 1991 CanLII 7678 (SK QB), 90 Sask. R. 239 (Q.B.), Myrowsky v. Smith, 2005 SKQB 177 (Q.B.) (CanLII) and Bentley v. Humboldt Society for Aid to the Handicapped (2006), 2006 SKQB 125 (CanLII), 281 Sask R. 117 (Q.B.) [4] In my view, the findings of fact by the learned trial judge are reasonably supported by the evidence and there is no palpable and overriding error. Coleman and Wachniak v. Saskatoon Car Town Ltd. (1986), 1986 CanLII 2987 (SK QB), 45 Sask. R. 308 (Q.B.) and Regina (City) v. Kivela (2006), 2006 SKCA 38 (CanLII), 275 Sask. R. 271 (Q.B.) [5] Nor did the learned trial judge make a palpable and overriding error in interpreting the evidence and applying the pertinent provisions of The Consumer Protection Act, S. S. 1996, c. C-30.1 to the facts. Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235 (S.C.C.) and Regina (City) v. Kivela, supra [6] The learned trial judge did not make an error of law based on the standard of correctness. Housen v. Nikolaisen, supra [7] The appeal is dismissed. [8] Pursuant to s. 43 of the Act, costs are awarded to the respondent of $150.00 in lieu of taxation based on Schedule “D” of the tariff of costs, The Queen’s Bench Rules. [9] The respondent shall not take any steps to enforce the judgment within 30 days, to enable the appellant to comply with the judgment (including picking up the vehicle), pursuant to s. 36(1) of the Act. J. G. M. KRAUS

The appellant appeals the judgment of the Provincial Court pursuant to s. 39 of The Small Claims Act, 1997. HELD: The findings of fact by the trial judge are reasonably supported by the evidence and there is no palpable and overriding error. The learned judge did not make an error in law.

4_2009skqb497.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 173 Date: 2010 05 14 Docket: F.L.D. No. 260 of 2005 Judicial Centre: Saskatoon, Family Law Division BETWEEN: JAMES BUTLER and JODI POSEHN Counsel: M. Vanstone for the petitioner N. Turcotte for the respondent FIAT MAHER J. May 14, 2010 Introduction [1] The petitioner applies to vary the consent parenting judgment and the consent child support order granted by Justice R. S. Smith on February 2, 2007. The petitioner requests that the parenting judgment be varied to provide four day on and four day off rotation to the parenting schedule and the deletion from paragraph of the parenting judgment the respondent’s final decision making provision. The petitioner, as well, seeks several additional adjustments to the initial parenting judgment. In regard to the child support order, the petitioner seeks that the child support order be varied to provide that his $762 per month payment that he currently makes not be increased or decreased in the years to come. [2] The respondent opposes the application and says that there has been no material change of circumstances since the granting of the parenting judgment and child support order on February 2, 2007. Therefore the petitioner’s application should be dismissed. [3] The parties are the parents of twins, April Posehn and Colby Posehn, born August 28, 2005. The parties never lived together. The respondent went on maternity leave on June 30, 2005, from her position at the Calder Centre in Saskatoon. She then relocated to Regina to be with her family where the children were born. The respondent as single parent was able to access family supports after the twins were born in Regina. [4] The petitioner resided in Saskatoon. The respondent’s evidence is that she has provided generous access to the petitioner since the birth of the twins. [5] The petitioner in October of 2005 brought an application for joint custody of the twins, payment of child support by him, and an order that the respondent provide her three previous years tax returns and notices of assessment. That application resulted in the consent child support order and the parenting judgment of February 2, 2007, that the petitioner now seeks to vary. [6] The child support order determined that the petitioner’s income for Guideline purposes was $53,624 and the respondent’s was $54,581. The petitioner was ordered to pay child support in the amount of $762 per month plus one half of net child care costs and one half of any health or dental costs not covered by insurance. The parties were ordered to exchange their tax returns in May of each year and the child support payment was to be adjusted as of June 1st to account for any changes in income. [7] The parenting judgment provided joint custody with the children having their primary residence with the respondent. The petitioner was to have access twelve days per month. The petitioner was to be responsible to pay the respondent’s relocation costs from Regina to Saskatoon. The order provided the following on increasing parenting time to the petitioner: In the future the Petitioner may seek additional parenting time with the children (without the necessity of proving “change in circumstances”) up to and including ‘half-time’ parenting arrangement such that the children would spend equal time with each parent, provided the Petitioner would not seek change in the maintenance arrangements, and would continue to provide basic Guidelines maintenance as he currently does, with no deduction based on increased parenting time. [8] The parenting judgment provided at paragraph the following on health care and education matters, “the respondent, Jodie Posehn, shall have the final decision with due consideration to the petitioner’s opinion.” [9] The respondent has relocated to Saskatoon with the petitioner having paid her costs of relocation. The petitioner now has access to the children 50% of the time. The parties have been following an equal parenting schedule for the past two and one-half years. The petitioner’s view is that the equal parenting “has worked wonderfully for the twins as they are healthy, happy, well cared for, and well adjusted”. The petitioner acknowledges under the current parenting judgment the respondent consults with the petitioner prior to making significant decisions regarding the welfare of the twins. 1. Has the petitioner established material change of circumstances since the parenting judgment or the child support order of February 2, 2007? 2. If there has been material change in circumstances from either of the orders, what are the appropriate terms and conditions of varied judgment or order? [11] The Supreme Court of Canada in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27, McLachlin J. (as she then was) set out three conditions that must be satisfied before court can begin to consider the merits of variation application. The conditions she set out are at paras. 10 13 and are as follows: 10 Before the court can consider the merits of the application for variation, it must be satisfied there has been material change in the circumstances of the child since the last custody order was made. Section 17(5) provides that the court shall not vary custody or access order absent change in the "condition, means, needs or other circumstances of the child". Accordingly, if the applicant is unable to show the existence of material change, the inquiry can go no farther: Wilson v. Grassick (1994), 1994 CanLII 4709 (SK CA), R.F.L. (4th) 291 (Sask. C.A.). 11 The requirement of material change in the situation of the child means that an application to vary custody cannot serve as an indirect route of appeal from the original custody order. The court cannot retry the case, substituting its discretion for that of the original judge; it must assume the correctness of the decision and consider only the change in circumstances since the order was issued: Baynes v. Baynes (1987), 1987 CanLII 2918 (BC CA), R.F.L. (3d) 139 (B.C.C.A); Docherty v. Beckett (1989), 21 R.F.L. (3d) 92 (Ont. C.A.); Wesson v. Wesson (1973), 10 R.F.L. 193 (N.S.S.C.), at p. 194. 12 What suffices to establish material change in the circumstances of the child? 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: Watson v. Watson (1991), 1991 CanLII 839 (BC SC), 35 R.F.L. (3d) 169 (B.C.S.C.). The question is whether the previous order might have been different had the circumstances now existing prevailed earlier: MacCallum v. MacCallum (1976), 30 R.F.L. 32 (P.E.I.S.C.). Moreover, the change should represent distinct departure from what the court could reasonably have anticipated in making the previous order. "What the court is seeking to isolate are those factors which were not likely to occur at the time the proceedings took place": J. G. McLeod, Child Custody Law and Practice (1992), at p. 11-5. 13 It follows that before entering on the merits of an application to vary custody order the judge must be satisfied of: (1) change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. It is common ground that the petitioner, being the applicant, has the onus to establish that the three initial conditions have been met (See: Talbot v. Henry,[1990] .W.W.R. 251 (Sask. C.A.); 1990 CanLII 2648 (SK CA), 1990 S.J. No. 159 (QL)). A. The parenting judgment [12] The petitioner’s request is to change to the parenting time in the judgment and delete the respondent’s final decision making provision. His wish is to share decision making responsibilities with the respondent. He asserts at paragraph 38 of his affidavit of November 23, 2009, that “the respondent has acted as if she is the only authority and occasionally attempts to control parenting decisions”. The petitioner in his reply affidavit of April 29, 2010, says the following at paragraph 18: ... now that we are now in the same city and share the responsibility for the twins’ care on an equal basis would like to share decision making responsibility with the respondent. In my view there has been no health or welfare issues pertaining to the children that we have not, one way or another, managed to resolve through dialogue. [13] When one compares the detailed terms of the parenting judgment and the evidence of the petitioner and apply them to the three requirements as set out in Gordon v. Goertz, supra, I am satisfied that the petitioner has not established a material change of circumstances. The parties, to their credit, have worked hard at co-parenting the children. The petitioner’s wish is to eliminate the respondent’s veto. However, paragraph 2 of the judgment details a process of consultation by the respondent on issues of parenting concerning the health and education of the children. It does provide that the respondent shall have the final decision with “due consideration to the petitioner’s opinion”. It is obvious from the petitioner’s evidence that the respondent is following the terms of paragraph 2 with consultation and that the current arrangement has worked well in the interest of the twins. [14] I find that the petitioner has not satisfied me that a material change of circumstance has occurred. The original judgment contemplated in detail the parenting arrangement that has been followed. The petitioner has failed to meet the onus upon him in this regard and I dismiss the application. B. The Child Support Order [15] The petitioner seeks to have his child support payment as set out in the February 2, 2007, order at $762 be changed so that the $762 payment would not increase or decrease in the years to come. The current child support order clearly provided in paragraph for the child support to be adjusted annually after the exchange of tax returns. The parenting judgment provided that when an equal parenting arrangement occurred that the petitioner, “would continue to provide basic Guidelines maintenance as he currently does, with no deduction based on increased parenting time.” [16] The petitioner in support of his application to vary the child support details his increased costs as result of the shared parenting arrangement. However, must consider that in the context of the petitioner’s 2009 income tax return. His line 150 income is $77,942.41 less union dues of $882 which establishes his Guideline income for 2009 at $77,060 which results in monthly child support obligation pursuant to the original order of $1072 per month for the twins. [17] What evidence is there to establish material change of circumstance? The petitioner agreed on the granting of the original orders on how child support should be calculated in ongoing years and both parties were required to produce their tax returns. The petitioner has increased costs now that he has the children 50% of the time. However the cost of the children’s care on that occurring was dealt with in the original order. The only change is the petitioner’s income which has increased by $22,479. That, in my opinion, is not a material change of circumstance as the change of the petitioner’s income on equal parenting were clearly provided for in the original child support order and parenting judgment. I therefore dismiss the petitioner’s application to vary the child support order. [18] find that the petitioner’s 2009 income for child support purposes is $77,060. order, pursuant to the terms of the original judgment, that the petitioner shall commence paying child support in the amount of $1,072 per month commencing June 1, 2010, and continuing monthly thereafter until further order or agreement of the parties. [19] The petitioner’s 2008 line 150 income is $58,251.05 and he is entitled to union due deduction of $1,243. find that his 2008 Guideline income is $57,008. find that his child support obligation from June 1, 2009, to May 1, 2010, is $797. The petitioner therefore owes the respondent $420 for child support as he appears to have paid only the original $762 per month. The $420 is to be paid by the petitioner within thirty days. [20] The respondent has been successful in having the petitioner’s applications to vary dismissed. She is therefore entitled to her costs, which fix in the amount of $1,500 to be paid within thirty days. J. R. D. Maher

The petitioner and respondent are the parents of twins. The petitioner father sought variation of a consent order. The consent order provided that the parties would have joint custody of the children with the primary residence with the respondent. The order also provided that the respondent would have the final decision with respect to health and education matters, after consultation with the petitioner. The situation had evolved to the point that the petitioner had relocated to the same city as the respondent and children. For the past two and a half year, the petitioner had access to the children 50% of the time. The petitioner acknowledged that under the current arrangement, the respondent consulted him before making decisions regarding the welfare of the children. The consent order dealt with child support payable, provided that tax returns be exchanged annually and set out how child support should be calculated on an ongoing basis. The petitioner sought to have the child support arrangement varied so that his support obligation would not increase or decrease in the years to come. The petitioner cited increased personal costs to exercise access to the children. HELD: The petitioner had not established a material change in circumstances sufficient to justify a change to the parenting arrangement. The original consent order provides that the respondent must consult with the petitioner on issues of health and education and the current arrangement has worked well for the children. The petitioner also failed to establish a material change in circumstances sufficient to alter the agreed child support arrangement. The issue of increased costs for the petitioner to exercise access to the children was dealt with in the original consent order. The only change in circumstances is that the petitioner's income has increased. The petitioner's application to vary the parenting arrangement and child support order was dismissed. The respondent was awarded costs.

d_2010skqb173.txt

PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #40150828 HER MAJESTY THE QUEEN and Gregory G. Hunt H.W. Goliath, P.C.J J. Morrall, CROWN PROSECUTORS, Prince Albert, SK. FOR THE CROWN. B. Lane, BRADLEY AND LANE LAW OFFICE, Shellbrook, SK. FOR THE DEFENCE. 1. This is a charge of failing to yield, contrary to Section 50(3) of The Highway Traffic Act: “When the driver of vehicle intends to turn left across the path of any vehicle approaching from the opposite direction, he shall yield the right of way and shall not make the turn until he has afforded reasonable opportunity to the driver of the approaching vehicle to avoid collision.” 2. The defendant driving 1971 Chrysler Newport was proceeding north on 15th Avenue with the intention of turning left at 15th Street East. He testified that he stopped at the intersection for about 15 seconds to allow several south-bound vehicles to go by, and then began his left turn. Before he got through to the turn he saw another on-coming vehicle, this one 1987 Ford Tempo driven by Adrianna Wormworth. He says that he saw this vehicle for only few seconds before the collision. 3. Since the defendant turned across the path of the Ford Tempo, and since the two vehicles came into collision, it would appear prima facie that he failed to yield as he was required to do by Section 50(3). 4. The right of way, however, is not absolute. As Culliton, J.A. said in Mallin v. Clark, (1955) 1955 CanLII 215 (SK CA), 17 W.W.R. 333, 336: “The fact that the defendant had the right of way did not give him an absolute right, nor did it relieve him from compliance with his common law and statutory duty to drive with due care in the circumstances. The duty of the driver with the right of way is well stated by Aylesworth, J.A. in Woodward v. Harris (1951) OWN 221 at 229, approved on this point (1952) 1951 CanLII 375 (SCC), DLR 82, 1951 Can Abr 505, 1952 Can Abr 518 (S.C.C.) as follows: ‘Authority is not required in support of the principle that driver entering an intersection, even although he has the right of way, is bound to act so as to avoid collision if reasonable care on his part will prevent it. To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be collision which he reasonably should have foreseen and avoided.’” 5. In Bresciana v. Continental Appliances et al, (1991) 1990 CanLII 7412 (SK QB), W.W.R. 570, Armstrong, J. said: “Section 50(3) has to be read as meaning ‘yield the right of way to vehicle having the right to continue.’ It cannot mean that the vehicle making left-hand turn creates right of way and is then required to yield to it. It means that if vehicle has the right to proceed, then it must be allowed to proceed first.” 6. Section 50(3) of The Highway Traffic Act is an offence of strict liability, as are most similar regulatory offences. This means that once it is established that the defendant did the prohibited act, it is open to him to establish defence of due diligence; R.v. Sault Ste. Marie, (1978), 1978 CanLII 11 (SCC), C.R. (3rd) 30. The defence must be established on balance of probabilities; R.v. Wholesale Travel Group, (1991) 1991 CanLII 39 (SCC), S.C.R. 154; R.v. John Kozun, (Sask. Q.B. February 20, 1997). 7. In Matilda Margaret Dyck (Sask. Q.B. November 10, 1995) Gerein, J. had before him an appeal from conviction under Section 50(3) in the Traffic Safety Court. At p. of the unreported decision, he said, “... the requirement to yield to an approaching vehicle is seen to be determined by flexible test which takes into account all of the prevailing circumstances. In doing this, one must focus on the requirement that an approaching vehicle must be afforded reasonable opportunity to avoid collision.” 8. In this case, while Ms. Wormworth testified that she was driving at the speed limit of 50 kilometres per hour, there is evidence that she may have been driving somewhat faster. Neither the defendant nor his passenger saw her vehicle until it was nearly into the intersection. Both described the movement of her vehicle as being “pretty fast”. Micheljohn says that when she crested the hill just before the intersection her vehicle was “lifting” or “hovering”. The defendant concurred with this observation, saying that her vehicle “kind of came off its shocks”. Wormworth did not see the defendant’s vehicle until just before the collision, although she did have time to hit the brakes, and may have swerved bit to the left. The impact of the collision drove the defendant’s vehicle sideways, causing extensive damage. The Tempo was totalled. Wormworth’s passenger was knocked unconscious, and sustained bruised collar bone. The defendant’s passenger was also knocked out and received cut to the head requiring three or four stitches. 9. The time of the collision was about 7:30 p.m. It was getting dark. Wormworth says that her headlights were on. The defendant does not know whether her headlights were on or not, but says that he would have seen them if they were. His passenger says that Wormworth had only her park lights on. Her passenger, Mr. Villeneuve, says that could have been the case. 10. Neither road conditions nor weather conditions appear to have been factor in the collision. There is no evidence that alcohol was factor or that either driver’s ability was in any way impaired. Visibility appears to have been reasonably good, given the time of day and the fact that the intersection is lit by street lights. Traffic was light, although the defendant did have to wait at the intersection for several south-bound vehicles to go by before he turned. 11. Having regard to the evidence of the drivers and their passengers and to all of the circumstances I find that the defendant when he commenced his turn across the path of the Tempo was entitled to assume that it was safe to do so, as there did not appear to be any other vehicles close enough to the intersection to present a hazard. The Wormworth vehicle probably approached and entered the intersection too fast for the defendant to take appropriate evasive action. This vehicle may also have had only parking lights on, but on the evidence, it is not possible to say. While the Crown argues that the evidence of speeding is equivocal, find, on balance of probabilities, that it was contributing factor. It may well be that the defendant through the exercise of higher degree of vigilance may have seen the oncoming Tempo. As stated in R.v. Turgeon, (1958) 1958 CanLII 171 (SK QB), 28 C.R. 21, 24-25: “the law does not require of any driver that he should exhibit perfect nerve and presence of mind, enabling him to do the best thing possible. It does not expect men to be more than ordinary men. Drivers of vehicles cannot be required to regulate their driving as if in constant fear that other drivers who are under observation, and apparently acting reasonably and properly, may possibly act at critical moment in disregard of the safety of themselves and other users of the road. But the law does insist upon reasonable amount of skill in the handling of vehicle which is potential source of danger to other users of the road ... the question always is ‘What would an ordinary prudent person in the position of the plaintiff have done in relation to the event complained of?’” Conclusion 12. I find that the defendant’s actions did not fall short of the standard of care demanded of ordinary prudent drivers faced with similar circumstances, and that with respect to the failing to yield, the defence of due diligence has been established. 13. The other requirement of Section 50(3) is that the defendant “shall not make the turn until he has afforded reasonable opportunity to the driver of the approaching vehicle to avoid collision”. I find as a fact that when the defendant commenced his turn, any vehicle lawfully approaching from the opposite direction would have been able to avoid the collision. 14. I find the defendant not guilty. DATED this 26th day of March, A.D., 1999, at the City of Prince Albert, in the Province of Saskatchewan. H.W. Goliath, Provincial Court Judge

A charge of failing to yield, contrary to s.50(3) of the Highway Traffic Act. The collision caused extensive damage to the defendant's vehicle and totaled the second. Two passengers were knocked unconscious. One sustained a bruised collar bone and the other required stitches to the head. HELD: The defendant was found not guilty. His action did not fall short of the standard of care demanded of ordinary prudent drivers faced with similar circumstances. The defence of due diligence was established with respect to the failing to yield. The second requirement of s.50(3) is that the defendant shall not make a turn until he has afforded a reasonable opportunity to the approaching vehicle to avoid a collision. It was found as a fact that that when he commenced his turn, any lawfully vehicle approaching from the opposite direction would have been able to avoid the collision. 1)Since the defendant turned across the path of the on-coming vehicle and since they came into collision, it would appear prima facie that he failed to yield as required by s.50(3). The right of way, however, is not absolute. As most regulatory offences s. 50(3) is an offence of strict liability which means that once it is established the defendant did the prohibited act, it is open to him to establish a defence of due diligence on a balance of probabilities. 2)Speeding by the second vehicle was a contributing factor. It could not be determined whether the second vehicle had only its parking lights on. Neither road nor weather conditions appeared to have been a factor. Alcohol was not a factor. Visibility was reasonably good given the time of day and the fact the intersection was lit by street lights. 3)When the defendant commenced his turn across the path of the second vehicle he was entitled to assume it was safe to do so as there did not appear to be any other vehicle close enough to the intersection to present a hazard.

6_1999canlii12377.txt

Q.B. A.D. 1991 J.C.Y. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: JEANETTE MAY HESHKA and TERRANCE MICHAEL HESHKA RESPONDENT Jeanette May Heshka appearing on her own behalf K. W. Wasylyshen for the defendant JUDGMENT GEATROS J. May 16, 1994 The issues raised in this action is custody andaccess, child and spousal support, and division of thematrimonial property. The petitioner, Jeanette, the wife, is 43 years of age; the respondent, Terrance, the husband, 44 years. They were married in May 1983 and separated in March, 1991. There are two children of the marriage, Mark, born September 19, 1983, and Michelle, born February 11, 1987. Jeanette issued her petition in May 1991. Thehusband counter-petitioned in January 1992. On February 24, 1992, Osborn J. granted interim maintenance as follows: Spousal support$ 400.00 Child support for Mark$ 400.00 for Michelle$ 800.00 $1,600.00 An application by Terrance to reduce the interim support was denied by Matheson, J. on May 11, 1993. It is apt to proceed first with division of the matrimonial property. The result may have an effect on the other issues. The assets and the values placed thereon by the parties are as follows: Assets Valued by Terrance Valued by Jeanette 1. NE 13-29-4-W2 2. SE 13-29-4-W2 3. SE 12-29-4-W2 5. Farm machinery 6. Grain on hand 7. Cash on hand 8. His teachers' superannuation 9. Sask. Wheat Pool equity 10. Yorkton Co-op Investors portfolio (joint 4,186.34 The NE 13-29-4-W2 is the home quarter. It was purchased in 1985 for $75,000.00. There is $5,400.00 owing on that quarter section. One appraisal is by Four Seasons Realty. The other by Cliff Durnford Appraisal. prefer the valuation of the "accredited appraiser" over that of the "realtor". Including the grain bins, fix the value of the NE 13-29-4-W2 for distribution purposes at $42,375.00 (by Jeanette's appraiser) less $5,400.00 due or $36,975.00. There are no "improvements" to take into account as regards the other two quarter sections. There is $25,000.00 owing against the SE 13-29-4-W2. In his "summary" prepared for trial Terrance values the quarter section at $34,500.00, and Jeanette in her brief at $47,680.00 on the basis of "eight times the assessment". This land was purchased in 1989 for $55,000.00. The valuation of the appraiser and the realtor approximates that submitted by Terrance. The value for the purposes of distribution find to be $34,500.00 less $25,000.00 or $9,500.00. The SE 12-29-4-W2 was purchased by Terrance from his brother Eugene for $55,000.00 in 1982. According to the agreement for sale, $30,000.00 was to be paid before May, 1983, the date of the marriage. Jeanette contends that only $20,000.00 had been paid so that Terrance should be given an exemption of $20,000.00, not $30,000.00. Upon the evidence, on balance, would allow an exemption of $30,000.00 given that Terrance was able to acquire title so it can be presumed it is likely the purchase price was paid according to the tenor of the agreement for sale. Jeanette places the value of the SE 12-29-4-W2 at $52,720.00, again based on "eight times the assessment", but her appraiser's value is lower. accept Terrance's value of $36,750.00. There is fourth quarter section of land, the NW 6- 29-3-W2, acquired by Terrance prior to marriage and accordingly Jeanette is not seeking division of that land. Lorne Korpatniski has been auctioneer for 23 years and farmer since 1980. He says the machinery "is in extremely poor condition ... it was sitting all over the yard". His view is that there is no room for further depreciation. He itemized and valued each piece of machinery. In my view, his total value of $13,150.00 is well placed. accept that value over the one submitted by Jeanette. The evidence reveals the present value of Terrance's pension benefit accrued during his marriage to be $7,774.00. One half of that amount or $3,887.00 may be transferred to prescribed R.R.S.P. for Mrs. Heshka. The manager of the superannuation program for the Saskatchewan Teachers' Superannuation Commission in her letter in evidence says, "when the court renders an award and payment is made to Mrs. Heshka by the Teachers' Superannuation Plan, she will have no further claim or entitlement to any pension or benefit pursuant to the Plan". There is agreement on the value of the remaining assets. The parties concede there is to be equal division. There are three items Terrance says he held prior to marriage to which he claims an "exemption". would allow $1,345.00 related to Plan 24, Canora Credit Union by reason of Jeanette's consent, but not the other two. There is no basis for an exemption related to the Canora Credit Union chequing account, and find well founded Jeanette's contention that the fuel that was prepaid would have been used by the time of the marriage. The parties have divided the furniture and personal effects and it was agreed at the trial that Jeanette is allowed to have "my cabin belongings". It is ordered that Jeanette shall be entitled to take possession of them on Saturday, May 28th or Sunday, May 29th, next. In summary, Terrance's assets comprise: NE 13-29-4-W2 $36,975.00 SE 13-29-4-W2 $9,500.00 SE 12-29-4-W2 ($36,750.00 less exemption of $30,000.00) $6,750.00 Farm machinery $13,150.00 Cabin $6,000.00 Grain on hand $15,708.56 Cash on hand $4,913.68 Wheat pool equity $2,276.88 Yorkton Co-op equity $475.21 Investors portfolio (joint account) $2,832.66* Investors portfolio (Terrance only) $4,186.34 Total $102,768.33 Less agreed exemption $1,345.00 Total to be divided $101,423.33 Amount payable to Jeanette $50,711.66 *To be placed in Terrance's name solely. The "amount payable" does not include Jeanette's share of Terrance's pension benefit in the amount of $3,887.00. My ruling is that the Saskatchewan Teachers' Superannuation Commission shall transfer such sum to an R.R.S.P. as may be prescribed by Jeanette. In this regard, see the Commission's letter to "Mr. Terry Heshka" dated April 20, 1994 (exhibit D-7). It is hereby ordered that Jeanette Heshka has fromthis date a beneficial interest created by this order,sufficient to support the registration of a caveat, in thefollowing lands to the extent of $50,711.66:NE 13-29-4-W2nd,SE 13-29-4-W2nd, andSE 12-29-4-W2nd. It is further ordered that Terrance Heshka shall not transfer, mortgage, lease or otherwise encumber the said lands except in accordance with an order of the court. If the sum of $50,711.66, together with interest atthe judgment rate hereby ordered to accrue in the meantime, isnot paid by Terrance by September 1st next, Jeanette may applyto the court for a sale of the lands to facilitate payment ofthe amount then outstanding. Terrance is not seeking custody of the children, but requires firm guidelines as to access. Upon hearing theparties I am of the view that a kind of specified accessshould be put in place. There was discussion at the trial as to how it should be determined. The farm home is 22 miles from Jeanette's residence. Terrance shall be entitled to access every second weekend from Friday, p.m., to Sunday, p.m., beginning Friday, May 27th next. Should Terrance choose not to exercise his access rights during any weekend he must communicate with Jeanette to that effect no later than the prior Wednesday. Jeanette agrees, as do, that the children should be able to visit with their father during the week from time to time. It is not possible to specify the times when these separate visits shall take place. Suffice it to say that they are to be part of the reasonable access to which Terrance is entitled. Such visits must necessarily be kept in balance and require the goodwill and co-operation of Jeanette and Terrance so as not to conflict with the children's school requirements or activities that may have already been arranged for them. The children will spend either the first or second week of each of the months of July and August with their father. He is to inform Jeanette by June 1st each year what week during those months he has selected for the access period. Terrance shall have access during Ukrainian Christmas and Ukrainian Easter each year, from 10 noon Christmas eve to p.m. the day after Christmas, and from 12 noon of Good Friday to p.m. Easter day. Spousal support and child maintenance shall be inthe same terms as in the interim order. There is no basis upon which it can be varied downwards as Terrance contends. Michelle's multiple physical handicaps mitigates against change in the amount that is being paid for her. The evidence does not allow for lessening of the monthly payment of $400.00 for Mark. There is no doubt that the cost of maintaining children increases as they grow older. Concerning Jeanette, there are really no grounds upon which spousal support can be reduced below $400.00 monthly. Medication for her diabetes alone costs her up to $200.00 every month. She does not seek an increase in spousal support. Only that it remain the same as at the present time. Given the employment and farming income of Terrance during 1993 revealed in his 1993 income tax return, am not persuaded that he will not be able to continue making the support payments. In the result,Terrance will pay to Jeanette for her support the sum of$400.00 per month and, as well, the sum of $800.00 and $400.00per month for the maintenance of Michelle and Mark,respectively, for a total sum of $1,600.00, commencing thefirst of June, 1994. An award for retroactive support and maintenance sought by Jeanette must be rejected. There is no basis for an award predating the order of Osborn, J. make no order as to costs on the petition and counter-petition.

The wife petitioned and the husband counter-petitioned for a division of matrimonial property, custody, access and spousal and child support. HELD: 1)The matrimonial property was valued and divided equally. The wife was permitted to register a caveat to protect the value of her 1/2 interest. If the husband did not arrange payment by September 1st next, the wife was given leave to apply for a sale. 2)The wife was given custody of the 2 children of the marriage. The court ordered specific access for the husband. 3)The court confirmed the interim support orders made before trial in the amounts of $400.00 per month for the wife, $400.00 per month for the oldest child, and $800.00 per month for the youngest child, who was handicapped.

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NOVA SCOTIA COURT OF APPEAL Citation: R. v. Ogden, 2011 NSCA 89 Date: 20110926 Docket: CAC 335103 Registry: Halifax Between: Victoria Mae Ogden v. Her Majesty the Queen Respondent Judge: The Honourable Mr. Justice Jamie W.S. Saunders (Orally) Appeal Heard: September 26, 2011 Subject: Robbery. Identification. Credibility. Proof Beyond Reasonable Doubt. Summary: Appeal from conviction for robbery alleging error by the trial judge in his assessment of credibility. Held: Appeal dismissed. This robbery took place in small room with only three persons present. The trial judge did not fall into the trap of simply comparing the Crown and defence positions without then going on to assess the whole of the evidence to establish proof of guilt beyond reasonable doubt. In assessing all of the evidence the judge recognized that the ultimate issue was not credibility, but proof to criminal standard. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Ogden, 2011 NSCA 89 Date: 20110926 Docket: CAC 335103 Registry: Halifax Between: Victoria Mae Ogden v. Her Majesty the Queen Respondent Judges: Saunders, Oland and Farrar, JJ.A. Appeal Heard: September 26, 2011, in Halifax, Nova Scotia Written Judgment: September 27, 2011 Held: Appeal dismissed per oral reasons for judgment of Saunders, J.A.; Oland and Farrar, JJ.A. concurring. Counsel: Luke A. Craggs, for the appellant Jennifer A. MacLellan, for the respondent Reasons for judgment: (Orally) [1] After short trial before Nova Scotia Supreme Court Justice Peter M.S. Bryson (as he then was), the appellant was convicted of robbery and sentenced to four years’ imprisonment. She now appeals her conviction on the single ground that the trial judge erred in law by treating the conflicting Crown and defence evidence as a credibility contest. [2] After carefully considering the record and counsels’ submissions we are unanimously of the opinion that the appeal ought to be dismissed. [3] The crime took place in room with only three persons present. Late in the morning of June 2, 2008, the appellant and her friend Tara Deviller visited Maurice LeBlanc in his apartment at 218 Main Street in Yarmouth. Space was tight, and described by its owner as “like big motel room”. Apart from the police officer whose testimony and photographs documented the scene and the injuries suffered by the victim, the only other witnesses were the appellant, Ms. Deviller and Mr. LeBlanc. [4] The judge found that Ms. Deviller sat on the couch across from the kitchen table where Mr. LeBlanc was seated and that at some point shortly after their arrival, the appellant got up and proceeded through doorway behind Mr. LeBlanc, purportedly to use the washroom. few moments later Mr. LeBlanc felt something wrapped around his throat. He was choked until he passed out. [5] When he regained consciousness, Mr. LeBlanc was lying on the floor and the appellant was crouching over him. He felt his wallet under his back. The appellant said nothing and left. Afterwards Mr. LeBlanc discovered that $110 was missing from his wallet. He called the police who quickly apprehended the appellant after discovering her hiding under bed at Ms. Deviller’s residence. She was on parole at the time. Ms. Deviller was located shortly afterwards. She told the officers she had been out buying cigarettes. [6] The police were unable to recover any of the money that Mr. LeBlanc had lost. Ms. Ogden was charged with robbery, and assault with weapon. Ms. Deviller was not charged with any offences relating to this incident. She gave statement to the police and testified as witness for the Crown against the appellant. [7] On cross-examination, Mr. LeBlanc did not waiver in his evidence that Ms. Deviller never left his sight and was still seated on the couch directly in front of him when he suddenly felt something being tightened around his throat. He tried to loosen it with his fingers but couldn’t, and ultimately passed out. He was insistent that as he felt the cord or belt going around his neck, Ms. Deviller was where she had always been, seated on the couch in front of him. [8] Ms. Deviller’s testimony supported the victim’s evidence. She said that she and Ms. Ogden had gone to Mr. LeBlanc’s apartment that morning to bum cigarette. She was sitting on his sofa smoking when the appellant went to use the bathroom. She observed Ms. Ogden wrap belt from bath robe around Mr. LeBlanc’s neck and choke the man until he passed out. Ms. Deviller said that as soon as she saw Mr. LeBlanc start to lose consciousness, she ran off because she already “had charges against her” and didn’t want to get involved in this incident. After she ran from the apartment she assumed the appellant removed Mr. LeBlanc’s money from his wallet, and fled. [9] The appellant took the stand in her own defence. She admitted that at the time of this offence she was on parole. She knew that if she were convicted, her parole would be revoked. Ms. Ogden said she was using crack cocaine at the time and bouncing around from friend to friend for place to sleep. While in Mr. LeBlanc’s apartment she admitted that she went to use the bathroom, but only to smoke the rest of her drugs in private without having to share it with others. She said that while inside the bathroom she could hear commotion. When she came out she saw Mr. LeBlanc lying on the floor with Tara Deviller saying “she had the money” as she ran out the door. The appellant said she didn’t really know what to do at that point because Mr. LeBlanc was “out cold” on the floor. She crouched over him and lifted his head to see that he was okay. When he came to he said he was going to call the police. She ran. She denied ever seeing his wallet, robbing or strangling Mr. LeBlanc, or being part of plan to rob him. [10] Justice Bryson’s oral decision was rendered shortly after hearing the evidence and detailed submissions from counsel. In his reasons he carefully reviewed the testimony offered by the witnesses who had just appeared before him. While Justice Bryson did not specifically refer to the principles set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, we are satisfied that he recognized their importance and that he did not fall into the trap of simply comparing the Crown and defence positions without then going on to assess the whole of the evidence to establish proof of guilt beyond a reasonable doubt. R. v. Mah, 2002 NSCA 99 (CanLII). [11] In the end, Justice Bryson accepted Mr. LeBlanc’s evidence as to what had occurred, accepted Ms. Deviller’s evidence as to who strangled the victim, and rejected the appellant’s testimony and denials of responsibility. Read as a whole, we are satisfied that the judge properly assessed all of the evidence, recognizing throughout that the ultimate issue was not credibility but reasonable doubt. We see no error in his conclusion that the appellant’s culpability for the robbery and the assault had been established beyond reasonable doubt. [12] For all of these reasons we would dismiss the appeal. Saunders, J.A. Concurred in: Oland, J.A. Farrar, J.A.

The defendant, who was in a very small apartment with two other individuals, got up from the couch and proceeded through a doorway behind the complainant, purportedly to use the bathroom. A few minutes later, the complainant found something wrapped around his neck and he was choked until he passed out. When he regained consciousness, he was lying on the floor with the defendant crouched over him. She left without saying a word and he later discovered that money was missing from his wallet, which he found under his back. The defendant was convicted of robbery when the complainant maintained that the third person in the room never left his sight and was still seated directly in front of him when he felt something being tightened around his throat. Although the third person's testimony supported the complainant's evidence, the defendant alleged that while she was in the bathroom, she heard a commotion and when she came out she saw the complainant lying on the floor and the other individual stated that she 'had the money' as she ran out the door. Not knowing what to do, she crouched over the complainant and lifted his head to see if he was okay. When he came to and said he was going to call the police, she ran because she was afraid of having her parole revoked. She appealed the conviction on the basis that the trial judge had erred in treating the conflicting Crown and defence evidence as a credibility contest. Appeal dismissed; it was clear that the trial judge had accepted the complainant's evidence as to what had occurred along with the other witness' evidence as to who had strangled him and rejected the defendant's testimony and denials of responsibility. Although he did not specifically refer to the principles in R. v. Wry (1991) (SCC), the court was satisfied he recognized their importance and did not fall into the trap of simply comparing the Crown and defence positions without assessing the whole of the evidence. The complainant never wavered in his evidence that the other individual had never left his sight and was still seated directly in front of him when he felt something being tightened around his throat, which was supported by the other individual's testimony.

2_2011nsca89.txt

J. Q.B. A.D.1994 No. 016328 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: WAYNE JOSEPH DOROSH and MONICA LYNN DOROSH RESPONDENT Colleen J. Carter for the applicant Bruce K. Campbell for the respondent JUDGMENT McINTYRE J. July 31, 1997 This is an application to vary the terms of a consentjudgment of May 2, 1995, such that the applicant would havesole custody of his daughter, Letitia. In the alternative theapplicant seeks an order preventing the respondent fromremoving their daughter from the Province of Saskatchewan. The application arises out of the respondent's declared intention to move to Kelowna, British Columbia. The parties separated in October, 1994. The daughter, Letitia, age 7, has been in the care of her mother (the respondent) since that time. Under the terms of the consent judgment of May 2, 1995, the respondent has custody of Letitia. The applicant has reasonable access at all reasonable times upon reasonable notice, including every second weekend and every Wednesday evening. The respondent says, and the applicant did not take issue with the fact that she had always been the primary care giver. During the marriage she was stay-at-home mom and raised their daughter. The applicant says he has exercised his access rights on regular basis. He says he and his daughter have close and loving relationship. They engage in various activities together. Letitia also has an ongoing relationship with members of her father's extended family. The respondent does not deny this and says she has made efforts to ensure the applicant has access beyond the minimum prescribed by the consent judgment. The applicant says that the respondent advised him she was moving to Kelowna because she needed change. He claims she has no good reason to move. The respondent says she has planned the move to Kelowna as her life there will be better than it is in Regina. She will be working as financial adviser and has made arrangements to enroll Letitia in Christian private school. The respondent says she first advised the applicantof her intended move in early June of this year. She says that at that time she and the respondent had discussions about the possibility that he could buy some of the furniture that she would not need. They also discussed the possibility of the applicant moving into the matrimonial home. She says that as long as she was interested in selling the furniture and allowing him to move back into the home the applicant was not opposed to her leaving for Kelowna. Under the terms of the consent judgment the respondent had exclusive possession, use and enjoyment of the matrimonial home. The judgment contemplated that in due course the home would be listed for sale and the net proceeds divided between the parties. Indeed, in the applicant's notice of motion, the applicant sought exclusive possession of the matrimonial home and its contents. These claims were abandoned upon hearing of the motion. As the respondent pointed out, subsequent to the consent judgment the applicant went through bankruptcy proceedings in which he transferred his interest in the matrimonial home to the trustee. The trustee then sold that interest to the respondent such that the applicant no longer had an interest in the matrimonial home. The applicant agrees that the respondent is good mother. He says he consented to the judgment of divorce and its provisions with respect to custody and access as he did not wish to expose his daughter to custody dispute and wished for her to remain in the home she had always lived in. The applicant also acknowledges in his affidavit that he and the respondent did, in fact, have discussions about him taking furniture which she did not need when she moved to Kelowna and that in exchange he was to assume her car payments. He also acknowledged that they discussed his living in the matrimonial home and an arrangement by which he would pay off the equity. He further says they had discussions that if she moved back to Regina that she could move back into the house. On July 2, the applicant sought and obtained an ex parte order preventing the respondent from removing Letitia from the Province of Saskatchewan until the return date of the notice of motion. The motion was brought returnable July 16. The issue of mobility rights and an application to vary an existing custody arrangement are addressed in Gordon v. Goertz (1996), 1996 CanLII 191 (SCC), 19 R.F.L. (4th) 177 (S.C.C.). adopt the following from Cote v. Cote, [1996] O.J. No. 2552 (Q.L.), File No. 71513/96 (Ontario Court of Justice (General Division)), July 9, 1996, which appropriately summarizes the approach to be taken at paras. 22 and 23: On the whole, the principle of mobility rights, as articulated in Goertz, begins with the following: Barring situation which amounts to material change in circumstances, the custodial parent may take the child wherever he or she pleases. When, however, the proposed move amounts to material change, Parliament has decreed that the access parent is entitled to ask judge to review the matter [1996 CanLII 191 (SCC), [1996] S.C.J. No. 52, para. 35]. Further on the court states: Until material change in the circumstances of the child is demonstrated, the best interests of the child are rightly presumed to lie with the custodial parent. The finding of material change effectively erases that presumption. [[1996] S.C.J. No. 52, para. 40]. And finally, in this regard the court concludes the issue as follows: The parent seeking the change bears the initial burden of demonstrating material change of circumstances. Once the burden has been discharged, the judge must embark on fresh inquiry in light of the change and all other relevant factors to determine the best interests of the child. [[1996] S.C.J. No. 52, para. 47]. McLachlin J. reviewed some of the authorities which she concluded collectively provided definition for what constitutes material change in circumstances. Upon completion of her analysis she determined that: It follows that before entering on the merits of an application to vary custody order the judge must be satisfied of: (1) change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child; (2) which materially affects the child; and (3) which was either not foreseen or could have been reasonably contemplated by the judge who made the initial order. [1996 CanLII 191 (SCC), [1996] S.C.J. No. 52, para. 13]. McLachlin J. in Gordon went on to summarize the law as follows at paras. 49 and 50: 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 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 interests 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. In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? The application was heard in chambers on affidavit evidence. In determining whether the matter can be disposed of on the basis of affidavit evidence, the approach is as set forth in the judgment of Gerein J. in Dufour v. Dufour, [1995] S.J. No. 293 (Q.L.) as follows: Since the application was brought by motion, the evidence has been presented by way of affidavits. These documents contain allegations and denials. Most often court refuses to make findings of fact when affidavit evidence is in conflict. Instead, an order is made directing the trial of an issue. This in turn brings about pre-trial conference. view the situation in this instance to be different. While there is disagreement and even contradiction or conflict in the affidavits, from my reading of those documents and consideration of their contents, am satisfied that can determine the facts. This being possible, it is appropriate that proceed to do so. If the material enables me to determine what is in the best interests of the child, should proceed directly to that determination. This approach saves both time and money and more quickly removes the troublesome uncertainty from everybody's life. Insofar as the threshold is concerned, McLachlin J. in Gordon observed at para. 14: Relocation will always be "change". Often, but not always, it will amount to change which materially affects the circumstances of the child and the ability of the parent to meet them. Where, as here, the child enjoyed frequent and meaningful contact with the access parent, move that would seriously curtail that contact suffices to establish the necessary connection between the change and the needs and circumstances of the child. In this instance, it is not in dispute that the applicant exercised regular and frequent access. There is nothing to dispute the applicant's claim to close relationship with his daughter and relationship which included extended family members. As there was nothing tosuggest relocation was either foreseen or would have beenreasonably contemplated by the judge who made the initialorder, the threshold criteria is satisfied. The threshold having been met, the Court is then required to embark on fresh inquiry. The question iswhether the inquiry, in the circumstances of this case, can beconducted on the basis of the affidavit evidence before theCourt. The inquiry involves an assessment of various matters including the nature of the relationship between the child and both parents and an assessment of the disruption of either change in custody or removal of the child from family and the community in which the child was raised. In this particular instance it appears the child hasa close relationship with both parents, however that onlyscratches the surface in terms of the relationship between thechild and each parent. I am also not able in this instance toassess the effect of a disruption as a result of a change incustody or removal of the child from the community. As aresult the trial of an issue will be required. The question then becomes whether to grant the applicant interim relief. The interim relief requested would amount to an order that the child remain in the jurisdiction until trial. As is often the case, the respondent has indicated that if there is an order made that the child not be removed from the jurisdiction until trial, she will not move to Kelowna. In terms of the request for interim relief agree with the Court in Cote, supra, that the child's best interest is the proper test to be applied. In doing so, the Court must have regard to the factors identified by the Supreme Court of Canada in Gordon, supra. In determining whether to grant interim relief have considered the following: (a) While there is no legal presumption in favour of the custodial parent, her views are entitled to great respect; (b) There has been an existing custody arrangement for almost three years. The applicant concedes the respondent is good mother and there is nothing which puts into dispute the close relationship which exists between the respondent and her (c) To permit the child's residence to be changed pending trial, will impact negatively upon the existing access arrangements and the relationship between the applicant and his daughter; (d) To permit change in residence pending trial will result in disruption to the child consequent upon removal from the community she has grown up in. As the applicant is seeking interim relief without determination on the merits, feel compelled to consider the context in which the request for interim relief arises. It isclear from the material that the applicant became aware inearly June of the respondent's intention to move to BritishColumbia. He does not deny that he had discussions with the respondent at that time about his moving into the matrimonial home and purchasing the same. At the time those discussionstook place, there was no evidence that the applicant raisedobjection to the move and indeed his affidavit suggests he wasprepared to allow the respondent to move back into thematrimonial home in the event she chose in the future toreturn to Regina. The timing of the application , a few weeksprior to the proposed move, certainly raises the suspicionthat it was the respondent's decision to sell the matrimonialhome which prompted this application. While to permit the move, pending trial, will impact upon existing access arrangements the applicant will still be able to exercise meaningful access. If the move proceeds and the applicant is awarded custody after trial there will be disruption to Letitia. However, in the circumstances of this case the factor does not outweigh other considerations. The applicant's request for interim relief is denied. There will be trial of an issue. The issue is whether there should be variation of the custody provisions of the consent judgment. pre-trial conference should be scheduled upon the filing of joint request of the parties. If the respondent proceeds with her move to Kelowna, revision of the access provisions will be appropriate. If the parties are unable to agree, an application may be made to the Court. Costs are left to the trial judge.

An application to vary the terms of a 1995 consent judgment such that the applicant would have sole custody. Alternatively he sought an order preventing the mother from removing their daughter from Saskatchewan. The father obtained an ex parte order preventing the mother from removing the child from the province until the return date of the motion. The mother had always been the primary caregiver and had custody since the separation in 1994. The father had exercised regular and frequent access. She was given exclusive possession of the matrimonial home under the terms of the consent judgment which contemplated the home would be listed for sale and the net proceeds divided between the parties. Subsequent to the consent judgment the applicant went through bankruptcy proceedings in which he transferred his interest in the home to the trustee who then sold that interest to the respondent such that the applicant no longer had any interest in the home. HELD: 1)Relocation was neither foreseen nor reasonably contemplated by the judge making the original order. The threshold criteria was thus satisfied. 2)The trial of an issue was required as the matter could not be decided on the basis of affidavit evidence. The child had a close relationship with both parents. The disruption as a result of a change in custody or removal of the child from the community could not be assessed. 3)The applicant's request for interim relief was denied. If the mother proceeded with her move a revision of the access provision would be appropriate. 4)The child's best interest is the proper test to be applied (Cote) having regard to the factors identified by the Supreme Court of Canada in Gordon. 5)The applicant became aware in early June of the mother's intention to move to British Columbia and did not object. The timing of the application, a few weeks prior to the proposed move, raised the suspicion that it was the respondent's decision to sell the matrimonial home which prompted this application. 6)Costs were left to the trial judge.

d_1997canlii11011.txt

J. 2001 SKQB 332 Q.B.G. A.D. 2000 No. 3442 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: GUNNER INDUSTRIES LTD. and CLINT KIMERY and HER MAJESTY THE QUEEN RESPONDENT David G. MacKay for the appellants Wade E. McBride for the respondent JUDGMENT McLELLAN J. June 28, 2001 [1] The appellants appeal their convictions for the following two offences under the Excise Tax Act, R.S.C. 1985, c. E-15, as am. (the "Act"): Count #1 THAT GUNNER INDUSTRIES LTD. of 682 Adams Street, Regina, Saskatchewan and Clint Kimery of 682 Adams Street, Regina, Saskatchewan, on or about the 16th day of November, A.D. 1999, at Regina, in the Province of Saskatchewan, did, while operating as Goods and Services Tax Registrant, and while subject to the provisions of the Excise Tax Act, unlawfully fail to file Goods and Services Tax Returns as required by section 282 thereof, for the return for the period January 1, 1999 to March 31, 1999; thereby committing an offence contrary to section 326 of the Excise Tax Act. Count #2 THAT GUNNER INDUSTRIES LTD. of 682 Adams Street, Regina, Saskatchewan and Clint Kimery of 682 Adams Street, Regina, Saskatchewan, on or about the 16th day of November, A.D. 1999, at Regina, in the Province of Saskatchewan, did, while operating as Goods and Services Tax Registrant, and while subject to the provisions of the Excise Tax Act, unlawfully fail to file Goods and Services Tax Returns as required by section 282 thereof, for the return for the period April 1, 1999 to June 30, 1999; thereby committing an offence contrary to section 326 of the Excise Tax Act. [2] The appellants received the minimum fines relating to each count in the sum of $1,000.00. [3] The appellants raised a number of grounds for the appeal which may be summarized as follows: The Court lacked jurisdiction to proceed with the matter by reason of alleged defects in the summons or alternatively the appellants were not properly advised of the charges they were facing contrary to s. 11(a) of the Canadian Charter of Rights and Freedoms; The appellant Kimery should not have been convicted of an offence allegedly contrary to s. 330 of the Act when the information set out an offence contrary to s. 326 of the Act; There was no evidence to justify the learned Provincial Court judge\'s finding that returns were not filed; That there was unreasonable delay which compromised the appellants\' right to a fair trial; That the demand for a return which was filed was invalid as there was no proof that it was signed by some person authorized to sign on the Minister\'s behalf. II The Summons [4] Did the Provincial Court lack jurisdiction to try the appellants? [5] In R. v. Peters (1981), 1981 CanLII 2491 (SK QB), 12 Sask. R. 312 (Q.B.), Cameron J. (as he then was) was faced with similar argument. He relied on the decision of R. v. Hughes (1879) Q.B. 614, to hold that the defect in the summons before him did not destroy the jurisdiction of the trial judge. Cameron J. pointed out at p. 315: In R. v. Hughes (1879), Q.B. 614, (cited with approval in Lowe v. Azzopardi, 1976 CanLII 963 (SK CA), [1976] W.W.R. 377 (Sask. C.A.), and R. v. Gougeon (1981), 1980 CanLII 2842 (ON CA), 55 C.C.C. (2d) 218 (Ont. C.A.), it was said at p. 625 in respect of case in which the accused was brought before the court "upon as illegal warrant as ever was issued": Process is not essential to the jurisdiction of the justices to hear and adjudicate. It is but the proceeding adopted to compel the appearance of the accused to answer the information already duly laid, without which no hearing in the nature of trial could take place .... [6] Any irregularities or defect as to the form or service of the summons are of no moment. The record clearly indicates that the appellants appeared, pleaded and proceeded with the trial. It must also be noted that s. 822(7) of the Criminal Code (which applies to appeals from summary conviction court) provides that: 822(7) The following provisions apply in respect of appeals under subsection (4): (a) where an appeal is based on an objection to an information or any process, judgment shall not be given in favour of the appellant (i) for any alleged defect therein in substance or in form, or (ii) for any variance between the information or process and the evidence adduced at trial, unless it is shown (iii) that the objection was taken at trial, and (iv) that an adjournment of the trial was refused notwithstanding that the variance referred to in subparagraph (ii) had deceived or misled the appellant .... The record indicates that there was no objection taken by the appellants. [7] The appellant Kimery never requested an adjournment nor was there any suggestion that he desired to be represented by counsel. [8] There is nothing in the record to suggest that Kimery was confused or misled by the proceedings, nor can there be any suggestion that Kimery did not understand the nature of the charges the appellants were facing. Furthermore, there is no merit in the suggestion by the appellants that the trial judge somehow failed in his duty by reason of the fact that the accused was not represented by counsel. The trial judge did everything required of him in the circumstances. [9] Was the appellant Kimery wrongfully convicted under s. 330 of the Act? [10] The offence that was before the Court was that both the corporation and Kimery failed to file the appropriate returns required to be filed on behalf of the business carried on by Gunner Industries Ltd. [11] Sections 326 and 330 provide as follows: 326.(1) Every person who fails to file or make return as and when required by or under this Part or regulation made under this Part or who fails to comply with an obligation under subsection 286(2) or section 288, 289 or 292 or an order made under subsection (2) is guilty of an offence and, in addition to any penalty otherwise provided, is liable on summary conviction to (a) fine of not less than $1,000.00 and not more than $25,000; or (b) both fine referred to in paragraph (a) and imprisonment for term not exceeding twelve months. 330. Where person other than an individual is guilty of an offence under this Part, every officer, director or agent of the person who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is party to and guilty of the offence and liable on conviction to the punishment provided for the offence, whether the person has been prosecuted or convicted. [12] I agree with Mr. McBride that s. 330 does not set out a separate offence but merely clarifies the circumstances under which a director can be convicted of the same offence as a party. This is no different than the situation of an accused being charged with a substantive offence under the Criminal Code on the theory that he is a party by virtue of s. 21 of the Criminal Code. The person is charged as though he committed the offence and the Crown is not required to stipulate precisely whether he committed the offence as principal or party. The Court may convict if it finds that the accused participated either as principal or party. [13] Section 330 is an analogous provision which contemplates that, where corporation is guilty of an offence of failing to file the appropriate returns director may be convicted as party provided that the director either directed, assented to, acquiesced in, or participated in the commission of the offence. [14] There was evidence to support the trial judge's finding that Kimery was guilty under s. 330. During the period in question where the returns were required to be filed, Kimery was the sole director of the corporation. It was open to the trial judge to find that Kimery must have directly participated in or at the least acquiesced in the failure to file the appropriate GST return. [15] Was there evidence to support the trial judge's finding that no returns were filed? [16] The appellants filed blank returns. The trial judge found as a fact that there was no information relating to GST in any of the documents which were filed. I agree with the trial judge that the returns purportedly filed were not merely defective but did not qualify as returns at all. [17] The appellants did not attempt to comply with the requirements of the Act. The returns were neither informative nor responsive to those requirements. [18] In short, there was evidence to support the finding by the trial judge that the appellants\' failed to file returns as required by s. 326. Unreasonable Delay [19] The argument that the appellants were denied the right to a trial within a reasonable time as required by s. 11(b) of the Charter is without merit. [20] It is trite law that the right to be tried within reasonable time is right which arises only after an individual has been charged. Pre-charge delay is not a factor which can be taken into account at this stage. [21] agree with the Crown that before proceeding with criminal prosecution it was appropriate for the enforcement officials of the Regina Tax Services Office to attempt to ensure compliance with less strenuous and severe measures such as correspondence and demands. The appellants having failed to rectify the omission after such reasonable opportunities cannot now be heard to say that they were somehow prejudiced. [22] Once charges were laid the matter proceeded to trial within a reasonable period of time. VI No Valid Proof of Demand [23] Marianne Fitzgerald was director of the Regina Tax Services Office, Department of National Revenue, during the time period in question. The affidavit of service filed as exhibit P-4 has annexed to it as exhibit "A", true copy of the "Demand for GST/HST Return(s)" addressed to Gunner Industries Ltd. and Clint A. Kimery (being director of Gunner Industries Ltd.). facsimile of Ms. Fitzgerald's signature appears on the demand as does the title of her position as Director, Regina Tax Services Office. The demand was served on October 15, 1999. [24] The appellant argues that the Crown has tendered no evidence to prove that the field position of "Director Tax Services Office" is authorized to exercise the powers and perform the duties of the Minister. [25] The relevant sections of the Act state as follows: 282 The Minister may, on demand served personally or by registered or certified mail, require any person to file, within such reasonable time as may be stipulated in the demand, return under this Part for such period or transaction as may be designated in the demand. 275(1) The Minister shall administer and enforce this Part and the Commissioner may exercise all the powers and perform the duties of the Minister under this Part. (2) Such officers, agents and employees as are necessary to administer and enforce this Part shall be appointed or employed in the manner authorized by law. (3) The Minister may authorize designated officer or agent or class of officers or agents to exercise powers to perform duties of the Minister under this Part. [26] Noble J. was faced with similar argument in R. v. Swyryda (1981), 1981 CanLII 2095 (SK QB), 11 Sask. R. 188 (Q.B.). In that case, the accused appealed from income tax convictions on the basis that the requirement letter sent to him was signed, not by the individual named in the letter, R. J. MacIssac, Director-Taxation of the Saskatoon district office, but in his absence by the Chief of Verification and Collections, one Larry Potven. This signature was authorized by policy in the Saskatoon office. [27] The accused argued that the Chief of Verifications and Collections was not authorized by the Income Tax Act, R.S.C. 1952, c. 148 (now repealed), to sign the requirement letter. [28] Noble J. decided that s. 244(13) of the Income Tax Act provided definitive answer to the issue of authorization. He stated at p. 192: In my opinion, the fact that the letter of requirement was signed with the handwritten words of Mr. Potven using the name "R. J. MacIssac" over the typed or printed designation of "Director-Taxation" is sufficient to bring the document within the type described in sec. 244(13). Nothing in that section says that the document must be personally executed by someone specifically designated by the Minister pursuant to the regulations. On the facts of this case the requirement letter or demand was made during the ordinary course of the administration and enforcement of the Act by officials of the department. As has been pointed out number of times by our courts, administrative functions can be delegated, for if it were otherwise, in modern government it would be difficult to accomplish anything.... [29] Section 244(13) of the Income Tax Act, R.S.C. 1985, c. (5th Supp.), as am. provides: 244(13) Every document purporting to have been executed under, or in the course of the administration or enforcement of, this Act over the name in writing of the Minister, The Deputy Minister of National Revenue, the Commissioner of Customs and Revenue or an officer authorized to exercise power or perform duty of the Minister under this Act is deemed to have been signed, made and issued by the Minister, the Deputy Minister, the Commissioner or the officer unless it has been called in question by the Minister or by person acting for the Minister or Her Majesty. The corresponding subsection in the Act, is s. 335(8) and it reads in almost identical terms as follows: 335(8) Every document purporting to have been executed under or in the course of the administration or enforcement of this Part over the name in writing of the Minister, the Deputy Minister of National Revenue, the Commissioner or an officer authorized to exercise the powers or perform the duties of the Minister under this Part, shall be deemed to be document signed, made and issued by the Minister, the Deputy Minister, the Commissioner or the officer, unless it has been called in question by the Minister or person acting for the Minister or for Her Majesty in right of Canada. [30] The Alberta Court of Appeal recently approved of Noble J.'s decision in Swyryda, supra, in R. v. Ehli, 2000 ABCA 170 (CanLII); A.J. No. 706 (QL); 261 A.R. 178. In that case the taxpayer was convicted for having failed to comply with Ministerial demand under the Income Tax Act. One of the grounds of appeal was that the demands made of the taxpayer, pursuant to s. 231.1(1)(a) of the Income Tax Act constituted an unlawful subdelegation of authority by the Director-Taxation. The notice sent to the applicant was signed using facsimile stamp of the signature of the Director. The stamp had been affixed by an employee of the Canada Customs and Revenue Agency who had been authorized by the Director to prepare and issue documents such as the notice in question and had been permitted by the Director to use the facsimile signature stamp. [31] Berger J.A. quotes from Noble J.'s decision in Swyryda, supra, at paras. and and concludes at para. 8: have considered the very able submission of counsel for the Applicant to the effect that appellate pronouncement by full panel of this Court would settle the law. No Court, over the 19 year period since Swyryda, supra, was decided, has taken issue with the reasoning of Noble, J. The legislative enactment, in my opinion, leaves no doubt that Swyryda was, with respect, correctly decided. The question raised is not, in my opinion, of arguable merit nor matter of sufficient importance to warrant review by this Court. For these reasons, the application is refused. [32] Berger J.A. also pointed out that the Tax Court of Canada in Bancheri v. Canada (Minister of National Revenue-M.N.R.), [1999] T.C.J. No. 22 (QL) (T. Ct.) concluded that Swyryda was properly decided. [33] In my view the decision of Noble J. is complete answer to the argument advanced by the appellants. Furthermore, regard must be had to s. 24(2) of the Interpretation Act, R.S.C. 1985, c. I-21, as am. by S.S. 1992, c. 1, s. 89, which provides as follows: 24(2) Words directing or empowering minister of the Crown to do an act or thing, regardless of whether the act or thing is administrative, legislative or judicial, or otherwise applying to that minister as the holder of the office, include (a) minister acting for that minister, or, if the office is vacant, minister designated to act in the office by or under the authority of an order in council; (b) the successors of that minister in the office; (c) his or their deputy; and (d) notwithstanding paragraph (c), person appointed to serve, in the department or ministry of state over which the minister presides, in capacity appropriate to the doing of the act or thing, or to the words so applying. This statutory provision specifically gives implied powers to persons acting under the authority of minister of any Crown department over which that minister resides to undertake any act or thing on behalf of the minister if that person is acting in capacity appropriate to do the doing of that act or thing. [34] Section 24(2) appears to be codification of the common law frequently referred to as the Carltona principle based upon the English case Carltona, Ltd. v. Commissioners of Works and Others, [1943] All E.R. 560 (C.A.). In that case the court set forth the classic definition of the authority of those who perform the statutory responsibilities of Ministers of the Crown at p. 563: In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the ministers. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them. [Emphasis added] [35] The Carltona case was followed by the Supreme Court of Canada in R. v. Harrison, 1976 CanLII (SCC), [1977] S.C.R. 238, where the court held that responsible and experienced officials will have the ability to exercise the Minister's authority in accomplishing Ministerial duties. [36] Henry T. Molot published review of the principles of Carltona in the light of 1992 amendments to the Interpretation Act. (See The Carltona Doctrine and the Recent Amendments to the Interpretation Act, (1994), 26 Ottawa Law Rev. 257). As to which officials may exercise the Minister's authority, Molot makes the following observations at pp. 272-3: Who then within department may exercise the Minister's powers on the basis of Carltona? As noted above, the cases have placed general limits on which officials may act. So, according to Carltona, the officials have to be "responsible"; according to Golden Chemical, "appropriate officials"; and according to Harrison, "departmental officials of experience and competence". [37] The question then emerges: Does this Ministerial authority of an appropriate official have to be documented in order to be valid? Molot, at p. 273, thinks not: ... Therefore, unlike delegation of authority where evidence is necessary to show that the power in question had been delegated to the person purporting to exercise that power, the Carltona principle operates without the need for documentary or other evidentiary links in the chain of authority between the Minister and the departmental official acting for and on his or her behalf. agree. The authority in those cases is implicit, it would be different if the authority was explicit. [38] Molot concludes at p. 275: ... Therefore, the Carltona principle ordinarily will enable departmental official to exercise those powers, duties and functions of that department's Minister which are "incidental and appropriate to [the] functions" of that official.... [39] The broad principles set forth in Carltona, supra, have been restricted in subsequent decisions. In Bancheri, supra, Porter T.C.J. held that the Carlton principle would not allow for an implicit scheme of delegation of authority to override an explicit statutory or regulatory one. He correctly points out at para. [45] ... that in making provision for the Minister to make regulations providing for the delegation of his powers and duties, with the consent of the Governor General in Council, Parliament intended to put the brakes on the otherwise generally recognized powers of delegation, and those brakes were applied in this case by the promulgation of such regulations. It would be farce to require the Minister to have the consent of the Governor General in Council to make regulations delegating his powers and at the same [time] to allow the person, to whom he has so delegated, to re-delegate those same powers without more ado. In such situation the designate would have more authority to delegate than the Minister himself, and clearly that could not have been within the contemplation of Parliament. [40] He also points out that the Interpretation Act does not override an explicit statutory or regulatory delegation of authority. It operates in the general scheme of things and incorporates the common law doctrine as enunciated in R. v. Harrison, supra, (para. 46). [41] Porter T.C.J. makes reference to the decision of Gunn J. in Yorkton Restaurant Venture Capital Corp. v. Government of Saskatchewan (Minister of Economic Development) (1994), 1994 CanLII 5223 (SK QB), 118 D.L.R. (4th) 735 (Q.B.). [42] Counsel for the appellants argues that Gunn J. takes view, on the delegation of Ministerial authority, contrary to that expressed by Noble J. in R. v. Swyryda, supra. disagree. Gunn J. makes the following statement at p. 749: Delegation of authority or power may be explicit or implicit. The courts have been prepared to recognize the implicit power of delegation by Ministers who are unable personally to solve all problems that might arise in applying the Acts for which they are responsible. However, more caution must be exercised in the review of implicit delegation by Deputy Ministers and agencies, particularly when the power sought to be exercised involves an element of judgment, discretion and the rights of citizens. [43] The Act under consideration by Gunn J. did not explicitly provide any authority for express delegation. However, she pointed out that the Interpretation Act, 1993, S.S. 1993, c. I-11.1, which was in force at that time, provided for delegation to the Deputy Minister but did not provide any authority for further delegation by the Deputy Minister. In that case revocation of registration under The Venture Capital Tax Credit Act, S.S. 1983-84, c. 4.1 (now repealed), was not signed by either the Minister or his Deputy. [44] In setting aside the revocation, Gunn J. placed much emphasis on the discretionary powers of the Minister and the fact that the Act purports to severely limit any rights of appeal from the Minister. In other words, she was not dealing with an administrative act such as sending notice or request to file return in compliance with the relevant statutory requirements. [45] It must also be noted that The Interpretation Act, 1995, S.S. 1995, c. I-11.2 as am., now contains the following provision: 23(2) Where an enactment directs or empowers minister of the Crown to do an act or thing, that act or thing may be done on the minister's behalf by any person appointed to serve in the department over which the minister presides if: (a) the minister has, in writing, authorized that person, by name or by office, to do the act or thing; or (b) that person is appointed to serve in capacity appropriate to the doing of the act or thing whether or not he or she, or any other person, was authorized by the minister to do the act or thing. [46] The service of the demand in this case was not part of an explicit statutory or regulatory scheme of delegation. It falls under an implicit scheme of delegation and sub-delegation as allowed at common law and in accordance with the Federal Interpretation Act. [47] The service of demand to file GST return upon business operation in the City of Regina is clearly an appropriate act to be performed by the Director of the Regina Tax Services Office. The execution and serving of such a demand is purely an administrative act. It does not require the exercise of a Ministerial discretion nor does it deprive any citizen of his or her rights by restricting any right to appeal. The notice simply requires a taxpayer to comply with the statutory requirements of the Act. The fact that the true copy of the notice annexed to the affidavit of service contains a facsimile signature is of no moment. CONCLUSION [48] I can find no error by the trial judge and the appeal is therefore dismissed.

An appeal of convictions on two offences under the Excise Tax Act. Grounds for the appeal were summarized as lack of jurisdiction to proceed because of alleged defects in the summons; alternatively, the appellants were not properly advised of the charges they were facing contrary to s.11(a) of the Charter; Kimery should not have been convicted of an offence contrary to s.330 when the information set out an offence contrary to s.326 of the Excise Tax Act; there was no evidence to justify a finding that the Goods and Services Tax returns were not filed; unreasonable delay compromised their right to a fair trial; the demand for a return which was filed was invalid as there was no proof that it was signed by a person authorized to sign on the Minister's behalf. HELD: The appeal was dismissed. 1)Any defects as to the form or service of the summons were unimportant. The record clearly indicated the appellants appeared, pleaded and proceeded with the trial and made no objection. Kimery never requested an adjournment nor was there any suggestion that he desired to be represented by counsel. There was nothing to suggest he was confused or misled by the proceedings or that he did not understand the nature of the charges the appellants were facing. The trial judge did everything required of him in the circumstances. 2)Section 330 does not set out a separate offence but merely clarifies the circumstances under which a director can be convicted of the same offence as a party. This is no different than the situation of an accused being charged with a substantive offence under the Criminal Code on the theory that he is a party by virtue of s.21 of the Criminal Code. Kimery was sole director of the corporation during the period in question when the returns were required to be filed. It was open to the trial judge to find he must have directly participated in or at least acquiesced in the failure to file the appropriate GST returns. 3)There was evidence to support the finding that the appellants failed to file returns as required by s.326. The appellants filed blank returns. The trial judge found as a fact that there was no information relating to GST in any of the documents. It was agreed the returns were not merely defective but did not qualify as returns at all. 4)The appellants were not denied the right to a trial within a reasonable time as required by Charter s.11(b). Pre-charge delay is not a factor which can be taken into account at this stage. The appellant, having failed to rectify the omission after reasonable opportunities, could not now say they were somehow prejudiced. Once charges were laid, the matter proceeded to trial within a reasonable time. 5)The decision in R. v. Swyryda is a complete answer to the argument that the field position of 'Director Tax Services Office' was not authorized to exercise the powers and perform the duties of the Minister. Also, s.24(2) of the Interpretation Act gives implied powers to persons acting under the authority of a minister of any Crown department over which that minister resides to undertake any act or do anything on behalf of the minister if that person is acting in a capacity appropriate to do the act or thing. Section 24(2) appears to be a codification of the common law, frequently referred to as the Carltona principle based upon the 1943 English case, and followed in R. v. Harrison where the SCC held that responsible and experienced officials will have the ability to exercise the Minister's authority in accomplishing Ministerial duties. The service of the demand in this case was not part of an explicit statutory or regulatory scheme of delegation. It falls under an implicit scheme of delegation and sub-delegation as allowed at common law and in accordance with the Federal Interpretation Act. The execution and service of a demand to file a GST return is purely an administrative act. It does not require the exercise of Ministerial discretion nor does it deprive any citizen of any right by restricting a right to appeal. The notice simply requires a taxpayer to comply with the statutory requirements of the Act. The fact that the true copy of the notice annexed to the affidavit of service contains a facsimile signature is not significant.

3_2001skqb332.txt

1986 S.H. NO. 59705 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Gin Legorburu and Det Norske Veritas Defendant GLUBE C.J.T.D.: This is an action for wrongful dismissal. The plaintiff seeks an award which includes: loss of income for twenty‑four months less any amounts paid by the defendant or earned by the plaintiff; loss of vacation; loss of automobile allowance; plus interest on the foregoing amounts; and general damages for mental distress. Det Norske Veritas (DNV) is classification society with rules and regulations for number of functions including construction and design of vessels and offshore platforms. it is the Norwegian equivalent of Lloyds Registry of Shipping. Jon Legorburu, age 53; born in Spain, moved to France and then during the war to Britain, where he became British subject. He is now Canadian citizen. He received B.Sc (naval architecture) from the University of Durham and an M.Sc (ship building technology) from the University of Strathclyde. In 1965, after serving as lieutenant in the Royal Navy for three years (Short Service Commission) Mr. Legorburu joined Lloyds Registry of Shipping as surveyor. In 1974, he joined DNV as Station Manager at Inverness, Scotland. His duties included examination of newly constructed ships, ships in service, and oil platform construction and commissioning. From 1974 until December 31, 1986 he was continuously employed by DNV, holding various positions including Senior Surveyor and Station Manager in Aberdeen, Scotland from 1978 to 1980, and Regional Manager for Argentina, Uruguay and Paraguay from 1980 to 1982. In his first position with DNV in Inverness, Scotland, Mr. Legorburu had local status. Local status means his terms of employment such as salary, pension and benefits are under the local conditions of Scotland. When he went to Argentina to establish an office for DNV, he became an expatriate on four year term. As an expatriate, he received fully paid home leave for himself and his family after two years, along with free accommodation, motor vehicle, telephone and newspaper. His salary was in United States dollars and was tied to inflation. When the Falklands crisis occurred in 1982, British subjects were advised to leave Argentina. Mr. Legorburu and his family returned to the United Kingdom but after short time, he returned to try to run the office from Montevideo. This quickly proved impractical. DNV then gave Mr. Legorburu the option of going back to Glasgow or to Montreal or to Halifax. He chose Halifax, where there was an opportunity to set‑up new office for DNV, recruiting staff and organizing activities in Atlantic Canada. He considered that he was coming to vibrant area to which he was bringing offshore expertise. On June 30, 1982 he received minimum two year appointment as an expatriate and became District manager of the East Coast Area with duties which included dealing with ships in service, marketing and business development and advising on oil rigs in service. The letter outlining the terms and conditions of his employment provided additional benefits including company car with fixed monthly reimbursement to cover personal use, housing and furnishings with percentage payback plus the cost of utilities for his personal use, and four weeks annual vacation with free home leave every two years if the assignment continued beyond two year period. In early 1984 at the peak of the Halifax operation, eight surveyors were employed. Mr. Legorburu reported to Jan‑Erik Hagen, the Regional Manager of DNV in Canada. Initially, Mr. Legorburu was also responsible for Newfoundland. As more and more movement of offshore oil went to Newfoundland, an exclusive office was opened in St. John's with the person in charge reporting directly to Mr. Hagen. At all times during his employment in Halifax, Mr. Legorburu was informed by either Mr. Hagen or others at DNV who were in higher positions, that he was doing good job for the defendant company. Documentation was introduced into the trial to that effect. Throughout, he received regular salary increases. On March 27, 1984, Mr. Legorburu was advised by letter, that an expatriate contract was for specified duration following which an employee was to be repatriated to "home division", offered new expatriate terms in foreign country or converted to local status. The latter was "conditional on the employer's agreement to maintain staff at given location". He was advised that DNV wanted to retain him in Halifax and was prepared to give him "grace period" during which he would continue to receive certain expatriate benefits. They wanted him to convert to local status by January 1, 1985. Until that time, he would continue to have car leased by DNV, one free telephone with reimbursement of trunk business calls and one free daily newspaper. In 1984, he began to sense that the Halifax conditions were going down hill. He testified that he looked at the various options that were presented to him, while at the same time acknowledging he was concerned about keeping his children in one location until they finished school. As family, he considered local status or home division; on bachelor basis, he looked at the possibility of foreign posting (expatriate position). After confirming certain information with Mr. Hagen including the fact that he was not obliged to make final decision on converting to local status until approximately three months from the end of the year, he signed new expatriate agreement dated March 29, 1984. This agreement did not provide any housing allowances. Early in April he was notified of his promotion to Principal Surveyor effective May 1, 1984. In April 1984, Mr. Legorburu wrote to Mr. Hagen asking for information, indicating "it is very likely" he would convert to local status. Mr. Hagen responded advising what local status in Region Canada would entail, including that Mr. Legorburu would continue his position as District Manager in Halifax "provided work prevails...", which at trial he acknowledged he understood. The plaintiff and Mr. Hagen discussed the issue of changing to local status, including salary and additional benefits. The plaintiff denies that there was ever any discussion with him concerning termination of his employment. On July 23, 1984 Mr. Legorburu was advised by letter that his salary was adjusted to $67,389.00. The letter also praised his contributions to the growth of DNV. In August, 1984, Mr. Legorburu asked Mr. Hagen what positions were available in the United Kingdom and was told it was basically his responsibility to investigate. Although he did that, he learned there was nothing available for his qualifications and experience. He was advised to remain in Canada. An agreement dated February 13, 1985, signed by Mr. Hagen and the plaintiff and effective January 1, 1985, changed Mr. Legorburu from expatriate to local status. It confirmed his continued employment as Manager of the Halifax Office with responsibility for Nova Scotia and New Brunswick, his personal title as Principal Surveyor, and that his basic annual salary was not affected. Further clauses provided benefits including an unlimited use of leased company car with reimbursement to DNV for personal use, reimbursement by DNV of basic telephone rentals and cost of company trunk calls, daily free newspaper, four weeks paid vacation and pension. All of these clauses had been discussed before the agreement was signed. The clause which is in dispute is as follows: "7. The mutual notice of termination of this Agreement is three (3) months following the end of the calender month in which termination notice is given in writing." The plaintiff says this clause was not discussed with him nor read to him, however, it did not unduly worry him because it was in line with normal DNV policy, namely, that in moving employees from one station to another, it was normal to receive three months notice before the move was effected. (This is contained in DNV's document entitled "Expatriate Employment Policies".) On the other hand, surveyor looking to move outside DNV usually gave the company three months notice. In his mind, this clause did not refer to termination of his employment by DNV, it related to termination of the agreement. He said it was unnecessary for him to take the agreement to lawyer as he did not perceive it as way to fire him. He signed and returned copy on February 25, 1985. In cross‑examination, Mr. Legorburu stated he believed that he could leave the company on three months notice, but that the company had no right to give him three months notice of termination. In his discovery evidence, he acknowledged that either party could terminate on three months notice. At trial, he explained saying, this meant termination of the agreement, and not termination of his employment. He denied that his view of this agreement had changed or altered as result of reading the opinion of his expert witness, Professor Christopher L. Rigg. The down turn in the economy and the bottom falling out of oil prices caused dramatic reduction in the work of the Halifax Office. Mr. Legorburu realized that the Halifax office was gearing down to one or two man operation which would not be fulfilling for him. Towards the end of 1985, he started applying for expatriate positions with the defendant. He applied to number of locations in February, March and April 1986 without success. In June 1986 he was notified that there would be freeze on salaries at least until the end of September of that year without any guarantee of change at that time. Mr. Hagen advised by letter that this was not to be perceived as negative evaluation" of his performance during the previous year. On September 29th, 1986, he was advised by telephone followed by letter of the same date, that his employment was terminated effective December 31st, 1986. He was told that the Halifax Office would be closed and his services would no longer be required. He was advised that DNV was prepared to offer him the agency as non‑ exclusive surveyor to DNV in the Maritimes if he was interested in setting up on his own in Halifax. Verbally, he was advised that the company was following up possible position for him in Australia. During meeting on October 8th, 1986 with Mr. Hagen, he discussed the agency proposal, the Australia position and repatriation to the United Kingdom, as well as alternatively requesting compensation along the lines of what was being offered in Norway. Mr. Hagen advised that the compensation was unlikely, but he would raise it with head office in Houston, Texas. Mr. Legorburu said that although several draft agreements were presented to him for the agency position, the terms were not acceptable as he was not permitted to do work for other classification societies, and if he did not do DNV work when it came up, he would lose some of the guaranteed income which was being offered for the first few months. He believed there would be virtually no other surveyor work in Halifax. He concluded that the several proposals could end up costing him money, and found none of these were acceptable. further portion of the plaintiff's discovery was read which asked why he took issue with the letter of September 29th which terminated his employment on December 31, 1986. His discovery response was that he did not take issue with that letter as far as the three months notice was concerned, he took issue with it on the basis that because of his seniority, he believed there would be alternative employment. At trial he explained that he was always given to understand that because of his seniority and the number of years of experience, he did not have to worry about DNV finding him other work. Mr. Legorburu testified that at meeting held in Calgary towards the end of 1985, Mr. Gudmundur Sigurthorsson (then the Executive Vice‑President, Field Division The Americas located in Houston, Texas) told him not to worry as they would find him other employment. The plaintiff claims this was also said to him by Mr. Sigurthorsson in telephone conversation early in 1986. Mr. Sigurthorsson cannot recall either of these conversations. Mr. and Mrs. Legorburu both testified about his mental state following September 29, 1986. He said he was quite devastated by the turn of events, and as result he went into deep depression. Mrs. Legorburu, who is nurse, said she was extremely concerned about him, as he was not functioning normally. Although he refused to see doctor, she was so concerned that she arranged for Dr. Michael P. Quigley to make house call which occurred on October 10th, 1986. The doctor prescribed tranquilizers and the further support of psychotherapy. Dr Ouigley's report relates agitation, restlessness, lack of self‑worth, feelings of hopelessness and crying which lasted over an eight to ten week period. Mr. Legorburu required an anti‑anxiety‑anti‑depressant medication until January 1987. The total treatment period was four months. Mr. Legorburu was off work until October 27th, 1986. He then returned to work until mid‑December when he was advised that he need not come into the office any longer. He received vacation pay and his regular pay until December 31, 1986. After receiving the notice of termination, the plaintiff registered with the Provincial and Federal Civil Service and he contacted Australia to see if there was position available. He wrote to the Technical University of Nova Scotia. He applied for position that had been advertised with Halifax Industries. When he was interviewed, the salary was more than $20,000.00 less than what he was earning, and he felt he could do better. He received two interviews with the Province concerning particular position which eventually was not filled. He had interviews with the Coastguard and the Department of National Defence in Halifax, however, by the time he was offered work he had already accepted new employment with Indal Technologies Inc. (Indal) in Mississauga, Ontario at salary of $55,000.00. This was lower salary than his departing salary from DNV which was $67,389.00. Also, in his first year with Indal, he only received six days vacation, moving to three weeks for the next four years. Again this was less than he received from DNV. He received funds from Indal for temporary location and relocation. He commenced this employment March 1st, 1987. As result of the reduction in his salary, his wife was obliged to supplement their income by returning to work as registered nurse. She was required to write examinations before obtaining employment. Although he has received regular increases since March 1987 along with two bonuses of $1,500.00 each, Mr. Legorburu's salary still remains below his departing salary from DNV. In explaining his difficulty in obtaining employment at level equivalent to his salary at DNV, he referred to the almost complete lack of opportunity relating to offshore oil and gas, that shipbuilding was substantially reduced and the highly specialized nature of his work as surveyor with DNV. Mr. Sigurthorsson now the President of DNV Industry USA Inc., described that the Halifax Office was set‑up to provide survey functions for ships and oil rigs. He confirmed the progress of Mr. Legorburu's previous employment with DNV. It was his belief that in 1985, Mr. Legorburu wanted to change to local status because he wanted to make Canada his permanent home, allowing him to settle down with his family. Describing the policies of DNV, Mr. Sigurthorsson stated that expatriate employees are asked to move from time to time from one location to another. Local status employees may be invited to move, but they cannot be forced to move by DNV. Normally an expatriate position is for three years at any one location, and is usually not extended beyond that time. The document entitled "Expatriate Employment Policies" prepared by DNV, contains section entitled "Termination of assignment/Transfer expenses". It refers to adverse business developments, war or war‑like conflicts or other catastrophic events leading to cancelling an expatriate contract by the Assignment Division who will provide three months notice, if possible, and offer every assistance towards reassigning or repatriation with transfer costs being assumed by the assignment division. According to Mr. Sigurthorsson, this does not apply to persons on local status. He described that early in 1985, the Canadian market was quite good, but weaknesses gradually reduced the offshore work initially affecting the Halifax and Calgary locations. By the end of 1985, the weaknesses were becoming much stronger. Halifax was losing money due to the recession in the offshore and shipping activities. When this down turn occurred, DNV had very few openings resulting in limited ability to move people to other assignments. He was unable to recollect making any comments or promises to Mr. Legorburu about obtaining employment for him at the meeting in Calgary. He claims that given the context of the times, he found such comment very, very unlikely. He also claimed to have no recollection of such conversation in 1986 saying it would be even more unlikely then because DNV was in fairly deep difficulty with excessive staff capacity. news communication which was sent to all employees in the 28th week of 1986 indicated the necessity of undertaking staff reduction. Mr. Sigurthorsson stated that in any lay‑off, DNV's policy was to make every effort to find positions for people, however, nothing was found for Mr. Legorburu although claiming he had his personnel officer call colleagues and that he probably personally tried as well. He acknowledged he has no specific recollection of seeking another position for Mr. Legorburu. He described the several proposed agency agreements as attempts on the part of DNV to make the situation bit easier for Mr. Legorburu. Mr. Sigurthorsson stated Mr. Legorburu's interpretation of paragraph of the February 1985 agreement relating to three months notice was entirely incorrect. He denied that person returned to expatriate status this way. memo from Mr. Hagen to Mr. Sigurthorsson, dated October 14th, 1986, refers to the October 8th meeting between Mr. Legorburu and Mr. Hagen. In part, that memo refers to Paul Bishop, Manager of the Newfoundland Office, and the possibility of his obtaining other positions, but that DNV was not considering doing the same for Mr. Legorburu. In the memo, Mr. Hagen stated: "On this account, stressed the importance of retaining good junior staff with growth potentials. also made the following admission (direct quote): 'Perhaps you and I, Jon, have reached an age where it is much more difficult to use us, and therefore perhaps DnV is somewhat reluctant to find alternative employment for us'. (I don't think this is surprising although it is disillusioning). Jon Legorburu stated that he would be very disappointed if that was the case, and it was certainly not according to 'the DnV used to work with where senior people were always well looked after'." At trial, Mr. Sigurthorsson testified that he did not necessarily agree with that philosophy nor with Mr. Hagen's position that it was not his responsibility to assist Mr. Legorburu in obtaining other employment with DNV. Mr. Sigurthorsson said it was the responsibility of Canada to assist the plaintiff. Over 500 people from DNV were laid off and Mr. Sigurthorsson said efforts were made to place each one of them. Of this number, only 40 lay offs were in Canada with the majority occurring in Norway. He acknowledged that Mr. Hagen's memo to him was totally inconsistent with their policy, but he has no recollection of responding to it. He said such statement of retaining juniors because of growth potential is an over‑simplification and number of factors are used to determine who is suitable for particular job. Apparently, the former manager of the Newfoundland office was re‑employed in DNV's New York location. The agreement between the parties signed February 13th, 1985 contains clause providing that the laws of the Province of Alberta, Canada govern the agreement. Both parties submitted expert reports setting out their understanding of Alberta law. The plaintiff's expert, Christopher L. Rigg, is an Associate Professor of Law at the University of Calgary and barrister and solicitor entitled to practise law pursuant to the laws of Alberta. After obtaining his law degree, Professor Rigg spent five years in private practice. His field was employment law, in particular labour relations, with some work relating to wrongful dismissal. Commencing in 1980, he studied for two years at Osgoode Hall in the area of employment and labour relations law. He then was employed at the University of Calgary where he currently teaches courses in labour law. He considers himself an expert on the subjects of employment law and labour relations law. His evidence was by way of written opinion and discovery evidence. The expert for the defence is Thomas W. Wakeling of the law firm of Milner and Steer in Alberta. He has taught labour related courses and since 1981 has practised 50% of his time in the area of employment law. He served first as Alternate Chairman and since 1989 as Chairman of the Alberta Public Service Employee Relations Board. Mr. Wakeling filed written opinion and testified at the trial. In his written opinion, Professor Rigg set forth an outline of the facts as he understood them. These facts are essentially the same as those previously set forth in this decision. The only fact not stated in this decision upon which Professor Rigg relied was the final one which states: "P. The defendant did not have cause to dismiss the plaintiff." Based upon the traditional meaning of "cause" which relates only to actions of the Employee, agree with that opinion. In his discovery testimony, Professor Rigg refers to one additional fact, namely, that clause of the agreement was not specifically drawn to the plaintiff's attention. After analyzing the law, he concluded that an Alberta Court would not limit Mr. Legorburu to months notice of termination of employment. It was his opinion that the court would imply term of reasonable notice of termination. Professor Rigg relies upon primary cases decided in Alberta; Chadburn v. Sinclair Canada Oil Company (1966), W.W.R. 477 (Alta. S.C.); Allison v. Amoco Production Company 1975 CanLII 247 (AB QB), [1975] W.W.R. 501 (Alta. S.C.) and Bagby v. Gustayson International Drilling Co. (1980), 1980 ABCA 227 (CanLII), 24 A.R. 181 (C.A.). He describes Allison as being the most important case. In summary, the Alberta courts have found that: "...clear words are required to abrogate the implied term of reasonable notice of termination of employment." (page 14‑15 discovery evidence Christopher L. Rigg, May 28, 1990) In the Allison case, the plaintiff, an American citizen, commenced working for the defendant company in July 1949. In 1952, the plaintiff was assigned to Canada as an expatriate employee. From January 1, 1969, he was on loan to Canadian subsidiary of the defendant. Since 1964, the defendant paid expatriates special allowance to balance their salaries with those paid to employees in the United States. This allowance, amounting to around one fourth of the basic salary, was paid to the plaintiff. In May, 1974 the plaintiff chose to become Canadian citizen. He was then told by his employer that the expatriate allowance was intended to only cover United States citizens and if he refused transfer to the United States, then he would be transferred to the Canadian payroll. He was not offered position in the United States. He was transferred to Amoco, Canada and his expatriate allowance was cut‑off. The plaintiff considered that his employment by the defendant was being terminated without cause and left his employment. He had been employed for approximately twenty‑four years by the defendant and received expatriate compensation for about 10 years. Between 1949 and June 13th, 1974 when the plaintiff ceased to work for the defendant, he received various promotions and appointments to various places. Throughout, his services were always highly regarded by his employer. Although there had been discussion about phasing out the expatriate compensation policy several months before the plaintiff ceased employment, this information was never communicated to the plaintiff nor did it become company policy until the following year. MacDonald, J. held that the proposals by the defendant requiring the plaintiff to terminate his employment with the defendant and be employed by another company even though subsidiary, and the reduction in his income by immediate elimination of the expatriate compensation amounted to repudiation of the terms of the contract of his employment. The court held that there was wrongful dismissal. The court then turned to consider what notice was required. When the plaintiff was first employed by the defendant, he had no written contract. The defendant's position is based on contract between the parties executed approximately nineteen years earlier when the plaintiff became senior geophysicist which states: "If Company desires to terminate employment of an Employee Company shall give Employee thirty days' notice thereof;..." (page 507) The court determined that reasonable notice is implied by law and held that the particular contract was to preserve confidentiality as condition of the employment and was not intended to deal with general terms of employment. As reasonable notice of termination was required initially when there was no written contract, MacDonald, J. could not accept that by being promoted into more senior position, the notice of termination would be reduced down to thirty days. At p.508 MacDonald J. states: "If such was to be the intention of the parties, that intention must be expressly and clearly stated. The words used do not clearly state that the contract would terminate on 30 days' notice but only that if the company desires to terminate it it shall give 30 days' notice. These words do not consider sufficient to abrogate the doctrine of law that reasonable notice must be given. would consider that the 30‑day notice provision if applied would be harsh term." After considering all the evidence, he concluded that the plaintiff was entitled to reasonable notice and since such notice had not been given, he was entitled to damages for breach of contract. MacDonald, J. determined that if the defendant desired to terminate the agreement, it had to give 30 days notice of its intention. The facts in Chadburn are that the plaintiff was employed for several years by one company which was taken over by the defendant company where he continued his employment for another nine years. He was given two days written notice of termination without cause. The reason for his termination was an internal reorganization which made the plaintiff redundant. When the plaintiff joined the defendant company, he signed an alleged employment contract which contained the following clause: "Either party may terminate this contract at any time, with or without cause. In event of termination employer shall not be liable to employee for wages or salary, except as may have been earned at the date of such termination...." (page 479) On termination he was given cheque amounting to one weeks' salary for each year he was employed with the defendant. The court found the agreement was payroll formality and at p. 480, Riley J. states: “It will be noted that there is no provision that either party can terminate without notice nor indeed specifying the notice required." The court held that to terminate without reasonable notice requires the use of very clear words and added at p.486: “What is reasonable is in part founded on social and economic conditions of the time for the reason that these conditions would govern the opportunity of the employee in obtaining similar employment." Bagby is 1980 decision of the Alberta Court of Appeal. The plaintiff was employed by predecessor company of one of the defendant companies. He eventually became President and General Manager. He went on to work for the purchaser of the predecessor company (another defendant) and after several years that company decided to look for buyer. In order to retain employees during this time memorandum was sent with terms of their employment. There was also an agreement with the plaintiff as to what would happen to him if the company was sold within twelve months and what would happen after twelve months if no sale resulted. The plans to sell were dropped and Mr. Bagby continued to serve as President and General Manager. Several years later, the company again decided to sell. Although Mr. 8agby was offered position with the new company, he refused it saying he had number of things to settle up with his current employer. As the company was sold, Mr. Bagby was terminated without notice. Although the company offered him monies that had been set out in the memorandum referred to, he was offered nothing in lieu of notice. Throughout twenty‑four years his performance was described as exemplary. The reason for his eventual termination was the sale of the company's assets and the end of this business. The court held that the agreement did not purport to deal with Mr. Bagby's termination of service when the sale occurred after twelve months. Laycraft J.A. (as he then was) states at p.191: “The rule is well established in contracts for service of indefinite duration that the implied term of reasonable notice of termination will not be negatived except by clear words." The court found the memorandum did not contain the necessary clear words. Professor Rigg also discussed the case of Olson v. Sprung Instant Greenhouses Ltd., 1985 CanLII 1257 (AB QB), 41 Alta. L.R. (2d) 325 (Q.B. 1985). There the plaintiff worked for group of related companies. He signed an employment agreement with only one of them which provided for employment on an indefinite basis with right to terminate on two weeks prior notice in writing. Relying on Bagby and Allison, the court found that these provisions did not clearly negative the implied term of reasonable notice and held at p. 330: “It is significant, believe, that the agreement does not say that the employment may be terminated on two weeks' notice. It says that the agreement may be terminated by two weeks' prior notice in writing." The court held the agreement which he had signed was not all‑inclusive and it did not set out the terms of employment with all of the groups. Professor Rigg's opinion is that Mr. Legorburu was employed "without specific tenure" when he signed the expatriate agreement in March of 1984. In accordance with that agreement, the plaintiff chose to transfer to local status which resulted in the February 1985 agreement. Professor Rigg believes the latter agreement dealt with various terms affecting the transfer to local status. He concludes by saying that paragraph #7 would be interpreted in Alberta as notice of termination of "this agreement", that is, the plaintiff's agreement about local status as compared to expatriate status, thus paragraph #7 did not relate to the termination of the plaintiff's employment with the defendant. Mr. Wakeling refers to Levitt, The Law of Dismissal in Canada (1985). At p.250 paragraph 1004.1 states: “The existence of an express contractual term dealing with dismissal from employment will govern to the exclusion of any implied term...However, such term must be clearly and unequivocally expressed since it will be interpreted, if ambiguous, against the interest of the party who drafted it." He distinguished the three cases relied upon by Professor Rigg. He referred to the 1979 case of Pierce v. Krahn, 1979 CanLII 1091 (AB QB), 10 Alta. L.R. (2d) 49. The plaintiff, Ms. Pierce, was manager of the defendant company. There were certain written and oral agreements concerning her employment. There was authority for the directors of the company to forthwith terminate her employment if it was in the best interests of the company. Shortly after the business opened, because of dissatisfaction with her performance, the plaintiff's services as manager were terminated. The argument was that this was in breach of an implied term of employment requiring reasonable notice. The court held at p.55: "When there is in existence an express contractual term governing dismissal from employment, that term governs to the exlusion (sic) of any implied term." Mr. Wakeling also refers to the case of Krupka v. Board of Governors of Grande Prairie Regional College (unreported decision Alta. Q.B. September 12, 1984). In that case, there was an employment agreement with very specific terms concerning dismissal and severance allowance which in the view of the court negated the reasonable notice requirement because of the plain meaning of the words. With deference, find the clear words relating to employment in Krupka and Pierce, distinguish those cases from the case at bar. Mr. Wakeling says Krupka is not inconsistent with Bagby or Chadburn. He submits that in Bagby, the court found the agreement did not purport to deal with terminating his services where sale occurred after twelve months, therefore, there was no provision for termination and the court imposed reasonable notice. In Chadburn, Mr. Wakeling says the court determined that the contract was just payroll formality and therefore did not contain the terms of employment including termination provision, which was in contrast with the case of Pierce. agree with those analysis of Bagby and Chadburn but disagree with his conclusions. Mr. Wakeling says there is no basis to distinguish between termination of the agreement and termination of employment for Mr. Legorburu in his employment contract. In his opinion, paragraph is clear and unequivocal and therefore binding upon the parties. respectfully disagree based on the findings which are detailed below. Mr. Wakeling distinguished the Olson case from the present case. agree with that conclusion. find that Mr. Legorburu and Mr. Hagen held extensive discussions concerning the changes to be made in both benefits and employment of Mr. Legorburu, which eventually led to the signing of the February, 1985 agreement. During these discussions, find there was no mention of how employment termination would take place. The 1985 agreement was preceded by the March '84 agreement where there was also change from previous working conditions. Again, the 1984 agreement was preceded by discussion and there was no evidence led of the terms for terminating the employment of an expatriate. further find that Mr. Legorburu believed that DNV had commitment to continue to employ him based upon his seniority and years of experience. find Mr. Sigurthorsson gave him to understand that other employment would be found for him. Where the evidence of the witnesses differs, accept the evidence of Mr. Legorburu. On balance of probabilities find that these statements were made to the plaintiff. Perhaps they were not intended to be binding and were intended to placate him but find they were made and accepted as factual by the plaintiff. I find that based on the plaintiff's knowledge of the defendant's practises at the time that he signed the agreement in 1985, that his interpretation that clause #7 did not relate to termination of his employment, but rather to termination of the written agreement, was correct. find this was reasonable belief on the part of the plaintiff. In spite of his failure to make that position plain at discovery, accept the understanding that Mr. Legorburu had of this particular clause in the agreement as expressed at trial. In my opinion, the February '85 agreement was continuation of the March '84 agreement which was continuation of his previous employment, and therefore it simply amended his benefits as result of the change to local status. To have clause amount to the notice required to terminate his employment, the word "employment" or "dismissal" or other precise words should have been used to avoid any misunderstanding. Mr. Legorburu was entitled to believe that his employment with DNV would continue and that this clause would not permit DNV to terminate his employment with the defendant upon three months notice. I find that the terminology was unclear in that termination of employment was not specifically mentioned in the clause and had not been discussed with him previously in preparing the '85 or '84 or earlier contracts. Thus, this clause must be construed against the author of the clause, the defendant. In summary, there is no clear and unequivocal clause in the agreement which terminates Mr. Legorburu's employment with DNV. In my understanding of the law of Alberta this decision conforms to the case law and interpretation as presented by Professor Rigg. Having made this finding, it is unnecessary to examine argumnets on harshness and unconscionability. As result of this finding, Mr. Legorburu was entitled to reasonable notice. The question then arises was three months reasonable notice? Considering the lack of work in Mr. Legorburu's area of expertise and his efforts towards finding work, find that he did everything reasonably possible to mitigate his damages. He canvassed the local market. find his refusal to accept the agency proposal was also reasonable based on his opinion that he could well end up losing money. He was offered low salary by one company which he turned down. After three months, he obtained employment with Indal. although the salary was lower than he had been receiving from DNV, it was higher than the position he turned down in Halifax. The plaintiff submits that he should receive twenty‑four months pay less the three months for which he received notice and pay from DNV and also, less the pay which he received from Indal. He claims this is reasonable period of time given that he was the second most senior person in DNV in Canada, and second in seniority as surveyor only to Mr. Hagen. Also, he claims he had specialized expertise which did not readily find market for employment with an equivalent salary which is evident from the fact that even after two years he has not reached his departing salary level from DNV. Although the plaintiff provided the court with number of cases with varying years of service and awards, it would appear that each case must be looked at individually. "The measure of damages is the amount the plaintiff reasonably would have expected to receive from his former employer during the period of reasonable notice less any amounts earned during that time." (Sweet v. The Canadian Indemnity Co. (1981 43 N.S.R. (2d) 55 at p. 65) Thus, Mr. Legorburu is entitled to damages for breach of contract. In determining the length of notice one must look at reasonableness based upon the character of the employment; the length of the employment; the person's age; and the availability of similar employment having regard to the persons experience, qualifications and training. In this case the latter issue appears to have been the most difficult area for Mr. Legorburu as equivalent jobs at equivalent salary were unavailable. After taking into consideration all of the arguments made by the plaintiff, I find that Mr. Legorburu is entitled to eighteen months notice. From this amount must be deducted the three months pay which he received from the defendant and any income from his new employer over the balance of fifteen months. I also award the loss resulting from the difference in vacation for fifteen months, and loss of automobile allowance for fifteen months. On the issue of prejudgment interest, it appears that counsel are substantially in agreement on method of determining the interest for the period based on the figures presented by the plaintiff, and would ask that this calculation be made and agreed to. If counsel have any difficulty in reaching conclusion, they may contact the court. Finally there is the claim for the emotional trauma. The period of distress was fortunately short and apparently responded to treatment. I award $500.00. The plaintiff is entitled to his costs to be taxed. Constance R. Glube Halifax, Nova Scotia July 4, 1990 1986 S.H. No. 59705 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: Jon Legorburu and Det Norske Veritas Defendant DECISION OF GLUBE, C.J.T.D.

In a contract of employment, which involved an agreement changing the plaintiff from 'expatriate' to 'local' status, a termination clause providing that the agreement could be terminated upon 3 months' notice was held to be inadequate language to abrogate the implied term of reasonable notice. The plaintiff had correctly interpreted the clause as relating to the termination of the agreement, not of his employment. The agreement provided that it was governed by the laws of the province of Alberta. The plaintiff had been employed by the defendant for 12 years and was awarded compensation in an amount equivalent to 18 months notice less the three months pay he already received and any income from his new employment over the balance of the 15 months. He was also awarded the loss resulting from the difference in vacation and loss of an auto allowance for the 15 months. For emotional trauma, which lasted only briefly, he received $500.

d_1990canlii4118.txt

M.T. MEGAW IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 104 Date: September 16, 2016 Information: 24496574 Location: Yorkton Between: Her Majesty the Queen and Vincent William Lehman Appearing: Andrew Wyatt For the Crown David Kreklewich For the Accused JUDGMENT R. GREEN, INTRODUCTION [1] Vincent Lehman is charged with driving a vehicle while his ability to do so was impaired by alcohol (under s. 253(1)(a) of the Criminal Code) and while his blood alcohol concentration exceeded the legal limit of .08 (under s. 253(1)(b)) and, lastly, with failing to stop for a police officer as soon as reasonable in order to evade that officer (under s. 249.1(2)), all on August 17, 2013 at Togo. [2] This case arose during the early morning hours of that day. Cst. David Cobbledick, of the Kamsack RCMP, had motorist pulled over at 2:50 a.m. in the village of Togo. Just as he was completing that stop, he heard truck, which turned out to be one driven by Mr. Lehman, on an adjacent street. [3] After finishing with the first motorist, he drove to the street on which he had first heard Mr. Lehman’s truck, and followed dust trail from the truck down that street until he saw Mr. Lehman coming around corner, in his words “kind of creeping”. He engaged his emergency lights, and came up behind his truck. Mr. Lehman spun his tires and fish-tailed, and in the officer’s words sped up rapidly and “took off”. The pursuit lasted over about four blocks, during which Mr. Lehman failed to stop at two stop signs before turning onto Highway 5, and after block or so on the highway turned onto Baker Street, where he finally stopped in the driveway of his house. [4] Cst. Cobbledick soon arrested Mr. Lehman for an offence under s. 249.1(2) and, after he received fail result from him on an Approved Screening Device (ASD) between 3:01 and 3:03 a.m., read the breath demand to him at 3:03 a.m. He then drove him back to Kamsack, where Mr. Lehman provided samples of his breath of 110 mg% at 3:55 a.m. and 100 mg% at 4:17 a.m. (as per the Certificate of Analyses, Exhibit P-2). [5] While Mr. Lehman admitted that he was drinking alcohol that evening and night, Mr. Lehman denied that he was impaired by alcohol when seen driving by the officer, and further denied that he was trying to evade the police officer when he did not stop for him: rather he was just trying to make it back to his driveway as he believed this would legally protect him from having his truck seized. Mr. Lehman as well, through his lawyer, asserted so-called “last drink” defence: that alcohol he drank just before driving was not yet in his blood stream when he was stopped by the officer, but was at the time his breath tests were taken at the detachment. [6] The only witness for the Crown was Cst. Cobbledick. The defence called alcohol expert Mary Ellen Scott and Mr. Lehman. [7] The issues for me to determine are:(1) Whether there is proof beyond a reasonable doubt Mr. Lehman’s ability to drive was impaired by alcohol;(2) Whether Mr. Lehman’s evidence, together with expert Mary Ellen Scott’s evidence, raises a reasonable doubt that his blood alcohol concentration was over the legal limit at the time when he finally stopped his vehicle for Cst. Cobbledick; and(3) Whether Mr. Lehman had a reasonable excuse for not stopping immediately for the police officer and whether his actions amounted to him evading the police officer. [8] Cst. Cobbledick said that Mr. Lehman drove up his driveway as far as he could, then jumped out of his vehicle and came back toward the police vehicle. This struck the officer as an aggressive move, and he told Mr. Lehman he was under arrest for flight from police. He said, at that point, Mr. Lehman had glossy, watery eyes, but his walk and his speech were “fairly normal” and he was polite and cooperative throughout his dealings with Cst. Cobbledick. The officer smelled beverage alcohol coming from Mr. Lehman, but, overall, was surprised that he did not see the signs of impairment in Mr. Lehman’s person that his driving suggested. Mr. Lehman’s level of intoxication was in the officer’s view borderline, and he required the ASD test to give him the grounds to make an Intoxilyzer demand. [9] Mr. Lehman was bare-footed, and, as result, after the breath demand the officer took Mr. Lehman into the house to get his shoes. Upon entering the house, the officer noted approximately ten to twelve beer cans on the coffee table, which got his attention because Mr. Lehman had told him that he had only drank six beer throughout the day. Although the officer did not specifically count the beer cans and put them in his notes, he was adamant that there were more than six beer cans on the table. [10] Cst. Cobbledick said Mr. Lehman told him on three occasions that what he had to drink that day was six beer. At the detachment Mr. Lehman told him he had purchased an 18 pack of Kokanee beer earlier that day. He, as well, said Mr. Lehman apologized for not stopping for the officer because he needed to keep his Class licence and because he did not want to have his truck seized. [11] Mr. Lehman, who is feet tall and 170 pounds, said he did some housework and watched television this morning. He left for Yorkton at approximately 1:30 p.m. and had no alcohol to drink before he left for Yorkton. In Yorkton, he went to Wal Mart and went to wash his truck. He ate at McDonald’s and left Yorkton at 4:30 p.m. He drove back to Kamsack and stopped at the liquor store. There he claimed that he bought six Kokanee beer. [12] Mr. Lehman said he returned to his house in Togo sometime after 6:00 p.m. He finished eating at 6:30 p.m. and then had one beer. He then watched television and did some things around the house until 10:00 p.m. At that time, he had another beer. He then watched television and downloaded some music onto his computer. He continued to drink beer and said he finished the last of the remaining beer at about 2:15 a.m. [13] Mr. Lehman said, after 2:15 a.m., when he finished his sixth beer, that he got out his DVD player and watched show, which he then got bored with. He then decided to go out to his truck and listen to the music that he had downloaded. He said he grabbed his coffee cup, and poured what was left in vodka bottle he had which he said was little more than half full, or about six or seven ounces into the cup and mixed it with Tang orange juice. [14] Mr. Lehman said he took that drink out to the truck, at approximately 2:40 to 2:45 a.m. He said he listened to two or three songs then decided he wanted to go for spin. He said he did not want to take his drink with him, so he “downed it”, and put the cup into the console of his truck. He said he was not planning on going anywhere as he was in bare feet and did not have his driver’s licence, and further left his house at 132 Baker Street unlocked. [15] Mr. Lehman said he drove from his house into the downtown area of Togo, turning onto East Street. He saw another vehicle which he thought he recognized, but then discovered it was the police officer when the officer engaged his emergency lights. He said his truck is pretty loud. He was on gravel road and “gunned it”, which spun his tires bit, and he then turned onto 3rd Street. He said, after the officer put his lights on, he panicked. While he denied feeling impaired, he said that he had consumed some drinks and sped up. He said he was worried because he had Class licence, as this was how he made his living. As he had been drinking, he was also concerned that he thought his vehicle would be towed away and he was afraid the vehicle might have some items stolen from it. [16] Mr. Lehman denied trying to outrun the officer, but said he wanted to get his truck home to park it in the driveway, where he thought the truck would be safe from impoundment. He claimed he later drove the route he took that night at 40 km/hr., just days before the trial, and it took him three minutes and nine seconds to drive that route. He claimed he was going slowly, about 15 mph, when he first saw Cst. Cobbledick. He said there were six empty cans of Kokanee on the table in his house when he went in with the officer. He said he told the officer as many as three times that he drank six Kokanee beer that day. [17] Regarding his memory of what happened on this day in 2013, Mr. Lehman had no specific explanation about why he remembered particular things that day, other than saying it was important to him to remember. He further said he had good memory of that day as “I wasn’t drinking lots so remember it like yesterday”. He further denied that his memory about how much he drank had ever changed. When asked by his lawyer whether he had vivid memory of when he finished his last beer he said “apparently yeah”. He said he looked at his watch, and thought “you know what, wish had another one, but don’t”. [18] On cross-examination, Mr. Lehman, when asked whether he knew how much more than half he had in the vodka bottle, said he did not. He admitted that it could have been eight ounces in the bottle. Further, he said that there was no way there could have been five ounces in that bottle. He said he was sure it was above the halfway mark. He further said that the only reason he went for drive was to hear his music and drive. When asked whether he was being honest when he told the officer that what he had to drink that evening was six beer, he replied that what he said was “close”. Regarding not stopping for the police officer, he admitted that he could have stopped for the officer, and said that he made some bad choices and kept going until he came to his driveway. [19] Pursuant to s. 12 of the Canada Evidence Act, Mr. Lehman admitted that his criminal record has nine Criminal Code drinking and driving convictions: two from 1982, three from 1986, two from 1990, and one each in 2000 and 2007. [20] Mary Ellen Scott was qualified as an expert and allowed to give opinion evidence in the area of distribution, elimination and the effects of alcohol on person, and the measurement and calculation of blood alcohol concentrations in an individual using forward and retrograde calculation methods, as well as the effects of alcohol on the human body. [21] Ms. Scott gave number of opinions which were based on the drinking history Mr. Lehman gave in his direct evidence and on average absorption and elimination rates in the human body. Although her evidence was in my view difficult to follow at times, her opinions, relevant to Mr. Lehman’s BAC at the time of driving and the time his breath samples were taken at the detachment, can be summarised as: (1) For person of his height and weight, and based on the drinking history testified to by Mr. Lehman in direct evidence at this trial, including the bolus consumption of vodka shortly before driving, he would have had approximately three ounces of vodka unabsorbed in his stomach at 2:50 a.m. This meant that she believed he was not over 80mg% at that time, and, by forward calculation, she also believed this drinking history to be consistent with reading of 100 mg% at 4:17 p.m. She said her conclusions were the same: (a) whether the amount of vodka consumed shortly before driving was either six or seven ounces; and (b) whether either amount was consumed at 2:35 a.m. or at 2:40 a.m.; and (2) Based on the drinking history given by Mr. Lehman in direct evidence at this trial, she opined that his BAC at 2:50 a.m. would have been between 15 and 91 mg%. [22] In cross-examination, Ms. Scott admitted that an opinion she had given on July 31, 2015 (Exhibit D-4) was based on different drinking pattern regarding the amount and times of consumption from Mr. Lehman: that he drank total of seven Kokanee beer, with one at supper at 6:00 p.m. and six between 10:00 p.m. and 2:15 a.m., and that at 2:15 a.m. he poured and consumed very quickly drink containing approximately five to six ounces of hard liquor and was then stopped by the officer within fifteen to thirty minutes of consuming this hard liquor. III. WAS MR. LEHMAN’S ABILITY TO OPERATE HIS VEHICLE IMPAIRED BY ALCOHOL? [23] The Supreme Court of Canada in Stellato, 1994 CanLII 94 (SCC), [1994] SCR 478 approved the following test for impairment: In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond reasonable doubt before conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate motor vehicle was impaired by alcohol or drug. If the evidence of impairment is so frail as to leave the trial judge with reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [24] Mr. Wyatt argued that in this case impairment, albeit at the low end of the scale, had been proved beyond reasonable doubt. [25] Despite Mr. Lehman’s manner of driving, and in particular not stopping for the officer, his glossy and watery eyes and the smell of alcohol coming from him, Cst. Cobbledick said his walk and his speech were “fairly normal” and he was polite and cooperative throughout his dealings with Cst. Cobbledick. Overall, the officer was surprised that he did not see the signs of impairment in Mr. Lehman’s person that his driving suggested and, most significantly, said that Mr. Lehman’s level of intoxication was in his view borderline and he required an ASD test to give him the grounds to make an Intoxilyzer demand. Taken together, this leaves me with reasonable doubt that Mr. Lehman was impaired. IV. IS THERE REASONABLE DOUBT MR. LEHMAN WAS OVER .08 WHEN HE STOPPED HIS VEHICLE? [26] Section 258(1)(d.1) of the Criminal Code sets out the bounds of the so-called “last drink” defence. If breath samples have been taken showing blood alcohol concentration (BAC) of over 80 mg% and if the Certificate of Analyses is otherwise admissible under s. 258(1)(c), as is the case here: ... evidence of the results of the analyses is proof that the concentration of alcohol in the accused's blood at the time when the offence was alleged to have been committed exceeded 80 mg of alcohol in 100 ml of blood, in the absence of evidence tending to show that the accused's consumption of alcohol was consistent with both: (i) concentration of alcohol in the accused's blood that did not exceed 80 mg of alcohol in 100 ml of blood at the time when the offence was alleged to have been committed, and (ii) the concentration of alcohol in the accused's blood as determined under paragraph (c) ... at the time when the sample or samples were taken; (emphasis added) [27] As result, the issue is whether am satisfied that there is credible evidence which tends to show that Mr. Lehman’s consumption of alcohol was consistent with both: (1) him not having BAC of over 80 mg% at the time of driving; and (2) the BAC readings contained on the Certificate of Analyses. [28] I am satisfied that Mr. Lehman was drinking alcohol steadily over the hours before he drove, and that this factor, taken together with the time since this day, has effected his recollection of this day and what he drank. As a result, given that finding, where the evidence of Cst. Cobbledick and Mr. Lehman is at odds, I reject the evidence of Mr. Lehman and accept the evidence of Cst. Cobbledick. [29] For the reasons that follow, I am not satisfied that the defence provided a credible account of Mr. Lehman’s alcohol consumption this evening and early morning: (1) Mr. Lehman discussed his alcohol consumption with Cst. Cobbledick during this investigation, after receiving his rights to counsel and the police warning, but did not mention any consumption of vodka or hard liquor; (2) The drinking history Mr. Lehman gave at the trial was different in terms of both the amount of beer and hard liquor consumed and the time the hard liquor was consumed than the history he gave to alcohol expert Mary Ellen Scott, as set out in her letter of July 31, 2015 (Exhibit D-4). As result, it is clear to me that his memory, and/or version, of what he drank this evening and night, and when he drank it, has changed over time; (3) accept that Mr. Lehman told Cst. Cobbledick that he purchased 18 beer that day, in contrast to his testimony that he told him he bought six beer in Kamsack; (4) further accept and find that Cst. Cobbledick saw about ten to twelve beer cans on his coffee table, and in any event significantly more than the six cans Mr. Lehman claimed were there. In so finding, note that even Mr. Lehman’s drinking history initially given to Ms. Scott suggested he consumed more than six beer (at seven beer); and (5) The scenario he presented that he drank as much as eight ounces of vodka in few minutes before going for leisurely drive to listen to music, after drinking six beer over the preceding seven and half to eight hours is in my view not believable; [30] As I am not satisfied that there was a credible account of Mr. Lehman’s alcohol consumption this evening and early morning, there is not in my view a basis to apply the opinions given by Ms. Scott. As a result, and as I am satisfied that all other prerequisites in s. 258(1)(c) have been proved by the Crown beyond a reasonable doubt, I do not have a reasonable doubt that Mr. Lehman’s blood alcohol content was over 80 mg% at the time he got out of his vehicle and approached Cst. Cobbledick. V. DID MR. LEHMAN EVADE THE PURSUING POLICE OFFICER? [31] Section 249.1(2) establishes an offence if person operating motor vehicle, while being pursued by peace officer operating motor vehicle, fails without reasonable excuse and in order to evade the peace officer to stop the vehicle as soon as is reasonable in the circumstances. There is no doubt, based on the evidence, that Mr. Lehman knew he was being pursued by a police officer who had engaged his emergency lights for a stop or that Mr. Lehman did not stop as soon as was reasonable in the circumstances. The questions to be answered, however, are whether: (1) he had reasonable excuse for doing so; and (2) he did so to evade the police officer. [32] Mr. Lehman submits that he did have reasonable excuse that he wanted to reach his driveway where he would not have his truck seized by the officer and that he was further concerned that his truck would be vandalised if left by the side of the road. Further, he said he was not trying to evade Cst. Cobbledick, as he drove about four blocks back to his house, on cul-de-sac, and parked on his driveway. On the latter point, in effect, he submits he was not trying to get away from the officer, as he had nowhere to go from his house. [33] Considering Mr. Lehman’s evidence, I am not satisfied that he had a reasonable excuse for not stopping. While he said he wanted to avoid seizure of his truck on his driveway, he as well said he was concerned about his Class licence from which he earned his living. As result, am satisfied he was concerned both about losing his licence and having his vehicle seized, by virtue of the officer’s powers under The Traffic Safety Act. His belief that he would, in effect, be “home free” if he reached his driveway was clearly mistake of law, because of what accept was this officer’s power to stop Mr. Lehman under s. 209.1 of that Act taken together with the Saskatchewan Court of Appeal’s interpretation of the extension of that power from public road to private road in Anderson[1]. Regardless of such mistake, though, don’t accept that desire to avoid the application and consequences of The Traffic Safety Act is reasonable excuse for not stopping for police officer. [34] Nor do accept Mr. Lehman’s contention that he was not trying to evade this police officer. The Alberta Court of Appeal in Kulchisky[2] defined “evade” in the following way: To evade, in our view, equates with an attempt to elude or get away from. The motive for evasion, assuming the absence of reasonable excuse, is of no moment. [35] There is no doubt on the evidence that Mr. Lehman attempted to get away from the police officer when he turned on his emergency lights, because he was afraid of the legal consequences that could befall him at that point. [36] As a result, I am satisfied beyond a reasonable doubt that Mr. Lehman operated a motor vehicle while being pursued by Cst. Cobbledick in his police vehicle, and failed, without a reasonable excuse, and in order to evade Cst. Cobbledick, to stop his vehicle as soon as was reasonable in the circumstances. CONCLUSION [37] For the reasons I have stated, Mr. Lehman is found not guilty on the impaired driving charge (count 1), guilty on the over .08 charge (count 2) and guilty on the flight from police charge (count 3). [1] 2014 SKCA 32 (CanLII). At par 25 of that decision, Whitmore J.A. said: “.... where police officer has formed the intention to stop driver on public highway pursuant to s. 209.1 of The Traffic Safety Act, the police officer is acting within the statutory authority by following the driver onto private property in order to complete his investigation. [2] 2007 ABCA 110 (CanLII) at para 10.

Criminal Law – Evidence – CredibilityCriminal Law – Evidence – Expert Evidence – Blood Alcohol ConcentrationCriminal Law – Impaired Driving – Blood Alcohol Level Exceeding .08 The accused was charged with three Criminal Code offences: driving while impaired, contrary to s. 253(1)(a); driving over .08, contrary to s. 153(1)(b); and with failing to stop for a police officer as soon as reasonable in order to evade that officer, contrary to s. 249.1(2)). As he was completing a traffic stop, an officer heard the accused’s truck in the early morning hours. When the officer engaged his police vehicle emergency lights, the accused spun his tires, fish-tailed, and took off. The accused failed to stop at two stop signs and eventually stopped in the driveway of his house. The accused was arrested for the s. 249.1 offence and was given a breath demand after he failed as ASD. He failed the ASD between 3:01 and 3:03 and the breath samples were taken at 3:55 and 4:17. The accused admitted that he was drinking alcohol that evening, but denied being impaired. He said he was not trying to evade the officer when he failed to stop for him. He also said that alcohol he had just had was not in his system yet when he was driving, but was at the time of the breath samples. The officer indicated that the accused had glossy, watery eyes, but his walk and speech were fairly normal. The officer smelled alcohol coming from the accused, but was surprised he did not show more impairment given his driving. The accused indicated that he had consumed six beer that day, but the officer noted more than six empty beer cans on the accused’s table when he was getting his shoes. The accused indicated that he downed six or seven ounces of vodka just before driving at 2:45. An alcohol expert and the accused testified. The defence expert testified that the accused’s blood alcohol concentration (BAC) at the time of driving would not have been over .08 based on the drinking the accused testified to. The issues were: 1) whether there was proof beyond a reasonable doubt that the accused’s ability to drive was impaired by alcohol; 2) whether the accused’s evidence raised a reasonable doubt that his blood alcohol concentration was over the legal limit at the time when he finally stopped his vehicle; and 3) whether the accused had reasonable excuse for not stopping immediately for the officer and whether his actions amounted to him evading the police officer. The accused had nine drinking and driving convictions since 1982 with the most recent in 2007. HELD: The issues were determined as follows: 1) the Crown did not prove beyond a reasonable doubt that the accused’s ability to drive was impaired; 2) section 258(1)(d.1) deals with the last drink defence. The court had to be satisfied that the accused’s drinking was consistent with his BAC being not over .08 at the time of driving yet being consistent with the BAC’s in the Certificate of Analysis. The court preferred the officer’s evidence over the accused’s, given the drinking affected his recollections. The court was not satisfied that the defence provided a credible account of the accused’s alcohol consumption. Given the findings, the court was unable to apply the expert’s opinions. The court did not have a reasonable doubt regarding the accused’s guilt on the driving while over .08 charge; and 3) there was no doubt that the accused knew he was being pursued by the police and did not stop as soon as was reasonable in the circumstances. The court concluded that the accused did not have a reasonable excuse for not stopping. There was also no doubt that the accused attempted to get away from the officer because he was afraid of the legal consequences that he could face. The accused was found guilty of the evading charge.

7_2016skpc104.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 510 Date: 2012 12 07 Docket: Q.B.A. No. of 2011 Judicial Centre: Prince Albert BETWEEN: HER MAJESTY THE QUEEN and WAYNE GITZEL Counsel: Inez J. Cardinal, Q.C. for the appellant Peter V. Abrametz for the respondent JUDGMENT SCHERMAN J. December 7, 2012 Introduction [1] This case involves an appeal by the defendant from his conviction and by the Crown as regards the sentence imposed on Wayne Gitzel on a charge of unlawfully trafficking in forest products contrary to s. 79(1)(f) of The Forest Resources Management Act, S.S. 1996, c. F-19.1. [2] Mr. Gitzel’s position is there was no evidence that could support finding that the firewood he sold to an undercover officer was wood harvested from Crown lands. He says that since the trial judge acquitted him of related charges of unlawfully harvesting forest products from Crown lands and unlawfully possessing forest products from Crown lands, it logically follows that he should not have been convicted of unlawfully trafficking in such forest products. He asks, if there is no proof he unlawfully harvested wood or unlawfully possessed wood, how could he be found guilty of unlawfully trafficking in it? He says his conviction on the trafficking charge should be quashed. [3] For its part, the Crown has appealed the sentence imposed taking the position that a fine of $1,000 with a 40% surcharge was an unreasonably low penalty for the offence the evidence established. It needs to be noted that the acquittals on the charges of unlawfully harvesting and unlawfully possessing forest products have not been appealed. The Charges [4] The charges against Wayne Gitzel are that between November 27, 2007 and December 22, 2009, at or near the communities of Holbein and Shellbrook in the Province of Saskatchewan he:i) unlawfully harvested forest products contrary to s. 79(1)(a) of The Forest Resources Management Act;ii) unlawfully possessed forest products without a licence contrary to s. 79(1)(c) of The Forest Resources Management Act; andiii) unlawfully trafficked in forest products contrary to s. 79(1)(f) of The Forest Resources Management Act. The Evidence of the Crown Conservation Officer Rowland [5] Conservation Officer Daryl Rowland testified that his first contact with the defendant was on November 27, 2005 while on patrol in the Canwood block of the Nesbitt Provincial Forest where he encountered the defendant cutting mistletoe-diseased pine. The defendant said he was harvesting the wood for his personal heating use. Rowland told the defendant he was entitled to harvest dead wood for personal use but that he needed licence or permit and needed to pay the associated charges if he was going to harvest any wood for commercial purposes. [6] Rowland testified that subsequent to this encounter he received reports to the effect the defendant was harvesting wood from within the Nesbitt Provincial Forest and selling it. As consequence, he periodically conducted surveillance and observed the following, which he made notes of, at the time: November 2007 An individual, he took to be the defendant, chainsawing fire- killed trees in the Crutwell burn within the Nesbitt Provincial Forest. His assumption of identity was based on the fact that he recognized truck in the vicinity as being the defendant’s half-ton truck. December 11, 2007 Firewood stacked in the yard of the defendant’s residence and flat-deck trailer loaded with approximately two cords of firewood. January 11, 2008 The defendant’s truck and someone he therefore assumed to be the defendant cutting fire-killed trees within the Crutwell burn and loading the wood onto the defendant’s truck. November 27, 2008 The defendant’s truck and someone he assumed to be the defendant harvesting trees in the Crutwell burn with chainsaw. December 10, 2008 The defendant harvesting fire-killed trees in the Crutwell burn and loading the wood onto his half-ton truck. November 16, 2009 The defendant exiting the Crutwell burn in his half-ton truck loaded with close to cord of wood. Rowland followed the truck tracks back to where the wood had been harvested within the Crutwell burn. Then, he observed the defendant’s half-ton truck parked at the residence of his brother-in-law Steven Denton where someone, he believed to be the defendant, was off-loading wood from the same half-ton truck. [7] Conservation Officer Rowland confirmed under cross-examination that he was only able to positively identify the defendant on two occasions, being November 27, 2008 and December 10, 2008 when he saw the defendant driving out of the Nesbitt Forest with load of firewood. He further acknowledged that he could not say how much wood the defendant had harvested from Crown lands, other than as suggested by the defendant’s statements to the undercover officer Chris Clarke. [8] He testified that individuals were entitled to harvest dead trees on Crown lands, without permit or licence, if the wood being harvested was for their personal use. Section 17(4) of The Forest Resources Management Act provides, under the “subsistence gathering” exemption, that person may gather dead or down trees for fuelwood. Rowland testified that, in his opinion, person heating his home or outbuildings with firewood would consume maximum of 15 cords per year. [9] He testified that at certain point decision was made to involve an undercover operator in the investigation of whether the defendant was illegally harvesting wood from Crown lands without permit. Conservation Officer Clarke [10] Conservation Officer Chris Clarke testified that he had taken training to operate as an undercover conservation officer, starting in 2004. Since 2008, he has instructed course in undercover operations. He has worked for five years as an undercover operator and during that time has been involved in some 28 investigations. He became involved in this matter in January of 2009 when his assistance was requested. The target of his undercover operation was the defendant. [11] He testified as follows: September 11, 2009 He contacted the defendant by cell telephone indicating he was interested in purchasing at least two cords of pine firewood. In that conversation the defendant confirmed he was in the business of selling wood, but told Clarke he should call back in October, since he had not yet had chance to get out and collect any wood. October 27, 2009 He again contacted the defendant by cell telephone, who again informed him he had not yet collected wood. The defendant told him he should call back in two weeks when he would have wood available. November 16, 2009 He contacted the defendant by telephone and was told he could bring trailer up at any time, because the defendant was currently cutting firewood and if he worked hard enough, he could have it out of the bush for pick up. The defendant assured him the wood was cured and ready to be burnt. November 19, 2009 He contacted the defendant by cell phone and was told that the wood was ready to be picked up at his brother-in-law’s place near Holbein. November 20, 2009 At 1:08 p.m., Clarke contacted the defendant advising him he was in Prince Albert with trailer and was given directions to the defendant’s brother-in-law’s place east of Holbein, Saskatchewan. In the telephone call he was told his wood was in the most easterly of four piles of wood. He went to the location, identified himself to Steven Denton, the defendant’s brother-in-law, backed up to the pile of wood the defendant had identified as his and loaded three-quarters of cord of wood and travelled back to Prince Albert where he unloaded the wood. Once Clarke was done unloading this wood, he phoned the defendant and asked if he could pay him personally. They arranged to meet at restaurant in Shellbrook. Clarke arrived at the restaurant near 2:00 p.m. The defendant arrived around 3:00 p.m. and Clarke introduced himself. They had conversation in which Clarke asked the defendant how much wood he sold the last year. The defendant said, “I sold over 150 truckloads last year.” Then Clarke asked how many loads he sold so far this year and the defendant’s reply was, “I sold 58 truckloads this year.” Clarke asked, “Where do you get your wood from?”, and the defendant replied, “in burn south of Holbein.” Clarke asked him, “Is it on friend’s property?”, to which the defendant replied, “No, it’s on Crown land.” Clarke said he told the defendant “Steve told me that the wood that they are cutting that they should have permit for, and the wood that he’s selling is illegal.” And asked Mr. Gitzel why do you need permit for dead wood. Mr. Gitzel then told me quote, “Last year one of the wardens called me and asked if was selling wood. told him that it was for my own use.” Then he said, “I thought was going to stop, but then said I’m not chicken. I’ll just tell them that the wood is my brother-in-law’s.” Clarke says he then told the defendant he would return shortly to pick up the remaining cord or one and one-quarter cords and the defendant told him “he wanted the wood removed as quick as possible so he could stack other wood there in case the wardens asked him about the wood he could say that it was his brother-in-law’s wood.” November 24, 2009 Clarke travelled back to Steve Denton’s residence with trailer noting there were still four piles and his pile was still there. He loaded about three quarters of cord, left with this load, unloaded it and then returned to the Denton residence at approximately 2:30 p.m. and picked up of the remaining wood, except for about 50 to 75 pieces. He testified that the wood in all of the loads was fire-killed pine cut to lengths of 12 to 18 inches with diameters of 10 inches to foot. December 1, 2009 Clarke called the defendant to place another order for smaller diameter wood. December 2, 2009 The defendant telephoned Clarke to advise that this wood was ready for pickup at the same location as previously. December 4, 2009 Clarke travelled to the Steven Denton residence to pick up the load of wood and on the way telephoned the defendant and discussed possible deal that would involve approximately 100 cords of wood. He told the defendant he would like to see the area where the wood was coming from. After loading the wood, Clarke arranged to meet the defendant at the Superstore parking lot in Prince Albert. At 2:37 p.m. the defendant arrived and they had conversation about potential purchase of 100 cords of wood. Clarke testified that: “Mr. Gitzel suggested, remember it now, that we take the wood, and instead of picking it up out in the bush, that we take it back to the yard because he said, quote, “We want to avoid Forestry. They want $15 per cord right off the top, and so far we’ve been lucky enough to avoid that.” And then said to him, “Is this wood coming off of private land?” and he said, “No, it’s off Crown land.” And later: “That evening, around 7:36 p.m., Mr. Gitzel phoned me again, or contacted me via cell phone, and he wanted to talk about the 100 cord proposal or deal. He suggested that what we do is we run two-trailered system that would bring up trailer, unhook it in the yard. He would fill the trailer full of wood, and then call me. would come up with second trailer, drop that empty trailer off, hook onto the full trailer, and take it back.” December 8, 2009 Clarke received message, in message manager on his cell phone, from the defendant wherein the defendant was inquiring about the 100-cord deal. There was subsequent conversation between the defendant and Clarke where Clarke told the defendant he wanted to arrange meeting with him to have the defendant take him out to the area where the wood would be cut because he wanted to see the wood and he wanted to be sure it was the right kind of wood. Arrangements were made to meet on December 10. December 10, 2009 Clarke contacted the defendant at 1:19 p.m. and the defendant said he was not able to go out into the bush to show them the wood, but his brother-in-law Steve was able to take him out. Clarke attended at the Steve Denton residence with another conservation officer. With Clarke driving and Steve Denton in the passenger seat, Steve Denton instructed Clarke where to drive and thereby they drove to fire-burnt pine stand in the Nesbitt Forest where there were signs of cut stumps. GPS coordinates were taken of the location and marked on Exhibit P-4. Clarke testified that, from his observation, 100 cords of wood could be taken from that area. December 14, 2009 Clarke telephoned the defendant and advised him that he would not be proceeding with the 100 cords as he could not get enough interest. The defendant told him not to worry about it as he had picked up two 20-cord deals over the weekend. The Defence Evidence [12] Neither the defendant nor Steven Denton testified. Thus, the evidence of the conservation officers is uncontradicted. [13] The evidence presented on behalf of the defence was as follows: Lloyd Smart Testified he had fire-killed wood on his private land and from 2006 through 2009 the defendant had permission to harvest that wood. He testified this wood was spruce and some tamarack. Ken Danger Testified that he had given the defendant and another individual permission, between 2007 and 2009, to cut any poplar or pine on some three-quarter sections of his privately owned pastureland, approximately 11 miles south of Shellbrook. Lee Schmalz Testified that he owned nine quarters of land eight miles south of Shellbrook and that in 2008 the defendant was taking firewood out of his land with his permission. He stated this firewood would have been spruce left over from logging operation not fire-killed wood. In return the defendant provided him with about 15 cords of firewood in 2008. Ken Olson Testified that he heated his home with wood furnace and harvested fire-killed jack pine from the provincial forest near Holbein including from the Crutwell burn in 2007 and 2008. To do this he borrowed the defendant’s half-ton truck to cut the wood and bring it out to the defendant’s yard where it was off-loaded and then loaded onto another larger truck to transport to his residence. Bert Gitzel Testified he is the defendant’s brother and lives in Martensville, Saskatchewan, where he heats his house with wood fired central heat furnace. In 2007, 2008 and 2009, the wood to do this came from Crown lands in the Holbein area. He testified that in 2007, he himself was involved in cutting the wood using the defendant’s half-ton truck, but in 2008 and 2009, the defendant did the cutting for him. In 2008 or 2009, the wood was stacked at Steve Denton’s place before being loaded into larger trucks or trailers for transportation to his residence. The Trial Decision [14] The trial judge delivered brief oral decision on January 12, 2011, shortly following the conclusion of the evidence and argument by counsel. In his reasons he stated that the charges against the defendant are strict liability offences and that once the prosecution has proven beyond reasonable doubt that the prohibited act has been committed, the defendant has to establish, on the balance of probabilities, that he had been duly diligent and took all reasonable care to avoid offending. [15] He made express findings of fact that: The defendant harvested wood, both from private land and Crown lands, during the times outlined in the Information. The defendant used wood to heat his own home. The defendant’s property was used to store wood for others. The defendant sold wood to the undercover operator Chris Clarke on November 20, 2009. This wood did not come from private land and the defendant was unlawfully trafficking in this wood. The defendant did not exercise due diligence in ensuring the wood he was providing to the undercover operator and the wood from the previous sales came from private lands. [16] The trial judge held that, after considering all of the evidence, he was not satisfied that during the period in the indictment, the Crown had proven beyond a reasonable doubt the actus reus on Count No. 1 of unlawfully harvesting forest products, nor Count No. 2 of unlawfully possessing forest products without a licence. He found that the Crown had proven, beyond a reasonable doubt, the actus reus on Count No. 3 of unlawfully trafficking in forest products, but he held that given the defendant’s own words to the undercover operator, he was not satisfied, on the balance of probabilities, the defendant was duly diligent to ensure that the wood he sold to the undercover operator and the previous sales (presumably referring to the previous 150 truckloads and the 58 truckloads he told Clarke he sold in 2008 and 2009) was wood coming from private lands. Thus, he convicted the defendant of unlawfully trafficking in forest products. [17] In his sentencing decision the learned judge stated there was no doubt the defendant broke the law “cutting this firewood when he should have had permit”, but he also cuts firewood from private property and heats his own home with firewood. He observed he could not see any damage to the environment but breach of the regulatory scheme merited penalty. He imposed fine of $1,000 with 40% surcharge. The Positions on the Appeals The Defendant’s Position [18] The defendant argues that having been found not guilty of illegally harvesting forest products and not guilty of possessing forest products without licence, it is illogical and inconsistent for the trial judge to have convicted him of illegally trafficking in forest products. He points out that the Crown has not appealed the acquittals and says the Crown is therefore estopped from disputing the correctness of the findings made on these issues. [19] The defendant argues that it is significant that when Clarke spoke with the defendant, on November 20, 2009, the defendant’s statement that he got his wood from Crown lands was in response to the question, “Where do you get your wood from?” (emphasis added). He argues that it was entirely legal for the defendant to acquire his firewood from Crown land and that this question and the defendant’s answer cannot be taken as an admission that the firewood he sold to Clarke or anyone else came from Crown lands. The Crown’s Position [20] In their factum and oral argument the Crown relied on the evidence of the November 20, 2009 conversation between the defendant and Clarke as establishing that the firewood the defendant sold to Clarke and the 150 truckloads he said he sold in 2008 and the 58 truckloads he sold in 2009 came from Crown lands. The Crown views the evidence of the conversation between Clarke and the defendant relating to the proposed 100-cord deal and the defendant’s statement to Clarke that this wood was going to come from Crown lands as confirmatory that the wood in the above-noted sales came from Crown lands. [21] In its submissions on the appropriate sentence or penalty, the Crown takes the position that the penalty should have been assessed on the basis of the illegal sale of 211 cords of firewood consisting of the 150 2008 truckloads, the 58 2009 truckloads and the three cords sold to Clarke. [22] The issues to be decided are as follows: 1. Having been found not guilty on Count Nos. and of the Information, can the defendant be found guilty of illegally trafficking forest products in relation to 150 truckloads sold in 2008, 58 truckloads in 2009, or the three cords sold to Clarke? 2. Can conviction for unlawfully trafficking in forest products contrary to s. 79(1)(f) of The Forest Resources Management Act result from negotiations for sale? 3. Can the defendant be found guilty of illegally trafficking in forest products on the basis of his negotiations with Clarke relating to potential sale of 100 cords, when that basis for finding of guilt was not specifically argued before the trial judge? 4. Should the defendant be found guilty of illegally trafficking in forest products on the basis of the evidence relating to the potential sale of 100 cords? 5. If properly convicted, what is the appropriate sentence or penalty? The Standard of Review [23] Summary conviction appeals such as this are determined by the Court of Queen’s Bench in accordance with s. of The Summary Offences Procedure Act, 1990, S.S. 1990‑91, c. S‑63.1, and ss. 812(1)(a), 813 and 822 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The powers of this court on appeal, set out in s. 686 of the Criminal Code, are made applicable by s. 822(1) of the Criminal Code. [24] In R. v. Lumbala, 2012 SKQB 64 (CanLII), [2012] S.J. No. 55 (QL), Schwann J. outlined the jurisdiction of this court as an appellate court in such matters as follows: Section 813 of the Criminal Code, R.S.C. 1985, c. C‑46, confers on defendants right of appeal to the Court of Queen’s Bench from convictions made against person in summary conviction matter and against sentence passed upon him. On appeals against conviction, an appeal court may only allow the appeal where it can be shown by the appellant that: 1) the verdict is unreasonable or cannot be supported by the evidence, 2) there was an error of law by the lower court, or 3) there was miscarriage of justice. (See Criminal Code, R.S.C. 1985, c. C‑46, s. 686 and s. 822) An appeal from conviction under s. 822 is an appeal on the record, that is, it consists of review of the transcript to determine if the trial judge made legal error. Put another way, an appeal is not “re‑do” or new trial on the charges before different level of court. On appeals against sentence, which are governed by s. 687 of the Criminal Code, appellate courts must show great deference in reviewing the decisions of trial judges, interfering to vary sentence only if the sentence is clearly unreasonable or demonstrably unfit. 10 The standard of review applied by an appellate court hearing summary conviction appeal is narrow one. An appellate court ought not interfere with decision of trial judge in the absence of palpable and overriding error. The trial judge is to be given proper deference on matters of credibility since the trial judge has the opportunity to see and hear witnesses. (see R. v. Bobyn 2010 SKQB 240 (CanLII), (2010), 357 Sask.R. 211, and R. v. Tesar, 2010 SKQB 449 (CanLII), (2010), 373 Sask.R. 13). [25] In the 2009 Saskatchewan Court of Queen’s Bench decision of R. v. Wilton, 2009 SKQB 405 (CanLII), 345 Sask.R. 81, Mr. Justice Popescul (as he then was), took occasion to review the standard of review for summary conviction appeals. In Wilton, Mr. Justice Popescul opined at paras. 7-12 that: [7] Section 812(1)(d) of the Criminal Code directs that summary conviction appeals in Saskatchewan are to be heard and determined by the Court of Queen’s Bench. The appellant, if defendant, can appeal from conviction, sentence or both. The appellant, if the Crown, can appeal from an acquittal or sentence. See s. 813 of the Criminal Code. [8] The powers of an appellate court, as set out in s. 686 of the Criminal Code, are made applicable to summary conviction appeals by virtue of s. 822(1) of the Criminal Code. [9] Pursuant to s. 686(1) of the Criminal Code, court may allow defendant’s appeal where the verdict is unreasonable and cannot be supported by the evidence, was based on wrong decision on question of law, or on any ground if there was miscarriage of justice. However, the defendant’s appeal ought to be dismissed where, although not properly convicted on an [sic] particular count, he was properly convicted on another count or where there was legal error made but no substantial wrong or miscarriage of justice occurred. [10] Pursuant to s. 686(5), court may allow Crown appeal where defendant was found not guilty by the court below due to an error in law. [11] On the factual grounds, the standard of review is whether there is evidence upon which trier of fact, properly instructed, could reasonably reach the verdict. See R. v. Bigsky (J.S.), 2006 SKCA 145 (CanLII), [2007] W.W.R. 99; 289 Sask.R. 179; 382 W.A.C. 179; 2006 SKCA 145, at para. 74. The appellate court ought not substitute its own view of the evidence for that of the trial judge. However, the appellate court is entitled to review, re‑examine and reweigh the evidence, but only for the purpose of determining if the evidence was reasonably capable of supporting the learned trial judge’s conclusion. See R. v. Burns (R.H.), 1994 CanLII 127 (SCC), [1994] S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C. (3d) 193. [12] On question of law, the standard is correctness, and the appellant court should intervene if the decision is not correct in law unless there has been no substantial wrong or miscarriage of justice that has occurred. See R. v. Henry (B.) (2006), 2006 SKQB 469 (CanLII), 286 Sask.R. 154; 2006 SKQB 469; R. v. Shepherd (C.), 2007 SKCA 29 (CanLII), [2007] W.W.R. 659; 289 Sask.R. 286; 382 W.A.C. 286; 2007 SKCA 29. i. Having been found not guilty on Count Nos. and of the Information, can the defendant be found guilty of illegally trafficking forest products in relation to 150 truckloads sold in 2008, 58 truckloads sold in 2009 or the three cords sold to Clarke? [26] Given that: i) the defendant was entitled to harvest dead wood from Crown lands for his personal heating; ii) there was no direct evidence establishing that the wood sold to Clarke or in the 150 and 58 truckloads contained any wood harvested from Crown lands; iii) there was no direct evidence that the defendant was in possession of illegally-harvested forest products; and iv) the finding that during the time period referenced by the Information, the defendant harvested and sold wood from private lands; jury could reasonably have found, as the trial judge found, that the charges of unlawfully harvesting or possessing were not proven. [27] The statement made by the defendant to Clarke that he obtained his wood from Crown land was sufficiently ambiguous that the court should not have taken this as an admission, proving beyond reasonable doubt, that the wood comprising the 150 or 58 truckloads or the Clarke sales came from Crown lands. In any event, as counsel for the defendant argues, the acquittals having been made and not appealed, the Crown is estopped from disputing the validity of the factual or legal issues made in respect of these acquittals. See R. v. Grant, 1991 CanLII 38 (SCC), [1991] S.C.R. 139, 67 C.C.C. (3d) 268, and Grdic v. The Queen, 1985 CanLII 34 (SCC), [1985] S.C.R. 810, 19 D.L.R. (4th) 385. [28] The learned trial judge then found the Crown had proven, beyond reasonable doubt, the actus reus of Count No. 3, unlawfully trafficking in forest products and said that given the defendant’s own words to the undercover operator he was not satisfied, on the balance of probabilities, that the defendant was duly diligent to ensure that the wood he sold to the undercover operator and the previous sales (presumably referring to the previous 150 truckloads and the 58 truckloads he told Clarke he sold in 2008 and 2009) was wood coming from private lands. With all due respect to the learned trial judge, I find this conclusion and reasoning to be in error. [29] am of the opinion that it was essential, for finding of unlawfully trafficking in forest products, in respect of those sales, that the Crown led evidence sufficient to permit the trial judge to conclude, beyond reasonable doubt, that either those sales were made intending that the wood comes from Crown lands or that among the firewood sold to Clarke or within the 150 or 58 truckloads, was wood that was harvested from Crown lands. There was no such evidence and thus, given the standard of review, this line of reasoning cannot support the conviction. The trial judge found the defendant harvested wood for firewood sales from private lands. The agreements for these sales would have had to contemplate the wood coming from Crown lands or the wood delivered would have had to include wood harvested from Crown lands for the offence of trafficking to be made out in respect of these sales. The evidence does not support such conclusion. [30] While in the circumstances one might speculate or even conclude as matter of probability that the sales in question included wood harvested from Crown lands, that is not good enough. There must be proof beyond reasonable doubt that illegally-harvested wood was in fact intended to be or was actually part of such sales for the offence of trafficking to be made out. There was no such evidence before the court. [31] The learned trial judge said that given the defendant’s own words to the undercover operator he was not satisfied, on the balance of probabilities, that the defendant was duly diligent to ensure that the wood he sold to the undercover operator and the previous sales (presumably referring to the previous 150 truckloads and the 58 truckloads he told Clarke he sold in 2008 and 2009) was wood coming from private lands. With all due respect, this was misapplication of the due diligence defence. It is only if the actus reus is proven beyond reasonable doubt, that considerations of whether due diligence has been proven arises. [32] Where an individual has been harvesting firewood from private lands for sale and firewood from Crown lands for personal consumption (being therefore wood lawfully harvested for that purpose but not lawfully available for sale) the strict liability aspect of the offence charged imposes duty on the vendor to ensure that he does not sell or permit to be included among firewood that he sells wood harvested from Crown land. If the Crown had proven that the wood in any of these sales included Crown land harvested wood, then the actus reus is made out and strict liability leads to the conclusion of such wood having been sold with the requisite mens rea unless the seller proves on the balance of probabilities that he exercised due diligence to ensure that the Crown forest products did not get mixed in. [33] Thus, conviction of the defendant of unlawfully trafficking in forest products on the basis of the sales to Clarke and the previous 150 and 58 truckloads referenced by the defendant cannot be maintained because the qualifying actus reus was not proven in respect of such sales. However, there is another aspect to the evidence that was not expressly considered by the trial judge and which does sustain conviction. It is trite law that an appeal is from the decision or result and not from the reasons. Thus, if the evidence establishes trafficking via another modality, then the conviction must nonetheless stand. ii. Can conviction for unlawfully trafficking in forest products contrary to s. 79(1)(f) of The Forest Resources Management Act result from negotiations for such sale? [34] Section 2(dd) of the Act defines “traffic” to mean “to offer for sale, sell, buy, exchange, barter, deal, solicit or trade”. Under s. 79(1) it is an offence to traffic in forest products originating from Crown lands without licence. The offence of trafficking as defined by these sections is complete if such forest products are offered for sale without licence. It does not matter that at the time you offer the product for sale that you have not illegally harvested or possessed such product. The offence is complete by offering the product for sale without licence. iii. Can the defendant be found guilty of illegally trafficking in forest products on the basis of his negotiations with Clarke relating to potential sale of 100 cords, when that basis for finding of guilt was not specifically argued before the trial judge? [35] As noted above, it is trite law that an appeal is from the decision or result and not from the reasons. Thus, if the evidence establishes trafficking via another modality, then the conviction must nonetheless stand. iv. Should the defendant be found guilty of illegally trafficking in forest products on the basis of the evidence relating to the potential sale of 100 cords? [36] The offence charged was unlawfully trafficking in forest products. The uncontradicted evidence is that the defendant was negotiating with Clarke to and had offered to sell him 100 cords of wood that he intended to come from Crown land. The defendant was in those conversations offering for sale, selling or dealing in forest products. His actions in those conversations meet the definition of “traffic”. The evidence also clearly establishes that the defendant was doing this with no intention of obtaining permit to harvest the wood to fill the order or obtaining licence to deal in forest products. [37] Under s. 86 of the Act in any prosecution the onus is on the person charged to prove the validity or existence of licence. The defendant led no evidence to establish he had either the required permit to harvest forest products from Crown lands or a licence or any form of authorization to deal in forest products. Thus, the evidence establishes beyond a reasonable doubt that the defendant was guilty of trafficking in forest products contrary to s. 79(1)(f) of the Act as charged. [38] While find the reasoning by which the trial judge convicted the defendant of trafficking to be flawed, nonetheless the defendant was, on the evidence, properly convicted of the offence of trafficking as charged. Therefore, the conviction stands. v. If properly convicted, what is the appropriate sentence or penalty? [39] The evidence establishes the defendant was illegally trafficking in 100 cords of firewood. The fact that the transaction never was completed is irrelevant. The offence was complete by the making of the offer. The clear intention of the defendant was to avoid the $15.00 per cord levy the Province would have imposed. Thus, he would, had the transaction concluded, have avoided payment of some $1,500.00 in provincial levies quite apart from being guilty of trafficking without licence. [40] Of even greater significance in the sentencing process than the actual levies sought to be avoided is the need to deter not only the defendant but other offenders from flouting the law. Accordingly, a fine equivalent to a levy avoided would be inappropriately low since the fine could not in those circumstances act as a deterrent to either the defendant or other offenders. [41] Factoring in that the defendant was in the offence he committed intending to avoid a charge or levy of $1,500, recognizing the deal that he was making did not conclude and thus he did not actually generate revenue from the proposed transaction and considering the need for a significant deterrent to the defendant and other offenders who are committing this offence on a commercial scale, I have concluded that in the circumstances of this case an appropriate fine is $5,000. Accordingly, the defendant shall pay a fine of $5,000. The defendant shall also pay a victim fund surcharge of 40% as required by s. 3 of The Victims of Crime Regulations, 1997, R.R.S. c. V-6.011 Reg. 1. The defendant shall have 60 days to pay the fine and victim surcharge imposed, and in default of payment shall serve a term of imprisonment of 90 days.

The defendant was charged with unlawfully harvesting forest products contrary to s. 79(1)(a) of The Forest Resources Management Act, unlawfully possessing forest products without a licence contrary to s. 79(1)(c) and unlawfully trafficking in forest products contrary to s. 79(1)(f) of the Act. He was acquitted of the first two charges and convicted of the third. He appealed his conviction. He was fined $1,000 with a 40% surcharge. The Crown appealed the sentence. The appellant argued that since he was acquitted of the related charges, it followed that he should not have been convicted of trafficking. The charges had arisen as a result of a lengthy undercover investigation into the activities of the appellant. He was known to be harvesting fire kill in the Nesbitt Forest, which was Crown land. He stored wood on his property and on that of a relative. If the appellant was using it himself, he did not require a permit. The undercover conservation officer purchased fire wood from the appellant, who told the officer that the wood was from Crown land in an answer to officer's question whether it was cut on private land. The appellant did not testify at his trial nor did his relative and so the evidence of the conservation officer was uncontradicted. The evidence presented on his behalf was from individuals who had purchased wood from the defendant. The trial judge held that the charges against the appellant were strict liability offences and once the Crown had demonstrated beyond a reasonable doubt that the prohibited acts had been committed, the appellant had to establish on the balance of probabilities that he had been duly diligent and took all reasonable care to avoid offending. With respect to the first two charges, the trial judge held that he was not satisfied that during the period described in the indictment that the Crown had proven the actus reus of the offences but that it had on the third count, based on the appellant's own words to the officer. The appellant argued on appeal that his words could have been taken to mean that he was describing where he harvested wood for his own use and therefore his statement was not an admission that he sold wood to the officer or anyone else from Crown lands. HELD: The Court held that the trial judge erred in his reasoning and conclusion that appellant was guilty of trafficking because he had not been duly diligent. It is only if the actus reus was proven beyond a reasonable doubt that the considerations of whether due diligence had been proven would arise. The conviction could not be maintained because the qualifying actus reus was not proven. However, the other aspect of the evidence, which was not expressly considered by the trial judge and which would sustain a conviction, was if evidence established trafficking via another modality. Since s. 2(dd) of the Act defines 'traffic' to mean 'to offer for sale, barter, deal, solicit or tradeà' and s. 79(1) states that it is an offence to traffic in forest products from Crown land without a licence, then the offence is complete by offering the product for sale without a licence. The appellant led no evidence to establish he had either the required permit to harvest forest products from Crown lands or a licence or any other form of authorization to deal in forest products. Thus, the evidence established beyond a reasonable doubt that the appellant was guilty of trafficking in forest products contrary to s. 79(1)(f) of the Act. The conviction was upheld. Regarding sentencing, the Court held that it was important to deter other offenders. The trial judge's sentence of a fine equivalent to the levy avoided (the provincial charge per cord of wood) was inappropriately low. The Court set the appropriate fine at $5,000 plus a victim fund surcharge of 40% as required by s. 3 of The Victims of Crime Regulations. If the fine was not paid within 60 days, the appellant would serve a term of imprisonment of 90 days.

7_2012skqb510.txt

2002 SKPC 50 IN THE PROVINCIAL COURT OF SASKATCHEWAN NIPAWIN, SASKATCHEWAN IN THE MATTER OF DNA WARRANT APPLICATION DATED FEBRUARY 27, 2002 AND IN THE MATTER OF SECTION 487.05 OF THE CRIMINAL CODE Gary Parker, Esq........................................................................................... Appearing for the Crown DECISION FEBRUARY 27, 2002 B. D. HALDERMAN, P. C. J. Application for DNA Warrants. 487.05 Criminal Code February 27, 2002 FROM THE TRANSCRIPT: [1] THE COURT: Now, we have number of matters, criminal matters and Small Claims matters to be dealt with this afternoon. Prior to doing that, there is an application with respect to search warrant that is to be made by the prosecutor and that ought to be made in camera, and so I’m accordingly going to direct that the courtroom be cleared. It will take, think, very few moments and then people can come back in. And, Mr. Parker, as understand, the court has been the courtroom has been cleared. think this ought to properly proceed in camera and ex parte as in an ordinary warrant application. This is an application for DNA warrant? [2] MR. PARKER: That’s correct, Your Honour. It’s and I’m here simply to ask that the officer be allowed to swear the Information to Obtain the Search Warrant before you. And the reason say that is that’s been the long-standing practice and respect and understand the gist of what your protocol [[2002] S. J. 54 (Q. L.)] is trying to avoid, however my reading of the Code section and my understanding of the practice and my reading of Form 5.01 suggest that the officer has to appear before you to swear the Information to Obtain. I, after reading your protocol, thought that could instruct him to just swear the Information to Obtain before Commissioner of Oaths, but then when began reading the section and reading the form itself THE COURT: Do you see anything in the section, Mr. Parker, as opposed to the form? My reading of the various sections on warrants says that it shall be Information on oath. [4] MR. PARKER: Right. THE COURT: It’s the forms that say, “Sworn before me” which would clearly make it [6] MR. PARKER: Yes. [7] THE COURT: the judge. [8] MR. PARKER: Perhaps it’s only the form that says, “Taken before me” think is precise terminology. [9] THE COURT: Yes. [10] MR. PARKER: The if didn’t bring my Code in, and applied for s.487.05. do recall specific information on oaths but thought there was there may be another part, if could just grab it. Well, here the (inaudible). The first line says, “A Provincial Court Judge who, on an ex parte application, may in Form 5.01,” so the form is right incorporated into the section itself. guess Your Honour, to speak to the protocol for moment, which I’m assuming is sort of guideline as distinct from firm precedent, if these applications are brought in court as we’re doing now, in camera, and the tape is on, then think any concern about tainting just can’t occur and can give instructions to the members that they’re not to speak to you in terms of the grounds but rather just to ask to swear the Information. And that’s the practice I’m going to, at this time, be suggesting and intend to look into this further. sent copy of your protocol to our head office and, you know, I’ll continue to review my position and advise in due course, but when the tape is on like this what we used to tell haven’t had lot of involvement with warrants but articled with federal Justice and they ran into some trouble years ago then because the Information had to be on oath under oath and you’d learn that the police officers had talked to the judge. And so then what one practice that think went on for awhile was we instructed the officers if they give any Information to the judge, ask for the Bible and ask the judge to swear you in so that any conversation is at least provided on oath too. And, you know, don’t know what happened to that practice, if that’s what they do now or not, but think we tend to do the same by way of paper and that’s the preferred practice. In fact the section for this type of warrant says in writing, think. [11] THE COURT: Very well. Anything further on the terms of argument? [12] MR. PARKER: The only other part of the protocol that caused me concern was it appeared to me that you wanted, right in the Information to Obtain, when we wanted to execute the warrant. And the only problem with that is how do we know how long you’re going to require with the material? [13] THE COURT: Well, that’s true. My own view of that is that if there is something in general terms set out as to when and how many days it’s going to take or whether that needs to be done at night or whatever [14] MR. PARKER: Yes. [15] THE COURT: that in general terms can be set out and if it’s clear to the judge that it either needs to be happening the same day or the next day or very quickly, that needs to be in the Information. [16] MR. PARKER: see. [17] THE COURT: wouldn’t anticipate that there will be any procedural or substantive impediment to the actual issuance. But I’ve had, I’ve had an experience, for example, where there wasn’t anything put into the it was left blank as to when it was to be executed and then when the officer attended to pick it up and put that in and they attended on me, then found out number of other things just because conversations immediately take place which [18] MR. PARKER: Right. [19] THE COURT: which sort of speaks to the whole issue that dealt with and the various cases that referred to deal with. So it seemed to me that the better practice is to put as much as you can in the Information. [20] MR. PARKER: Yes. [21] THE COURT: Obviously if there’s specific problem that you can’t that the officer can’t set out with particularity when he’s going to need to do this for some good reason, then that should be set out as well. [22] MR. PARKER: Okay. THE COURT: don’t think that will turn out to be problem. [24] THE COURT: Well, understand your argument, Mr. Parker, but before you do depart, I’m of the view, for the reasons really that are set out, I’ve had occasion just to look at my computer copy of the decision that I’d handed down on the 21st of January. looked at it this morning. And I’m of the view that paragraphs 13 to 16 of the decision cover the point that you’re making. I understand -- and I did when I made the order -- that s.487.05 of the Code with respect to DNA warrants does have reference to a form and Form 5.01 which is related to that, and that’s specifically set out in the Code. And the form indicates, as you’ve indicated this afternoon, that it’s an Information that’s “taken before me”, me being the Provincial Court Judge. I’m of the view, especially because s. 487.1, which is the general warrant provision, doesn’t have a form, but even if it did have a form and it used the same words, “taken before me”, that to require that the Information be sworn before the Provincial Court Judge elevates form over substance in a significant way, particularly in the context of the concerns that I raised in that decision about the potential prejudicial or negative effects of a personal attendance before the judge. It’s my view that those potential negative effects or results outweigh any supposed requirement to swear the Information before the judge. And looking at it in terms of substance, it seems to the Court that to ask the question, “Is there any more truth in the officer’s affidavit of Information because he swore it before a provincial -- before a Commissioner of Oaths or a Notary Public,” the answer is self-evident. The oath is the oath. [25] MR. PARKER: Right. [26] THE COURT: And that’s even in light of various recent opinions by various courts about what the value of an oath is any more. [27] MR. PARKER: Sure. [28] THE COURT: But regardless of that side issue, it seems to me the oath is perfectly as valid taken before a commissioner or a notary as it is before me. It gets sworn Information before the judge, on which he or she can act, and it avoids all of the possible problems that relate to the personal attendance, and I take your point about, about the tape recording getting around a good part of that. It just seems to me that in practical terms it makes for much speedier dealing with the Information and the application if the sworn Information is delivered or faxed in secure way to the judge and then the judge can immediately deal with it and not have to have the officer come and appear at all and swear it. So my conclusion as result of having looked at the issue in some detail, before wrote the decision and in light of your submissions this afternoon, the intention is to make the protocol work in as flexible fashion as it can, not impeding the police in their legitimate role but making sure that the Court maintains its independence. And am of the view that it’s simple matter, for example, in Form 5.01, for me to cross out, “taken before me”. It’s nevertheless on sworn Information and it’s in accordance with the Code. And to deal with Informations, except in emergency situations as provided for in that protocol [29] MR. PARKER: Okay. [30] THE COURT: by way of something that’s been sworn before it gets before the judge END OF PROCEEDINGS ON TAPE RECORDER (EDITED)

An application for a DNA warrant on the basis s.487.05 (the general warrant provision) of the Criminal Code with respect to DNA warrants does not refer to a form. The applicant suggested a tape recording would avoid the potential problems in bringing the application before a Provincial Court Judge. HELD: These concerns were raised in the January 21 decision concerning potential prejudicial or negative effects, which outweigh any requirement to swear the Information before a judge. An oath taken before a commissioner or notary is as valid as it is before a provincial court judge and avoids all the possible problems that relate to personal attendance. The intention is to make protocol work as flexible as possible, not impeding the police in their legitimate role, while making sure the court maintains its independence. Form 5.01 is specifically set out in the Code. Section 487.1 does not have a form, but even if it did and used the same words 'taken before me', that would elevate form over substance in a significant way.

b_2002skpc50.txt

J. Q.B. A.D. 1994 No. 3853 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF AN APPLICATION BY THE APPLICANT, INTERCONTINENTAL PACKERS LTD., TO SET ASIDE AN ARBITRATION AWARD MADE IN RESPECT OF THE APPLICANT AND THE RESPONDENTS, UNITED FOOD COMMERCIAL WORKER'S INTERNATIONAL UNION LOCAL 248-P AND FRED CUMMING BETWEEN: INTERCONTINENTAL PACKERS LTD. ("Intercon") and UNITED FOOD COMMERCIAL WORKER'S INTERNATIONAL UNION, LOCAL 248-P (the "Union") and FRED CUMMING (the "Grievor") RESPONDENTS W.T. Molloy, Q.C. for the applicant G. Bainbridge for the respondent FIAT LAING J. March 27, 1995 This is an application for judicial review of aunanimous arbitration award by a three-person panel datedDecember 1, 1994 which reinstated the respondent Cumming as anemployee of the applicant. The parties, including the respondent Union had entered into "mutual agreement" dated January 12, 1993 which was back-to-work agreement for the respondent grievor following his termination as an employee on October 1, 1992. The grievance considered by the Arbitration Board in this matter resulted from the grievor again being terminated by the employer on August 14, 1993. The applicant takes the position that the "mutual agreement" was what is colloquially referred to as "last chance agreement". It states that based on this agreement and the evidence lead at the hearing, the Arbitration Board was obliged to uphold the termination. The application raises the question of the standard of judicial review applicable to the Board's interpretation of the mutual agreement document, and to the award in general. THE AWARD i) Facts Found By The Board The respondent grievor commenced his employment with the applicant on October 5, 1970. Prior to the year 1992 his discipline record consisted of one 10-hour suspension for insubordination in the year 1991. In the year 1992 the respondent grievor and his wife divorced. On August 27, 1992 he submitted his resignation to the company. The Board found: What apparently precipitated the Grievor resigning from Intercon was his involvement in difficult divorce proceeding with his spouse, over which his Employer had been served with Notice of Continuing Garnishee, and that the Grievor had received second impaired driving conviction, for which he was to be sentenced to weeks at St. Louis. Representatives of the applicant contacted the grievor and convinced him not to quit. The evidence at the hearing was that he had been valuable, and for the most part trouble- free employee prior to August 1992. It was agreed that he would be suspended indefinitely, which would allow him to attend the impaired driving treatment program at St. Louis, and that he would enter into an agreement spelling out conditions for his return to work. The conditions included alcohol counselling, abstinence from alcohol, attendance at AA meetings, etc. The grievor acknowledged he had drinking problem and was prepared to sign the agreement, as was the Union. After the grievor returned to work and prior to the mutual agreement being signed, the grievor on October 1, 1992 left work one hour early at 3:00 p.m. without authorization and without notifying the employer. He had punched his time card when he entered in the morning which showed his time out at 4:00 p.m. that day. He gave as his reason for leaving one hour early that he wished to consult his lawyer. found: At this time, the Grievor was having continual difficulties in his divorce proceedings and ultimately replaced lawyers. The grievor was terminated for the foregoing infraction on October 7, 1992. He filed grievance. The grievance was resolved by the parties entering into new mutual agreement for two-year period dated January 12, 1993. This agreement included the terms referred to in the earlier agreement and included clause that he would not be absent from work without leave. The agreement concluded with the clause: Failure to follow the above plan will result in disciplinary action being taken by the Company, up to and including discharge. As noted by the Board, the grievor's termination for leaving work one hour early became three-month suspension without pay. The grievor carried out the terms of the mutual agreement until Saturday, August 14, 1993 when he again absented himself from work without authorization and without notifying the applicant. The grievor had learned day or two earlier, that his application to vary maintenance order had been unsuccessful. He testified that he was extremely stressed out and wanted to be away from everyone. He went to friend's house and helped him lay bricks all day. He was found there by the president of the Union at 5:00 p.m. that date. The Union president testified that "the grievor was not himself". The grievor proceeded to tell the Union president his various matrimonial problems. By memo dated August 18, 1993, the grievor was terminated. He filed grievance. ii) Issues Addressed by the Board The Board ruled that the mutual agreement was not a"last chance agreement". It stated its reasoning as follows: While it is true clause 2(10) of the Mutual Agreement states "failure to follow the above plan will result in disciplinary action being taken by the Company up to and including discharge", this clause must be compared to the clause previously used by Intercon in Mutual Agreement as set out in Arbitrator Stevenson's decision in U.F.C.W. Vanhouwe and Intercontinental Packers Ltd. (Unreported decision May 25, 1990) wherein the Mutual Agreement provided "failure to follow the above plan of action will result in immediate dismissal." The Employer gave evidence that they had made it clear to the Grievor that if he failed to abide by the Mutual Agreement his position would be terminated. The Grievor acknowledged that this was also his understanding. However, the Mutual Agreement does not reflect this position. The Mutual Agreement provides for range of discipline, not just dismissal. With respect, the Employer cannot submit that it verbally intended one thing but entered into contract stating something else. For the Mutual Agreement to preclude this Board from acting, the clause would have read something to the effect that "failure to follow the above plan will result in immediate dismissal, and the Parties agree that Board of Arbitration will have no authority to interfere with the terms of this Mutual Agreement." The Board next considered whether the penalty imposed was appropriate. They acknowledged the grievor was guilty of serious infraction which breached the mutual agreement, as well as letter of understanding between the applicant and the Union that employees would notify the company if they were to be absent from work due to illness or any other reason. They accepted the grievor's testimony that he was "stressed out". The Board stated: This testimony is accepted in that it is consistent with his previous actions such as quitting when faced with garnishee summons at work and two week sentence at St. Louis. The Board went on to say: Given the Grievor's "capacity" on August 14, 1993, this Board finds the penalty of discharge excessive, especially when coupled with the Grievor's years of seniority and previous disciplinary record. Given this Board's finding in regard to the Grievor's "capacity" on August 14, 1993, this Board is not prepared to accept that the August 14, 1993 incident amounted to culminating incident. Therefore, this Board rulesthat the Grievor be reinstated to hisformer position immediately. However, theGrievor shall receive no compensation. The period from August 18, 1993 to thedate that this Award shall be treated as asuspension. The penalty imposed therefore was a suspension without pay forapproximately 16 months. STANDARD OF REVIEW The standard of review applicable to consensual arbitration boards in this Province since Shalansky and Saskatchewan Union of Nurses v. Regina Pasqua Hospital (1983), 1983 CanLII 117 (SCC), 22 Sask. R. 153 (S.C.C.), with respect to interpretation of the contract submitted to the consensual board is the patently unreasonable test, absent jurisdictional or procedural fairness issues. This test was reaffirmed in Canada Post Corp. v. Public Service Alliance of Canada (1991), 93 Sask. R. 92 (Sask. C.A.) and more recently in Yorkton Union Hospital v. Sask. Nurses Union (1993), 1993 CanLII 6637 (SK CA), 109 Sask. R. 198 (Sask. C.A.). The "patently unreasonable" test was recently commented on by Sopinka J. in C.J.A. v. Bradco Construction Limited (1993), 12 Admin. L.R. (2d) 15 at p. 187, speaking on behalf of the court wherein he stated: patently unreasonable error is more easily defined by what it is not than by what it is. This Court has said that finding or decision of tribunal is not patently unreasonable if there is any evidence capable of supporting the decision even though the reviewing court may not have reached the same conclusion (W.W. Lester (1978) Ltd. v. U.A., Local 740, 1990 CanLII 22 (SCC), [1990] S.C.R. 644, at pp. 687-688), or, in the context of collective agreement, so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear (Bradburn, supra, per Laskin C.J., at p. 849). What these statements mean, in my view, is that the court will defer even if the interpretation given by the tribunal to the collective agreement is not the "right" interpretation in the court's view nor even the "best" of two possible interpretations, so long as it is an interpretation reasonably attributable to the words of the agreement. Or, as stated by Dickson J. in C.U.P.E., Local 963 v. New Brunswick Liquor Corp., [1979] S.C.R. 227, at p. 237: was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? In this case, Sopinka J. pointed out that the test refers to questions of law related to the interpretation of the collective agreement and does not necessarily apply to the interpretation of statute or rule of common law. At p. 184 he stated: the rationale for deferring to an arbitrator's interpretation of collective agreement does not necessarily apply to afford deference to finding of law made by the arbitrator, when this involves interpretation of statute or rule of the common law. Generally, these are not matters within the expertise of the arbitrator, and in the absence of legislative intention that deference should be paid to findings of law made by an arbitrator, such findings would be reviewable on standard of correctness. In this regard, distinction can be drawn between arbitrators, appointed on an ad hoc basis to decide particular dispute arising under collective agreement, and labour relations boards responsible for overseeing the ongoing interpretation of legislation and development of labour relations policy and precedent within given labour jurisdiction. To the latter, and other similar specialized tribunals responsible for the regulation of specific industrial or technological sphere, greater degree of deference is due their interpretation of the law notwithstanding the absence of privative clause. (emphasis added) The foregoing statements by Sopinka J. were preceded by the remarks of La Forest J. speaking on behalf of the majority in Dayco (Canada) Ltd. et al. v. C.A.W. (1993), 102 D.L.R. (4th) 609 (S.C.C.), wherein he stated at pp. 633-634: As noted in Canada (Attorney- General) v. Mossop (1993), 100 D.L.R. (4th) 658, while courts will defer to arbitrators or other tribunals on certain determinations of law having regard to their relative expertise or to the role or functions accorded to them under their constituent legislation (including issues relating to efficiency), other more general questions of law unrelated to these factors do not call for the same level of judicial deference. For the purpose of deciding whether question is one on which deference should be shown, the courts may have recourse to many of the same factors that have been used in pragmatic and functional approach to jurisdiction. THE TEST APPLICABLE TO THE MUTUAL AGREEMENT The question that arises, is whether interpretation of the mutual agreement falls within the core area of expertise attributed to labour arbitrators, in which case the standard of review is patent unreasonableness or outside of such area, in which case the standard is one of correctness. The applicant suggests the latter. It relies on the comments of Sopinka J. and La Forest J. set out in the foregoing and states that the mutual agreement must be interpreted according to the principles of common law. The test is, therefore, one of correctness. am not able to agree. Once it is conceded, as it is, that labour arbitrators are entitled to deference in applying common law principles of interpretation to the provisions of collective agreement, it seems to me to follow that such deference would apply equally to the interpretation of any negotiated contract arising out of the same agreement. To hold otherwise would be to apply more stringent standard in the interpretation of subsidiary agreements, than that which applies to the master agreement. Such conclusion would not make sense as matter of principle or as matter of policy. For this reason alone am not able to subscribe to the same. If the arbitrator hasthe expertise to interpret the collective agreement, it mustfollow that such person has the expertise to interpret anysubsidiary agreements that arise out of the collectiveagreement. I therefore hold that the standard of review withrespect to the Board's interpretation of the mutual agreementis one of patent unreasonableness. For the reasons that ariseout of the discussion which follows, I hold it was notpatently unreasonable. If I am wrong in the foregoing analysis, and thetest is one of correctness, I would nevertheless hold that theBoard was correct in arriving at the interpretation it did. The applicant's submission is that the mutual agreement is "last chance agreement". Its argument in this respect is not based on the wording of the agreement, but the fact that it advised or warned the respondent Cumming that if he breached the agreement he would be fired. It seeks to elevate this statement of intention on its part to reflection of the intention of the parties based on the fact that the respondent Cumming acknowledged that he received such warning. The understanding by the respondent Cumming that the applicant would fire him if he breached the mutual agreement, does not mean that he agreed with what he had been told. If there was evidence of positive agreement on his part the same is not evident from the award or in the material made available on this application. If there was such an agreement, assume the applicant would have argued that the written contract was amended by an oral agreement between the parties, which it did not do. In the absence of oral agreement the question may be asked on what basis such statement of intention on the part of the applicant to the respondent grievor was even admissible before the Board. The parole evidence rule precludes the receipt ofverbal evidence offered for the purpose of adding to,subtracting from, varying or qualifying in any manner theterms of the written document (Cross on Evidence, 6th ed., p.61). Does the statement the applicant wishes to rely uponbreach this fundamental rule? With respect, it does, if it isoffered for the purpose of qualifying clause 10 of theagreement which provides for a range of discipline andsubstituting therefore the word "dismissal". The only basis for the receipt of oral evidence with respect to the terms of written contract is in the event there is an allegation of intrinsic or extrinsic ambiguity in its terms. No such allegation was made on this application and indeed the wording of clause 10 is very straightforward and would not admit of such an argument. There is therefore, no basis for the admissibility of an oral statement of intention on this account. The applicant's statement to the grievor of its intention, was admissible before the Board for the purpose of supporting its argument that termination was the appropriate penalty, given the fact that the grievor was warned this could occur. However, it seems to me, the statement was inadmissible for any other purpose. For the foregoing reasons, conclude that the Board's interpretation of the mutual agreement with respect to clause 10 was correct. CULMINATING INCIDENT In the alternative, the applicant took issue with the fact the Board refused to apply the doctrine of culminating incident and conclude that on the basis of the respondent grievor's employment record, the final incident justified termination of his employment. The Board's reasoning in this respect is set out at p. of this decision. It will be noted that it took into account all relevant factors, including the quality of the "offence" bearing in mind what it perceived to be the grievor's lack of "capacity" on the day he absented himself, his seniority record, and his disciplinary record. To theextent the Board concluded that it was not "prepared to acceptthat the August 14, 1993 incident amounted to a culminatingincident" I interpret this to mean that taking into accountthe grievor's absence from work on August 14, 1993, togetherwith his previous employment record, the appropriate penaltywas not discharge. This it was entitled to do. The application is dismissed with one set of costs to the respondents.

FIAT An employer sought judicial review of a unanimous decision by an arbitration board ordering the reinstatement of an employee. The employee had previously been terminated and then reinstated by the mutual agreement of the union and the employer. The employee was then terminated a second time for a repeat infraction. The employer took the position that the agreement was a 'last chance' agreement and that the arbitration board was therefore required to uphold the second termination. The Board ruled that the agreement was not a 'last chance' agreement because the agreement stated on its face that a further infraction would result in 'discipline up to and including dismissal'. The Board therefore reinstated the employee but imposed a 16 month suspension, without pay. HELD: 1)On issues involving the interpretation of a collective agreement, an arbitration board's decision can only be overturned if it is patently unreasonable. If there is any evidence on the basis of which the board could have found as it did then its decision should not be interfered with, even if the Court would have come to a different conclusion on the same evidence. 2)Decisions involving the interpretation of a statute or the common law, however, are not within an arbitrator's core area of expertise and should therefore be reviewed with reference to the standard of correctness. 3)In this case, the 'mutual agreement' was subsidiary to the collective agreement and its interpretation was therefore within the core area of the arbitrators' expertise. The standard to be applied to the board's interpretation of the mutual agreement was therefore one of patent unreasonableness. 4)The employer's evidence that it had verbally advised the employee that he would be fired for any repeat infraction was rightly rejected as contravening the parol evidence rule. The board's interpretation of the mutual agreement was therefore not patently unreasonable and in fact was correct. 5)The board was also entitled to reject the employer's argument based upon the doctrine of 'culminating incident' and it did not act unreasonably in so doing.

b_1995canlii5809.txt

Justice 1995 S.P. No. 03334 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: BERTHA JUNE LANGILLE and MIDWAY MOTORS LIMITED, and CATHERINE AUBRECHT, Administratrix of the Estate of KARL FRANCIS AUBRECHT, deceased, and GUARDIAN INSURANCE COMPANY OF CANADA and WILLIAM VINCENT PARIS DEFENDANTS HEARD: heard before the Honourable Chief Justice Joseph P. Kennedy, Supreme Court of Nova Scotia, Pictou, Nova Scotia, May 17, 18, 19, 20, 21, 1999 DECISION: November 20, 1999 DECISION RELEASED: November 22, 1999 COUNSEL: Jean McKenna, solicitor for the defendants Milton J. Veniot, Q.C., solicitor for the plaintiff KENNEDY, C.J.: There is no dispute as to the motor vehicle accident that resulted in this action. On October 9, 1993, at approximately 10:45 a.m., William Vincent Paris (Vince) was driving on the Trans Canada Highway at James River, Antigonish County, when his vehicle was hit “head on” by vehicle operated by Karl Aubrecht. The plaintiff, Bertha Langille, 40 years of age at the date of the accident, is the common law wife of Vince Paris. She was passenger in the Paris vehicle. She was injured as result of the accident. She sustained fractures to both of her wrists and broke her left ankle. Bertha Langille started an action against the Aubrecht Estate, Midway Motors Ltd. (the owner of the Aubrecht vehicle), Mr. Paris, and the Guardian Insurance Company, Mr. Paris’ insurer. (Guardian) It is Bertha Langille’s claim against Guardian, pursuant to Schedule “B” of the Paris insurance policy, that is the subject of this trial. Schedule “B” to Part VI (Automobile Insurance) of the Insurance Act, R.S.N.S., 1989, c. 231, is incorporated into the standard automobile policy for Nova Scotia and forms part of the Paris insurance policy. Its relevant portions read as follows: “The Insurer agrees to pay to or with respect to each insured person as defined in this section, who sustains bodily injury or death by an accident arising out of the use or operation of an automobile. *** Part II Loss of Income Subject to the provisions of this Part, weekly payment for the loss of income from employment for the period during which the insured person suffers substantial inability to perform the essential duties of this occupation or employment, provided: (a) such person was employed at the date of the accident; (b) within 30 days from the date of the accident and as result of the accident the insured person suffers substantial inability to perform the essential duties of his occupation or employment for period of not less then seven days; (c) no payment shall be made for any period in excess of 104 weeks except that if, at the end of the 104 week period, it has been established that such injury continuously prevents such person from engaging in any occupation or employment for which he is reasonably suited by education, training or experience, the Insurer agrees to make such weekly payments for the duration of such inability to perform the essential duties. Amount of Weekly Payment The amount of weekly payment shall be the lesser of, (a) $140 per week; or (b) 80 per cent of the insured person’s gross weekly income from employment, less any payments for loss of income from employment received by or available to such person under, (i) the law of any jurisdiction, (ii) wage or salary continuation plans available to the person by reason of his employment, and (iii) subsection 2A, but no deduction shall be made for any increase in such payment due to cost of living adjustment subsequent to the insured person’s substantial inability to perform the essential duties of his occupation or employment.” For the purposes of this Part “(3) person shall be deemed to be employed, (a) if actively engaged in an occupation or employment for wages or profit at the date of the accident; or (b) if 18 years of age or over and under the age of 65 years, so engaged for any six months out of the preceding 12 months and in these circumstances shall be deemed to have suffered loss of income at rate equal to that of his most recent employment earnings.” Bertha Langille claims this part of the policy applies to her. She submits that she was employed at the date of the accident, and that the injuries that she sustained, while passenger in the Paris vehicle, have resulted in “the substantial inability to perform essential duties of her employment” and further, that after the 104 week period, the injuries continuously prevent her from engaging in any employment for which she is suited. She seeks, therefore, compensation for loss of income from employment. “EMPLOYED AT THE DATE OF THE ACCIDENT” Before Bertha Langille can lay claim to any benefit under this provision of the policy, she must show, on the balance of probabilities, that she was “employed for wages at the date of the accident.” It is the position of the defendant that she has not done so. In fact, Guardian compensated Bertha Langille under this provision of the policy, in the amount of $140.00 per week for 129 weeks, having at first accepted the claim that she was employed at the time of the accident. The defendant, after the 129 week period, cut off those payments, on medical grounds, but then came to believe that she had not been so employed. The defendant has good reason to question the plaintiff’s evidence as to employment at the time of the accident. The initial claim made to Guardian on behalf of Bertha Langille, was made by Vince Paris, while Bertha Langille was still hospitalized. He first spoke to the adjuster, Jim Mitchell, within days of the accident. Mr. Mitchell testified that Mr. Paris told him at that time, that his wife Bertha Langille had three jobs; that she did the books for security business that he ran; that she did the books and worked with him in laundromat business that he owned, and that she did private housekeeping full time. handwritten statement that Vince Paris made to support the claim on October 18, 1993, nine days after the accident, is evidence in this matter. (Exhibit 10, Tab 3) In it, relative to Bertha Langille’s employment, he states: “I also own and manage A. R. Laundromat at 295 MacColl St., New Glasgow. It is open seven days week from o’clock in the morning to 10:30 in the evening. My wife and split the laundromat hours. Usually 47 hours each per week. The laundromat usually nets us $1,200.00 to $1,500.00 per month.” and subsequently, “Besides working at the laundromat, my wife cleans houses for $8.00 per hour. She worked 40 hours week for various individuals. She also works on average 7.5 hours week at security work for Quick-Pick stores at $11.00 per hour. Also, she worked on my ‘Burger Bus’ during ball tournaments. paid her $9.00 per hour.” It was in response to these claims by Vince Paris that Guardian began to make the loss of income payments to Bertha Langille. Some of the information that Mr. Paris provided is not correct. For instance, Bertha Langille never, at any time did the books for any business. She never was employed at the laundromat. She testified at trial, “that isn’t true, didn’t tell them that that was Vince, not me. The most ever did at the laundromat was go in and look around and sometimes helped clean up at night.” She stated that she received no payment for this. She also testified that she was not working security at the time of the accident. She pointed out that she was not the source of that information either. As to housekeeping, the evidence is at best, confusing. Vince Paris had claimed that she was doing this job 40 hours week this isn’t correct. Bertha Langille admitted that she only did housekeeping part-time. The adjuster, Jim Mitchell testified. He had written report to Guardian dated March 30, 1994. (Exhibit 10, Tab 4) By this time he had interviewed Bertha Langille directly. In that report he states at p. 3: “Contrary to the information that had been provided us by Vincent Paris, Mrs. Langille had not started work for the three families for whom she does housework. She does that work during the fall and winter and she tells us that she was about to start back, but had not started to receive any payment at the time of the accident.” At her discovery on March 17, 1997, (Transcript, p. 71), Bertha Langille testified that she was not doing housework at the time of the accident, but was going to do so in the fall and winter. This is consistent with her statement to Mitchell. At trial though, Bertha Langille testified that she was mistaken when she said at discovery that she was not doing housework at the time of the accident. She stated that she now remembers that she had continued to do housekeeping right up until the time of the accident. Unlike the laundromat and bookkeeping claims, there is evidence that Bertha did do housekeeping at times, however none of the income she earned from this type of employ was ever reported for income tax or unemployment insurance purposes. Because of the contradictory evidence, cannot find on the balance of probabilities that Bertha Langille was doing housekeeping for income at the time of the accident. THE ‘BURGER BUS’ The ‘Burger Bus’ operation is central to the plaintiff’s claim. Vince Paris, in November of 1992, had purchased mobile fast-food canteen operated out of converted school bus. This so-called ‘Burger Bus’ which he operated under the name “Big Ray’s Take Out,” was new venture. The first year that Paris operated it was 1993. It was taken to fairs, sporting events, festivals, places where crowds gathered and people got hungry. Bertha Langille did work in this business during the year 1993; the defendant, Guardian acknowledges this. What is in issue is the extent of her involvement and the remuneration that she received. Further, the defendant argues that she has not shown that she was so employed at the time of the accident. Again, the evidence is contradictory. It is of significance that in conversation with the adjuster days after the accident, when Vince Paris speaks of the three jobs that his wife had, he does not mention the ‘Burger Bus’. Bertha Langille testified at trial that she “ran the bus.” She worked stocking inventory, preparing the food, short-order cooking and serving the customers. She said at trial that the bus first operated for business sometime in January of 1993, when it was set up on her father’s property, outside of Pictou. She said they operated it, “at random,” there for month or month and half, then they moved it to spot closer to the Pictou Rotary and did business there for couple of months. On cross-examination it was pointed out to her that, on discovery in 1997, she testified that the bus started operation the summer of 1993. She responded that what she meant was, that it was summer when she went on the payroll. “To me it started operating in June the real work didn’t start until June.” She testified that she was paid $360.00 weekly to run the ‘Burger Bus’ which was based on rate of $9.00 an hour, 40 hours week. At discovery she had testified that she worked every week day that summer, on the bus. However, at trial, she agreed that was not correct, but in fact, she had taken the month of August off, because her daughter was sick and she stayed home to care for her. During that month, she exhausted the last of her unemployment insurance eligibility. She said she was not paid the $360.00 week in August. Bertha Langille stated that she had no intention of working on the ‘Burger Bus’ through the winter of 1993 1994, but would have gone on unemployment insurance as she regularly did in the winter. She does though, maintain that she was continuing to work on the ‘Burger Bus’ in October of 1993, right up until the accident. Specifically, she said, the afternoon of the day of the accident they had intended to take the bus to rugby tournament. Bertha Langille testified that she thought they had been to rugby tournament with the bus previously that year. Vince Paris testified, he wanted to get the bus set up for rugby game in New Glasgow on the afternoon of the day of the accident, but the trip to Antigonish and then the accident, intervened. Vince Paris also testified that previously, that year they had taken the bus to rugby match. Brian Lewis, rugby player and manager, testified. He said there was only one rugby team in the Pictou County area in 1993. He testified that that year he did not see the ‘Burger Bus’ set up at any rugby games and when concessions were operated at rugby games, they were run by the team as fund raiser. The only record of Bertha Langille’s income from working on the ‘Burger Bus’ is ledger page and an insurable earnings report made to the Unemployment Insurance Commission, dated February 1, 1994, months after the accident. (Exhibit 1, Tab 5) We know that Vince Paris’ ‘accountant’, John Wood, prepared the report (he signed it), and it is fair inference that John Wood was the one who completed the ledger page, because Vince Paris testified that he did not do it. When shown the ledger sheet, he testified, “I don’t recognize this document ... didn’t have anything to do with it.” He later testified on cross examination that it was part of bigger payroll book kept in Wood’s office. The question was put, “Apart from this piece of paper, do you have any other document showing any record of payment to Bertha?” Mr. Paris’ answer was, “No don’t.” Vince Paris further testified that it was John Wood who actually paid Bertha for her work on the bus and that he did not know if she was paid in cash or by cheque. There were no cheques produced in evidence. John Wood was not available as witness. He has apparently disappeared. Although he held himself out to be certified managerial accountant (C.M.A. appears after his signature on the Unemployment Insurance Report), there is evidence before this court to show that he was not so qualified. As to the ‘Burger Bus,’ the ledger page sets out that, Bertha Langille was paid $360.00 week for 40 hours day. It sets out that she worked for nine weeks between June 26th, 1993 and October 9, 1993. The Insurable Earnings Report repeats this information. The defendant has argued that this report, prepared months after the accident, and not produced until litigation had commenced, is highly suspicious, because it serves no practical use, other than for the support of this claim. The nine weeks would not have qualified for unemployment insurance in Pictou County in 1993. Bertha Langille was asked why the form was prepared in February 1994, if she knew she did not have enough weeks to qualify for unemployment insurance prior to her accident. She did not know of reason. agree with the defendants’ characterization of this report. To put all of the evidence in context, it is significant that, with the exception of the housekeeping jobs, the employment claimed involved Bertha Langille working for her common law husband. That situation creates an “arms length” problem for the plaintiff. It is insightful to look at the evidence specific to the security job. This security business was also operated by Vince Paris. Firstly, despite what Mr. Paris says in his statement of October 18, 1993, there is no credible evidence that Bertha Langille was doing security work at the time of the accident. She testified at discovery on March 17, 1997, that her only income at the time of the accident was from the ‘Burger Bus’ and she only qualified this statement at trial with respect to housekeeping. Bertha Langille’s testimony at trial was that, this security work had “wound down in 1992.” What is, though, significant, is that Bertha Langille’s security employment with Vince Paris for the previous three years (1990, 1991, 1992) had covered the period August to December, when in each year she would begin collecting unemployment insurance benefits. (Exhibit 11) The defendant has pointed out the remarkable consistency of employment time periods for business that is not seasonal. This consistency, the defendants submit, is better understood when Bertha Langille’s income tax records for those years are examined. (Exhibit 1, Tabs through 4) Bertha Langille coincidentally, was also paid $360.00 week for her security work. On the basis of that rate of pay in each of those years, she worked in the security business, exactly the number of weeks required to qualify her for unemployment insurance. Guardian has suggested that Bertha Langille’s security job was husband and wife unemployment insurance generating operation. It asks this Court to consider the ‘Burger Bus’ employment as being likewise and questions if she actually worked and was paid as is claimed. have concerns about the quality of the plaintiff’s evidence as to employment. Ordinarily, an employee could rely on the employer’s evidence and ample documentation to establish such claim. Evidence of employment should not be difficult to produce. problem that this plaintiff faces, is that the employer is unreliable. It is clear to me why the plaintiff did not put Vince Paris on the stand. (He was called by the defendant.) Vince Paris has credibility problems. When he first speaks to the adjuster, Mitchell, about Bertha’s claim, he does not even mention the ‘Burger Bus’. Notwithstanding that, he now claims to have been paying Bertha Langille $360.00 week to run this bus right up to the day of the accident. few days after this interview, he gives written statement on October 18, 1993, which is manifestly false as to the plaintiff’s participation in the laundromat business and at least substantially incorrect as to housekeeping and surveillance work. Vince Paris has no records of Bertha Langille’s remuneration for employment on the ‘Burger Bus’ except for ledger page not supported by any other documentation such as bank statements and cheques. The unemployment insurance receipt prepared months after the accident has no obvious business purposes. The person who prepared this documentation is not available as witness. John Wood continued to act as Vince Paris’ accountant until 1998, well after documentation supporting Bertha Langille’s claim became an issue in this proceeding, and yet supporting documentation that the paymaster commonly would have had is not produced. When faced with the obviously false information that he had provided the insurance company in support of Bertha Langille’s claim, Vince Paris said, “I firmly believe that the accident affected my memory.” If so, in the case of the laundromat and the bookkeeping, it caused him to remember things that did not happen. Bertha Langille, although exhibiting pleasant demeanour on the witness stand, and appearing credible with respect to some of her testimony, was not, find, credible with respect to employment evidence. There were too many contradictions in her testimony. do not believe her when she testified that she was employed on the ‘Burger Bus’ at the date of the accident. have considered the totality of the evidence put forward herein, and do not find on the balance of probabilities that Bertha Langille was “employed at the date of the accident.” find further that the plaintiff has not shown that she worked for any six months out of the preceding 12 months and so does not fall within the deeming provisions. The plaintiff has not been able to satisfy the threshold employment requirement and so cannot succeed on this claim against Guardian. It has not been necessary to consider the evidence relative to her continued disability. find that she is not entitled to any benefit under Schedule “B”. REPAYMENT It is the defendant, Guardian’s position that the plaintiff cannot show that she was employed at the time of the accident. Therefore, it is entitled to the repayment of the money it paid to her under Schedule “B”. She was paid $140.00 per week for 129 weeks before payments were cut off. The defendant argues that these payments were made on the basis of misinformation provided by the plaintiff’s common law husband, some of which were confirmed by Bertha Langille. The plaintiff argues in response that the defendant is estopped from claiming a repayment. Bertha Langille testified that had she known that there was possibility that she would have to pay the Schedule “B” benefits back, she would not have accepted the money. The plaintiff cites Waddams, The Law of Contracts (1984, Canada Law Book) at p. 143: “The basic concept of estoppel is that person is precluded from retracting statement upon which another has relied. definition that has been judicially approved is as follows: where one person (’the representor’) has made representation to another person (‘the representee’) in words, or by acts and conduct, or (being under duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive), and with the result, of inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may afterwards take place between him and the representee, is estopped as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in the proper manner, objects thereto.’ (Emphasis added). The plaintiff submits that by failing to indicate any interest in claiming repayment of those benefits until after the commencement of this litigation, the defendant caused Bertha Langille to “alter her position to her detriment” by continuing to accept the money. The plaintiff argues that having failed to do so, it would not be equitable to allow Guardian to enforce its strict legal rights. do not find that the defendant should be prevented from seeking recovery of monies paid on the basis of what have turned out to be misrepresentation and unprovable assertions. I find that the defendant acted expeditiously to comply with its contractual obligation, on the basis of the representations put forward on behalf of the plaintiff, to provide income replacement when the need was made apparent to it. Such quick and uncomplicated response by insurance companies in such circumstances is to be encouraged. It would be in my mind, illogical to prevent Guardian from getting its money back when it is found that the benefits were paid on the basis faulty information provided on behalf of the plaintiff. The plaintiff did not “alter her position to her detriment” by accepting the benefits paid. This is not a situation in which estoppel lies against the defendant. The Schedule “B” benefits should not have been collected by the plaintiff herein. I find that the defendant is entitled to the repayment of those benefits in full. Costs in favour of the defendant. will accept written submission if the parties cannot agree. Chief Justice Joseph P. Kennedy

The plaintiff was injured as a result of a motor vehicle accident. The defendant was found liable. At issue was the claim of the plaintiff against the defendant's insurer for Section B benefits. The defendant paid benefits for 129 weeks. It claimed that the plaintiff misrepresented her employment status at the time of the accident, and that the benefits should be re-paid. The plaintiff argued in response that the defendant was estopped from claiming repayment. Ordering the benefits be re-paid, that the defendant acted expeditiously to comply with its contractual obligation, on the basis of representations put forward on behalf of the plaintiff, to provide income replacement when the need was made apparent to it. It would be illogical to prevent the defendant from getting its money back when it is found that the benefits were paid on the basis of faulty information provided by the plaintiff. This is not a situation in which estoppel lies against the defendant.

7_1999canlii3285.txt

R.D. LAING REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 144 Date: 2015 05 20 Docket: FLD 423 of 2012 Judicial Centre: Saskatoon PETITIONER RESPONDENT BY COUNTER-PETITION RESPONDENT PETITIONER BY COUNTER-PETITION Counsel: Sherry L. Fitzsimmons for the petitioner Davin R. Burlingham for the respondent JUDGMENT KEENE J. May 20, 2015 Introduction [1] The petitioner [M.D.J. or Ms. J.] and the respondent [C.W.S. or Mr. S.] met in late August 2009. This quickly developed into an intimate relationship. Ms. J. discovered she was pregnant in early October 2009. Shortly after that Mr. S. moved in with Ms. J. at her house in Warman. Their child Z.P.J.S. [Z.] was born in June 2010. The parties separated on November 28, 2012. Ms. J. is presently 37 and Mr. S. is 43 years of age. II Pleadings and Proceedings [2] Ms. J. issued her petition December 3, 2012 claiming under The Children’s Law Act, 1997, SS 1997, C-8.2 [Act], sole custody of Z., specified and supervised parenting time for the respondent, restraining order against Mr. S. and costs. [3] Mr. S. filed his Answer and Counter-Petition on January 9, 2013 contesting Ms. J.’s claims for sole custody, specified and supervised parenting time, the request for restraining order and costs. He counter-petitioned, claiming division of property under The Family Property Act, SS 1997, F-6.3, joint custody of Z. with primary residence of Z. to be with himself and access for Ms. J., child maintenance for Z. under The Family Maintenance Act, 1997, SS 1997, F-6.2, and costs. Mr. S. filed an Amended Answer and Counter-Petition on April 10, 2013 requesting maintenance for himself under The Family Maintenance Act, 1997. [4] Ms. J. brought Notice of Application on December 12, 2012 requesting the return of Z. from Mr. S. This application had been preceded by two applications without notice to abridge time and to deal with service issues. The December 12, 2012 application resulted in the Court ordering Z. to be placed in the interim care of Ms. J. and Mr. S. to receive parenting time. The case was adjourned originally to January 4, 2013, but ultimately the interim application was heard before Dufour J. on January 25, 2013. large amount of conflicting affidavit material was filed. Justice Dufour decided that because of the conflicting evidence he would direct the parties proceed to an expedited pre-trial conference. In the meantime, the Court directed that the parents would have Z. on shared week-on/week-off basis. Justice Dufour ordered that Mr. S.’s mother be present during overnight access. [5] pre-trial conference was held on April 29, 2013 which resulted in provisional agreement to essentially tide things over until trial could be held. This interim agreement provided: Z.’s primary residence would be with Ms. J. and Z. would be in her care for period of nine overnights. Z. would be in the care of Mr. S. for period of five overnights (Tuesday to Sunday) when Mr. S. had his children T. and S. (children from previous relationship) in his care. Psychological counselling was to be undertaken by both parties with the duration of the treatment to be determined by the psychologist. Ms. J. agreed not to request child support from Mr. S. during the six months of the agreement. Exchange protocol and supervised overnight access would remain as per the interim orders. The agreement would remain in effect for six months. [6] The case was to proceed to trial. In the meantime, the parties appeared to have continued to follow the combination of interim orders granted and the minutes of settlement. The trial was commenced on March 16, 2015 and was completed on March 27, 2015. On the last day of the trial (March 27, 2015) Mr. S.’s counsel advised the Court his client was abandoning his claim for spousal support. However, would not have found he was entitled to such support in any event (based on the short duration of this relationship and his income) and will formally dismiss that claim for spousal support. III Evidence on Behalf of the Petitioner, M.D.J., regarding parenting, child support and common-law relationship Evidence of the Petitioner, M.D.J. [7] Ms. J. is 37 years of age. She lives in her home in Warman and is successful real estate agent. She met Mr. S. at the end of August 2009. At that time she was ending relationship. She had no children. [8] Ms. J. and Mr. S. had an instant attraction and started dating, and by October of 2009 she was pregnant. She testified that she did not want to get pregnant and had not made any plans with Mr. S. to get pregnant. In November 2009 Mr. S. moved into her home. According to Ms. J., he had virtually nothing. Mr. S. told her that he was going through divorce with “Lisa”, and that he had two young children (T. and S.) from previous relationship. Ms. J. was willing to let Mr. S. have T. and S. stay at her house while he had parenting time. Mr. S. spoke very negatively about T. and S.’s mother, P.B. [9] Christmas 2009 arrived. Mr. S. tried to give Ms. J. ring. She rejected it because she did not wish to be married. The parties decided to drive (in Ms. J.’s car) to see her parents for part of the Christmas holidays. Her parents live on farm about one hour outside of Winnipeg. Mr. S. brought his two young children, T. and S., with them. Unfortunately, while they were staying at her parents’ place, Mr. S. got drunk. Ms. J. testified he became extremely agitated when she told him she would like to have friend attend during her delivery. According to Ms. J., he became verbally abusive, calling her terrible names in front of her family. She says that he then stated he was packing up and leaving on foot with his two children to walk to Winnipeg. It was nighttime and winter. Ms. J.’s father, H.J., intervened. Ms. J.’s sister M.E.J.J. offered to drive Mr. S. and his two children to motel in Winnipeg. Ultimately Mr. S. agreed to this. M.E.J.J. drove them to Winnipeg. After 16‑hour bus drive back to Saskatoon, Mr. S. went to live at his mother’s residence. Ms. J.’s father encouraged her to end the relationship. [10] However, by January 20, 2010 the parties had reconciled, and Mr. S. was once again living in Ms. J.’s house in Warman. [11] Z. was born in June 2010. Her evidence indicates it was happy time. birth announcement was circulated. The baby was baptized in the Catholic faith. [12] Ms. J. testified that Z. became her priority. She adjusted her previous busy real estate career to level that accommodated Z. first and her career second. She took time off from work, and when she returned she was able to work at home for the most part. Her major client is developer in Warman, and she was able to balance looking after Z. and her career because of the good fortune of having this association with the developer. [13] Ms. J. testified that Mr. S. was not working because of workplace injury when she met him. This continued throughout the relationship. He was receiving Worker’s Compensation benefits [WCB] and top-up from SaskTel. She said he was in constant pain. It appears his neck was permanently injured. Ms. J. said that during her pregnancy and after the birth of Z. and right up to their separation, Mr. S. was constantly using pain medication. She said these medications and his pain caused him to nap lot and take it easy most of the day. According to her, Z.’s care fell almost exclusively to herself. [14] Things progressed in this manner with Ms. J. primarily caring for Z. and Mr. S. on disability and essentially being lethargic throughout much of the day. However, on occasion he appears to have undertaken number of under-the-table jobs for friends doing odd jobs and furnace and plumbing work. She noted he did some minor renovations in the house. She testified that he was quite moody and became irritated quickly when caring for T. and S. and at times Z. Ms. J. said he spent lot of time at his mother, M.S.’s, house in Saskatoon. [15] The couple had circle of friends. People came over for barbeques. They went out to friends’ homes. [16] Ms. J. broached the subject of cohabitation agreement with Mr. S. This appears to have become topic in 2010. She went as far as to get lawyer to draft an agreement. Mr. S. took the draft to his lawyer. However, he refused to sign it. Ms. J. says he became angry when she brought it up, and she finally gave up. [17] There was flare-up on Halloween night in 2010. The couple went to party. Arrangements were made to have Mr. S.’s mother babysit Z. Ms. J. testified she was simply enjoying herself at the party when Mr. S. suddenly became jealous. He left and went back to his mother’s. She and friend followed. confrontation erupted at the mother’s. Mr. S. would not let Ms. J. take Z. back to her house. The police attended. Ms. J. left without Z. The next day the couple reconciled, and Mr. S. again returned along with Z. to Ms. J.’s home in Warman. [18] Life went on. It appears Mr. S. provided some money to Ms. J. by way of what the parties referred to as rent. He was to pay $600. This was infrequently paid. Ms. J. noted that Mr. S. continued to be moody and impatient, especially when T. and S. came to visit. She became concerned about Mr. S.’s use of foul language, and he seemed to have no filter about crude comments. She became concerned because this was going on in front of Z. Ms. J. testified that Mr. S. was stressed out over money, his lingering divorce issues with Lisa, and his rather nasty parenting issues regarding T. and S. with their mother, P.B. Ms. J. noted high level of hostility exhibited by Mr. S. towards P.B.; hostility that he made no attempt to shelter his young children T. and S. from or for that matter Z. In order to deal with this, Mr. S. arbitrarily reduced his parenting time with T. and S. to every other weekend from an existing more lengthy parenting schedule. Ms. J. noted this did result in less stress for Mr. S. [19] According to Ms. J., she continued to be primarily responsible for Z.’s care and more so after Mr. S. had neck surgery. Additionally she testified she assumed most of the care for T. and S. when they came over. She noted Mr. S. found discipline issues difficult. Mr. S. seemed to get frustrated and angry easily. According to Ms. J., he never did any homework with his two children. She noticed Mr. S. developed quick temper with Z. [20] Ms. J. testified that the parties separated on November 28, 2012. On that evening they had arranged with Mr. S.’s mother to babysit Z. while they and group of friends went to rock concert. Mr. S. was the designated driver (of Ms. J.’s car). According to Ms. J., Mr. S. became jealous at the concert. He blew up, started yelling at her and calling her names in front of their friends and in the general public. She became frightened. He left the concert and drove to his mother’s home in her car. She decided that based on the last episode (Halloween 2010) there would be no point in having another confrontation at his mother’s residence, so she decided to go home and deal with Mr. S. the next morning. This time she decided that she needed to end their relationship. [21] Ms. J. testified that she telephoned Mr. S. the next morning principally to try and get Z. Mr. S. refused. The parties then resorted to communicating exclusively via text messages. Exhibit P-95 sets out the exchange. It starts on November 29, 2012 at 12:48 p.m. and ends December 8, 2012 at 6:42 p.m. find that this is important evidence, and set it out as follows (note: A. refers to their pet dog): Nov 29, 2012, 12:48 PM [Mr. S.] [Ms. J.] Can phone you? Not right now call me when you can Is it urgent? Not urgent How’s z. doing? I’d like to see him soon. Ur kidding me right Why would be kidding I’ll call you later Can you get some of my things and Z.’s things together for tonight please Yes can. can bring in your things. Ill put your pills in there too. do want to see him today. Z.’s stuff too Ok? Ya ill have stuff for Z. too Ya ok Not till about 8;30 Can see him when drop stuff off? Thanks Nov 29, 2012, 6:24 PM Can you bring the computer? Yes will bring it can come sooner to drop stuff off and see You can take A. home Ok thanks Do not come here Don’t text or call until after the weekend, you can see him then You changed the locks and couldn’t even tell me, nice work So you locked Z. and out of the house! Wow Nov 30, 2012, 6:57 PM think you should pop by tommorow and see the kids. Think about it if you want and let me know tommorow k? Dec 1, 2012, 7:55 PM If you wanna pop by tomorrow ,give me heads up. Dec 2, 2012, 5:32 PM Guess you’re not wanting to see the kids, give me text or call when you’d like to see them. Dec 4, 2012, 12:15 PM You have had Z. for while can come pick him up for couple of days. Dec 4, 2012, 3:09 PM You asked me not to call you or text you until after the weekend. would appreciate response. texted you during the weekend to come see the kids and you know it You said visit the kids. want to see Z. and you wanted time with him. Until this is figured out why won’t you share him and let me take him for few days. If you would like to see him, we can arrange time here at moms for now. don’t just want to see him want to have him with me for few days. You wanted him with you and respected that you said until Monday. can pick him up from your moms please. know you were upset and was giving you time. Given your state of mind think it would be best If you came to see him here. There is nothing wrong with my state of mind. I’m just concerned that you are holding him from me and don’t want to get you mad. Given the situation don’t think the tension between us is good for Z. to be around and it’s best if we spend time with him separately. Let me know time if you’d like to see him. can come pick him up from your moms for few days. can come anytime today to pick him up. How about pm? Dec 5, 2012, 1:54 PM We need our things put together and sent over before anything else occurs .We have been locked out. Dec 7, 2012, 9:52 AM C. can’t believe you are keeping Z. from me. had Amd. drop off your things like you asked. have not seen him for days. Your not looking out for Z.’s best interest. When can come see him. want our things like asked,let me know when our things are coming.thanx Why would you hold Z. from me until you get all you things. All your personal effects are there have done everything you asked. would never have done this to you. Please let me see him. No you haven’t,u gave me some of my clothes Now that you’ve started court proceeding, you can speak through my lawyer Fine who is your lawyer? How does this benefit Z.? How does locking us out help him? Who is your lawyer? Tell you Monday have right to see Z. before then. You said you were getting lawyer this past Monday Dec 7, 2012, 5:08 PM Can you please call me and let me speak to Z. on the phone Dec 8, 2012, 4:02 PM You could call later, but Z. does not want to speak with you.We do need our things What day do you plan to get it to us? You were supposed to take A. twice now and haven’t either. do want to speak with Z. does 6:00 tonight work for me to call? Can you please ensure that Z. is available at that time to talk with me. If this time does not work what time this evening would? When are you getting A. and when is our stuff coming? I’m asking about talking with Z. that is my concern right now. Amd. was supposed to get A. both times Nd she didn’t. told her to pick him up as you asked. Take some responsibility,stop blaming others.When? When can talk with Z. please? Answer my question will have A. picked up later this upcoming week. have dropped off nearly all your personal items and am working on having your other things packed up. will drop them off as soon as possible this upcoming week. Neither of these issues have anything to do with me seeing or speaking with Z. Does pm tonight work for me to call and talk with him or what other time this evening does? You brought some of my clothes, none of my papers,cell phone,passport, and other things.A. can get dropped off tommorow ,what time? Dec 8, 2012, 6:42 PM My lawyer said she will have your personal papers, passport, etc couriered to your lawyers office on Monday once you provide the name of your lawyer. What time is good for me to call to talk to Z. tonight please? ve asked numerous times for my things,you haven’t made an attempt. Is your lawyer picking A. up tommorow You said you were calling at 6,Z. is nappin right now Call in the am,@. 10:30 is good asked you if could call at and you never responded. will call him at 10:30 in the morning tomorrow will call your moms home number. will let you know tonight who will pick up A. tomorrow. What is good time? You can pick A. up at noon would like my phone tommorow when that person picks up A. at 12 noon Call at pm tommorow ,we have breakfast plans We will be at moms by Can come to your moms at tomorrow. will pick up the dog and then can see Z. at the same time. Not until see my lawyer.i want my things tommorow please, they aren’t big items can come pick him up from your moms for few days. can come anytime today to pick him up. How about pm? Let me know time if you’d like to see him. just did will come at then to pick him up. No you won’t pick him up, you may visit him And tonite does not work,tommorow at for visit here is fine [22] Ms. J. testified the parties have not spoken since. All communication goes through their lawyers. [23] Ms. J. stated that immediately after November 28, 2012 she changed the locks on her house and installed video surveillance cameras. She expressed fear of Mr. S. [24] Ms. J. testified that Mr. S. kept Z. (who was about years of age) for almost two weeks. She testified that when she was reunited with Z. he was very emotional, grabbing her and hugging her. She stated he would not leave her side. In short, she testified the child clearly missed her greatly and was overjoyed to see her. [25] Ms. J. testified that the parties followed Justice Wilkinson’s order of December 12, 2012. On February 7, 2013 Justice Dufour ordered interim shared custody. Ms. J. stated that following the week-on/week-off regime she noticed that Z. started to say disturbing things upon his return from his father. According to Ms. J., such comments, although seemingly diminishing now, continue to degree. find that her counsel has accurately summarized these verbalizations in the petitioner’s trial brief (pps 16-18), and for convenience repeat the same here: “Know what? When was baby daddy took me from you? He said you were bad mommy and he will protect me.” “You like baba but you don’t like daddy.” “Daddy said that T., S. and him all lived in this house with us. We were family.” “We used to be family but mommy doesn’t love us anymore.” “Know what mommy? Daddy doesn’t work cause he got cut with knife in his throat so now he just eats his pills.” “Daddy said you’re witch.” “Daddy says Mommy is mean.” “Daddy says you stole all his money.” “Daddy says Mommy stole his motor home that’s why we can’t go camping.” “Daddy says he’s not allowed to go to football games so shouldn’t go.” “Daddy says we aren’t going to have stuff. Daddy hired lawyer guy and he going to take all your things and all your money mommy.” “Daddy said he would take me skating but you stole my skates so he can’t.” “Daddy says we don’t have lots of things cause you stole everything from daddy.” “Why is your face going to bleed? Dad says when he cuts it your face it will bleed.” “Daddy says die bitch die.” “Daddy doesn’t like you.” “Mommy are you going to be an angel when you die? (The Petitioner responded with “I’m not going to die”.) “Yes daddy said he is going to kill you and I’m going to live with him and you will be dead.” “Aunty L. is bad. Daddy doesn’t like her.” “I don’t like Aunty L.” “When was baby Aunty L. had dog and it but [sic] me in the face was bleeding lots.” “I’m scared to go to Jamaica.” “I won’t go in ocean shark might eat me.” “The house is haunted daddy said there are ghosts here they are going to get me.” “Daddy says there are bad people in Warman.” “Daddy says this is where bad people live.” “Daddy doesn’t like R. he is mean guy and he doesn’t like me.” “Daddy said R. likes you not me.” “Daddy said we can be family but you like R. not him.” “I’m going to St. Paul’s school cause Warman school is stupid.” “Daddy said kids at Warman school are stupid.” “I don’t like activities.” “Mommy why did you dress me like girl. Daddy said you wanted girl so you dressed me like girl.” “Daddy doesn’t like P.” “Daddy said that Mommy kicked us out of the house.” “Daddy said that Mommy doesn’t love me or daddy.” “I don’t like L. he is bad kid” (This is D. and R.’s child and Z.’s good friend) “I don’t like O. Daddy says he doesn’t like O.” (J. and Amd.’s girl) “I don’t want to go to Manitoba.” “I’m going to have Christmas with daddy won’t be with you I’m going to be with him you will be all by yourself (since the summer up till Christmas 2014)” “Daddy can’t have birthday for me because you don’t let him.” “Daddy says you don’t love me.” “Daddy says he is going to take the hot tub and we have it at babas.” “Daddy is building us house for daddy T. me and S. and then won’t live with you anymore.” “I need to stay at daddy’s cause if don’t daddy is sad.” “Daddy and baba cry if come home to you mommy.” “Mommy are you strong enough to open the door? I’m scared to get locked in and can’t get out.” “Daddy said should wish for my mommy and daddy to be together when make wish.” “I don’t want to go in hot tub daddy doesn’t have hot tub.” “Daddy only has me days that’s not fair to daddy he needs more days it’s not fair.” “Daddy said shouldn’t play with R.” “Daddy says R. bad guy.” “It’s not fair daddy doesn’t have pool.” “I have cut now can’t go swimming daddy said no going in the pool.” “Know what mommy fell off the bunk bed daddy said not to tell you.” don’t want to go to Ak. and Ai.’s Daddy says they are bad.” “I don’t like taekwondo.” “Daddy has no money because of you.” “See this area daddy said when we were family you walked with me and seen bunny here that’s before you kicked us out.” [26] After their separation, Ms. J. became good friends with T. and S.’s mother, P.B. P.B. actually works with Ms. J. and lives in Warman. As result of this friendship, T. and S., along with their older sibling K., and P.B. are often guests at Ms. J.’s house. This allows Z. to have relationship with his two siblings while he is in Ms. J.’s care. Ms. J. states that she has good relationship with T. and S. [27] Ms. J. provided evidence that she has been responsible for registering Z. in preschool in Warman, sporting activities and playdates. She testified that she arranges the activities so that they are scheduled on days that do not conflict with Mr. S.’s time with Z. She reads with him in the evening. In short, she has been very active and involved parent. large number of photographs were entered into evidence depicting the child’s activities, her house, school projects, etc. Ms. J. carefully narrated the book of photographs for the benefit of the Court. She set out in detail his life with her, including Z.’s relationship with her new partner R. She depicts her house and community as comfortable and familiar to Z. The school is close at hand. She has made all the dental and public health immunization visits. The child has had extensive dental care that she has paid for. Ms. J. testified that she makes all such appointments on her time to avoid conflict with Mr. S. [28] Ms. J. describes Z. as an active, athletic, intelligent child who does well with other children. Ms. J. says he likes school. However, she expressed concern that Z. needs several days to readjust after returning from his visits with his father. Apparently Z. reeks of tobacco smoke and needs bath to remove the odour and his clothes must be laundered. He is still clingy upon his return from his father’s. Sometimes Z. expresses dislike for what are his favourite activities upon his return. Ms. J. expresses concern over this. [29] Z. was enrolled in two preschools, one at Warman and also one in Saskatoon that Mr. S. arranged for. It seems that Mr. S. insisted on the Saskatoon preschool and would not drive Z. to the Warman preschool. Ms. J. exhibited series of school-based artwork and crafts. Z. references his love for his mother in his drawings. Nothing is mentioned about his father in the artwork. [30] Ms. J. testified that she has enrolled Z. in kindergarten at the Warman school for this fall. These are full days (yet to be determined by the school), but will be either: Wednesday Every other Friday Thursday Every other Friday [31] Ms. J. testified that when she found out that Z. had been registered at preschool in Saskatoon by Mr. S. she called the school to introduce herself. She was advised by the school representative that the school had no record of mother or contact information. She testified that she had good conversation with the school representative, told her about Z.’s enrollment at the Warman preschool and invited the school to contact the Warman preschool if they wished to. [32] Ms. J. testified that whether it was Justice Wilkinson’s order, Justice Dufour’s order or the parenting agreed to at the pre-trial conference, she has done all of the driving for the exchanges. She notes that on one occasion because of delayed flight she could not pick Z. up at the agreed upon time from Mr. S.’s mother’s residence. She tried to have trusted adult that Mr. S. was quite familiar with pick up Z. Mr. S. refused and kept Z. overnight until Ms. J. could pick him up the next day. [33] Ms. J. stated that when she and her partner, R., and Z. wanted to go on holiday she needed Mr. S.’s cooperation to obtain passport for Z. He was uncooperative. She had to start court application, and ultimately Mr. S. agreed. She testified that despite the agreement at the pre-trial conference, psychological counselling never did take place. Ms. J. states her lawyer attempted to arrange for the psychological help, but Mr. S. essentially thwarted the process. Further, Ms. J. testified that it took lot of time and many lawyer letters to get Mr. S. to make arrangements to receive his and his children’s personal effects out of her home. She expressed considerable frustration at the difficulties involved with Mr. S. to resolve even the most mundane of family law issues. [34] She testified that Z. continues to be anxious as the exchange time approaches. [35] Ms. J. proposed sole custody and supervised access (i.e. Mr. S.’s mother to be present for overnight visits) of every other weekend, exchanges to take place at his mother’s residence without Mr. S. being present and the sharing of all school-based holidays and time in the summer. [36] Ms. J. was cross-examined. She denied that there was any discussion between Mr. S. and herself when they first started dating to determine her ovulation cycles for the purpose of her getting pregnant. She stated she had not even had “cycle” when she discovered she was pregnant in the first part of October 2009. [37] During cross-examination Ms. J. agreed: She bought Mr. S. presents. They shared the same bed and ate meals together. They jointly sent out Z.’s birth announcement (featuring picture of all three). She participated with Mr. S. in Z.’s baptism and agreed to raise Z. as Catholic. She allowed Mr. S.’s child S. to call her “mom”. She called Mr. S.’s mother “baba” and sent her Mother’s Day card. She visited Mr. S.’s father in nursing home. She and Mr. S. regularly attended family functions as couple. She and Mr. S. regularly visited and entertained friends as couple. Mr. S. did some of the cooking. Mr. S. and herself sometimes would go shopping together. No one asked for any reimbursement for the payment of groceries. When Z. was born, T. and S. thought of Z. (and were encouraged to do so) as their brother. Her 2009, 2010 and 2011 T1 general tax returns identified her relationship with Mr. S. as common-law. Mr. S. helped her with her rental properties. Through WCB Mr. S. arranged for housecleaning of the residence. She went with Mr. S. to WCB and medical appointments. The told each other on regular basis that “I love you”. They went along with Z. on Mexican holiday. They were faithful to each other. [38] Ms. J. was cross-examined regarding her work hours. Ms. J. calculated that at present she is working about 14 to 20 hours per week. Of that she said she was out of the house approximately seven hours per week. [39] Mr. H. is Z.’s taekwondo instructor. He testified Z. is nice boy who enjoys taekwondo. Ms. J. and her partner attend at the activity regularly. [40] M.E.J.J. is the adult sister (and only sibling) of Ms. J. She testified about the Christmas 2009 visit at her parents’ farm by Ms. J. and Mr. S. and his young children T. and S. She described Mr. S. getting drunk and then losing his temper with Ms. J. This was in front of her father and mother and herself. Mr. S. was screaming at Ms. J. and calling her very vulgar names. He said he was packing up and heading out on foot with his two small children in the dead of winter night for Winnipeg. His children became upset and were crying. She told him that she would drive him and his children to motel in Winnipeg. On the way there she attempted to soothe the two children. Mr. S. seemed to be oblivious to the children’s plight. Overall she was shocked by Mr. S.’s conduct. [41] M.E.J.J. testified that when she saw the parties’ parenting before the separation it was mostly her sister who attended to Z. Mr. S. seemed to be in constant pain. She noted Mr. S. swore lot and at times made lewd comments in front of Z. [42] M.E.J.J. described Ms. J. as being very active, nurturing and loving mother. [43] H.J. is the father of Ms. J. He testified about the Christmas 2009 visit which was the second time he had seen Mr. S. H.J. confirmed that Mr. S. ended up getting drunk. He said that Mr. S. was angry and directed very insulting and vulgar language towards his daughter. He was shocked and disturbed by this behaviour. He confirmed that Mr. S. said he was leaving with his two children on foot. He confirmed that his daughter M.E.J.J. drove Mr. S. and T. and S. to Winnipeg. He noted his daughter Ms. J. was very upset. He advised her to leave Mr. S. [44] H.J. and his wife visited the parties after the birth of Z. They continued to see Ms. J. and Z. at this time. He described his daughter as the main parent and good mother. He noted that Mr. S. had limited role in the parenting of Z. while the couple were together. H.J. testified that Mr. S. seemed to be in pain and took lot of painkillers. H.J. noted that Mr. S. used vulgar language around Z. [45] Mr. B. is the owner of the real estate business that Ms. J. works at. He describes how Ms. J. has been able to balance her work life and looking after Z. His business supports family values and the need to balance work with family. [46] R. is Ms. J.’s partner, and they have been residing together since August 2012. He is divorced but maintains cordial relationship with his previous spouse. R. has two teenage daughters that he sees through regular access. The two daughters enjoy Z. and have positive relationship with the child. [47] R. described Ms. J.’s parenting. He says she is concerned and attentive mother providing Z. with love and encouragement. As couple they do many things with Z. Overall he describes Z. as nice child. However, he has noticed that Z. says odd things such as that his dad has said there were ghosts in their house. This makes Z. afraid of the dark. He confirms hearing many of the disturbing utterances set out above. [48] R. noticed Z. is withdrawn for few days after seeing Mr. S. It takes time for the child to return to his usual outgoing self. He says that the child smells of cigarette smoke and cologne when he returns. [49] R. confirmed that Ms. J. has been able to maintain good balance between work and parenting Z. He testified she primarily works at home or in Warman. [50] Ms. P. is long-time friend of Ms. J. and has visited her on many occasions, both before and after separation. These are fairly lengthy visits of two or three weeks. She testified that Ms. J. is good parent. [51] Ms. P. noted that Mr. S. slept lot, waking around 11:00 a.m. He would take his pills, have lunch and then take nap. Mr. S. would then wake up for supper. He appeared to be in lot of pain. Ms. P. testified Mr. S. swore lot around not only his but also her young children. She testified that Mr. S. would get frustrated easily and yell at Z. [52] She testified to hearing Mr. S. openly insult T. and S.’s mother (P.B.) in front of them. [53] Throughout the pre-separation contact she had with the parties she said Ms. J. was the primary parent. Since the separation she has noticed positive change in Z. The child seems better adjusted and has fewer tantrums. [54] Ms. W. is friend of Ms. J., having known her for about nine years. She testified that after Z.’s birth she saw Ms. J. about once month. Ms. W. testified that Ms. J. did the actual parenting of Z., and Mr. S. seemed to only play with him. She testified that Mr. S. would say negative things about T. and S.’s mother (P.B.) in front of them. [55] Ms. W. testified that since the separation it seems Z. has started to behave better. She confirmed hearing Z. say some of the disturbing things related above upon his return from Mr. S. However, her evidence was that Z. was not saying these things as much now. Her thoughts were that as Z. was getting older his behaviour was getting better. [56] She testified that Ms. J. is good mother, and Z. gets along very well with Ms. J.’s partner, R. Ms. W. noted that Ms. J. seems to be able to balance her work and parenting of Z. [57] Mr. P. is the husband of Ms. P. He confirmed that when they visited before the separation Ms. J. was mostly responsible for Z.’s care. He also testified that Mr. S. got up late and napped lot. He supports Ms. J. as good parent. In cross-examination he agreed that he had no concerns about Mr. S. babysitting their young children from time to time when they visited. [58] Ms. C. is long-time friend of Ms. J. and Z.’s godmother. She testified that after Z.’s birth Ms. J. did most of the parenting. She noted Mr. S. slept lot. [59] After the separation Ms. C. has noted that Z. says disturbing things upon his return from his father (such as “mom’s witch” “mommy bad”) and confirms some of what Ms. J. has said up above in this regard. Ms. C. was disheartened by these utterances. She also noted Z. smells of smoke and cologne upon his return. She testified that even as recent as month ago Z. still was saying, “Daddy says there are ghosts in the house”. [60] Ms. C. is fellow real estate agent. She testified that Ms. J. has been able to balance successful real estate career and still prioritize parenting. She testified that for the most part Ms. J. is at home with Z. [61] Ms. C. describes Ms. J. as very involved, loving and caring parent. Ms. J. and Z. do crafts, colouring and other creative activities. She describes Z. as well-rounded little boy, smart and intuitive and generally well behaved. She notes that R. has good relationship with Z. [62] P.B. is the former partner of Mr. S. and mother of T. (age 11) and S. (age 9). She has an older son K. (age 13) from previous relationship. P.B. is real estate agent who not only is Ms. J.’s friend, but also co-worker. She and her children live in Warman. [63] P.B. testified that she and Mr. S. started dating in 2002. At that time Mr. S. was in the process of divorcing his wife “Erin”. P.B. and Mr. S. ended up living together, having T. and S. and then separating in 2005. [64] P.B. said they separated when she was pregnant with her daughter S. At that time she believed Mr. S. was dating “Wendy”. However, sometime after this Mr. S. married “Lisa”. According to P.B. this relationship lasted with Lisa about years. She notes his next relationship was with Ms. J. [65] P.B. testified Mr. S. verbally and physically abused her. She described her property being destroyed or being damaged by him. She stated that she had to seek medical care for injuries caused by his physical violence. She outlined list of problems she has experienced with Mr. S. These range from child support issues to trying to serve him with court papers to his unwillingness to cooperate in any meaningful manner with the parenting of T. and S. She pointed out that she diligently provides him with schedules of their activities, which he ignores. This ends up upsetting the children. She exhibited series of text messages (P-86) verifying her attempts to communicate these schedules to Mr. S. She testified that she has to proceed through the courts to get anything done. He has resorted to what she testified to be false accusations by reporting her to the police and social services regarding her care of T. and S. These complaints have been investigated, but were found to be groundless. She described the last eight years or so as “living hell”. P.B. indicates that the exchanges with Mr. S. regarding T. and S. do not go well. These exchanges take place at McDonald’s restaurant parking lot. On one occasion she tried to serve him with court documents, and he was difficult. [66] P.B. testified that her motivation in testifying on behalf of Ms. J. was to try and save Z. from what she perceives to be the considerable damage done to T. and S. by Mr. S.’s conduct. She notes that Z. has high anxiety, similar to her own children. She testified that the source of this anxiety appears to be Mr. S. [67] P.B. testified that Ms. J. has opened her house to not only herself but all three of her children. She testified that her children K. and T. and S. like Ms. J. [68] She describes Ms. J. as loving and attentive mother to Z. IV Evidence on Behalf of the Respondent, C.W.S., Regarding Parenting, Child Support and Common-Law Relationship [69] Mr. S. has training in sheet metal work and furnaces and air conditioning. He hurt his back in 2008 at work. He applied for and received benefits from WCB. Mr. S. received surgery for his injury. He then obtained employment at SaskTel doing lighter work. Mr. S. testified that he had another work-related accident, apparently shortly after starting at SaskTel. He stated he re-injured his back. Mr. S. is now not working and is receiving WCB and what he describes as top-up from SaskTel. He received further surgery on his neck while living with Ms. J. Mr. S. has been off work since his SaskTel injury. [70] Mr. S. testified that he met Ms. J. in August 2009, and they started seeing each other immediately. Ms. J. told him she was just getting out of relationship. He stated that they started talking about having children. Mr. S. advised her that he had two children (T. and S.). He testified that they talked about marriage but acknowledged both did not want to get married at that time because of their past relationship issues. [71] Mr. S. testified that Ms. J. and he started consulting an ovulation chart within the first 30 days of their relationship. [72] Mr. S. stated that within week of knowing each other they were staying together at Ms. C.’s residence while Ms. J.’s ex-boyfriend moved his things out of her house. He testified that by the end of September 2009 he had started to move his things into Ms. J.’s home in Warman. Ms. J. announced her pregnancy in October 2009. [73] Mr. S. testified he offered Ms. J. ring at Christmas in 2009, but claims that it was misconstrued. He said there was no talk of marriage. [74] He related the Christmas visit to Ms. J.’s parents’ home in Manitoba. Mr. S. initially denied drinking. Mr. S. acknowledged that there was an argument over the selection of the name of their unborn baby and having Ms. C. participate in the delivery room. He testified that he was deeply hurt by this and started crying. He denied saying he was going to walk to Winnipeg. Mr. S. then acknowledged having couple of drinks that evening. Mr. S. said Ms. J.’s sister, M.E.J.J., offered to give him ride. He denies his children T. and S. were upset. He testified M.E.J.J. did give him and his children ride to hotel in Winnipeg, and they took bus to Saskatoon the next day. He said because his back was sore from the bus ride he stayed at his mother’s house for few days. He and Ms. J. reconciled, and he moved back into her home. [75] Mr. S. testified that he did everything he possibly could to help Ms. J. during her pregnancy and was with her in the delivery room. [76] He emphasized the importance of raising Z. as Catholic. [77] He stated that after Z.’s birth he shared in the child care duties and denied sleeping late or lot. He said he woke in the middle of the night to feed what he described as heated-up mother’s milk to Z. [78] Mr. S. said that after the first six months Ms. J. went back to work, and it fell to him to do most of the care. He said he sometimes went to see his mother with Z., but not very much. Mr. S. noted that Ms. J. seemed to be working full time. He often made the breakfast and lunch for Ms. J. and himself. He testified that since Ms. J. was not around much, he did most of the domestic chores, including doing lot of the laundry. He also did renovations to the house. [79] Mr. S. testified about the Halloween party of 2010. He said Z. was not feeling well that day. Z. was left at Mr. S.’s mother’s house so that she could babysit. Mr. S. said he did not drink that evening, but Ms. J. ended up getting drunk. Mr. S. testified that Ms. J. was ignoring him at the house party they were attending. He stated he called back several times to his mother’s place during the evening to check on Z. He claimed his mother said that the child was not doing well and they should come home. He testified he told Ms. J. about this and urged her to come with him. According to his testimony she refused. He left the party and went to his mother’s residence. Mr. S. then called the police. This appears to have been prior to Ms. J. arriving. [80] Mr. S. testified that Ms. J. and her friend Ms. C. arrived at his mother’s residence sometime later. He refused to let her take Z. because of her condition. She returned the next day and according to Mr. S. apologized. He stated again in his testimony that she had been ignoring him at the party, and this bothered him. [81] He testified that he had neck surgery on February 18, 2010. This surgery did not end his pain. Mr. S. testified that he takes two types of hydromorphone one slow release and the other as needed. He also takes Effexor. He describes his medical condition as chronic pain requiring pain management. Mr. S. says the hydromorphone relieves his pain and makes him “mellow”. The Effexor is taken to calm him down. As part of all of this he has decided to stop drinking alcohol. [82] Mr. S. testified about Christmases in 2010 and 2011 where they had family get-togethers. He testified briefly about birthday parties for Z. [83] Mr. S. recounted being approached by Ms. J. to sign cohabitation agreement. He testified he was shocked she would consider such thing. He refused to sign it. [84] He testified that for brief time WCB (from October 2012 to November 2012) indicated his benefits might be stopped. Mr. S. stated Ms. J. expressed concern about this and according to his testimony then suggested that their relationship would not work out anymore. He stated at this time his pain was bad and yet he had to continue to care for Z. because Ms. J. was out lot. He admitted sometimes it was overwhelming because he not only had to care for Z. but also T. and S. when they stayed with him. His testimony seemed to be that things leading up to November 28, 2012 were difficult. [85] Mr. S. described the night of the rock concert on November 28, 2012. He described Ms. J. as being disinterested in himself. He was not drinking on that occasion. Mr. S. drove Ms. J. in her car, along with group of friends, to the concert. He tried to hold her hand at the concert. She refused. This “blew his mind”. He claims he caught her flirting. Mr. S. testified that all of Ms. J.’s friends were trying to push drinks on him, and he thought that something was going on. [86] He testified that he saw R. at the concert and thought something might be going on between R. and Ms. J. Mr. S. testified he announced that he was leaving the concert claiming that he was “done with this”. He states Ms. J. said she was calling the police for stealing her car. Mr. S. then went to his mother’s place where Z. was being babysat. Mr. S. testified he was crying to his mother and said he could not believe what was going on. [87] Mr. S. testified about the next day. He said he did not want Ms. J. to have Z. because he was concerned about her mental state. Mr. S. said he wanted Ms. J. to come over and talk about things. She refused. However, he denied wanting to keep Z. from Ms. J. [88] Mr. S. testified that after the separation he has supported Z.’s relationship with Ms. J. He told Z. that “mommy loves you” and denied saying any negative things about Ms. J. to Z. He testified that Z. watched the “Wizard of Oz” on TV and noticed the witch had warts. According to Mr. S., Z. then commented that his mommy had warts too. According to Mr. S. this was because Ms. J. has moles. This was Mr. S.’s explanation as to why Z. may have been calling his mother witch. [89] Mr. S. testified that his children T. and S. dislike Ms. J. According to Mr. S. this arose out of Ms. J. withholding some of his children’s personal effects at her house. He further testified that it may be his children T. and S. are the ones telling Z. to say all the negative things about Ms. J. referred to above. [90] Mr. S. then briefly described his post-separation life with Z. He describes getting Z. ready for school and how Z. loves school. The school is Catholic school relatively close to his mother’s residence. He testified that he wants Z. to attend kindergarten there this fall. He expressed concern that there is not Catholic school in Warman. Mr. S. seems opposed to driving Z. from M.S.’s residence to the Warman school, which would take about 15 minutes. He expressed that doing so would be difficult because it would interfere with his need to drive T. and S. to their school. [91] Mr. S. testified that 50/50 rotation would be best. He denies that this is high-conflict situation. He believes the parties could “make arrangements” for summer access and that the parties should not have to go through lawyers. Mr. S. believes that Ms. J. and he could just work things out themselves. He described his mother’s role as minimal and sees no reason for her supervision. [92] Mr. S. responded to P.B.’s testimony by blaming her and saying she was the aggressor at the exchanges of T. and S. He denies ever being violent to P.B. and testified that it was P.B. that assaulted him. If she was injured it was because she lost her footing and fell down. He claimed he was frightened of her because she threatened to put him in jail. [93] Mr. S. testified that he has never said anything negative about P.B. in front of his children. [94] Mr. S. testified that P.B. does not communicate T. and S.’s extra-curricular activity schedule or if she does it is at the last moment so he cannot participate. [95] Mr. S. denies high conflict with P.B. at present and said he would do anything he could to cooperate with her. [96] Mr. S. admitted that he had dated “Charlene” before he moved in with P.B. He testified that Charlene attacked him, and he pushed her away and she fell through window. The police attended. He admitted to being placed on an anger management course as result. [97] Mr. S. testified to some confusion regarding another lady that involved his using her PIN number and account. He stated it was alleged that he took money. Mr. S. testified that “they” made him pay the lady back $1,000. [98] Mr. S. acknowledged that the parties had agreed to psychological counselling. He says that he went with his children to counselling. He testified that he continues to receive counselling. Mr. S. denies any confusion over the selecting or use of psychologist. [99] He testified that he unilaterally reduced his time with T. and S. because of having to drive them from Warman to their school in Saskatoon and his other duties at the Warman household. [100] Mr. S. was cross-examined. He was shown the text messages arising out of the post-separation issues in December 2012. Mr. S. offered little explanation as to the texts. [101] Mr. S. admitted that he never disclosed to the family court any of his under-the-table income in the child support proceedings regarding P.B. [102] Mr. S. admitted he has never reported to WCB or the Canada Revenue Agency [CRA] his under-the-table earnings. [103] Mr. S. admitted to giving false testimony in court during his bankruptcy proceedings in that he provided inaccurate income reporting and property inventory. [104] Mr. S. admitted lying to the sheriff’s office about boat. He said it was Ms. J.’s boat when it was not. This was to avoid seizure by the sheriff of the boat. He admitted that he sold property that should have been given to his ex-wife Lisa to satisfy her judgment against him. [105] Mr. S. was asked about his three Criminal Code convictions for failing to appear in court [Criminal Code, RSC 1985, C-46]. He stated he could not remember what the underlying charges were that led to his three convictions. [106] He denied getting the text messages from P.B. containing the schedules (P-86). Mr. S. testified that he was not allowed to know of or go to S.’s dance classes. [107] Mr. S. confirmed that the source of Z.’s disturbing comments was possibly coming from his children T. and S. [108] In cross-examination he denied that he was being difficult or uncooperative in setting up psychological counselling as required under the minutes of settlement. [109] When Mr. S. was asked during cross-examination about what summer holidays he would like with Z., he declined to comment saying he would need to discuss this with his lawyer first. [110] Mr. Mc. is friend of Mr. S. They used to play in band together. He was at the couple’s home in Warman frequently before their break-up. He noted Mr. S. was an active parent seemingly doing most of the parenting. Mr. Mc. has only seen Mr. S. with Z. “a few times” after the separation. He believes Mr. S. to be good dad. [111] Ms. W. is in relationship with Mr. Mc. Ms. W. has known Mr. S. about six years. When she visited the parties’ residence she believed Mr. S. did most of the parenting of Z. She describes Mr. S. as fun guy with no physical limitations. The times she observed Mr. S. and Z. together were of relatively brief duration. [112] Mr. is long-time friend of Mr. S. Prior to the parties’ separation he was over to the house quite few times for barbeques and get-togethers. Mr. S. seemed to be helping out with Z. After the separation he has noticed that Mr. S. is good parent. He testified Mr. S.’s mother helps out with Z. [113] Mr. R. has been Mr. S.’s friend for 17 years. He spent lot of time at the Warman house because he also was on WCB. Mr. R. testified that Ms. J. was often not there during the day. Mr. S. looked after Z. when Ms. J. returned home from work. After the separation he has seen Mr. S. about once week. He testified that Mr. S. is good dad. [114] Mr. M.B.’s brother lives across the street from Mr. S.’s mother’s house. He goes for coffee with Mr. S. He has seen Mr. S. playing outside with his children. He supports Mr. S. as parent. [115] Mr. A.B. lives across the street from Mr. S.’s mother’s house. Mr. S. is an acquaintance. He sees the children outside. They seem happy. [116] Ms. T. is elderly and appeared over the telephone at the trial. Ms. T. received birth announcement card from the parties. She remembers that Ms. J. had signed the card “from the family”. [117] M.S. is Mr. S.’s mother. She is 72. M.S. ran private daycare in her house for 25 years. M.S. is widow. She has two other adult children, daughter who lives in Saskatoon and son who lives at Blackstrap. She has seven living grandchildren. Her daughter has two adult children, and her son at Blackstrap has two adult children. [118] M.S. testified that Mr. S. lived at home until he was 22 and then moved out. After Mr. S. and P.B. separated, he moved back home. He then met Lisa, got married, and he moved in with Lisa. After they separated he moved back home. He then met Ms. J. in 2009 and moved in with her. Mr. S. then moved back into M.S.’s home after the separation in November 2012. He has lived there ever since. [119] She testified that after Z. was born Mr. S. did most of the child care because he had experience with T. and S. M.S. was called upon to babysit. [120] M.S. stated that the last six months the parties were together they seemed happy. Their separation was shock to her. [121] M.S. described Mr. S.’s role as parent after separation. She testified that he does good job of looking after Z. and T. and S. He attends to meals, baths and getting them ready for school. Mr. S. does not nap. He is attentive. The sleeping arrangements in her house are that Mr. S. and Z. and T. sleep downstairs. Z. has his own bed. S. sleeps in her room upstairs. [122] M.S. testifies that Z. becomes apprehensive when it is time for him to go to see his mother. He wants to stay with his dad. [123] M.S. says that she smokes outside. Mr. S. stopped smoking couple of months ago. She does not know why Z. smells of smoke when he returns to Ms. J.’s. [124] It appears she believes that P.B. and Ms. J. are possibly conspiring together. She claims Mr. S. does not say very much about P.B. M.S. does not see any unhappiness in T. and S. and says their exchanges go well. [125] M.S. is fine with Mr. S. living with her, and she has no plans to move. She testified that she will be leaving the house to Mr. S. in her Will. There appears to be little communication between Mr. S. and his two siblings. [126] M.S. acknowledged that she swore in para. 24 of her affidavit of January 8, 2013 that she never knew Mr. S. to be violent. She agreed during cross-examination that at the time she swore the affidavit she was aware he had been previously ordered to take domestic violence program. She admitted that the paragraph therefore was not true. Analysis and Decision on Parenting, Child Support and Common-Law Relationship Parenting of Z. [127] Section 6(1) of The Children’s Law Act, 1997, provides this Court with the jurisdiction to decide parenting issues. Section of the Act sets out the factors to consider in making custody order. 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. [128] have set out in some detail what believe to be important aspects of the testimony. However, have not catalogued every bit of criticism or praise emanating from opposing witnesses over 10-day family law trial. However, have carefully considered all such evidence, whether specifically set out in my decision or not. [129] Credibility is at issue. will discuss that here. Mr. S. has not impressed me as trustworthy or reliable witness. say this for the following reasons: (i) During the first day of his testimony found that he attempted to give his evidence in an affected manner, often crying and seemingly overly emotional. The Court asked him to moderate this, and he quickly transformed from this type of demeanour to more calm presentation. found this transformation telling. (ii) find Mr. S.’s version of the pregnancy of Ms. J. unbelievable. He claims that even though the couple had just met, they immediately started planning Ms. J.’s pregnancy. His testimony that they consulted ovulation charts seems inexplicable. Not only were they virtually strangers, but the speed in which Ms. J. got pregnant would have rendered such alleged research unnecessary. In addition, they already had complicated lives: Ms. J. was ending relationship and Mr. S. was going through the aftermath of his divorce with Lisa and his ongoing issues with P.B. His version simply does not make sense, and while in the scheme of things it may not matter how Ms. J. got pregnant, have come to the conclusion his story about this affects his credibility nonetheless. (iii) do not accept that the Christmas 2009 ring was merely present. The fact that Ms. J. refused it (which Mr. S. did not contradict) tells the Court that there was greater significance placed on the ring than he testified to. (iv) do not accept Mr. S.’s version of the disastrous 2009 Christmas visit with Ms. J.’s parents in Manitoba. found Ms. J.’s father’s and sister’s testimony persuasive. It was told calmly and in believable fashion. They seem like solid, good people. Beyond that cannot understand why Mr. S. would decide to leave in the middle of winter’s night with his two small children other than he got drunk and started verbally abusing Ms. J. am puzzled why he would try and promote much different story in court. (v) Mr. S. admits to dishonestly not reporting income to WCB or CRA. (vi) Mr. S. admits to having misled the family court regarding his income in previous proceeding involving P.B. and T. and S. (vii) Mr. S. admits to having misled the bankruptcy court regarding income and assets. (viii) Mr. S. admits to having misled the sheriff’s office. (ix) am of the view that Mr. S. was trying to avoid service (or at least purposefully not being cooperative) regarding the original chambers application. do not accept either his evidence or his mother’s that he was just not around. Ms. J. provided evidence of his tendency to avoid service of documents while they were together. Mr. S. was no stranger to the court process when the process server attempted to serve him. At the very least, upon being told by his mother someone wanted to serve him (and of course knowing the controversy over keeping Z.), he should have made himself available. This was not game of hide and seek. The result was an ex parte application for substitutional service. (x) Although not specifically mentioned in my summary of evidence, find his manoeuvering of registrations and ownership of property points to an untrustworthiness and an intention to at the least frustrate, if not deceive, creditors. (xi) Mr. S. was cross-examined about his three previous Criminal Code convictions for failing to appear in court. He stated he could not remember what the underlying criminal charges leading to his fail to attend in court convictions were. find that he was not being forthright in this regard. find it hard to believe he could not remember such significant information. (xii) appreciate that this case is not contest between Mr. S. and P.B. However, cannot overlook Mr. S.’s response in cross-examination that he seemed to have no recollection of the many text messages presented to him arising out of P.B.’s attempts to communicate with him. do not believe him when he says he does not remember getting these text messages. (xiii) find it difficult to accept his explanation that Z. says the disturbing things because possibly T. and S. have encouraged him to do so. The child is reported to having said “daddy says”. That descriptor would not fit in with T. and S. setting the child up. That explanation defies logic and is unbelievable. further find his “mommy is witch” explanation unbelievable. [130] In regards to Ms. J.’s credibility, am prepared to accept her as truthful and reliable witness. note at times she was also emotional, but in the main her demeanour was appropriate. Her evidence did not suffer from any of the concerns set out above concerning Mr. S. Much of what she has testified to has been supported by independent witnesses. [131] In regards to the remaining witnesses (save the deputy sheriff and processor server), it of course would be unusual if litigant called witnesses in family law trial who were not supportive of his or her case. However, was impressed with Ms. J.’s supporters in that they were either close family members, long-time friends who frequented her household and also that of her live-in partner. Mr. S.’s witnesses primarily consisted of friends who he sees from time to time, neighbour from across the street and his mother, M.S. found his mother to be at times evasive and guarded. Her evidence was somewhat more detailed than Mr. S.’s regarding the day-to-day activities in the household, but nonetheless lacking. She was negative towards P.B. and seems to have implied conspiracy of sorts between P.B. and Ms. J. [132] Accordingly am critical of and concerned about Mr. S.’s testimony. Therefore will consider his evidence with caution. Decision on Parenting [133] Ms. J. has requested sole custody and access for Mr. S. to be every other weekend and some division of holidays. Mr. S. wants shared custody on 50/50 weekly rotation. The present arrangement is nine overnights with the mother and five overnights with the father. I will now go through the factors set out in s. 8 of the Act. (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. [134] was impressed with Ms. J.’s evidence and her supporting witnesses. I find that despite what Mr. S. states, she was the primary parent of Z. since birth and continues to be so. She has provided the Court with great deal of evidence that will not attempt to fully summarize. do note that she has pleasant home that is appointed with age appropriate furnishings and design for Z., including nice bedroom for him. Ms. J. has taken the time to encourage learning outside of school. She provides good nutrition for the child. Ms. J. sets up playdates. Ms. J. has arranged for dental, medical and public health visits. She has enrolled Z. in nearby school. She has age appropriate activities set up for Z. which he enjoys. Ms. J. clearly has prioritized her work life to ensure reasonable balance between work and caring for Z. [135] accept that Ms. J. has tried to encourage good manners and behaviour. She does not swear or act inappropriately around him. It appears she tries to foster sense of respect for others. Admirably she has welcomed T. and S. into her life so that Z. can benefit from having relationship with his siblings. find that T. and S. like Ms. J. do not accept Mr. S.’s testimony that they do not care for her. It appears her new partner is positive influence. [136] am satisfied that there is strong and loving bond between Z. and his mother that is being nurtured on daily basis. [137] On the other hand, Mr. S. presents little information as to what is going on at his mother’s house while Z. is with him. Indeed I learned more (although not much) from his mother’s evidence as to the day-to-day activities. I am left with a degree of uncertainty. Nor do accept that Mr. S. was the primary parent after birth as he has testified. prefer the evidence of Ms. J. and her witnesses that he was sleepy, in pain and generally not doing much. [138] However, do not doubt that Z. loves his father. The evidence seems to be that Z. does not do well during the exchanges not wanting to leave the parent he has just been with. That is, of course, understandable for little boy caught up in tense situation. also accept that Mr. S. loves Z. [139] As stated, have no doubt that both parents love Z. The Act mandates that consider the “quality” of the relationships. find the evidence satisfies me that the quality of Ms. J.’s relationship with Z. substantially exceeds that of Mr. S.’s relationship with Z. (ii) The Personality, Character and Emotional Needs of the Child [140] Both parents (and other witnesses) describe Z. as an active, bright, lovable little boy. He still has difficulties. S.W. testified that Z. is doing better now than when the weekly rotation was occurring. However, P.B. detects the same anxiousness with Z. that she sees in T. and S. Both parents observe separation anxiety. Ms. J. outlined the disturbing things Z. says upon his return from his father. I accept that the child expresses these words. [141] appreciate taking the child’s second-hand comments as evidence is fraught with problems. However, as have said, find he is indeed saying these things (although perhaps in diminishing fashion now). further find that it is unlikely T. and S. are putting these words in his mouth. It is more likely that these words originate from the father. The child is in need of a stable, reassuring and positive home. I find that it is best provided in the mother’s home. Limiting the time child has with either parent is concern. I am concerned that Z.’s emotional needs have been adversely affected by the conduct of Mr. S. A lessening of Mr. S.’s time with Z. may ameliorate this. (iii) The Physical, Psychological, Social and Economic Needs of the Child [142] have answered much of this above. It would appear both parents can provide for the physical and economic needs of Z., although do have some concerns about the rather unsure financial circumstances of the father. He lives at present at his mother’s house. Apparently she will leave him her house in her Will. However, on balance am not too concerned about the financial issues. [143] However, am not persuaded the father has provided much social development for Z. heard nothing about this other than Mr. S. testified that Z. does well in school. It appears Z.’s main socialization is with T. and S. note Mr. S. appears to have little to do with his sister and brother, who live close by, and so that usual family interaction is absent. [144] Ms. J. on the other hand has developed rich network of little friends for Z. to play with. She continues to associate with her immediate family. She has opened up her household to T. and S. which provides an enhanced family network for Z. note T. and S. actually live in Warman. [145] Accordingly I am persuaded that Z. is afforded far more social fulfillment when in his mother’s care. The psychological issue has been addressed in favour of the mother under the “quality” of relationship tropic. (iv) The Capacity of the Person who is Seeking Custody to Act as Legal Custodian of the Child [146] For the reasons set out above, am persuaded that while both parents may have the “capacity” to act as legal custodian, the mother has demonstrated more organized, committed approach to parenting. Additionally (if this can be advanced here), the father seems to lack insight as to damage that can be inflicted on children by rude comments about the other parent and missing or not paying attention to their scheduled activities (here draw upon P.B.’s evidence about Mr. S.’s non-attendance at his children’s events). Additionally note that it has been Ms. J. who has arranged for medical and dental appointments. [147] Further note that Mr. S. seems to believe that this case is not high‑conflict file. Mr. S. seems to suggest that he and Ms. J. could just work things out without lawyers. It would be nice if it ends up that way. However, volumes of court files and 10-day trial where every element of family law is in contest suggest to me that these matters are not that simple. It appears Mr. S. lacks the insight to recognize this. (v) The Home Environment Proposed to be Provided for the Child [148] have already compared the respective households, and need not repeat that here. find the home environment provided by the mother superior to the relatively guarded and unknown circumstances of Mr. S.’s arrangements at his mother’s home. Additionally, Ms. J. owns her own house and has that stability. Mr. S. does not enjoy such certainty, seemingly having to rely on his mother’s generosity and the terms of her Will. note Mr. S. has moved around great deal. The evidence shows pattern of moving from relationship to relationship. Accordingly have no hesitation to find that the mother’s home environment is preferable to that of the father. (vi) The Plans that the Person who is Seeking Custody has for the Future of the Child [149] Ms. J.’s immediate plans are to enroll Z. in nearby school in Warman. She has contemplated higher education for her son. She plans on remaining in her home, and Z. can continue to be in community in which he is familiar. [150] Mr. S. lives at his mother’s. have discussed this above. did not hear any plans except he wants Z. to go to nearby Catholic school. Ms. J. has said she would raise Z. as Catholic. did not hear any evidence that either party was particularly religious. Z. was baptized, but beyond that he receives no religious instruction. Mr. S. also suggested he is bilingual. heard no evidence of that other than his testimony that he took French in school but did not continue in French immersion program in high school. am satisfied that neither his religious nor language concerns are significant factors. [151] find that the mother has taken steps to enroll the child in extra-curricular activities. She attends at these activities and supports him. Therefore on balance it is likely she will have the more constructive plans for Z.’s future. (vii) The Wishes of the Child, to the Extent the Court Considers Appropriate having Regard to the Age and Maturity of the Child [152] Z. is about five. He is little boy. Both parents suggest that he prefers living with each other. have no doubt the child senses the tension between the parties that boils over during the exchanges. The child’s behaviour probably reinforces the parents’ views on this. Z. undoubtedly has need to please both parents and confused sense of loyalty. It seems Z. does adjust back into his life with each parent after the exchange given some time. Therefore cannot place much weight on this factor because of his age. Decision on Parenting [153] wish to comment briefly on the rather potent (and find believable) evidence of P.B. and also the father’s relationships with other women (including Charlene). have specifically reminded myself of s. 8(b) of the Act. have set out above that this is not trial between Mr. S. and P.B. However, find P.B.’s evidence is relevant to Mr. S.’s ability to parent. Beyond what appears to be several failed relationships, detect nastiness in his approach to at least P.B. believe that this has been unfortunately exported by Mr. S. to not only T. and S., but also Z. note that it was more than just P.B. who testified about this. Ms. J. corroborated this, as did other witnesses (i.e. his negative comments about P.B. in front of the children). have concern that this pattern has been manifesting itself regarding Ms. J. The child’s reporting of negative things regarding his mother supports this conclusion. I find that this adversely reflects upon Mr. S.’s ability to parent. [154] Our Court of Appeal in Ackerman Ackerman, 2014 SKCA 86 (CanLII) at paras 31-36, 442 Sask 113 [Ackerman], directs that there is no presumption in favour of status quo. must only consider what is in the best interests of Z. [155] Additionally, while the principle of maximum contact (housed in the Divorce Act, RSC 1985, (2d Supp.), under s. 16(10)) has universal application, also note that each case depends on what is in the best interests of the child (Ackerman at para 40). [156] In considering all of the above, including my analysis of the evidence in light of s. 8(a) of the Act, come to the conclusion that it is in Z.’s best interests to primarily reside with his mother. reject Mr. S.’s claim for shared custody (i.e. 50/50 weekly rotation). As set out above, have found in favour of Ms. J. on all of the s. factors. This decision really boils down to what should be the legal status of the parents regarding custody and their respective parenting time. Sole or Joint Custody? [157] Section 3(1) of the Act sets out the presumption of joint custody for parents with equal rights, powers and duties. note in Ackerman: 48 While it stands to reason that generally, shared parenting requires modicum of cooperation and communication, there can be no hard and fast rules. Every case must turn on its own facts with the focus always being the best interests of the child. Sometimes trial judges are faced with impossible situations and they must craft parenting regime that they know will not be perfect but best addresses the child’s needs and interests. In exercising their discretion they should not be arbitrarily limited to certain types of orders because in other cases judges have found the presence or absence of certain things, such as effective communication, was deciding factor for them. Resolving custody issues requires balancing of factors to determine the best interests of the child. What those factors are and how they will be weighed will vary greatly depending on the circumstances of each case. It is for this reason that trying to determine custody based on review of “similar” cases is questionable practice. [158] In my view it is important to look at what was going on in the parties’ relationship up to and including the November 28, 2012 separation. Perhaps there were telltale signs of Mr. S.’s true temperament. Certainly his behaviour at the Manitoba family Christmas in 2009 was red light. Beyond the effect on Ms. J. and her family, note the effect on Mr. S.’s two small children. Clearly they were traumatized, and yet he failed to appreciate this. It was virtual stranger, Ms. J.’s sister, who took the time to comfort them. The sad end of this Christmas was what must have been miserable 16-hour bus ride back to Saskatoon. As stated above, Mr. S. seemed oblivious to how bad this was. [159] The parties had quarrel on Halloween night in 2010. curious part of this was that Mr. S. took the pre-emptive action of calling the police even before Ms. J. and her friend arrived. He would not have known their disposition or how the matters would have evolved at that stage. This seems somewhat reminiscent of his pattern of false claims to the police and social services regarding P.B. [160] The text messages that went back and forth between the parties after the separation on November 28, 2012 indicate selfish and mean-spirited approach by Mr. S. Despite what he said in court, he should have known Ms. J. was the primary parent and parent that Z. would greatly miss. The lengthy (two weeks) separation for little boy from his primary caregiver was clearly traumatic. Mr. S. should have understood this, yet he persisted. accept Ms. J.’s evidence that when Z. was returned to her he was extremely upset, confused and anxious. [161] The parties now only communicate through lawyers. Mr. S. has the unrealistic (if indeed truthfully held) belief that they could get together and sort all of this out. This is highly unlikely. Additionally and ironically for Mr. S.’s situation, Ms. J. and P.B. have become friends and confidantes. see nothing sinister in this. Ms. J. and P.B. have shared experience. also note that nothing has really ever been successfully resolved between the parties unless there was court proceeding. It seemed impossible to come up with simple solution for the psychological counselling. Even simple things such as travel documents prove to be big deal. [162] have little confidence that things will improve. am concerned that routine matters like dental appointments, eye examinations, sports activities, school events, travel, etc. will not go smoothly. The child will likely end up being further confused and upset. [163] am particularly concerned that Mr. S. may persist in casting Ms. J. in negative light (like he has with P.B.). can only think of one way to minimize this short of supervised access; that is to reduce Mr. S.’s time with the child from the present arrangement. [164] have considered the issue of whether Mr. S.’s mother should be present during Mr. S.’s time with the child. am not convinced that that is still required. Accordingly there will be no such supervision. [165] Therefore after carefully considering all of the above, I am of the view the following orders are in the child’s best interests, and I so order: (a) The petitioner, M.D.J., shall have sole custody of the child Z., born in June 2010, with his primary residence to be with the said petitioner. (b) The respondent, C.W.S., shall have alternate weekend access with the said child from Friday at 6:00 p.m. to Sunday at 6:00 p.m. to be extended to Monday at 6:00 p.m. in the event Monday is a school holiday. (c) The Christmas school holiday break is to be divided equally between the parties with the said petitioner to have Z. in her care for the first part of the break in 2015, including December 25, and alternating thereafter. (d) The February school break is to be alternated between the parties. (e) The Easter school break is to be alternated between the parties. (f) The regular parenting rotation will remain in effect for the summer school holiday break other than the respondent will have Z. in his care for one week of holidays in July and one week of holidays in August of each year with the weeks chosen by the respondent, not to be consecutive and not to include the August long weekend, unless the August long weekend falls on the respondent’s regular parenting time. The respondent shall be required to provide notice to the petitioner by June of each year which week in July and which week in August he intends to exercise his summer vacation time. (g) The petitioner is able to choose another adult to pick up or drop off Z. in the event she is unable to do so. (h) All exchanges shall continue to be done through the respondent’s mother, M.S., at M.S.’s residence, and the respondent shall not be present during such exchanges. Ms. J. will continue to be responsible for the transportation of Z. for exchanges. Child Support [166] As result of my decision, Ms. J. is entitled to receive child support for Z. payable by Mr. S., and correspondingly Mr. S.’s claim for child support is dismissed. She states that she is not requesting Mr. S. pay monthly child support, but rather his obligation to do so be considered as an equitable consideration in the division of property pursuant to s. 21(3)(m) of The Family Property Act should the Court find the parties cohabitated as spouses within the definition of The Family Property Act and the petitioner has to provide to the respondent an equalization. find that should make the necessary analysis regardless of my overall decision regarding family property. Accordingly the following is my analysis of Mr. S.’s obligations under ss. and of the Federal Child Support Guidelines [Divorce Act Regulations, SOR/97-175] [Guidelines]. [167] Some controversy has arisen regarding Ms. J.’s actual income as opposed to what she has reported on her income tax return because of her claim of $12,842.91 for car expense. Counsel for the respondent points out that Ms. J. works mostly at home. This is only concern because the s. percentage must be calculated using both parties’ income. Her line 150 income was reported to be in 2013 $130,836. agree that while accept her accountant set this figure, it appears high for these calculations. Therefore I accept the respondent’s argument and will add back into her income $5,000, which I consider to be fair. Therefore for these purposes will impute income of $135,836 to Ms. J. [168] Mr. S.’s income is calculated to be $80,393 (see para. 52 of his counsel’s brief filed April 1, 2015). Counsel for Ms. J. actually suggests lower figure; however, will accept $80,393. This results in s. 3 child support of $676. [169] Counsel for the petitioner argues that there was evidence at trial that Mr. S. earned undeclared income. Indeed he admitted this. How much was unclear. Mr. S. says that he has stopped doing this. Since he had admitted to misleading two other courts on this topic, find it hard to accept his testimony. Ms. J. urges the Court to impute $10,000 under s. 19 of the Guidelines. K.R.’s evidence is that Mr. S. still likes to drive around looking for bargains. The Court does not know whether this means he remains an active handyman/furnace installer. On balance find that it is not possible to determine what, if any, unreported income is being presently earned by Mr. S. Accordingly decline to impute further income. [170] I am satisfied that Z.’s s. 7 expenses for health, dental, activities and pre-school are about $5,061.35 per year (see P-28, tab 19 in P-8). Therefore Mr. S.’s share should be 37 percent per year or $1,872.70. [171] wish to add that Ms. J. neither petitioned for child support nor requested child support in her oral or written argument, save as outlined above regarding consideration under The Family Property Act; however, wish to avoid any potential future confusion arising out of this judgment. have not adjudicated the issue of Ms. J.’s entitlement for child support for Z. The petitioner is reluctant to request such support from the respondent because she believes child support payments would be an irritation between the parties that she is anxious to avoid. However, if in the future Ms. J. wishes to apply for support for Z. she may. However, no such application shall be made by Ms. J. until at least one year has passed from the date of this judgment. Common-Law Relationship [172] have reviewed Ruskin Dewar, 2003 SKQB 514 (CanLII) (particularly paras 30-33), 243 Sask 126. am satisfied that the respondent, C.W.S., has discharged the onus of establishing common-law relationship of two or more years. Ms. J. all but admitted this during her cross-examination. The evidence reveals, inter alia: (i) Mr. S. moved into Ms. J.’s home in Warman in October or November 2009. (ii) The parties presented themselves as couple to the community. (iii) They shared the same bed, ate together, while not sharing their finances, nonetheless drew support from each other for food and other necessities. (iv) They considered themselves family after the birth of Z. and announced this to the community. (v) They went to family functions and hosted family functions as couple. (vi) They filed their income tax for 2009, 2010 and 2011 as common-law partners. (vii) Ms. J. attended with Mr. S. at WCB and medical appointments. (viii) Ms. J. tried to get Mr. S. to sign cohabitation agreement seemingly acknowledging that they were in spousal relationship. [173] Accordingly find that the parties started living together on November 1, 2009 and by November 1, 2011 had been in spousal relationship for two years. They separated about year later on November 28, 2012. VI Family Property [174] The respondent filed his counter-petition requesting, inter alia, division of family property on January 9, 2013. For the purposes of The Family Property Act, the date of application can be set at January 8, 2013. The date of adjudication is the commencement date of the trial, being March 16, 2015. Analysis of Property [175] There is some agreement between the parties. Where there is disagreement and finding of credibility is necessary, will (for the reasons already set out above) accept Ms. J.’s evidence over that of Mr. S.’s. will now endeavour to go through the property. Mr. S.’s Pension [176] The parties almost agree on Mr. S.’s pension. note Exhibit R-23 is letter from the Public Employees Pension Plan that establishes Mr. S.’s exemption (i.e. what the pension was worth on November 1, 2011) and what it was worth on January 8, 2013 (i.e. date of application). believe the correct math is family property value of $11,663.97 (and not the $12,642.88 set out by Ms. J.’s counsel). will consider using 25 percent discount rate on tax. Accordingly Mr. S.’s pension should have value of $8,747.97 for these purposes. Warman Residence [177] This was the family home. Even though there was brief spousal relationship, would not be prepared to grant an unequal division in favour of Ms. J. who owned the house previous to the commencement of their relationship. I do not find the evidence supports an “extraordinary circumstance” as per s. 22(1)(a) of The Family Property Act (see Phillips v Phillips, 2010 SKCA 117 (CanLII), 362 Sask R 124). There seems to be consensus that the house should be valued as of the date of adjudication. [178] Each party obtained appraisal reports regarding the house. The respective reports were filed by consent, and the appraisers were not called to testify. Unfortunately controversy arose as to which appraisal reports should accept. Without hearing the appraisers in court am left with weighing the written reports and considering counsel’s arguments. [179] have decided to accept the opinions set out in the Mumford and Lazeski reports (P-33, tab 41 in P-1) which set the value of the residence as of March 4, 2015 to be $360,000. As Ms. Fitzsimmons points out, this was not “drive-by appraisal” like the report submitted by Mr. S. It appears Mr. S.’s appraiser never stepped foot in the residence and received all his information about the residence from Mr. S. note Ms. J. was quite prepared to allow this appraiser access into her house, but Mr. S. did not take her up on that offer. The Mumford and Lazeski reports have the distinct advantage in that the authors attended at and in the residence. have no reason to see any bias in their report. It ends up simply being the best evidence and should be preferred. [180] further note that counsel for Mr. S. cross-examined Ms. J. about borrowing money against her house and her personal knowledge of lending practices. However, am not satisfied that establishes anything other than bank was prepared to lend her money. do not know what that particular bank’s policies were, and frankly that is not the issue. The issue is what does qualified appraiser(s) believe the fair market value of the house is. [181] Accordingly place the value of the residence at $360,000. [182] Controversy has arisen as to whether the date of adjudication (equity) in this house is divisible or (as argued by Ms. J.) only the “value” is considered at the date of adjudication. In other words, the date of application (January 8, 2013) is used to set the amount owing against the house for family property division purposes. [183] agree with Ms. J.’s argument. While it is common for court to recognize that the rising market results in date of adjudication value being used, it makes no sense to have party who has made no contribution to the mortgage payments since the date of application to receive windfall of half of the payments made solely by the other party. Accordingly do not accept the respondent’s argument. Equity Removed from House [184] However, do accept the respondent’s argument that Ms. J. borrowed $35,902.76 against the home and thereby received that as cash asset shortly before the counter-petition was issued. In my view it does not matter what the purpose of the cash was for; it should be considered as divisible family property asset regardless (see P-50, tab 20 in P-1, Exhibit P-47). Rental Properties [185] Mr. S. acknowledges that Ms. J. owned three rental properties on the west side of Saskatoon prior to their relationship. The only appraisals have are those provided by Mr. S., which Ms. J. accepts. Ms. J. testified that as far as she knew these rentals have not increased in value since they were appraised. Accordingly the Court will use the appraised values provided as of December 3, 2012: 302 26th Avenue West $230,000 1118 Avenue North $155,000 829 Avenue North $121,000 $506,000 The parties agree that the debt against these properties as of the date of application (January 8, 2013) is as follows: 302 26th Avenue West $175,893.34 1118 Avenue North $155,522.83 829 Avenue North $144,827.04 $476,243.21 Ms. J. has established that the debt against these properties as of approximately November 1, 2011 was: 302 26th Avenue West $179,154.11 (P-53, tab 23 in P-1) 1118 Avenue North 89,038.48 (P-65, tab 14 in P-8) 829 Avenue North $147,165.98 (P-51, tab 21 in P-1) $415,358.57 [186] Accordingly I accept that the exempt amount of the rental properties is $90,641.43 (i.e. $506,000 - $415,358.57). [187] The parties agreed on the value of bank accounts, that the Audi vehicle owned by Ms. J. had no equity, the approximate amount of Mr. S.’s RSP, the exemption for Ms. J.’s RSP, and the amount of Ms. J.’s tax refund for 2012. The following items remain in dispute: Mr. S.’s Tax Refund for 2012 (i) This requires adding back all the payments as set out in the exhibit to determine what Mr. S.’s refund would have been. accept Ms. Fitzsimmons’ calculations that this amounts to $10,084.50 that Mr. S. would have received by way of tax refund for 2012 (P-45, tab 13 in P-1). note the same approach was taken for Ms. J.’s tax refund calculations which appear to have been accepted by Mr. S. Mr. S. claims that he did not receive the refund. do not accept this. The official document from CRA indicates it would have been paid out on his behalf. Therefore will add $10,084.50 as family asset. (ii) Ms. J. has retained the MGB automobile. accept Mr. S.’s approach that the average of the two appraisals should be used resulting in value of $11,150. Motor Home and Avalanche Automobile (iii) am satisfied that despite the manoeuvering by Mr. S. to avoid creditors, he probably did receive $15,000 from his mother for the motor home and Avalanche. Therefore will not consider these as assets. Boat and Trailer (iv) Mr. S. agreed that he sold the boat. He did not recall to whom, and he did not produce receipt. However, am prepared to accept it was an old boat. Accordingly will accept his testimony that $2,300 was paid to him for the boat and motor. [188] It appears that Mr. S. will not acknowledge Ms. J.’s debts as of the date of application. find that these debts were occasioned by her during the course of the relationship for their mutual benefit. Accordingly will accept the same as per the chart set out in Ms. Fitzsimmons’ brief. However, will not allow the claim for legal fees made by Ms. J. [189] Using, with my changes, the helpful chart provided by Ms. Fitzsimmons under tab of her brief, summarize the family property and exemptions as follows: Exhibit Pension gross value $11,633.97 (net of exemption) $8,747.97 (net of exemption) R-23 Warman residence $360,000 as of March 6, 2015 P-32 (Tab 42 in P-1), and P-33 (Tab 41 in P-1) 829 Avenue North $121,000 as of December 3, 2012 R-16 (Tab 13 in Respondent’s binder) 302 26th Street West $230,000 as of December 3, 2012 R-17 (Tab 14 in Respondent’s binder) 1118 Avenue North $155,000 as of December 3, 2012 R-18 (Tab 15 in Respondent’s binder) RBC bank account $1,020 P-58 (Tab 31 in P-1), P-105 Assante RRSP gross value on date of application $4,898.97, gross value on November 1, 2011 $4,916.53 Nil after exemption P-59 (Tab 33 in P-1) 2012 Audi vehicle $39,800.00 P-34 (Tab 26 in P-1) MGB vehicle $11,150 P-35 and P-36 (Tabs 29 and 30 in P-1) Motorhome (no value, not an asset) Avalanche (no value, not an asset) P-67 Boat and trailer P-67 Income tax refund for 2012 $10,084.50 P-26 (Tab in P-1), P-45 (Tab 13 in P-1) Contributions to RRSP $1,098.96 Equity taken out of house Total $963,501.62 $23,251.43 Liabilities Mortgage on Warman Residence $324,097.42 P-50 (Tab 20 in P-1) Mortgage on 1118 Avenue North $155,522.83 P-55 (Tab 25 in P-1) Mortgage on 302 26th Street West $175,893.34 P-54 (Tab 24 in P-1) Mortgage on 829 Avenue North $144,827.04 P-52 (Tab 22 in P-1) Credit Card $4,970.46 P-64 (Tab 38 in P-1) RBC line of credit $1,927.63 P-60 and P-61 (Tabs 34 and 35 in P-1) RBC Visa Infinite Avion $22,575.68 P-62 (Tab 36 in P-10) Scotia Visa $2,970.31 P-63 (Tab 37 in P-1) $56,489.90 P-56 and P-57 (Tab 27 and 28 in P-1) Total liabilities $889,274.61 Net property $45,685.62 Less value of exempt property (only real property) $90,641.43 Net Property (-$16,414.42) [190] have applied the Benson Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask 17 (CA) at para. 19, analysis including the application for exemptions. find that should allow for the exemptions for the rental properties. The result is that the respondent (petitioner by counter-petition) has failed to prove that he is entitled to any distribution under The Family Property Act, and I dismiss his counter-petition in this regard. [191] also note that the petitioner is prepared in essence to walk away from this case without any claim for money from the respondent. This covers any potential equalization under The Family Property Act. Accordingly will simply dismiss The Family Property Act claim as have done so above. need not consider any s. 21(3)(m) application under The Family Property Act. [192] order that the respondent shall within 10 days, at his expense, discharge any Certificate of Pending Litigation or Certificate of Lis Pendens he has registered against any real property owned by Ms. J. In the event Mr. S. does not do this, then Ms. J. can apply to myself for an order directing the registrar of land titles to vacate/discharge any such registration along with request for costs [193] Counsel for Ms. J. urges the Court to award substantial fixed amount of costs against Mr. S. and to order that he not be allowed to take any further proceedings unless these costs are paid. Ms. Fitzsimmons points to difficulties and frustrations encountered since this litigation started. [194] have considered the above, but conclude the following is appropriate here. Ms. J. has been predominantly successful in this case. see the most significant element of this litigation to be the issue of custody, and she has been substantially successful in this regard. note that Mr. S. (and quite correctly) abandoned his claim for spousal support on the last day of the trial. However, also note (although ultimately it was moot) he was able to establish that there was spousal relationship. Ms. J. should have conceded this. Finally, Mr. S.’s claim under The Family Property Act was entirely unsuccessful. [195] Considering all of the above, will order that Ms. J. receive costs. have decided not to impose restriction on Mr. S. from bringing further applications until he has paid his costs. am quite sure that if that becomes an issue counsel for Ms. J. will bring it to the attention of the Court. VIII Conclusion [196] In summary therefore: (1) Ms. J. shall have sole custody of Z., with Z.’s primary residence to be with Ms. J. and Mr. S. to receive parenting time as set out above; (2) Ms. J. shall be entitled to apply for child support, but only after one year; (3) The parties were found to be in common-law relationship as set out above; (4) Mr. S.’s claim for spousal support is dismissed; (5) Mr. S.’s claim under The Family Property Act is dismissed without any distribution to either party; (6) Mr. S. is to remove any registrations he has placed against Ms. J.’s real property; (7) Ms. J. shall receive her costs.

The court concluded that the respondent was not a credible, trustworthy, or reliable witness for many reasons. The petitioner, on the other hand, was found to be a truthful and reliable witness. The court was also impressed with the petitioner’s witnesses because they were close family members, long-time friends, and her live-in partner. By contrast, the respondent’s witnesses were friends seen from time to time, neighbours, and his mother. The court found the respondent’s mother to be evasive and guarded at times. To determine custody the court reviewed the factors set out in s. 8 of The Children’s Law Act, 1997. The petitioner was found to be the primary parent of the child since his birth. The court was left with a degree of uncertainty as to the day-to-day activities of the child when he was with the respondent. The quality of the child’s relationship with the petitioner was found to substantially exceed that of the respondent’s relationship with the child. The court accepted that the child said disturbing things upon his return to the petitioner from the respondent. The child’s need for a stable, reassuring, and positive home were found to be met in the petitioner’s home. The court indicated that decreasing the respondent’s time with the child may ameliorate the adverse effect on the child’s emotional needs. The child was also found to be afforded more social fulfillment in the petitioner’s care. The petitioner also had more constructive plans for the child’s future. The respondent’s negativity towards the petitioner was found to negatively impact his ability to parent. The court concluded that it was in the child’s best interests to primarily reside with the petitioner. The petitioner was granted sole custody of the child so as to minimize further conflict between the parties. The respondent was given unsupervised access every other weekend. The court added $5,000 to the petitioner’s line 150 income for the personal component of her vehicle expense deduction. After determining the respondent’s income the court found that the s. 3 Guideline child support due by the respondent to the petitioner was $676 per month and that he should be responsible for 37 percent of the s. 7 expenses. The petitioner did not request child support but instead asked the court to consider it in the distribution of property. The respondent discharged the onus of establishing a common-law relationship of two or more years. The respondent’s pension value available for division was found to be $11,663.97. The court did not find an extraordinary circumstance to warrant an unequal division of the family home. The value of the home was $360,000. The court used the date of application to determine the amount owing on the home. The petitioner also had rental properties and was given an exemption of $90,641.43 for those properties. After taking into consideration all of the property and exemptions, the respondent failed to prove that he was entitled to any distribution under The Family Property Act. The petitioner did not claim an equalization payment. Costs were awarded to the petitioner and the respondent was restricted from bringing a further court application until those costs were paid.

8_2015skqb144.txt

C.A.C. No. 110557 NOVA SCOTIA COURT OF APPEAL Clarke, C.J.N.S.; Hallett and Chipman, JJ.A. BETWEEN: DOMINIK TEMPELTON MACHEK and HER MAJESTY THE QUEEN Respondent Mark T. Knox for the Appellant William D. Delaney for the Respondent Appeal Heard: November 22, 1994 Judgment Delivered: November 25, 1994 THE COURT: The appeal is dismissed as per reasons for judgment of Chipman, J.A.; Clarke, C.J.N.S. and Hallett, J.A., concurring. CHIPMAN, J.A.: The appellant pled guilty in Provincial Court to three charges of dangerous driving causing bodily harm. He sought leave to appeal and appeals from his sentence of nine months incarceration plus two years probation on each charge, to be served concurrently. On June 9, 1994 at about 10:00 p.m., the appellant had an argument with his girlfriend at her home on Connolly Street in Halifax. He left the home in an agitated state, got into his vehicle and drove northerly on Connolly Street at high rate of speed, with his headlights off. He drove through, without stopping, at stop signs at the intersections of Roslyn Street and Edgewood Road. At the Edgewood Road intersection, he collided with westbound Mazda pickup truck driven by Dennis LeRue and occupied by Ronald and Adam LeRue. These three people suffered serious injuries. Dennis LeRue suffered broken arm and an undisplaced pelvic fracture and fractured ribs and Ronald LeRue and Adam LeRue suffered undisplaced fractures of the cervical spine. At the time of the accident, the appellant had not consumed alcohol or drugs. He was duly licensed driver. The appellant is 19 years of age and has grade 12 education. He has five previous motor vehicle accidents and convictions under the Motor Vehicle Act for failure to obey traffic signs, speeding and failure to display license on demand. His criminal record consists of conviction in November of 1992 for possession of narcotic, conviction in 1993 for two counts of theft under $1,000 and conviction in August of 1994 for theft under $1,000 in respect of which he was sentenced to 45 days incarceration, to be served intermittently to be followed by six months probation. Following the motor vehicle collision on June 7, 1994 the appellant was charged on an information alleging three counts of criminal negligence causing bodily harm contrary to s. 221 of the Criminal Code. On July 25, 1994 he pleaded guilty in Provincial Court to three counts of the included offence of dangerous driving causing bodily harm contrary to s. 249(3) of the Code. At the same time, he consented to driving prohibition for period of three years being imposed upon him pursuant to s. 259(2) of the Code. The appellant was sentenced on October 31, 1994 in Provincial Court. The Provincial Court judge had before him pre‑sentence report dated September 28, 1994, report of Dr. John S. Bishop, psychologist, dated October 25, 1994 and report of Charles Casselman, counsellor at Veith House, dated October 29, 1994. Dr. Bishop referred to the appellant as an overactive person who is prone to emotional lability, impulsivity and counterproductive activity with low frustration tolerance. He recommended continued counselling for his anger management. Mr. Casselman's report recited that the appellant had 11 therapy sessions designed to assist his impulse control and inappropriate anger. At the sentencing, counsel for the Crown asked for period of incarceration, but indicated that the Crown had no objection to sentence "in the intermittent range". Counsel for the appellant concurred in this position. In imposing sentence, the court referred to the general principles governing sentencing and the importance of general deterrence in sending message to the community that dangerous driving must not be tolerated. The court referred to the appellant's driving record and the serious injuries sustained by three people as result of the appellant's inability to control his anger. The court was unable to accept the view of counsel as to the range of sentencing and imposed the sentence of nine months incarceration, concurrent on each count, together with two years probation with conditions of reporting and attending anger assessment counselling and treatment as directed by the probation service. The appellant applied for release pending his appeal to this court which was granted on November 3, 1994 by virtue of s. 679(1)(b) of the Code. The appellant's application for leave to appeal his sentence has thus been granted. On this appeal, the appellant raises three issues: (1) Whether the trial judge erred in failing to give effect to the submission of Crown counsel that an intermittent sentence was appropriate. (2) Whether the trial judge erred in failing to recognize in his reasons the mitigating factors in the appellant\'s favour. (3) Whether the sentence was manifestly excessive. FIRST ISSUE: While the recommendations of Crown counsel, concurred in by the defence, are entitled to considerable weight, the trial judge is not bound by them. See R. v. Lai (1988), 1988 CanLII 4460 (NL CA), 69 Nfld. P.E.I. R. 297 (Nfld. C.A.); R. v. Rubenstein (1987), 1987 CanLII 2834 (ON CA), 41 C.C.C. (3d) 91 (Ont. C.A.); and R. v. Blumer (1993), 18 W.C.B. (2d) 557 (Que. C.A.). The power of a trial judge to impose sentence cannot be limited by the submission of Crown counsel or a joint submission resulting from a plea bargain. If the trial judge has not otherwise erred in applying the principles of sentencing, this court should not disturb the disposition imposed merely because it does not accord with such submissions made to the judge. ISSUE TWO: number of factors were urged before the trial judge in mitigation. They were not mentioned by him in the brief reasons for sentence given orally at the conclusion of the argument. Such omission in and of itself does not constitute an error of law. See MacDonald v. The Queen (1976), 1976 CanLII 140 (SCC), 29 C.C.C. (2d) 257 (S.C.C.). It is apparent from the trial judge's brief reasons that the aspects of the matter unfavourable to the appellant were those which concerned him the most. THIRD ISSUE: The principles governing the imposition of sentence and appeals therefrom have been stated by this court on many occasions and need not be restated. See R. v. Grady (1971), N.S.R. (2d) 264 and R. v. Cormier (1975), 1974 CanLII 1577 (NS CA), N.S.R. (2d) 687. review of the nature of the offence committed by the appellant indicates aggravating circumstances in the commission of serious offence which carries maximum penalty under the Criminal Code of ten years incarceration. The appellant showed recklessness and disregard for the safety of others to very high degree. The only mitigating circumstance is the absence of the involvement of alcohol or drugs. Even so, the appellant's conduct bordering almost on the deliberate warrants the emphasis placed by the trial judge on general deterrence. While the circumstances in R. v. MacEachern (1990), 1990 CanLII 2413 (NS CA), 96 N.S.R. (2d) 68, differ from those in this case by reason of the involvement of alcohol and the fact that death resulted, that case, as many others cited to us in argument, is pertinent. The concern of the courts for highway safety must be reflected by emphasis on general deterrence where motorists display such complete disregard for the lives and safety of others as did the appellant. His driving at high speed, without lights in dense residential area, coupled with his disregard of two stop signs, imposed risk to other motorists just as substantial as if he had been intoxicated. We have reviewed all of the authorities referred to by counsel and few reveal misconduct in the operation of motor vehicle as egregious as that displayed by the appellant. Indeed, had death occurred as it so easily could have, sentence at the higher end of the range such as was imposed in MacEachern, supra, would not be inappropriate. Turning to the offender, while it is true that he is young and has expressed remorse and commenced positive steps towards managing the dangerous personality traits which led to this mishap, he has past record which is not unsubstantial for person of his age. Five motor vehicle accidents and three infractions involving the use of motor vehicle are not without significance. The three Criminal Code convictions indicate lack of respect for the law, which was demonstrated as well in his actions at issue here. While this court might have imposed a different sentence, it cannot be said in the face of these circumstances the sentence imposed by the trial judge was unfit by reason of it being excessive. The appeal is dismissed. Chipman, J.A. CANADA PROVINCE OF NOVA SCOTIA IN THE PROVINCIAL COURT CITY OF HALIFAX HER MAJESTY THE QUEEN versus DOMINIK T. MACHEK HEARD BEFORE: His Honour Judge G. H. Randall PLACE HEARD: Halifax City Court DATE HEARD: October 31st, 1994 CHARGE: That he did at or near Halifax in the County of Halifax, Province of Nova Scotia, on or about the 7th day of June, 1994 unlawfully operate motor vehicle on public street or highway in manner that was dangerous to the public having regard to all the circumstances contrary to Section 249(3) of the Criminal Code. AND FURTHER AT THE SAME TIME AND PLACE AFORESAID, did unlawfully operate motor vehicle on public street or highway in manner that was dangerous to the public having regard to all the circumstances contrary to Section 249(3) of the Criminal Code. AND FURTHER AT THE SAME TIME AND PLACE AFORESAID, did unlawfully operate motor vehicle on public street or highway in manner that was dangerous to the public having regard to all the circumstances contrary to Section 249(3) of the Criminal Code. COUNSEL: Mr. J. Clarke, for the Prosecution Mr. M. Knox, for the Defence SENTENCING C.A.C. No. 110557 NOVA SCOTIA COURT OF APPEAL BETWEEN: DOMINIK TEMPELTON MACHECK ‑and‑ HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT BY: CHIPMAN, J.A.

After an argument with his girlfriend, the appellant drove his car at high speed with the lights off, running two stop signs. At the second intersection he collided with another vehicle, causing serious injury to three people. He pleaded guilty to three counts of dangerous driving causing bodily harm; the Crown proposed an intermittent sentence, but the judge sentenced him to nine months incarceration concurrent on each count plus two years probation with conditions. The appellant appealed on the grounds the judge failed to consider the Crown's recommendation, failed to sufficiently state his reasons, and the sentence was excessive. Dismissing the appeal, that the sentencing power of a judge is not limited by Crown submissions, that the failure to state every reason does not constitute and error, and that in view of the appellant's record and other factors, the sentence was not excessive to the point of constituting a reversible error.

3_1994canlii3972.txt

J. 2001 SKQB 282 Q.B. A.D. 1998 No. 112 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON L. R. B. APPLICANT (PLAINTIFF) and ATTORNEY GENERAL OF CANADA RESPONDENT (DEFENDANT) and LES OBLATS de MARIE IMMACULEE du MANITOBA RESPONDENT (DEFENDANT BY CROSS-CLAIM) and THE ARCHIEPISCOPAL CORPORATION OF REGINA and THE ARCHBISHOP OF THE ARCHDIOCESE OF REGINA representing THE ROMAN CATHOLIC CHURCH THIRD PARTIES B.M. Singer, Q.C. for the applicant (plaintiff) N. Gunningham-Kapphahn for the Attorney General of Canada respondent (defendant) J.G. Brick for Les Oblats de Marie Immaculee du Manitoba FIAT DIELSCHNEIDER J. June 6, 2001 [1] The applicant applies for an order severing the issues raised by his claim from those raised by the cross-claim and third party proceedings so that his claim may at this time proceed to trial. [2] In bringing this application the plaintiff asserts that he is ready for trial. Indeed he states he has been ready for trial for some considerable period of time and that he is standing by while the issues of the cross-claim and third party proceedings which are of no concern to him are debated. [3] The defendant, Les Oblats de Marie Immaculee du Manitoba, is also ready for trial (except for some minor matters) and concurs that the issues raised by the claim of the plaintiff should proceed to trial at this time. [4] The Attorney General of Canada vigorously opposes severance on the ground that the Government of Canada would be prejudiced in its claim for apportionment of the amount of any judgment as between the Government of Canada and Les Oblats de Marie Immaculee du Manitoba. [5] It is quite apparent to me from the material and from the arguments of counsel that the pursuit of the issues of cross-claim and the third party proceedings, meritorious as that pursuit may be, will nevertheless result in the expenditure of, in my judgment, a very lengthy period of time. [6] Meanwhile the plaintiff is stalled in the pursuit of resolution of the issues of his claim. Not only the plaintiff but as well hundreds of other claimants who have been asked by the management pre-trial judge appointed in this case to regard the plaintiff's action as a test case are standing by pending a judgment whereby they will be able to measure the success or failure of their claims. [7] have read the minutes of the pre-trial management proceedings conducted by my colleague Maurice J. of this Court and am satisfied that this action and the other actions pending resolution of this action will be fairly dealt with under the Rules. In my opinion, and want to be emphatic about this, the fears of procedural unfairness expressed by counsel for the Attorney General if the issues are severed are groundless. [8] Moreover, am in total agreement with my colleague Noble J. of this Court who in his judgment dealing with other issues of this action took the time to express his concerns over the delay the plaintiff had up to that time been subjected to by the paper war conducted by the parties to the cross-claim and third party proceedings (see Noble J.'s judgment dated November 23, 2000). [9] I am satisfied that it is in the best interests of justice that the order of severance sought by the plaintiff should be granted so that the issue raised in the action may proceed to an early trial. [10] I therefore order that the plaintiff's claim shall proceed to trial separate from, and before, the trial of the issues raised in the cross-claim and the third party claim in this action.

FIAT. The applicant applied for an order severing the issues from those raised by the cross-claim and third party proceedings so that his claim may proceed to trial. The Attorney General opposed severance on the ground the Government of Canada would be prejudiced in its claim for apportionment of the amount of any judgment as between the Government of Canada and the Oblates. HELD: It was in the best interests of justice that the order of severance be granted so the issue may proceed to an early trial. The issues of cross-claim and third party proceedings will take a very lengthy period of time. Hundreds of other claimants who have been asked by the management pre-trial judge to regard the plaintiff's action as a test case were awaiting a judgment.

b_2001skqb282.txt

S.C.C. 02320 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Jones and Macdonald, JJ. BETWEEN: DAVID JOSEPH COVIN, and HER MAJESTY THE QUEEN, Respondent Appellant in person Mr. Bruce P. Archibald, for the respondent Appeal Heard: November 27, 1990 Judgment Delivered: November 28, 1990 BY THE COURT: Appeal dismissed from sentences for offences of theft (s. 334 (a)) and mischief (s. 430 (4) (a)), per reasons for judgment of Clarke, C.J.N.S., Jones and Macdonald, JJ.A. concurring. CLARKE, C.J.N.S.: The appellant applies for leave to appeal and, if granted, appeals from the sentences imposed on June 26, 1990 after he pled guilty to two offences. The first relates to the theft of a computer and modem exceeding $ 1,000.00 in value, contrary to s. 334 (a) of the Criminal Code. For this offence he was sentenced to 18 months. The second is the commission of mischief by damaging the motor vehicle into which he broke, and from which he stole the computer and modem. This is in violation of s. 430 (4) (a) of the Criminal Code. He was sentenced to 12 months to be served concurrently with the first offence on the theft charge. The appellant bases his appeal on the ground that the sentence is unfair. He contends that it is too long. have studied the record of the proceedings and considered the submissions that have been made by both the appellant and Crown counsel. agree with the trial judge that the deliberate acts of the appellant constitute serious offences from which the public must be protected. The trial judge was right when he said that general deterrence must be matter of primary concern. The appellant cannot be described as youthful first offender. He was twenty‑eight years old when these offences were committed. His record of criminal convictions begins in 1980. Since then he has been convicted 19 times, without counting those instances when there have been multiple charges. The majority are theft and property related offences. In all the circumstances the sentence imposed by the trial judge contains no errors in law that warrant any variation on appeal. While leave to appeal is granted, the appeal should be dismissed. C.J.N.S. Concurred in: Jones, J.A. Macdonald, J.A. IN THE PROVINCIAL COURT CITY OF HALIFAX THE QUEEN VS DAVID JOSEPH COVIN JUNE 25, 1990 HALIFAX, N.S., JUNE 26, 1990 MS A. MURPHY, for the Crown MR. C. McKINNON, for the Accused BEFORE: JUDGE H. RANDALL MINUTES OF EVIDENCE APPEAL ON SENTENCE MAISIE A. LUMSDEN Court Reporter S.C.C. 02320 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: DAVID JOSEPH COVIN, and HER MAJESTY THE QUEEN, Respondent REASONS FOR JUDGMENT OF CLARKE, C.J.N.S.

28 year old male with 19 previous theft and property related convictions - broke into a vehicle and stole a computer - damaged motor vehicle - 18 months for theft and 12 months concurrent for mischief upheld on appeal.

9_1990canlii2351.txt

D. P. BALL QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 394 Date: 2013 11 01 Docket: Q.B.G. No. 732 of 2009 Judicial Centre: Saskatoon BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY, and CLARKE TRANSPORT and CLARKE TRANSPORT INC., Counsel: Naheed Bardai for the plaintiff Gary A. Zabos, Q.C. for defendants FIAT SCHERMAN J. November 1, 2013 INTRODUCTION [1] The plaintiff, Canadian National Railway Company (“CN”), has applied to the court seeking orders that the defendants, Clarke Transport and Clarke Transport Inc. (“Clarke”): i. Answer certain questions which they refused to answer on discovery; ii. Provide answers now, based upon their present knowledge, to questions that the defendants say are best left to be answered on completion of their discovery of the plaintiff when they will have better information; and iii. Provide proper answers responsive to certain questions asked. [2] The application raises interesting issues with respect to the proper scope of questioning or examination for discovery, which will be addressed in the analysis below. Background Facts [3] On or about October 31, 2007 Clarke loaded CN railcar CNIS413529 with steel coils at its Kitchener, Ontario loading facilities. On November 8, 2007 train, including this railcar, derailed near Kindersley, Saskatchewan. CN says the derailment occurred because Clarke failed to properly block, brace and/or secure the steel coils within the railcar, which permitted the coils to move and the car to become unbalanced and cause the derailment. [4] CN claims that it suffered damages in excess of $2.5 million and that Clarke is liable in both contract and in negligence. Clarke denies any breach of contract or negligence, but says that if there was any breach of contract or negligence, this was not the cause of the derailment. In the alternative Clarke pleads contributory negligence and in any event puts CN to strict proof of the damages allegedly suffered. [5] In the context of these facts, the CN discovery or questions included attempts: i. To determine how the steel coils were positioned and secured within the railcar and what evidence there exists on this topic; and ii. Who was involved in the loading and what recollections they have. [6] In addition to these topics, counsel for CN sought to use the questioning process to obtain admissions from Clarke that: i. Other railcars loaded by Clarke prior to the car in question were improperly loaded; and ii. detailed compilation of invoices and other evidence of expenditures by CN all relate to damages it suffered from the derailment. [7] Questioning of the proper officer of Clarke occurred in April of 2011 followed by questioning of the proper officer of CN in April and November of 2011. Both proper officers gave numerous undertakings to provide answers to questions they were not able to answer at the time. [8] Clarke provided the bulk of its responses by January of 2012. CN provided its responses by April of 2012. There then followed an exchange of correspondence in which each side identified deficiencies in the other’s responses and/or sought clarification or additional information. follow-up examination of the proper officer of CN is scheduled for November. The Matters in Dispute [9] By its application of August 22, 2013 CN asks the court to rule regarding three distinct categories of questions asked, but designated as undertakings. The Refusals to Undertakings 18, 32, 33 and 38 [10] CN seeks an order that Clarke answer questions it refused to answer, being: i. requested undertaking (18) for Clarke to search its own records and advise whether or not each of some 445 railcars identified by CN as previously loaded by Clarke had in fact been loaded by Clarke; ii. Requested undertakings (32 and 33) to review binder containing several hundred pages of invoices and other documents assembled by CN that CN says are expenditures it incurred as result of the derailment and advise which invoices Clarke says are not related to the derailment or which Clarke is currently aware do not relate to the derailment; and iii. requested undertaking (38), with respect to sketch or drawing prepared by an insurance adjuster for Clarke depicting the loaded railcar, to provide any background documents, information or factual information that went into the preparation of the sketch. The Deferral of Answers (Undertakings 28, 39 and 53) [11] The subject questions in this category were: i. Whether Clarke has any facts or information that suggests the derailment was not caused by the movement of the coils in the car (28); ii. To advise, following its conclusion of discovery of CN’s representative, if there is any change in Clarke’s position as to the facts it relies on to say the load was improperly handled by CN and to provide the facts relating to that (39); and iii. Should particulars beyond those provided in the answers at the time of questioning become available that Clarke will rely on in support of its allegations of contributory negligence in paragraph 10 of its statement of defence, to advise (53). [12] In its responses to undertakings 28 and 39 Clarke replied that answers to these undertakings cannot be provided until completion of its own questioning of CN and takes the position that CN’s application in respect of these undertakings is premature and unnecessary. In respect of undertaking 53 it replied that it “will do so”. The Adequacy of Responses to Undertakings 34 and 35 [13] Undertaking 34 asked detailed questions of Clarke’s proper officer regarding what one Dave Swainson meant by certain statements contained in written statement prepared by him. Dave Swainson had inspected the car after loading and, after CN informed Clarke of its claim, he prepared memo or note outlining his position to John Thompson, to whom he reported at the time. response was provided that CN views as unresponsive in that it reads as John Thompson advising what Dave Swainson meant or did. CN says the undertaking calls for Mr. Swainson himself to say what he meant or did, as opposed to Mr. Thompson saying what Mr. Swainson meant or did. [14] Undertaking 35 was to make inquiries of John Thompson and Dave Swainson whether either had inspected the car after loading and, if so, what they recall of the inspection. The response given stated that, “It is believed that Dave Swainson is the person who inspected and sealed the car” and goes on to provide conclusionary statements. CN says this is unresponsive since the undertaking called for Clarke to make inquiries of Thompson and Swainson and to advise what their personal responses to the questions were. ANALYSIS The Scope of Questioning under the “new” Rules Materiality and Relevance [15] The refusals to answer, particularly as regards undertaking 18, raise issues relating to the proper scope of production and questioning under The Queen’s Bench Rules, effective July 1, 2013. The questions were asked while the former Queen’s Bench Rules were in effect. Has the scope of the production and questioning obligations changed from the broad relevance test applied under the former Queen’s Bench Rules? [16] Former Rule 212 required the production of documents “relating to any matter in question” while former Rule 222 permitted examination for discovery “touching the matters in issue in the action” [emphasis added]. The broad scope of the words “relating” and “touching” resulted in the court adopting broad relevance test to both the production and discovery obligations. [17] The Queen’s Bench Rules now provide that:i. The production obligation is to “disclose all documents relevant to any matter in issue in the action”, Rule 5-6; andii. The questioning obligation is about information or documents“relevant to any matter in issue”, Rules 5-18 and 5-25. [18] I am satisfied that when this Court moved from the words of touching and relating to any matter in issue, it intended to move away from the broad relevance test that existed under the former Queen’s Bench Rules. Concerns existed in Saskatchewan, as in other jurisdictions, that the broad relevance test did not strike proper balance between the considerations of efficiency, timeliness in the conduct of litigation and cost control on the one hand with the counterbalancing interests of litigants and counsel in ensuring that all potentially relevant information was known. [19] This conclusion is reinforced by foundational Rule 1-3 which expressly provides that the purpose of the rules is to provide means by which claims can be justly resolved in court process in timely and cost effective manner and that the rules are intended to be used to identify the real issues in dispute, to facilitate the quickest means of resolving claim at the least expense and to provide an effective, efficient and credible system of remedies and sanctions to enforce the rules. Proportionality and striking an appropriate balance are now essential considerations in all aspects of the Rules. [20] commonly stated approach to the concept of relevance asks the question Does the evidence offered, as matter of logic and human experience, tend to prove or disprove fact in issue? It needs to be noted that this iteration of relevance melds the distinct concepts of relevance and materiality into one omnibus concept of relevance that defines relevance by specific reference to matter in issue. [21] There are two components to this melded concept: i. The component of logical relevance. Does the proffered evidence tend as matter of logic and human experience to prove or disprove the fact or matter for which it is offered; and ii. The component of whether the fact or matter is in issue in the action. This is the distinct realm of materiality. [22] What determines whether fact or matter is material are the elements of the cause(s) of action and what the parties have pled as being the facts or their positions. Only if the matter is in issue in the action is the matter material, in jurisprudential sense. If the matter qualifies as being material to the action, the next question is whether the evidence being proffered tends to prove or disprove the matter in issue. If the question does not relate to matter in issue as particularized by the pleadings, then the matter is not relevant to any matter in issue. Proportionality [23] Materiality and relevance are concepts that do not have rigid boundaries. The debate about whether broad or narrow relevance test should be applied demonstrates that the concept of relevance can be applied narrowly and rigidly or broadly and with some flexibility. While delineating the boundaries of whether or not matter is material can often be done with greater precision that delineating what is relevant, nonetheless materiality is not always clear cut. matter may fall outside the mark of clear materiality but remain debatable. [24] Where materiality or whether matter is in issue and relevance fall into ranges where the matter is debatable, the decision whether question or production demand is proper may need to address the proportionality considerations that flow from the principles outlined in the foundational rules. [25] If matter is of only debatable, potential or marginal materiality or relevance then it is appropriate for the court, in making its decision and exercising its discretion, to do cost/benefit analysis taking into account the considerations outlined in the foundational rules. Where the materiality or relevance is uncertain, the cost imposed in time, expense or burden is significant or the benefit limited or unknown then proportionality considerations may well be the deciding factors. The Refusals to Undertakings 18, 32, 33 and 38 [26] Requested undertaking18 is for Clarke to search its own records and advise whether or not each of some 445 railcars identified by CN as previously loaded by Clarke had in fact been loaded by Clarke. Based on a review of the claim as pled, matters relating to railcars previously loaded by Clarke are not an issue in the action. The pleadings allege negligence or breach of contract in respect of the car in question and resulting damages from the ensuing derailment. [27] In paragraph 19 of its claim CN also seeks damages in relation to “all costs incurred for the inspection of all trains carrying Coils loaded by Clarke”. This pleading can logically only relate to the inspection of trains carrying coils loaded by Clarke after the derailment in question. The history of some 445 cars previously loaded by Clarke is not pled as an issue in the action. [28] CN says it has its own records that show cars previously loaded by Clarke were not balanced and thus the topic is relevant to its allegation of negligence. It is open to CN to attempt to convince the trial judge, based upon its own evidence, that previous Clarke loaded cars were unbalanced and that such evidence is relevant to the decision of whether or not there was negligence or breach of contract in loading the car in question. Such an attempt may raise issues relating to the collateral fact rule or the law with respect to similar fact evidence. These are matters for the trial judge to decide at the time. The question for the moment is whether the request is proper for pre-trial questioning. [29] conclude that the matter of railcars previously loaded by Clarke is not within the proper scope of questioning. This topic is not an issue in the action, either as matter expressly pled or by virtue of being an essential element of the cause of action alleged. [30] To the extent to which it can be argued that the history of these 445 cars may be relevant to the issue of negligence in loading the subject car, find such relevance to be limited. I am also of the opinion that for proportionality reasons Clarke should not be required to answer the question. Putting Clarke to the time, effort and expense of requiring it to search its records to determine whether it loaded some 445 specific cars over the course of 3 ½ years is not justified by the benefits it provides to the conduct of this action. Beyond the immediate burden associated with the request, it is apparent that this line of questioning has the potential to expand into an investigation of the facts relating to the loading of some or all of these previous cars. [31] The requested undertakings 32 and 33 are to review a binder containing several hundred pages of invoices and other documents assembled by CN that it says are expenditures incurred as a result of the derailment, and to advise which invoices Clarke says are not related to the derailment or which Clarke is currently aware do not relate to the derailment. I find Clarke’s refusal to accept this requested undertaking to be appropriate. [32] There may be many situations where it is entirely appropriate and an efficient approach to ask defendant whether they accept that certain costs or expenses were incurred as result of the action or incident in question. Agreeing on such matters, where appropriate, is consistent with the efficiency objectives of the foundational rules. However, it is ultimately a plaintiff’s burden to prove its damages, and a defendant is not required to assist plaintiffs to do so. [33] The fact that defendant is not obliged to assist plaintiff to prove their damages aside, the approach taken here of presenting several hundred pages of invoices and other documents and asking the defendant to advise which they say relate and do not relate to the derailment is of such nature and scale that it is not appropriate. [34] Clarke cannot, without significant work that would essentially involve auditing CN’s entire claimed expense records, possibly know whether or not the items claimed flowed from the derailment. All of the relevant knowledge is in the possession of CN, and Clarke would have had no basis on which to make informed decisions. The request can be made, but it is entirely up to Clarke to decide whether or not to accommodate CN. There was nothing in Clarke’s refusal to answer that was inappropriate. [35] Requested undertaking 38 was to provide any background documents, information or factual information that went into the preparation of the sketch by Clarke’s insurance adjuster. Clarke refused to answer on the basis that the information sought was within the scope of its litigation privilege. CN argues that Clarke having waived its litigation privilege in respect of the sketch itself, it must follow it was waiving any claim of privilege as regards the sources of information leading to the sketch. [36] It is clear that the insurance adjuster’s file would be subject to a litigation privilege. For discussion of the law and parameters relating to the litigation privilege see the Supreme Court of Canada’s decision in Blank v. Canada (Minister of Justice), 2006 SCC 39 (CanLII), [2006] S.C.R. 319. The adjuster’s involvement was clearly the result of CN having informed Clarke of its claim or potential claim against Clarke arising from the derailment. Clarke’s third party liability insurer and its adjuster were involved because of the obligation of Clarke’s liability insurer to provide either defence to the claim or an indemnity. Thus the requirements of pending or apprehended litigation and the insurer and the adjuster’s involvement as an agent of Clark are satisfied. The issue is whether production by Clarke of document in respect of which it could have claimed litigation privilege waives any claim of such privilege as regards background information to the document. [37] The most current and comprehensive discussion of the topic of loss or waiver of litigation privilege is found in John Sopinka, Sidney N. Lederman Alan W. Bryant, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis Canada Inc., 2009) at 14.202 to 14.218. review of these paragraphs shows that the judicial decisions on waiver of the litigation privilege have been in the context of the question whether disclosure of an expert’s report results in waiver of any claim of privilege to information in the expert’s file to which the litigation privilege would otherwise attach. [38] While there is not unanimity of opinion, the prevailing view is that when an expert takes the witness stand or the expert’s report is tendered into evidence there is an implied waiver of the information in the expert’s file which is foundational to the opinion. However, it is generally held that the implied waiver should be narrowly construed and the privilege should be maintained where it is fair to do so, and any implied waiver should be restricted to material relating to the formulation of the expressed opinion. (See: para. 14.208.) [39] At this point, the sketch is simply representation of Clarke’s position as to the configuration of the coils and the bracing or blocking for such coils as loaded by Clarke. Unless and until the sketch is tendered as evidence at trial, I am of the opinion that there is no implied waiver of the litigation privilege that otherwise attaches to the foundational information leading to the preparation of this sketch. There is, in my opinion, no unfairness to CN in maintaining the litigation privilege relating to the adjuster’s file generally. It is open to CN to ask Clarke to identify the employees who were involved in the loading of the car and its inspection before release to CN for transportation and to pursue the same or similar factual information without intruding on the litigation privilege. [40] As the Supreme Court of Canada said in Blank, the litigation privilege is intended to create “zone of privacy” in relation to pending or apprehended litigation. Once this zone of privacy is found to exist, it should not be lightly intruded upon. Should CN seek to tender this sketch as evidence at trial, then the trial judge may well have to rule on whether there is then an implied waiver of litigation privilege in relation to the foundational information for the sketch. But, for the present and in the context of pre-trial questioning, I conclude that Clarke’s refusal to provide a response to requested undertaking 38 was appropriate. The Deferral of Answers (Undertakings 28, 39 and 53) [41] Clarke’s position is that CN’s application in respect of these undertakings is premature and unnecessary since it had undertaken to provide answers in the future upon conclusion of its questioning of CN or upon additional particulars becoming available to it. [42] CN argues that Clarke is obliged to answer based upon its current knowledge. It says that if future questioning or other information obtained requires an additional response or correction, the undertakings and the law contemplates that CN can then correct or provide additional information, but that there is current obligation to provide such facts or information as it has. Thus it says its application is not premature. [43] CN cites in support of this position International Minerals Chemical Corp. (Canada) Ltd. v. Commonwealth Insurance Co., [1991] S.J. No. 516 (QL) (Q.B.), where Halvorson J. said at para 6: Respecting another group of undertakings, the defendants replied that they needed further examinations for discovery before supplying answers. This is not [an] appropriate response. The defendants are obliged to indicate their present positions and facts now known or believed to exist. [44] The report of this decision does not provide the undertakings, the context of the questions nor sufficient information regarding the nature of the claim and the information sought to be able to appreciate the reasons for the ruling Halvorson J. made. Further, this decision was made in the context of the former Queen’s Bench Rules, absent the emphasis now in the foundational rules on the quickest means of resolving claims at the least expense. Accordingly, am unable to find much to assist me in Justice Halvorson’s decision. [45] Prior to undertaking 28 being taken under advisement, Clarke, through its counsel, advised in respect of undertaking 28 that they did not have a position on what caused the derailment and if they developed a position they would advise. Prior to undertaking 38 they stated they had provided all of the facts they were then aware of. Thus Clarke provided to the date of their questioning their position and the facts they were aware of. They say that while they are prepared to answer the undertakings, both having been taken under advisement, that answers cannot be provided until completion of now scheduled continuation of discovery. [46] Given the answers provided at the time of questioning, can see no justification for me to do anything other than accept Clarke’s stated position that answers to undertakings 28 and 39 cannot be provided until completion of their questioning of CN. Indeed, in the context, completion of discovery of CN appears to me to be necessary step in the process of Clarke formulating position as to what caused the derailment and what facts they rely upon in support of that position. Further, find this to be the quickest means of dealing with the questions asked at the least expense. Accordingly, decline to order Clarke to answer now based upon its current knowledge. [47] With respect to undertaking 53, Clarke agreed at the time of questioning that, should particulars, beyond those provided at the time of questioning, become available, it would advise. That remained its position on this application. Inherent in this is that no additional particulars have yet become available. [48] Rule 5-31 imposes continuing obligation to correct, as soon as practicable, an answer that becomes incorrect or misleading as result of new information. There is no evidence before me that this obligation under the rules has not been complied with. The Adequacy of Responses to Undertakings 34 and 35 [49] I agree with the position taken by counsel for CN that:i. Undertaking 34 calls for Mr. Swainson himself to say what he meant or did, as opposed to Mr. Thompson saying what Mr. Swainson meant or did; and thatii. Undertaking 35 calls for Clarke to make inquiries of Thompson and Swainson and to advise what their personal responses to the questions were. Accordingly, I order Clarke to provide proper responses to CN. [50] In light of the foregoing order that Clarke shall within 10 days of this order provide proper responses to undertakings 34 and 35. The balance of CN’s application is dismissed. [51] have for the most part dismissed the application by CN for relief. While have ordered proper responses be provided in respect of undertakings 34 and 35, this was minor part of the relief sought and was matter that normally would have been dealt with on an informal basis between counsel or by follow-up examination. [52] In my award of costs balance the limited success of CN against their failure on what see as the significant issues of the application. The matter must be treated as complex motion for costs purposes. Significant briefs of fact and law were filed. The matter was moved to the bottom of the chambers list and when reached occupied more than one hour in argument. In the result award net costs of $1,500.00 to Clarke in any event of the cause.

HELD: The Court held that the replacement of former Queen’s Bench rule 212 requiring the production of documents “relating” to any matter in question and rule 222 permitting examination for discovery “touching” the matter in issue in the action by new rules 5-6, 5-18 and 5-25, which use the phrase: “relevant to any matter in issue”, showed the intention that the broad relevance test was no longer applicable. The test under the new Rules was whether the matter qualifies as being material to the action based upon the matter as pled and whether the evidence tends to prove or disprove the matter in issue. This inquiry must be balanced against the notion of proportionality set out in the foundational rules. The Court dismissed the application, excepting the requested order under 3) wherein the defendant would fulfill its undertaking to have certain employees provide responses. With respect to the rest of the relief requested under 1), which involved the undertaking that the defendant would search its records regarding the loading of railcars, the Court held that the as matter was not an issue in the action, based upon a review of the claim as pled. Having regard to proportionality under the new rules, the defendant should not be required to answer the question in light of the effort and expense required versus the possible benefits. The Court held that the plaintiffs were not entitled to ask the defendants to review a binder containing hundreds of pages of invoices assembled by the plaintiff regarding its expenditures incurred as a result of the derailment in order for it to advise the plaintiff which invoices the defendant believed were not related to it. It was the plaintiff’s burden to prove its damages and the defendant was not required to assist the plaintiff to do so. The plaintiff’s requested undertaking for the defendant to provide any background documents and information that went into the preparation of sketch of the railcar in question by the defendant’s adjuster was also denied. The adjuster’s file was subject to litigation privilege and unless it was tendered as evidence at trial, there was no implied waiver of that privilege. Regarding the plaintiff’s request in 2), the Court agreed with the defendants that that plaintiff’s request that the defendant answer questions now, rather than after it had completed questioning of the plaintiff, was premature. The defendant had not yet taken a position on the cause of the derailment and they would advise the plaintiff when they had developed one. Rule 5-31 makes it an ongoing obligation to correct answers and there was no evidence in this application that the rules had not been complied with. The Court awarded costs in the amount of $1,500 to the defendants due to the complexity of the application, requiring the submission of briefs of law and the amount of time taken to argue them matters in Chambers.

d_2013skqb394.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 30 Date: 2011 01 19 Docket: F.L.D. 216/2010 Judicial Centre: Regina, Family Law Division BETWEEN: TRICIA LEANNE JONES and ROBERT GORDON BLYTH Counsel: Peggy M. Benko for the petitioner Jeffrey G. Brick for the respondent JUDGMENT KRAUS, J. January 19, 2011 [1] This is a review of the issues of parenting and support as directed by the interim order of August 18, 2010. [2] In her affidavit, sworn December 17, 2010, the petitioner attests to: her financial circumstances (paras. to 8) her annual income of $19,500.00 (para. 5) her attempt to obtain report from the school counsellor about the boys (para. 9) the referral of the boys by the family physician to psychologist and her opposition to overnight access (para. 10) the continued alcohol and drug usage by the respondent (paras. 11 to 13) her discussions with the respondent concerning work in the oil patch (paras. 14 and 15) her need of child and spousal support (para. 17). [3] In his affidavit in response, sworn January 4, 2011, the respondent attests to: regular exchanges of the children for access (paras. 8, and 14) opposition by the petitioner to overnight access and his assertion that he does not use alcohol prior to or during parenting time and that he only drinks socially and not to excess (para. 19) the absence of receipts for expenses of child care, speed skating and soccer pursuant to s. of Federal Child Support Guidelines (SOR/97-175, as am) (the “Guidelines”) (paras. 21 and 22) the reduction in the petitioner’s income from expected income ($23,500.00) to actual ($19,500.00)(para. 23) his qualified offer to contribute to s. expenses (para. 24) his desire to increase parenting time on weekends to overnight, and one overnight during the week (para. 26) his denial of drug and marijuana usage (paras 27 and 28) his continued membership in the pipefitters union and regular checks of job postings in the oil patch (para. 29) his present employment with local construction company and his income (weekly gross of $600.00 to $1,000.00) and expenses (paras. 34 to 37) letters from social worker and family physician (paras. 38 and 39) his activities with the children and wishes for increased access (paras. [4] The letter dated December 14, 2010 from the social worker of the Regina Qu’Appelle Health Region (Exhibit “C” to the respondent’s affidavit) states that the respondent was admitted to hospital in Moosomin in March, 2010 expressing major concerns about his suicidal thoughts, high anxiety levels and drug use which were detrimental to himself and to his children, and followed through with treatment for addictions and psychiatric evaluation. The letter dated December 14, 2010 from Dr. Rolts of Moosomin (Exhibit “D”) states that as result of motor vehicle accident in 2006, the respondent suffered permanent disability of his right leg including right foot drop, and he uses an orthotic. [5] In her affidavit in reply sworn January 7, 2011, the petitioner attests: the children are scheduled to see psychologist at Mental Health, on referral by Dr. Van de Merve, with weekly sessions which may increase to two or three times weekly (para. 8) she is opposed to overnight and unsupervised access by reason of the admission of the respondent to suicidal thoughts, high anxiety levels and drug use and that such were detrimental to himself and the children, and the respondent has not produced the psychiatric evaluation, nor clinical notes from the addictions worker (para. 9) the respondent is moving to Moosomin with his girlfriend about whom she knows nothing. When they were together, the respondent never helped the children with school work or made them meals and, on numerous occasions, was passed out on the couch, either drunk or suffering from hangover. She continues to be concerned regarding the safety of the children (para. 9) she has smelled the odour of marijuana on the respondent’s breath when he picked up the children, and he continues to smoke marijuana and drink excessively (para. 11) the respondent told her that he had been out on the pipeline and welded 17 joints of pipe but would not return to the pipeline and work as he did previously until the issue of child support was settled by the court (para. 12) the employer of the respondent in the construction business is very good childhood friend of the respondent and they worked together on the pipelines (para. 14) in the years subsequent to his diagnosis with drop foot in 2006, the respondent’s tax returns showed that he earned: $150,252.00 2006 $105,628.00 2007 $130,704.00 2008 $154,550.00 2009 (para.15) the doctor’s letter does not state that the respondent cannot work on the pipeline as he had done until their separation (para. 16). POSITION OF THE PARTIES [6] The petitioner submits that after the parties separated in December, 2009 the respondent did not return to work on the pipeline nor has he provided any evidence to show that he cannot go back to such work. She argues that the respondent, young man in his early 30's, has the ability to earn the amount of income which he did earn prior to their separation and that income should be imputed to him under s. 19 of the Guidelines. The petitioner points to the current job of the respondent in the construction field, physical and difficult work, which shows that he is capable of working and earning in excess of $150,000.00 as he did in 2009. She submits that the parenting issue should be adjourned pending reporting by the childrens’ psychologist. The petitioner requests child support retroactive to September 1, 2010, share of the annual child care expenses of $4,300.00, and monthly spousal support of $2,500.00. She also seeks costs of $1,500.00. [7] The respondent submits that the petitioner, who wants minimal access, is attempting to strip away his parenting role. The respondent admits drinking and having struggled with depression which he says was caused by being away from his family in order to work on the pipeline. He says everyone has depression upon the break up of relationship but it should not be the basis for denial of access. Since the interim order last August, the respondent has exercised access and there is no evidence that the children are fearful of him. The social worker pointed out the struggles of the respondent and he should not be condemned for admitting and dealing with them. The respondent requests an extension of parenting to overnight, to commence after school on Friday to Sunday evening, and each Wednesday until 8:00 p.m. As to the issue of his income, the respondent submits that he does not assert that disability prevents him from working on the pipelines and, although he does not want to go back to the pipelines, he is actively looking for work and it is just matter of finding it. The case authorities do not require him to work in particular field, the respondent submits, and at the present there is no available opportunity. The respondent says he intends to go back to the pipelines but at the present he does not have the ability to pay spousal support. As to costs, the respondent points to his application for variation which was settled when the petitioner returned from Pense. pre-trial conference should be directed the respondent says he is ready to proceed. [8] The petitioner replies that she is not ready to proceed to pre-trial conference since she requires information as to availability of work on the pipelines. The respondent, who does not assert disability preventing him from working on the pipelines, should be engaged in work that pays more than his construction job. The petitioner says the respondent had no income when the child support order was made last August requiring him to pay $500.00 monthly child support. She also says that the respondent has 14 years of experience working on the pipelines. DECISION [9] I am not persuaded on this review that it is in the best interests of the children to change the interim access order made last August, either by restricting access or by enlarging it. Those questions are best left for trial where full and complete evidence and issues of credibility can be considered and adjudicated. [10] The issues of the respondent’s income and the petitioner’s entitlement to spousal support were also adjourned for review by the interim order made last August. The respondent admits that he is capable of working on the pipelines but he has only presented sparse evidence as to his efforts to earn reasonable income between last August and the date of this review, despite the findings in the order that he had the capability to earn well in excess of $100,000.00 per annum. [11] In my view, the respondent is intentionally under-employed as contemplated by Parliament in s. 19(1)(a) of the Guidelines. To his credit, the respondent does not assert that his disability prevents him from working on the pipelines but the respondent’s decision to work in construction earning substantially less than he earned when working on the pipeline during his 14 years experience was not reasonable in all of the circumstances. [See V.G.B. v. E.H. 2004 SKQB 280 (CanLII), 250 Sask.R. 272 and Donovan v. Donovan 2000 MBCA 80 (CanLII), 190 D.L.R. (4th) 696] I impute annual income to the respondent of $130,294.00, the average income of the three previous years of his employment but I do not impute that income to him prior to September 1, 2010 since he was hospitalized last March and followed through with treatment for addictions and psychiatric evaluation. [12] Effective December 1, 2010, the interim child support obligation of the respondent is $1,752.00 monthly, the table amount for two children under s. 3 of the Guidelines. decline to award retroactive child support before December 1, 2010 on this interim review. [13] Effective December 1, 2010, the parties shall share child care expenses of $4,380.00 annually in proportion to their respective incomes, pursuant to s. 7 of the Guidelines. determine the annual income of the petitioner to be $19,500.00. [14] Considering the existing means and needs of the parties, I decline to order interim spousal support since I am not satisfied that the respondent has the existing ability to pay it. However, the respondent must immediately obtain employment and work to his earning potential. (See Hunt v. Smolis-Hunt 2001 ABCA 229 (CanLII), 205 D.L.R. (4th) 712). All of the issues respecting spousal support may be settled at pre-trial conference or will be determined at trial. [15] The issues respecting retroactivity of child support, ongoing child support, access and spousal support are directed to pre-trial conference after February 28, 2011 provided that disclosure of information relating to availability of work on the pipelines is provided to the petitioner by that date. [16] Costs of $1,500.00 are awarded to the petitioner, payable no later than May 31, 2011.

The parties had obtained an interim order in August 2010 and applied to vary the order pertaining to access and child support. HELD: 1) The Court declined to vary the interim access order and ordered the matter to trial. 2) The respondent is intentionally under-employed and the Court imputed annual income to him of $130,294 and child support was varied accordingly. Section 7 childcare expenses are to be shared pro rata. 3) The Court declined to order interim spousal support as the Court was not satisfied that the respondent had the existing ability to pay it. 4) The issues regarding retroactive child support, ongoing child support, access and spousal support were directed to pre-trial conference. 5) Costs of $1,500 were awarded to the petitioner and payable no later than May 31, 2011.

e_2011skqb30.txt

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Thomson v. Thomson, 2006 NSSC 158 Date: [Decision Date 20060524 Docket: 1201‑55623 (SFHD‑10366) Registry: Halifax Between: Kimberlie Ann Thomson v. Paul Andrew Thomson Respondent Judge: The Honourable Assoc. Chief Justice Robert F. Ferguson Heard: April 27, 2006, in Halifax, Nova Scotia Written Decision: May 24, 2006 Counsel: Kimberlie Ann Thomson, self‑represented Gordon Kelly, counsel for the Respondent By the Court: [1] Kimberlie and Paul Thomson were married on April 29, 1995, and separated in December in 2002. They are the parents of Andrew, born October 31, 1997, and Katherine Ann, born May 31, 2000. [2] For approximately five years the parties' parenting time with their children has been distributed on two‑week basis. In week one, Mr. Thomson picks up his children on Wednesday after school and returns them to school on Friday morning. In week two, Mr. Thomson picks up his children Thursday after school and returns them to Ms. Thomson Sunday evening. The remainder of the time the children reside with their mother. Also, since separation. the parents have been able to make agreeable arrangements as to sharing the parenting duties in the "non‑school" times, including Christmas, Easter. March Break and the summer vacation period. For the last five years, the parents have shared child care cost of $800.00 per month. [3] In February of 2001, Ms. Thomson petitioned for divorce. trial was held on April 27, 2006. [4] have heard the evidence as to the possibility of reconciliation and determined there is no such possibility. am satisfied all matters of jurisdiction have been fulfilled. The requirements of the Divorce Act have been complied with in all respects and the grounds for divorce as alleged has been proved. The Divorce Judgment shall be granted on the grounds set forth in s. 8(2)(a) of the Divorce Act in that there has been breakdown of the marriage and the spouses have lived separate and apart for more than year immediately preceding the determination of the divorce proceeding and have lived separate and apart since the commencement of the proceeding. [5] The parties will retain the interest they have acquired in their own pensions. Spousal Support [6] Neither party is seeking spousal support. [7] The parents agree to be designated as joint custodians of their children. ISSUES [8] Ms. Thomson seeks to become the primary care giver for the children and for Mr. Thomson\'s access to take place every second weekend. Further, she seeks to have Mr. Thomson make child support payments in accordance with the Federal Child Support Guidelines by paying table amount in accordance with his income and by making contribution to the $800.00 month child care cost in accordance with their respective incomes. [9] Mr. Thomson seeks to vary his parenting time so that he and Ms. Thomson would equally share their time with the children. He suggests this occur on weekly basis with the move occurring on Sunday evening. As to child support, Mr. Thomson submits his parenting proposal, and quite possibly the current arrangement, creates shared custody arrangement in accordance with the Guidelines. He proposes his continuing to pay one‑half of the child care expenses would be appropriate in these circumstances. RELEVANT LEGISLATION [10] The Divorce Act: More specifically, s. 15.1 "Child Support Orders," s. 16 "Custody Orders," especially s. 16.(8) which outlines factors for consideration and s. 16.(10) which notes, as principle, the children should have as much contact with both parents as is considered in their best interest. [11] The Federal Child Support Guidelines: Special or extraordinary expenses (1) In child support order the court may. on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (a) child care expenses incurred as result of the custodial parent's employment, illness, disability or education or training for employment; ... Sharing of expense (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. ... Shared custody 9. Where spouse exercises right of access to, or has physical custody of, child for not less than 40 per cent of the time over the course of year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. PARENTING ARRANGEMENTS [12] At the pre‑trial conference, Mr. Thomson indicated he would be seeking the same parenting arrangements as he is requesting at trial. Ms. Thomson, on the other hand, indicated the current arrangements were appropriate. However, in providing documents for the trial, Ms. Thomson indicated she plans to remarry and relocate and seeks to have the time the children spend in Mr. Thomson\'s care reduced. Accordingly, the parents are farther apart on this issue than indicated in the Pre‑Trial Memorandum. [13] At separation, the children for brief period of time were living primarily with their mother with their father having access every second weekend from Thursday after school to Sunday afternoon. However, for the last five years Mr. Thomson's time with the children is as has been stated previously in this decision. [14] Ms. Thomson submits it would be in the children's best interest if Mr. Thomson's regular access be reduced to what could be termed every second weekend. She also requests Christmas access be shared in such way that every second year the children would be in the care of one parent for an extended, period of that vacation time. This time would include Christmas Eve, Christmas Day and Boxing Day. At the moment, the Thomsons currently have Christmas access structured in such way that the children spend portion of that time with either parent. Ms. Thomson also requests that the parents should alternate Remembrance Day. Apart from the foregoing, she is of the view the parents can continue to divide the other non‑school time as they have done in the past. [15] In support of this request Ms. Thomas notes 1) her pending move to new location and the need for the children to be able to settle in the new area and create friends and acquaintances in the community; 2) the advantages of having the children spending all of their "school nights" in the one setting. [16] Mr. Thomson submits it is currently in the children's best interest to reside with each parent on weekly basis with the rotation taking place on Sunday evening. In submission of this request, he submits it would necessitate fewer moves on behalf of the children. He further suggests it had been acknowledged between the parties since their separation that his parenting role would, over time, increase to when they would spend equal time with each parent. [17] For the last five years, the children have been following the same pattern in their interaction with their parents. There has been no suggestion that this routine has been, or will be, harmful to the children. It is tribute to the parents' continued efforts that there was no evidence presented to show that this current situation was, or is, harmful to the children's academic or social life. find no support for conclusion that the children have "outgrown" this routine. [18] Admittedly, Ms. Thomson will be remarrying and changing her current location. Insofar as the marriage is concerned, Ms. Thomson's fiance has for some time been involved in the lives of the children in role that could be considered similar to step‑parent. The move of Ms. Thomson will not increase the distance between her home and that of Mr. Thomson. Again, as an acknowledgement of the cooperation and effort of the parents, the children will continue at the same school. [19] The only departure from the ability of the parents, over period of five years, to keep the children's interest in the forefront is Ms. Thomson's suggestion that Mr. Thomson's request for increased access is to avoid an increase in child support payments and Mr. Thomson's suggestion that Ms. Thomson's request to reduce his access is in retaliation to his seeking to share equally their time with the children. [20] The current regular parenting arrangements would appear to be serving the children\'s needs. They would appear to be prospering under this arrangement. There is no support for conclusion that this arrangement is detrimental to their interests. The parents acknowledge the success of the current parenting arrangement in their suggestions that their proposed variations are not remarkable deviation from what is presently occurring. am unable to agree. [21] Ms. Thomson\'s suggestion would create a distinct change in the time the children would have with their father. It would, under the circumstances, be contrary to the Divorce Act and, in my opinion, contrary to the best interests of the children. [22] Mr. Thomson\'s suggested variation does not create such a change as proposed by Ms. Thomson\'s but a significant change nevertheless. Currently, the children spend five nights every two weeks in the home of Mr. Thomson and the remainder of the time with their mother. They have, to a degree, a home base. [23] The current parenting arrangements have been in place for five years. From the children\'s perspective it is working and there is no evidence to support a conclusion a change is necessary nor would improve the parent/child relationship. Ms. Thomson's relocation will be change for the children. It will not create change for their schooling or their relationship with the adults in their life. However, there may well be change in the neighbourhood and social life. During this time of change, continuation of the tried and true routine with their parents will be supportive. [24] find it in the children's interest that the current parenting provisions related to their weekly routine remain in effect. Also, at this time, believe it is important that the children have access to both their parents during the Christmas Eve, Christmas Day and Boxing Day period. The alternating of Remembrance Day would not appear to be contrary to the children's interest and would appear to be beneficial to the parents and grant Ms. Thomson's request in that regard. [25] In summary, I order that the current parenting arrangements remain in effect with the exception of the change regarding Remembrance Day. am prepared to give more specific directions in this regard, if necessary. However, the parties have, for five‑year period, been able to perform this difficult parenting task in their children's best interest. The more specific my decision is as to parenting time, the more restrictions are placed in the way of the parents continuing their successful performing of this function. [26] At some point in this proceeding, Mr. Thomson requested clause preventing the removal of the children from the general area. The parents are joint custodians of their children. Obviously, any contemplated move by either of the parents would require the non‑moving parent's agreement or court order. INCOMES OF THE PARENTS FOR THE PURPOSES OF PROVIDING CHILD SUPPORT [27] find Mr. Thomson's income to be $45,000.00 year. [28] Ms. Thomson has annual income of 552,113.00 which is reduced to $46,240.00 at her request to have additional free time. find her income, for the purpose of child support, to be $52,113.00. [29] Mr. Thomson's parenting time with his children does not put him in position where he could be considered parent who is sharing custody pursuant to s. of the Guidelines. In accordance with the Guidelines tables and an income of $45,000.00 find Mr. Thomson shall pay to Ms. Thomson for the support of the children the sum of $647.00 per month beginning June 1, 2006. SECTION EXPENSE [30] Ms. Thomson has been paying party $800.00 month since their separation to provide child care of their two children. This expense continues. This expense is reasonable and necessary and in the children's best interest. As previously noted, s. suggests that as "guiding principle" the parties share such an expense in proportion to their incomes. If that were to be the case, Mr. Thomson would be required to pay 46% of the cost. However, the court, also in accordance with the s. expense, is allowed to take into account "the reasonableness of such an expense in relation to the means of the spouses." [31] With regard to apportioning this expense, have considered the following: 1) The expense to Ms. Thomson is actually less than $800.00 as she obtains income tax relief at least with regard to the amount of the $400.00 that she was contributing; 2) While did not consider the parental arrangements such that the children spent 40% of their time with Mr. Thomson, they do spend considerably more time in his care and at his expense than is normally the case in which the Guideline amount is imposed; 3) The evidence discloses that Mr. Thomson does provide additional payments with regard to some of the child care costs. In particular, it is noted that he provides complete set of clothing for both children when they are in his care and he contributes to some other extracurricular activities; 4) Although it is acknowledged that Ms. Thomson is without legal counsel, she did indicate that with regard to the child maintenance aspect of her application she was more concerned with establishing the appropriate Guideline amount than establishing the s. expense. [32] Taking the above‑noted factors into account, think, in this instance, it would be appropriate for Mr. Thomson to contribute $100.00 per month towards the s. child care expense. It is ordered that with regard to the child care maintenance that Mr. Thomson pay to Ms. Thomson, beginning June 1, 2006, a monthly sum of $747.00 which would include the table amount of $647.00 and a contribution to the child care expense in the amount of $100.00. This payment would normally be made through the Maintenance Enforcement Program, however, will leave it to the parties and, more specifically, Ms. Thomson to indicate if that is her preference as to receiving the child support. It is also ordered that both parties shall exchange copies of their Income Tax Returns completed and with all attachments even if the return is not filed along with all Notices of Assessment received from Canada Customs and Revenue Agency on an annual basis on or before June 1st of each year, commencing June 1st, 2006. [33] would request, under the circumstances, that Mr. Thomson's counsel prepare the Corollary Relief Judgment.

The parties, who were the parents of two children, separated after a seven year marriage. For the five years since the separation, their parenting time with the children had been distributed on a two-week basis. In the divorce proceeding, the mother, who planned to remarry and relocate, sought to become the primary caregiver of the children, with the father to have access only every second weekend. The father sought to vary the parenting time so that both parents would equally share their time with the children. Current parenting arrangement to remain in effect with the parties retaining joint custody of the children; table amount of child support set. The parenting pattern followed for the past five years had been working well for the children and appeared to be serving their needs; the mother's proposal would lessen the children's time with their father and the father's proposal would also create a significant change for the children, removing their current home base.

2006nssc158.txt

M.T. MEGAW QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 31 Date: 2014 01 27 Docket: Q.B.G. No. 1035 of 2012 Judicial Centre: Saskatoon BETWEEN: BARRY JAMES SWEET, VERA MARLENE SWEET and SWEET ACRES LTD., and GLEN WESLEY SWEET, MICHELLE CATHIE SWEET, SWEET INVESTMENTS LTD. and JEFF KEELER, FIRST DEFENDANTS and SASKATCHEWAN MUTUAL INSURANCE COMPANY, SECOND DEFENDANTS Counsel: Robert L.J. Stevenson for the plaintiffs M. Kim Anderson, Q.C. for the defendants FIAT MILLS J. January 27, 2014 INTRODUCTION [1] The real issue in the application before the court is whether Saskatchewan Mutual Insurance Company (“SMI”) was in special relationship of insurer with the plaintiffs that carried duty of good faith and fair dealing. The plaintiffs are policy holders of the defendant SMI. This policy is not an issue in the action commenced by the plaintiffs and is not relied on for coverage in respect of the claim. SMI is the insurer for the defendants and is involved in this claim by virtue of policy of insurance with the defendants. The plaintiffs submit that because SMI also has an insurer relationship with them, duty of good faith and fair dealing arises between the plaintiffs and SMI obliging SMI to settle the plaintiffs’ claim against Glen Wesley Sweet, Michelle Cathie Sweet, Sweet Investments Ltd. and Jeff Keeler, (the “first defendants”) with that duty in play. [2] The plaintiffs are farmers. They farm land adjacent to the first defendants, who are also farmers. The claim alleges that the first defendants sprayed herbicide on their land which drifted across to the plaintiffs’ land and caused crop damage and subsequent financial loss. This is relatively common type of action in Saskatchewan. The claim by the plaintiffs was initially against the first defendant farmers for the crop loss. [3] The defendant farmers had insurance coverage for this type of loss and turned the claim over to SMI to be dealt with. Negotiations ensued, but the claim was not settled. The plaintiffs then filed an amended claim adding SMI as second defendant. The basis of the claim against SMI is predicated on the fact that the plaintiffs also have policy of insurance with SMI. This policy of insurance does not cover the type of loss sustained by the plaintiffs, and the plaintiffs did, therefore, not seek coverage or indemnification from SMI on their policy of insurance. The plaintiffs’ policy of insurance with SMI is not the subject of the court action and otherwise plays no part in these proceedings. Paragraph of the claim forms the nub of the action against SMI. 7. The plaintiffs first became aware of the said damage from the herbicide on or about July 25, 2010 and immediately notified the first defendants of the problem who in turn notified their insurer, SMI. At all material times, both the plaintiffs and the first defendants were covered under similar policies of insurance by SMI which consequently owed and owes them duty of good faith and fair dealing. In particular, the first defendants were and are covered for the said loss by SMI which owes to the first defendants the duty to pay the plaintiffs’ loss. Because of SMI’s exclusive control over the matter of settlement and litigation expressly reserved to it in the first defendants’ policy of insurance, it is obligated to settle claims asserted against the first defendants for any amount up to and including the policy limits where the claim justifies such settlement. At the same time, because of the subsisting relationship with the plaintiffs and consequential duty of good faith and fair dealing arising out of an identical, except for the insured, insurance contract, as more particularly stated in paragraph 2.1 above, SMI was and is duty bound to adjust the plaintiffs’ loss accordingly and is not entitled to treat the plaintiffs as adversaries. The plaintiffs duly submitted their claim for their said loss and damage together with proofs of loss required by SMI, but SMI has refused to settle on reasonable basis, instead using bad faith, ‘stonewalling’ tactics including: PARTICULARS OF BAD FAITH a) Failing to reasonably investigate and evaluate the plaintiffs’ claim when SMI’s agrologist committed material errors including having the land location wrong, the crop description wrong, the crop insurance zone comparison wrong and the plaintiffs’ loss consequently understated; b) Following its faulty investigation and erroneous evaluation, on May 18, 2011 ‘low-balling’ the plaintiffs’ claim by offering $32,511.96 in settlement; c) Having reached an erroneous conclusion regarding the plaintiffs’ loss, then refusing to either revisit or revise that conclusion in the light of subsequent information; d) Using incompetent or inadequately trained personnel for the investigation and evaluation of the plaintiffs’ claim; e) Failing to adopt and implement reasonable standards for the prompt investigation and settlement of claims including the plaintiffs’ claim arising under the first defendants’ policy; f) Not attempting in good faith to effectuate prompt, fair and equitable settlement of the plaintiffs’ claim as submitted in which liability is clear; g) Compelling the plaintiffs’ to institute this lawsuit to recover amounts due under its policy with the first defendants by offering substantially less than the said loss; h) Forcing the plaintiffs to litigate its valid claim, with attendant delay and cost, as strategy of wearing them down to accept settlement for less than the value of the loss; warranting in accordance with the rule in Whiten Pilot Insurance Co. punitive damages for the purposes of retribution, deterrence and denunciation and further or in the alternative solicitor and client costs of the litigation. [4] SMI brought an application pursuant to Rule 173(a) of the former Queen’s Bench Rules to have the claim against it struck in its entirety. The plaintiffs responded with an application to add further parties to the action. These third parties were either employees or agents of SMI. The nature of the proposed claim against these third defendants is as follows: 7.1 From on or about May 18, 2011, continuing until the present, the second defendant and third defendants conspired and combined amongst themselves to defraud and to injure the plaintiffs in order to delay or defeat the plaintiffs’ obvious and substantial crop loss because of chemical spray drift. In pursuance and in furtherance of the said conspiracy, the said defendants did the following overt acts, namely: a) particulars of bad faith as stated in paragraph above of the plaintiffs’ claim are hereby repeated; b) On November 30, 2012, the second defendant SMI caused to be disclosed to the plaintiffs two binders of documents thereby admitting relevancy and admissibility of those documents and waiving privilege, if any, in relation to those documents; c) Binder number covers the period of November 7, 2010 to February 28, 2011 and the documentary materials include the third defendant Frith’s agrologist report, compensation package, summary of findings, videotape transcript and evidence in essence confirming the fact of the plaintiffs’ crop loss as alleged for which compensation of $32,511.96 was offered in settlement of the plaintiffs’ loss estimated in the amount of $141,000; d) Binder number contains documentary materials supplementary to the materials from Binder number which were obtained, gathered or prepared for the sole or dominant purpose of aiding or abetting the said conspiracy to defraud. On or about March 30, 2012, the third defendant, Junop, deliberately submitted false plant sample, not of the plaintiffs’ crop, which he knew in advance would not show Touchdown and Banvel and would show 2, 4-D and Picloram; e) The certificate of analysis thus obtained, based on false plant sample, was used by the third defendant Frith, who as an agrologist knowledgeable about farm chemicals so that he knew better, deliberately used false lab results along with specious allegations of flooding to wrongfully zero out the plaintiffs’ compensation claim. 7.2 Each of the acts specified in the preceding paragraph hereof was done by the person or persons therein alleged on behalf of himself or themselves and his or their co-conspirators in furtherance of the said conspiracy. There was no allegation of an increased loss as result of the claim against the third party defendants. [5] The applicable rule to the application is Rule 7-9 of The Queen’s Bench Rules, which reads: 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; (b) that pleading or other document be amended or set aside; (c) that judgment or an order be entered; (d) that the proceeding be stayed or dismissed. (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; (3) No evidence is admissible on an application pursuant to clause (2)(a). [6] SMI has argued that Rule 7-9(3) includes implicitly the ability to file documentation referred to in the claim (McCreight v. Canada (Attorney General), 2013 ONCA 483 (CanLII), 116 O.R. (3d) 429) where on an identical rule the Ontario Court of Appeal allowed that “...a statement of claim is deemed to include any documents incorporated by reference into the pleading and that form an integral part of the plaintiff’s claim. Among other things, this enables the court to assess the substantive adequacy of the claim.” did not need to make determination on this issue as the claim itself sufficiently describes the policy and the factual basis upon which ruling can be made. [7] The test to be applied under Rule 7-9 for striking claim as disclosing no reasonable cause of action is still found in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] S.C.R. 959, 74 D.L.R. (4th) 321, “...assuming that the facts as stated in the statement of claim can be proved, is it ‘plain and obvious’ that the plaintiff’s statement of claim discloses no reasonable cause of action?” The plaintiffs make an application under Rule 3-72(1)(c)(ii) which replaces Rule 165 of the former Queen’s Bench Rules: 3‑72(1) party may amend the party’s pleading, including an amendment to add, remove, substitute or correct the name of party, as follows: (a) before statement of defence is filed, any number of times without the Court’s permission; (b) subject to subrule (2), in the case of an action proposed as class action, before statement of defence is filed; (c) after statement of defence is filed: (i) by agreement of the parties filed with the Court; or (ii) with the Court’s prior permission, in any manner and on any terms that the Court considers just. [8] The appropriate approach to this type of application is found in Roussy v. Red Seal Vacations Inc., 2011 SKCA 116 (CanLII), 377 Sask.R. 68, where the court stated: 13 It is common ground that the proper approach to Rule 165 application is reflected in the line of decisions including Duke v. Puts, 1997 CanLII 11015 (SK QB), [1998] W.W.R. 510 (Sask. Q.B.) at paras. and 9; Aquino v. First Choice Capital Fund Ltd. (1999), 1999 CanLII 20566 (SK QB), 179 Sask. R. 221 (Sask. Q.B.) at para. 21; Judith River Farm and Water Ltd. v. Saskatchewan, 2003 SKQB 443 (CanLII), 243 Sask. R. 74 at paras. 11 and 12; Sheppard v. Sheppard, 2003 SKQB 461 (CanLII), 243 Sask. R. 79 at paras. 23‑26. 14 These cases say an amendment under Rule 165 should not be allowed if the result would be pleading that could be struck pursuant to Rule 173. Rule 173 reads as follows: ... [9] The application to amend the claim to include SMI’s agents and employees as defendants under tort of conspiracy to defraud and injure the plaintiffs falls to be determined on the same basis as the claim against SMI. If no claim exists against SMI, then the attempted addition of its agents and employees in the circumstances of this nuisance or negligence claim against the first defendants cannot stand. [10] The plaintiffs rely heavily on Whiten v. Pilot Insurance Co., 2002 SCC 18 (CanLII), [2002] S.C.R. 595. The Supreme Court of Canada dealt primarily with the question of the appropriateness of the award and amount of punitive damages. The Ontario Court of Appeal decision, 1999 CanLII 3051 (ON CA), 170 D.L.R. (4th) 280, 42 O.R. (3d) 641, in upholding the claim stated at paras. 25 and 28: 25 ...A contract of insurance between an insurer and its insured is one of utmost good faith. Although the insurer is not fiduciary, it holds position of power over an insured; conversely, the insured is in vulnerable position, entirely dependent on the insurer when loss occurs. For these reasons, in every insurance contract an insurer has an implied obligation to deal with the claims of its insureds in good faith. That obligation to act in good faith is separate from the insurer’s obligation to compensate its insured for loss covered by the policy. An action for dealing with an insurance claim in bad faith is different from an action on the policy for damages for the insured loss. In other words, breach of an insurer’s obligation to act in good faith is separate or independent wrong from the wrong for which compensation is paid. 26 Vorvis [1989 CanLII 93 (SCC), [1989] S.C.R. 1085] requires an independent actionable wrong, not an independent actionable tort. Indeed, if Pilot’s submission were correct, punitive damages could never be awarded against an insurer for bad faith in the handling of an insurance claim. Such result would be contrary to all Canadian authority and to four cases since Vorvis, each of which has recognized that punitive damages may be awarded against insurers in first party cases, that is in actions brought by insureds against their own insurer. find support for my position in the following passage from the Ontario Law Reform Commission’s 1991 Report on Exemplary Damages which endorses punitive damage awards in first party insurance cases: There is at least one type of case of breach of contract where the arguments in favour of punitive damages are compelling. This is the case where the defendant breaches the contract deliberately, and refuses or fails to tender compensation known to be owing to the plaintiff. This could be case where, without justification, the defendant fails to perform and does not tender damages for the breach, or case where the defendant declines to honour known contractual obligation to pay money. Of course, the court would have to distinguish between true case of denying contractual obligations known to exist, and bona fide dispute over the existence or extent of liability. ... The case for punitive damages in these circumstances is much the same as it is in the tort for profit situation, and may be justified on both retributive and deterrence grounds. The fact that the defendant refuses to honour known obligation to pay money suggests that there exists some imbalance of power in the relationship that makes it worthwhile for the defendant to do so. This approach also seems to address the concerns that support punitive damages in the so‑called bad faith insurer cases. One variation occurs where insurance companies fail to honour clear first party obligations. This latter type of case might escape the confines imposed in Vorvis. The statutory obligation to pay first party benefits has been relied upon to distinguish this from the purely contractual claim ... Insurance contracts are said to be governed by duties of utmost good faith. This supports the substantive case for punitive damages. It also provides an avenue for the development of duty in tort, if Vorvis makes this necessary. This type of case is one where the argument for deterrence gross up is also compelling. This raises the possibility of more restrictive approach to punitive damages for the failure to honour known obligation to pay money. Punitive damages might be limited to wrongful dismissal and insurance cases, the types of cases that have given rise to punitive damages in Canada to date. Such cases typically involve the abuse of contractual power, which might not be the case in all other circumstance captured by more general rule. 27 If Vorvis makes it necessary, like the Commission, would be prepared to hold that an insured has duty in tort of good faith towards its insureds. duty in tort has been propounded by some Australian and American courts and was hinted at by Mason J. of the Alberta Court of Queen’s Bench in Adams v. Confederation Co. [(1994), 1994 CanLII 9244 (AB QB), 25 C.C.L.I. (2d) 180 (Alta. Q.B.)]. The Australian decisions focus on the insurer’s superior bargaining position and on the insured’s dependence and vulnerability. The nature of the relationship makes it “just and reasonable” to impose on the insurer duty of good faith. The American decisions acknowledge that an insurer has an implied contractual covenant to deal with its insureds in good faith, but hold that the insurer also has duty in tort, distinct from its implied contractual covenant. These American cases are consistent with recent Canadian jurisprudence, which has recognized, in variety of settings, concurrent liability in contract and tort. For example, in Central Trust Co. v. Rafuse, [1986 CanLII 29 (SCC), [1986] S.C.R. 147], solicitor’s negligence case, Le Dain J. held that common law duty of care may be created by relationship of sufficient proximity and is not confined to relationships that arise apart from contract: Where the common law duty of care is co‑extensive with that which arises as an implied term of the contract it obviously does not depend on the terms of the contract and there is nothing flowing from contractual intention which should preclude reliance on concurrent or alternative liability in tort. 28 strong argument can be made for finding that the relationship between insurer and insured is of sufficient proximity to give rise to concurrent duty in tort alongside the insurer’s implied contractual obligation to act in good faith. [11] The factual situation in Whiten, supra, involved claim by the Whitens against their insurance company under their policy of insurance. To utilize the phrase of the plaintiffs, the “special relationship” that arose between the insurance company and the insured came from the insurance company’s adjustment of that insured’s claim under that insurance policy. [12] In Saskatchewan Government Insurance v. Wilson, 2012 SKCA 106 (CanLII), 405 Sask.R. 8, our Court of Appeal dealt with the duty of good faith at para. 3: SGI admitted at trial that, as an insurer, it owes duty of good faith to Ms Wilson (fr.: Whiten v. Pilot Insurance Co., 2002 SCC 18 (CanLII), [2002] S.C.R. 595 at para. 79). In Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30 (CanLII), [2006] S.C.R. 3, at para. 63, the Supreme Court of Canada adopted the description of an insurer’s duty of good faith as set forth in 702535 Ontario Inc. v. Lloyd’s London, Non‑Marine Underwriters (2000), 2000 CanLII 5684 (ON CA), 184 D.L.R. (4th) 687 (Ont. C.A.), at para. 29, where O’Connor J.A. said the duty requires an insurer “to deal with its insured's claim fairly” in terms of investigating and assessing the claim and in deciding whether to pay. More particularly, O’Connor J.A. held that an insurer is required to “assess the merits of claim in balanced and reasonable manner” and that payment decisions must be based on reasonable interpretation of the insurer’s obligations under the policy of insurance. [13] SMI argues that there must be breach of the contract of insurance between the insurer and insured before breach of the duty of good faith is actionable. [14] In Saskatchewan Government Insurance v. Wilson, supra, the court had this to say about an action for breach of the duty of good faith at para. 9: While agree that breach of the duty of good faith typically walks hand‑in‑hand with denial of benefits or other breach under the express terms of contract of insurance, breach of the implied duty of good faith does give rise to separate cause of action. This finding, reached by O’Connor J.A. in 702535 Ontario Inc., was reiterated by Charron J.A. (as she then was) in Ferme Gérald Laplante Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 2002 CanLII 45070 (ON CA), 217 D.L.R. (4th) 34 (Ont. C.A.), where she wrote: [78] breach of the duty to act fairly and in good faith gives rise to separate cause of action that is distinct from the cause of action founded on the express terms of the policy and that is not restricted by the limits in the policy. Hence it may result in an award of consequential damages distinct from the proceeds payable under the policy. It is important to note, however, that the duty to pay promptly, as component of the duty of good faith, must be considered in that context; it is not an absolute obligation giving rise to an automatic claim for consequential damages in the event of any failure to make timely payment in accordance with the policy. The latter contention was made by the insured in 702535 Ontario Inc. and rejected by this court. O’Connor J.A. stated as follows (at para. 37): ... the broader interpretation urged by the appellants could have far‑reaching effects for the insurance industry. In some cases, the risk of being found liable for consequential damages resulting from unsuccessfully contesting claim under policy would constitute substantial disincentive for insurers to deny claims, even those which they reasonably and in good faith consider to be either unfounded or inflated. In general sense, insurers and insureds have common interest in ensuring that only meritorious claims are paid. Increased payments by insurers lead to increased premiums for insureds. In order to effectively screen claims, insurers must be free to contest those claims which in good faith they have reason to challenge, without running the risk that if they are ultimately found to be wrong, they will be liable to indemnify the insured for losses not underwritten in the policy contracted for by the insured. [79] In addition, in an exceptional case where the insurer’s misconduct is sufficiently malicious, vindictive or reprehensible so as to warrant punishment in addition to compensation, breach of the duty to act fairly and in good faith can also found claim for punitive damages. [15] The Wilson, supra, case involved finding of an express breach of the contract of insurance. Both Whiten and Wilson, supra, and all other cases decided in this area are cases involving claim by the plaintiff under its policy of insurance issued by the defendant. There are no cases that suggest that a duty to act fairly and in good faith arises from the issuance of a policy where no claim is made against it. That is the case we have here. The plaintiffs submit that because they happen to have policy issued by the same insurer, duty is created to act fairly and in good faith on behalf of the plaintiffs while also being responsible to the defendant insureds on the same basis. [16] In our adversarial system to impose a duty upon an insurer to act fairly and in good faith to its insured in defence of the claim, while at the same time to act fairly and in good faith to the plaintiff in prosecution of the claim, is impossible. The plaintiffs argue that the insurance company by having an insurance relationship with both parties has put itself in conflict of interest on claim arising under one of the policies after their issuance. The plaintiffs say the problem is of SMI’s own making, and, therefore, they have to sort out the issue. Presumably that means paying more than they would normally have had to pay pursuant to its contractual obligations under the defendants’ policy, as SMI has an obligation to ensure that the plaintiffs also get fair value in settlement of their claim. That position is untenable. The obligations created in this case are by SMI to the first defendants, the holders of the policy that provides coverage for the claim. [17] SMI is obliged to defend the interests of the first defendants under the policy. It is entitled to attempt to limit the liability of the first defendants. SMI has referred this court to numerous decisions where no duty to third party by an insurance company was found to exist. good explanation of the theory behind this is found in Warner v. Balsdon (2008), 2008 CanLII 23713 (ON SCDC), 237 O.A.C. 317, 91 O.R. (3d) 124 (Ont. Sup. Ct.), where it was stated: 37 duty of care between third party liability insurer and persons who have made claims against the insurer’s insured would create conflicts of interest. As an indemnity provider, liability insurer is obligated to defend the interests of its insured and to limiting the liability of its insured. That translates into an effort by the insurer to avoid paying out on claims or minimizing the amounts paid. The insurer also owes duty to its policy holders to minimize premiums and one way of satisfying that duty is to minimize the number of claims paid, and the amount paid on any claims. D.M. v. Alberta Lawyers Insurance Assn., 2006 ABQB 598 (CanLII), [2006] A.J. No. 983 (Q.D.), per Booker J., at paras. 58 and 59. 38 To place duty of care on liability insurer vis‑à‑vis the party making claim, would require the insurer to breach the duties described above, placing the indemnity insurer in an impossible situation, which would not advance the law or the public interest. D.M. v. Alberta Lawyers Insurance Assn., supra, at para. 60. See also: Karamanolis v. Prudential Insurance Co. (1983), 1983 CanLII 1647 (ON SC), 42 O.R. (2d) 752, 150 D.L.R. (3d) 81 (Ont. Ct. J.); Hanna v. Polanski, 2012 ONSC 3229 (CanLII), [2012] O.J. No. 2459 (QL). [18] In Ernst Young Inc. v. Chartis Insurance Co. of Canada, 2012 ONSC 5020 (CanLII), [2012] O.J. No. 4399 (QL), the court stated: 143 ... An insurer owes no duty to person asserting claim against its insured. The claimant is stranger to the relationship between the insurer and the insured and is not in privity of contract with them (see: Karamanolis et al. v. Prudential Insurance Co. Ltd., 1983 CanLII 1647 (ON SC), [1983] O.J. No. 3140, 42 O.R. (2d) 752). Recognizing such duty would be “completely unworkable in the context of [an] adversarial relationship”, would create “irreconcilable conflicts of interest” and lead to “breakdown of the indemnity system” (see: D.M. v. Alberta Lawyers Insurance Assn., 2006 ABQB 598 (CanLII), [2006] A.J. No. 983, 271 D.L.R. (4th) 246, at paras. 57‑59). 144 On this basis, there could be no independent duty of good faith owed by Chartis to Ernst Young Inc. ... [19] There are further policy considerations that make the submission of the plaintiffs untenable. An insurance contract may provide a duty to defend, but not a duty to indemnify. In an action by plaintiff for damages, the insured will be responsible for the losses sustained if the plaintiff is successful. The insured will be relying upon the insurer to vigorously defend the plaintiff’s claim. Anything less would be breach of the insurance company’s duty to its insured. If it happens that the plaintiff is also policy holder with the insurance company on policy that has no bearing to the claim, the insurance company would be in the impossible position of owing duty of good faith and fair dealing to the plaintiff. This would result in an inability to utilize tactical or substantive errors by the plaintiff in the prosecution of its claim. It would be difficult to understand in what fashion duty to the plaintiff could be implemented by the insurer without compromising its obligations to the insured. [20] There are also, of course, insurance policies that have co-insurance provisions or deductibles that provide that the insured be responsible for either portion of or specified amount of payment for damages sustained. [21] To impose duty on the insurance company to act fairly in resolving the claim would put its insured’s financial position at risk. The insurer’s primary obligation arises from its contractual obligations to its insured under the policy being claimed on and not to third party who may be insured in circumstances unrelated to the action. [22] In my opinion the claim by the plaintiffs against SMI in the circumstances of this case has no reasonable chance of success or arguable case. In the words of Sagon v. Royal Bank of Canada, (1992) 1992 CanLII 8287 (SK CA), 105 Sask.R. 133, [1992] S.J. No. 197 (QL) (Sask. C.A.), it is plain and obvious the plaintiff will not succeed in this aspect of its claim. If SMI is not valid defendant under para. of the amended claim, then do not see how the allegation of conspiracy among SMI and its employees and agents can give rise to claim as framed in the proposed amended claim in para. [23] do not need to deal with the other arguments raised by SMI under the combination of Rules 3-72 and 7-9. Under Rule 7-9(2)(a) only the statement of claim is to be considered. Under ss. (2)(b), (c), (d) and (e) affidavit evidence is allowed to deal with those issues. The plaintiffs and defendants filed significant affidavit material on those issues. Part of the claim by the plaintiffs relies on settlement offers being made by SMI to the plaintiffs on behalf of the principal defendants. Those offers are utilized by the plaintiffs to establish that good faith dealing has not occurred. [24] As stated, do not consider it necessary to deal with the affidavit material given my conclusions under ss. (2)(a). The defendant SMI, however, has raised objections to the significant amount of information provided in the plaintiffs’ affidavits. For the most part, the objections raised to the affidavit material filed are valid. Those parts of the affidavit material that deal with settlement discussions should not have been tendered by the plaintiffs. need go no further than refer to the decision of Dufour J. in Tucker-Lester v. Lester, 2012 SKQB 443 (CanLII), 410 Sask.R. 153, while dealing with this issue. The plaintiffs have even referred to settlement discussions, negotiations and amounts in its proposed amended amended statement of claim to establish bad faith. This situation is further example of how the plaintiffs’ initial position on the existence of duty to the plaintiffs in the circumstances of this action is misguided. [25] Although determined that the plaintiffs’ improper affidavit material was not relevant to my consideration, the defendant still had to deal with the allegations made and prepare its brief of law challenging the admissibility of those statements as advanced by the plaintiffs. SMI should be entitled to its costs in so doing. fix them at $500. The defendant has been successful in its application to strike the claim as it relates to SMI. The plaintiffs have been unsuccessful in their application to amend their claim to include the agents and employees of SMI as party defendants. In the circumstances, SMI is entitled to its costs, which fix at $2,000. Hopefully the plaintiffs can get on with what this action is really about, which is the claim remaining by the plaintiffs against the neighbouring farmers who are alleged to have allowed chemical to drift onto the plaintiffs’ field and destroy their crop.

Civil Procedure – Affidavits – Admissibility HELD: The Court could not locate any cases that suggested there was a duty to act fairly and in good faith by an insurance company because of an insurance policy where no claim was made against it. The Court found that it would be impossible for SMI to act fairly and in good faith to the plaintiffs and to concurrently act fairly and in good faith to the first defendants. SMI only had a duty to defend the first defendants pursuant to their policy of insurance. The Court noted the following in making its conclusion: 1) if SMI also had a duty to the plaintiffs, they could not use tactical or substantive errors of the plaintiffs to minimize their payment obligation. The insurer would not be able to vigorously defend the claim; and 2) the first defendant may be required to pay more if there was a duty by SMI to the plaintiffs. Many insurance policies have co-insurance provisions or require deductibles be paid by the insured. The Court held that the claim against SMI, and its employees and agents, had no reasonable chance of success. The Court also awarded costs against the plaintiffs for filing improper affidavit material. The improper material included information on settlement discussions.

c_2014skqb31.txt

J. PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF TERRY LOFSTROM, ADMINISTRATOR OF THE RESORT VILLAGE OF ECHO BAY Marc Alain TAILLON and Marianne TAILLON and Robert Brumpton FRASER and Darlene Marie FRASER JUDGMENT T.W. Ferris, PCJ A.L. BORYSKI; Schulman, Serne, Boryski and Gall, Saskatoon, SK FOR THE INFORMANT M.P. HUDEC; Lojek, Jones and Hudec, North Battleford, SK FOR THE DEFENDANTS THE ISSUE 1) The Defendants are charged with permitting a private building or facility, to wit: a boat house, to remain on public reserve lands contrary to both the provisions of Sec. 197 of The Planning and Development Act, 1983, and the Zoning Bylaws of the Resort Village of Echo Bay. 2) They didn’t deny it, although they did require the crown to prove it, as has been done. 3) They say the bylaws of the Resort Village are inapplicable and that, although their activities may constitute an offence under the provincial statute, the prosecution of it should be stayed as an abuse of the legal process, and a violation of their rights to be afforded “equal protection and equal benefit of the law without discrimination …” under Sec. 15 of the Canadian Charter of Rights and Freedoms. They say that is so because they have been singled out from among great number of offenders for prosecution for, as they see it, no good reason. THE CHARGES 4) The actual wording of the charges brought against the Defendant, Fraser, (the charges against Taillon’s are the same except as to legal description) is: “on or about the 30th day of June, 1992, at the Resort Village of Echo Bay, in the Province of Saskatchewan, being the owners of the buildings and land and bearing legal description as Lot 10, Block 10, Echo Bay, Saskatchewan, Plan 83B16092, did: 1. Contravene or refuse or neglect to comply with the zoning by-laws of the Resort Village of Echo Bay by permitting private building or facility, to wit: boathouse, to remain on public reserve land within the Resort Village of Echo Bay, contrary to Section 197 and section 221(1)(a)(ii) of The Planning and Development Act, 1983, S.S. 1983-84, c. P-13.1. 2. Contravene or refuse or neglect to comply with the provisions of The Planning and Development Act being chapter P-13.1 of the Statutes of Saskatchewan by permitting private building or facility, to wit: boathouse, to remain on public reserve land within the Resort Village of Echo Bay, Saskatchewan, contrary to Section 197 and section 221(1)(a)(ii) of the said Act.” THE FACTS The Situation Preceding Construction by Taillons 5) Some years ago the Provincial Government passed legislation requiring almost all subdividors of land to, as condition of being allowed to subdivide, in effect, make gift of ten per cent of the lands they intended to subdivide for residential purposes, or the money value thereof, to Her Majesty the Queen in right of the Province of Saskatchewan. 6) The lands so required to be gifted to the Province, or set aside, if you prefer, were designated as “public reserve” or, more recently, in some cases, as here, as “municipal reserve”. (I will use both terms interchangeably hereafter. In the event that it is necessary to amend the information to reflect the fact that the lands in question became “municipal reserve” after their transfer from the Province to the Municipality, an amendment to the wording of the charges to so describe them is hereby ordered.) 7) The uses to which such lands could be put were limited to those listed in Sec. 197 of The Planning and Development Act (hereinafter referred to as “the Act”) It says: “Public reserve or municipal reserve is required to only be used for: (a) public park or buffer strip; (b) public recreation area; (c) school purposes; (d) natural area; (e) public building or facility; (e.1) building or facility used and owned by charitable corporation as defined by The Non-Profit Corporations Act; (e.2) agricultural or horticultural uses; or (f) any other specific or general use that the minister may provide by regulation. 1983-84, c. P-13.1 s. 197; 1989-90, c. 51, s. 32.” 8) That list, of course, does not, in so many words, include boathouses, nor docks, firepits, sheds, and many other things that people like to build for use in conjunction with private cottages. 9) Neither does the only regulation made under subsec. (f), inasmuch as it says that: “A public reserve or municipal reserve may be used for any purpose that would facilitate the use of the reserve as public recreation area.” 10) Thus that regulation only expands Sec. 197(b), if anything, as it may well be that “facilitating use” would constitute use for one of the purposes specified. Sec. 221(1)(a)(ii) of the Act says that: “Every person who: (a) contravenes or refuses or neglects to comply with, fails to do any act or thing required to be done or suffers or permits any act or thing to be done in contravention of: (ii) any provision of any development plan, basic planning statement or zoning bylaw or any other bylaw, permit or regulation, enacted or made by the council, any approving authority or the minister, pursuant to this Act or pursuant to powers delegated by the minister; or 11) Clearly the intention was to provide lands for the benefit of the public at large, howevermuch subdividors, and those who purchase them, and believe that the price of their lots has been increased accordingly, think that it may have been done at their expense. 12) Prior to the enactment of that legislation, subdividors could, and did, offer “lakefront” lots for sale. They went to the high water mark. Many of the older lots at Echo Bay were created on that basis. 13) However, in the case of subdivisions created after the enactment of that legislation, including those in issue herein, cottage lots do not go to the high water mark. That is because the land that was required to be given to the Province as condition precedent to allowing subdivision was the land situate immediately behind the high water mark. Thus public reserve was created between the cottage lots and the high water mark. 14) Needless to say, many cottagers regard that land as the most desirable of all. They wish to own the land as close to the actual water as possible without intervening title holders, or uses, being permitted between them and the lake. That obviates them having to contend with others creating noise, or litter, or disturbing their privacy; or sharing their good fortune, if you prefer. 15) Although there are access walkways to such public reserves, between cottage lots, set aside on the plan of survey, unless one is familiar with the survey one would not even be likely to realize that public reserve exists, let alone realize how to access it from the landside without trespassing on cottage lots. 16) That is because diagrams of the plan of survey are not liable to be posted. Further, many public reserve lands have never been developed by governmental authorities. Many of them are in natural state. Many of them have been developed by the cottage owners immediately behind them to present the appearance that they are part of the cottage owner’s lot. That is the case at Echo Bay. 17) Moreover, at Echo Bay, old cottage lots, which go to the high water mark, exist, in some cases immediately beside newer ones which are behind public reserve which, as far as the appearances of the matter are concerned, one would take to be part of the private lot. 18) Without being possessed of plan of survey, and finding actual survey pins, one would be hard pressed to realize where private land stopped and public reserve started. 19) In great number of cases, where the area of public reserve immediately in front of individual cottage lots has been developed by the lot owner, trees, brush and rock have been cleared away. In many cases sand has been trucked in to make beaches. Often walkways, firepits, docks, retaining walls, sundecks, sheds, and boathouses have been constructed by various cabin owners over the years. Thus, as far as appearances are concerned, the public reserve in many areas looks as if it were private property, and it is used as such, in varying degree, by various cottage lot owners. There is nothing to suggest to any stranger that the land is really public reserve, let alone that he is entitled to use such facilities as have been constructed on it, if he wished to do so. 20) From the evidence heard, some cottage owners take the position that the public is perfectly entitled to use things they have constructed on public reserve, and that allowing such access makes their constructions on public reserve things that “facilitate the use of the reserve as public recreation area” and, thus, legal. That is so whether or not they see themselves as having made gift, intentionally or by operation of law, to the title holder of the reserve land of anything they affix to it. 21) Others take the position that just because they may be trespassers in erecting facility on public land does not give the public any right to utilize what they have built. They deny the public access completely, or limit public access. Presumably they would wish to sue, or prosecute, anyone, for example, who helped themselves to the use of their shed, let alone purported to take it away. 22) No doubt many of the cottagers feel that the creation of public reserves has not been of any real benefit to the public because the public doesn’t know they exist and because they would have not been developed but for the efforts of the cottagers behind them. Moreover, many would take the view that the developments they made on public reserves reduced fire hazards due to removal of deadfall and brush, and boating hazards, due to the removal of rocks, and increased public access by clearing walkways, and public enjoyment by creating beaches, keeping litter cleaned up, etc. Such arguments, of course, do not touch upon the legal right to do what has been done. They merely attempt to justify it. 23) In this case the registration of the plan of subdivision resulted in title to the public reserve in question being vested in the Province on October 25, 1983. It created public reserve in front of all cottage lots. 24) The provincial Department of Municipal Government was the agency designated to determine what activities fell within the list permitted by Sec. 197. 25) However, the Province had no effective policing mechanism to determine if anyone was violating Sec. 197, or otherwise infringing on the Province’s rights as titleholder, by trespass activities such as erecting structures without permission, whether or not such uses were within the list of permitted uses under Sec. 197. 26) Nonetheless, the Department took the position that the expense of maintaining the reserves was the responsibility of the municipality, despite the fact that the Province was the titleholder. One can imagine how anxious the local cottage owners ratepayers were to tax themselves for that purpose, let alone for policing, or prosecutorial, services to enforce the provisions of Sec. 197, or the government’s rights as landowner. 27) On January 31, 1991, an amendment to The Planning and Development Act was passed which allowed the municipalities to take title to the public reserves. For any that did so the Province had, thus, set up situation whereby it created public reserves in front of cottage lot owners, the very people most likely to see themselves as justified in encroaching on public reserves. Moreover, it passed responsibility to prosecute offenders to local councils, who are elected by those cottage owners, and required them to do it at the expense of their ratepayers the cottage owners themselves. In the event of widespread violations, great expense and controversy was predictable. The real question was whether any given council chose to act out of respect for law, or pressures to enforce Section 197, or not. 28) The Resort Village of Echo Bay took title, on July 6, 1992, at which time the land in issue became known as “municipal reserve”. 29) Lakes themselves, and the lands underlying the water, and the shoreland to the high water mark, are provincial property. Insofar as they constitute navigable waterways, they are subject to federal regulation as well. 30) Which provincial government department administers the foreshore, that is the area between the highwater mark and the actual water, varies from lake to lake depending on practicalities. In some places the foreshore might be administered by the Department of Agriculture, for example, if it is suitable for haying. In others it is, as here, administered by the Department of Parks and Renewable Resources. (The name of the Department has changed over the years, but will use that one.) The administering department might allow cottage owner to put in dock depending, for example, on whether or not it felt that would cause undue damage to fish breeding habitat. 31) However, the use that can be made of municipal reserves, as distinct from foreshore, is limited to the uses permitted under Sec. 197, whether or not they became municipal reserves, or remained public ones, and whether or not the government, or the municipality, or anyone, accepted the responsibility to police or prosecute violators. 32) It is, thus, questionable whether any municipality can validly enact bylaws purporting to deal with the uses to which public reserves may be put. Certainly do not see how municipality could purport to override the provisions of Sec. 197. It may be that a municipality might seek to even further restrict permitted uses on the strength of its rights as a land owner, but I do not see how it could have jurisdiction to allow uses not permitted by Sec. 197. deal with that issue later. only mention it now because it is the foundation of the defence argument that the charges against them for violating municipal bylaws cannot stand, and, because, chronologically, it is appropriate to do so, as the Municipality, on September 20, 1986, passed an interim zoning bylaw to control development until it could enact zoning bylaw. Further, it did enact zoning bylaw on June 20, 1987. That is the one under which the charges are laid. 33) In the result, at all times material hereto, if one wanted to get permission to build dock on the foreshore and into the water, one had to apply to the provincial department with jurisdiction over the foreshore which, in this case, was the Department of Parks and Renewable Resources, as that was the provincial agency representing the land owner, the Province. 34) If one wanted to continue the dock onto the public reserve, one had to apply to the Department of Municipal Affairs, which was the agency representing the landowner government for that land, as well as the enforcer, albeit with no staff to do so, of Sec. 197. 35) However, effective July 6, 1992, the Municipality became title holder. After that date one had to deal with the Municipality, instead of the Department, as it then became, as will appear, not just the land owner, but the enforcer of Sec. 197, as the Government took the view that it would not prosecute violators of Sec. 197. Thus the charges were laid with respect to that date. 36) Thus prior to July 6, 1992, if one wished to do anything on public reserve, as distinct from the foreshore, he had to have the permission of the Department of Municipal Affairs representing the government both as landowner and as enforcer of Sec. 197. That department would not be able to grant permission to use the land unless the proposed use was within Sec. 197. Even if the proposed use was within Sec. 197, it could, legally, still refuse permission, because, as representative of the owner, it did not wish to permit the intended use, even if it was on the list of permitted uses under Sec. 197, although, “politically”, it might not be liable to refuse. 37) After that date the Municipality stepped into that position. Moreover, it could be argued that after the enactment of the interim zoning bylaw in 1986, permission from the Municipality had to be obtained if their zoning bylaws did apply, in law, to public reserves. The Facts Underlying the Charges 38) Starting on the first weekend in August, 1986, Mr. and Mrs. Taillon built boathouse entirely on the public reserve in front of their cottage lot. 39) They did not seek permission from anyone. Mr. Taillon says that he had been told by the developer of the subdivision that he could treat the public reserve in front of his own lot as if it were an extension of his own lot. 40) He looked around at what so many of his neighbours had done on public reserve by way of building docks, sheds, walkways, steps, firepits, etc., and did what he perceived them to be doing. He built what he wanted on the public reserve. 41) His next door neighbour, Kenneth Zeah, complained, by letter dated August 5, 1986, to Jim Brickwell, Senior Planner of the Department of Municipal Affairs, that the Taillon’s had built on public reserve. 42) Mr. Zeah had known Mr. Taillon was going to do it. They had discussed it. Mr. Zeah says that he was told that the boathouse was only going to be certain height. He said Mr. Taillon built it higher and the result was to obstruct Mr. Zeah’s view of the lake more than he had anticipated. He prefers view of the natural scene without man-made objects of any kind blocking it. On seeing pictures of the view, one can sympathize. 43) Yet it is clear that if structure within the list permitted under Sec. 197 had been built on public reserve, by proper authority, he would have had no recourse. 44) In my view his complaint that it was on public reserve was not rooted nearly so much in any concern he had with improper use of public reserve, but in his desire to protect his view. 45) Indeed he had cleared trees, and built firepit, on the public reserve in front of his own lot without permission. 46) It was, in fact, primarily the view from “his” firepit, on the public reserve, that was blocked. 47) have no doubt that his complaint that the public reserve had been violated was simply the legal mechanism he utilized to try to preserve his view. Certainly that was what Councilman Thrasher took to be behind Mr. Zeah’s oral complaints. 48) Presumably the Taillon’s took the same view of it, and saw themselves as doing no more than other builders of sheds, boathouses, and etc. had done. Doubtless they would see the boathouse as little worse than firepit, and less of hazard. 49) do not, of course, accept that they would have believed that developer’s statement that they were entitled to use the reserve in front of their lots as if it were their own land was an accurate representation of the law. They had to know it was land that they did not own and that they would be trespassers if they built anything on it without permission. 50) have no doubt that they did not seek such permission for the same reason that many others apparently did not for fear it would be refused. They had to have thought that refusal would be probable because the provincial authorities would be entirely likely to see boathouse on public reserve as constituting private use of lands reserved for the use of the general public. 51) That would be so even if they were unaware that there was any law, such as Sec. 197, which listed the only permitted uses, let alone that boathouses were not on the list. 52) Thus arose the situation wherein the two neighbours quarrelled about the virtues of, and their legal right to get, their own way, as well as the benefits to the public, involved in their equally unauthorized uses of public land, with an eye to their respective self-interest. 53) For example, Mr. Zeah says the public can use his firepit, taking the view, no doubt, that that means that it does not constitute violation of Sec. 197. Yet he would be secure in the knowledge that the public are not likely to use it. Many people would not realize that it was on public property, let alone open for their use, and, in any event, would be reluctant to use it, even if they knew it was on public land, and that he purported not to object to their use of it. 54) The eventual result of that disagreement was this inquiry into whether the defendants’, not Mr. Zeah’s, activities, constituted violation of Sec. 197 and the Zoning Bylaw. The civil liabilities of the interested parties for trespass to public or municipal reserves are not directly in issue. 55) On receipt of Mr. Zeah’s complaint, Mr. Brickwell told Mr. Taillon he should stop work on the boathouse because it might have to be removed. He also referred the matter to the municipality, asking their help in settling it. 56) To my way of thinking, that was curious thing to do. 57) The Department ostensibly took the position that the Municipality was only responsible for maintenance on public reserves, not policing Sec. 197. Legally one wonders how the municipality could even have been visited with the responsibility for maintenance if the municipality had resisted it. Presumably, they simply didn’t do anything, and thus it could not be said that they had either accepted or declined the responsibility for maintenance. However, at that time it was clearly the Department that was responsible for policing, and enforcing, Sec. 197 and, moreover, it was the representative of the landowner with the responsibility to prevent trespass, whether or not any trespass constituted violation of Sec. 197. 58) Perhaps the request for municipal help was motivated, in part at least, by the lack of policing resources in the department, and the hope that local authorities could solve the enforcement problem more easily than outsiders. 59) Whatever the motivation, the request for municipal mediation clearly carried with it the risk that Mr. Zeah would be persuaded to drop his complaint but the boathouse would remain on public reserve. If that had, in fact, happened, having the municipality settle the matter would, of course, have come at the price of the continued existence of an ostensible violation of Sec. 197, and the Government’s rights as landowner, which would be used as precedent by other cottage owners to justify doing whatever they liked on public reserve. Thus, to me, it was curious step to take. 60) The mayor, Jim Christie, and several councillors met with the Zeah’s and Taillon’s. 61) It was agreed that the boathouse would remain, but would not be constructed as high as the Taillon’s had lately, at least, intended, that the roof would not be used for deck, and that no guardrail would be placed around it, so that it would be less likely to be used as deck. 62) Of course, none of the participants had any legal authority to authorize the construction of anything on public reserve, let alone condone any violation of Sec. 197 that might result from such construction, or regulate the specifications of any such construction. 63) Mr. Zeah and Mr. Taillon shook hands. 64) Doubtless Taillons thought that deal had been struck, which would mean that they would probably escape not only civil action, but any possible prosecution. 65) Certainly Councilman Thrasher was not in any doubt that that is what had occurred. As he put it, it was case of: “Not rattling the cage. There were developments all over the public reserve, including by the mayor, and everyone knew it.” 66) Nonetheless, Mr. Zeah reconsidered his position and, the next day, August 14, 1986, he wrote complaint to the mayor that the Taillon’s had violated the law. 67) On October 28, 1986, Mr. Brickwell wrote to the mayor, saying the departmental officials had inspected the site, and asked the council to write Taillon’s, requesting them to relocate the structure onto their own property. 68) Council apparently took the position that it had proceeded far enough down the path of assuming the Department’s responsibilities for enforcement of landowners’ rights, and statutory violations with respect to public reserve, because, they advised the Department, by letter dated November 24, 1986, that it wasn’t their land or their responsibility. 69) There was no evidence that, thereafter, the department officials did much of anything to get Taillon’s to comply with the law as they saw it. However, on June 12, 1987, Mr. Brickwell told Mr. Taillon that, although no decision had been reached as to what was going to be done, he wouldn’t put any more money into the project if it were his. 70) The apparent inaction by the Department might be explained, in part at least, because the Department was expecting the Government to pass legislative amendment, which it eventually did, by which the Municipality might be persuaded to accept title, and with it, the accompanying problems of enforcement, if not the costs of prosecution. 71) The municipality didn’t do much for some time either. No doubt that was because, according to the municipal clerk, the Municipality was of the view that its new zoning bylaws did not apply to public reserves and it was not, then, prepared to act under the possible authority of them. 72) According to the clerk, some time in 1989, Mr. Brickwell told council that the Government would be enacting legislation which would entitle them to become owners of the public reserves. That that occurred in 1989 was confirmed by Councillor Yahnke, who said that until they were informed that that legislation was coming, they viewed the problem as provincial responsibility. 73) Perhaps more pivital was the fact that in 1989 the Frasers stated construction of their boathouse. Presumably they were motivated, in part at least, by seeing that nothing was being done about Taillons’ or other people’s boathouses and other constructions. 74) No doubt council’s reaction to Frasers’ construction was based on fear of others doing the same in the future, as well as on the prospect that council was liable, in the near future, to inherit jurisdiction as landowner of public reserves. In any event, in June of 1989 council wrote Mr. Fraser, asking that he produce his authority to construct boathouse, and saying that if he did not do so they would issue stop work order. That, of course, would have to be under the purported authority of the zoning bylaws, which they did not really feel applied to public reserves. 75) The council also offered to meet with the Frasers about the matter in July. When they received no response, council did issue stop work order. 76) On October 21, 1989, council passed motion purporting to turn the matter of possible prosecution with respect to violations of Sec. 197 by three boathouse builders, being the instant defendants and third party, Foster, over to the R.C.M.P. 77) According to Mr. McCaig, the mayor at the time, the reason was the usual one, that the Province was the landowner, and enforcer of Sec. 197, and, accordingly, it was appropriate that the R.C.M.P. should assume the burden of prosecutions for violations of provincial statutes, not the Municipality, even though it had zoning bylaw by then. 78) The R.C.M.P. considered the matter for some time, but then declined to prosecute, doubtless, in some degree, because they saw goodly number of investigations and prosecutions awaiting them on the horizon. 79) On August 25, 1990, council resolved to “authorize Urban Affairs to look into boathouses and outlining course of action we can take to have them removed”. The use of the word “we” indicates that council had apparently come to the conclusion that it was not going to be able to persuade the Department of Urban Affairs, or the R.C.M.P., to enforce the Province’s rights as land owner, or the Province’s laws, so they would have to assume responsibility themselves, or see the situation deteriorate even further. 80) On December 12, 1990, Mr. Brickwell came to meeting of council and told them his department would not become involved. Council then passed resolution to authorize their solicitor to “proceed with action to have the boathouses removed”. 81) Mayor McCaig says council saw itself, at that time, as dealing with all boathouse violators that it was aware of, because it thought there were only three. The Defence pointed out that there was apparently fourth one and that, at one time, there had been fifth one. 82) On February 22, 1991, council’s solicitor wrote to the Defendants and the Foster’s, telling them that they had to remove their boathouses by June 30, 1991, or be prepared to face legal action. 83) The new owner of the Foster boathouse complied. 84) The defendants did not. 85) On November 16, 1991, council authorized their solicitor to proceed. 86) Notwithstanding that council was of the view that boathouses on public reserve were illegally situated, the Taillon boathouse was assessed for property taxes. In my view that is immaterial. The fact that it was done does not imply that council was giving approval to the location of the boathouse on public reserve. It merely means that council took the view that it was, by law, required to assess and tax all structures, whether they were legally constructed, or situated, or not, just as income tax authorities tax income which is illegally obtained. 87) The defendants took the position that if they were to be prosecuted, so should all other apparent violators. 88) They had their solicitor, Mr. Hudec, write to council, advising them that in their view there were some 119 other violators. 89) They also wrote to the ratepayers, on May 25, 1992, about the unfairness and the anticipated expense to all concerned. 90) Council replied with its own circular to the ratepayers on June 29, 1992. That newsletter set out council’s view of its legal rights and responsibilities with respect to public reserves. That newsletter, in fact, adopts the views as to the applicable law which council had received from John Nanson, the Principal Planner of the Community Planning Services Branch, in letter from him dated June 19, 1992. copy of it is annexed. 91) Council met with concerned ratepayers on July 18, 1992. Apparent infractions by others were discussed, most notably, perhaps, “Kinsmen Beach”, large beach, boathouse, and dock development undertaken on foreshore and public reserve, apparently financed by some ten private families for their personal use. 92) At that meeting the defendants asked council to lease the public reserve in front of their lots to them. Council refused, believing that the Act did not allow it. 93) Sec. 201(1) of the Act says that council may “lease or any part of the municipal reserve for any of the purposes provided in Sec. 197”. 94) Obviously, council was taking the view that the boathouse was private structure and, accordingly, they could not lease public reserve for such purpose, as it was not listed in Sec. 197. 95) Clearly at that stage both sides were long since fixed in their positions. Council continued to take the view that private use structures, such as boathouses, on public reserves violated Sec. 197, and that they must prosecute the builders of them if they were to fulfil their duty to uphold the law, discourage further violations, and ensure that public reserve lands were, in fact, open for use by the general public. 96) The defendants took the view that either everybody who was violating public reserves should be prosecuted, or nobody should be prosecuted. 97) In reply to that, council took the position that it was wiser to proceed with prosecutions only in respect of boathouses, initially, to see if the courts upheld their view of the law. If it was held that their views were correct, it would be time to consider prosecuting other apparent violators. If council’s views were upheld, it might not be necessary to prosecute many others at all, because many cottage owners, in apparent violation, might comply with the view of the law expressed by the court. Thus no expense in prosecution might be necessary in many cases. If the Court did not uphold the view of council as to the law, they should not be incurring the expense of prosecution of others in any event. 98) Council also took the view that prosecution in respect of boathouses instead of other apparent violators, such as shed owners, was appropriate because it was boathouses that had resulted in the complaint, and they were a very private use, analogous to sheds, whereas with respect to other uses, such as walkways, docks, firepits, etc., it could be argued did not violate Sec. 197, as they could at least be utilized by the public at large. 99) Although it was accepting that it had to assume responsibility for trying to get the boathouse builders prosecuted for fear of even more violations in the future, because neither the Department of Municipal Affairs, nor and the R.C.M.P. would pursue the matter, council nonetheless tried to avoid the expense of the actual prosecution by attempting to get the Department of Justice to finance it. They wrote to that Department, pointing out that the Department had done so in another prosecution against boathouse builder. 100) The Minister of Justice, Robert Mitchell, refused to do so, saying that that earlier prosecution by his department had been mistake and that: “It is the policy of public prosecutors to not become involved in bylaw prosecutions or other matters of local concern such as this matter.” 101) Thus council was left in the position where it either had to assume the expense itself, or do nothing. It decided to go ahead. 102) The clerk swore out the Informations on February 2, 1993. Thereafter the prosecution proceeded with normal dispatch, given its complexity. The Defence Evidence of Other Violations 103) The defendants feel so strongly that they have been unfairly singled out that they went to remarkable effort, and expense, to show the number of other apparent violations by other cottage owners. 104) They hired surveyor. He was called as witness and filed his plans showing encroachments on public reserve by others. They took great number of photographs. They even did video tape along the shoreline from boat. was informed that the expenses incurred by the middle of the trial were approaching $25,000 for the defence and some $10,000 less for the Municipality. Of course the defendants will get to bear portion of the prosecution expenses as ratepayers. 105) Needless to say, it is not the purpose of these proceedings to pass on whether others have violated Sec. 197, or trespassed against the landowners’ rights in public reserve. In most cases the other alleged violators were not heard from, even as witnesses. In no case has anyone been charged. 106) The purpose of that defence evidence was to show that council had reasonable grounds to conclude that there were great number of other apparent violators, but chose to do nothing about them, prosecuting only these defendants. 107) Thus that evidence was used to found an argument that these proceedings should be stayed as an abuse of the legal process, and as violation of the defendant’s rights to “equal protection and equal benefit of the law without discrimination” under Sec. 15 of the Charter. 108) The defendants see the selection of themselves as the only ones to be prosecuted out of such a large number of apparent violators, for no reason that they believe could be viewed as sufficient, as, in itself, unfair and discriminatory within the prohibition of Sec. 15 of the Charter. 109) What weight should be put on that argument depends, in part, on how many other apparent violations there are. That, in turn, depends upon the interpretation of Sec. 197, because, if one accepts the interpretation put on it by Mr. Nanson in his letter annexed hereto, there are fewer apparent violations than the defence believes exist. That, of course, is because Mr. Nanson basically takes the view that things on the public reserve, such as walkways, which can be used by the public at large, are not violations of Sec. 197. 110) The expressions of opinion as to the number of violations offered by the various witnesses have to be interpreted keeping that distinction in mind. 111) Councilman Thrasher, as indicated, said “there were developments all over the place on public reserve”. He admitted to clearing bush, and placing sand on public reserve in front of his cabin himself. He listed numerous developments he took to be in violation, including one by the then mayor, Jim Christie. 112) Mr. Christie said that it was not violation as it was on his own property, but agreed that he used public land for construction of steps and driveway. Like Councilman Thrasher, he has said that although the focus of the meeting between Zeah’s and Taillon’s was on the height of the boathouse, rather than the fact that it was on public reserve, it had been made clear to Taillons that the council had no authority to authorize construction of the boathouse at all. He said he told Fraser’s the same thing. 113) Bob Yahnke, councilman from 1984 to 1988, agreed that council’s position was that it had no jurisdiction with respect to public reserves. He held that view until 1989, at which time he understood the Government had given over “maintenance” of public reserves to the Municipality. He had no problem with things being on public reserves, so long as they were not kept for private use. 114) Peter Konchak, neighbour of Taillon’s, said he cleared and levelled, and moved in sand, with the authority of shoreland alteration permit. However, he said he put in steps, trenched in water line to the lake, and built crib on public reserve without permission. Under Sec. 204(1)(a)(iii) it is possible to obtain lawful permission for wells and water and sewer lines. Mr. Konchak said he got no complaint from his neighbour on the other side, Councilman McPique, whom he understood to draw water from the lake herself. 115) Gary Smullen testified that he put in railway ties to prevent erosion on public reserve on the advice of Mayor Christie, and that he built locked shed, and installed water pipe on public reserve. He agreed that his garage was also partially located on public reserve. He said he felt that the public reserve was an extension of his property, and that he intended to continue using it as such. He said that councilwoman McPique had cleared brush, and boulders, and deposited sand, as had Mayor McCaig. 116) Bob Barlow, councilman since 1993, testified that on “his” public reserve, he planted lawn and built firepit. He signed the petition instigated by the defendants to stop the prosecutions. It was his view that “99 percent” of the residents have done things to change the public reserve. He agreed that if “Kinsmen Beach” was being utilized for only private use, it would not be right. He also agreed that he was, personally, in effect, “bent” on letting people violate Sec. 197 like he was doing himself. 117) He advocated “grandfathering” non-conforming uses, i.e. violations of public reserve. 118) Grandfathering is not possible, among other reasons, because no bylaw could be lawful which purported to override the Act and Sec. 194.1 says: “(1) municipality may acquire the title to any land for the purpose of dedicating the land as municipal reserve. (2) Any land acquired pursuant to subsection (1) is municipal reserve and is subject to the provisions of the Part.” “This Part” includes Sec. 197. 119) Ida Ens testified that she had been told that Kinsmen Beach was private by one of the persons who had apparently developed it. She understood that she might be allowed to use it if she bought share, and that the developers of it had each spent several thousand dollars on the construction. 120) Caroline Taylor testified as to her embarrassment when she was told that “Kinsmen Beach” was private land, which she could not use, because ten families had put in ten thousand square feet of turf, dock, and boathouse, at their own expense. The selfproclaimed owners had erected sign to the effect that it was private beach. 121) The defendant, Robert Fraser, testified, as had others, that he had been told, with respect to the public reserve, by the developer, that he could “take the land and use it as your own”. 122) Like the others, he had to know that that would be trespass and could not have taken such statement to be legal opinion rather than just an expression as to what the of enforcement of the law might be. 123) He dug out the bank in the fall of 1988, and erected his boathouse in the spring of 1989, knowing that it was partially on public reserve. 124) When he found the note from council requesting that he produce his authority to do so, or stop work, he called Mr. Brickwell. That, however, was after he finished all of the construction except the door. He says Mr. Brickwell told him there were thousands of violations in the province and that enforcement was on the backburner, and that he need not be concerned. 125) If Mr. Brickwell said that, Mr. Fraser had to take it, not as indicating that he had any legal right to do what he was doing, but as just another opinion that he might escape prosecution. Inasmuch as he had just received notice from council that they were calling his authority to proceed into question, he should have wondered how accurate such an assessment of the likelihood of prosecution could be. Perhaps he just convinced himself that if there were violations all over it would be even more unfair for council to proceed and hoped they would see it that way. 126) He talked to Mayor Christie, who invited him to council. 127) He says he told council of other violations, but got the impression that they weren’t interested in proceeding to investigate, or let alone prosecute, others. 128) have no doubt that he had to know of many other apparent violations when he began his construction. In particular, he would have been aware of the controversy over Mr. Taillon’s right to proceed in the face of Mr. Zeah’s complaint. No doubt he realized that not much had apparently been done about prosecuting Mr. Taillon and made his decision to go ahead with that knowledge. However, clearly he was incurring the deliberate risk of prosecution because he thought it was slight risk. He continued to do so after getting the notice from council. No doubt he felt that it would be unfair to prosecute him, or only boat owners, but, presumably, he also felt it was unlikely that anyone would actually be prosecuted. 129) Whatever may have motivated him to go ahead is not material. What does matter is that he clearly chose to do so, without bothering to investigate his legal rights to do so, let alone obtain any permission to do so, at time when the Zeah-Taillon controversy was still in the air, and, after he began construction, in the face of the notice from council. 130) conclude that Mr. and Mrs. Fraser decided to build their boathouse because they thought the risks of being prosecuted were unlikely although, no doubt, they also had very strong views that prosecuting them, and not everyone else, is not fair. 131) That does not mean that they cannot, now, complain that they have been unfairly prosecuted. However, it does mean that they were not unwitting innocents who, for example, had been misled by persons in authority as to their legal rights. 132) He sees the action against him as “personal matter” and as “malicious prosecution”. He said that, in his eyes, “it doesn’t matter that the outcome is”, i.e. if he loses he will still be convinced that he is right as to what constitutes fairness. 133) He felt that Mr. Hudec’s written estimate of there being some other 119 violations was probably only one-half of the true number. He testified in support of his views in that regard, in great detail, with the aid of the maps, surveyors’ sketches, photographs, and the video taken from off shore. 134) The defendant, Mr. Taillon, also testified that he knew that he had built his boathouse on public reserve, when he did it in 1986, but the developer told him it was alright to use public reserve. 135) He also said Mr. Brickwell told him, after the meeting with the Zeah’s, that encroachments on public reserve were “not primary issue” in his office and that “nothing is going to happen”. 136) Mr. Brickwell testified that he did not recall saying that, but agreed that he probably had not demanded that the boathouse be removed because, as he saw the situation, his department did not police the public reserves. 137) Thus Mr. Taillon, like Mr. Fraser, started his construction relying on what the developer, who wanted to sell him lot, told him, and what he saw going on around him. 138) Also, like Frasers, his construction was effectively finished by the time he spoke to Mr. Brickwell, so whatever Mr. Brickwell told him cannot be taken as having affected his decision to proceed, in the first place, as distinct his decision to continue, and leave the construction in place. Of course, even on the versions of both Mr. Fraser and Mr. Taillon, the most that can be said is not that Mr. Brickwell told them what they were doing was legal, but, rather, that they might well get away with it. 139) Mr. Taillon also sees the prosecution of boathouse owners as unfair, given the great numbers of other violations that exist. As he puts it, “I’ll remove my boathouse when everyone else does the same”. 140) Thus, none of the defendants can rely on any defence of being misled as to their legal rights by persons in authority. Applications made by the defendants to the Department of Parks for permission to build things on the foreshore, which were based on misleading diagrams, are not material to the public reserve. They merely indicate desire to purport to have obtained permission. 141) The case turns, as they themselves say, on the question of whether it is an abuse of the legal process to prosecute them when so many other apparent violators have not been charged, or a case of violating their rights under Sec. 15 of the Charter. The Interpretation of Sec. 197 142) As indicated, the purpose of the Defence evidence as to the number of other violations was to indicate that they were so numerous that the prosecution of the defendants was an abuse of process and violation of Sec. 15 of the Charter. 143) How unfair it is to prosecute the defendants turns, in some degree, upon how many other apparent violators there were who were not prosecuted and why they have not, as yet, at least, been prosecuted. That, in turn, depends, in part, upon the interpretation of Sec. 197. As indicated, council adopted the view of Mr. Nanson in that regard, as set out in his letter hereunto annexed, and set it out in the circular they sent to the ratepayers. 144) The Defence says that Mr. Nanson has it wrong, that, actually, or ostensibly, allowing the public to use private construction, such as dock, shed, boathouse, firepit, etc., does not turn such private construction into “public building” or “public facility” under Sec. 197 or the regulation passed thereunder. 145) In my view the Defence is right. 146) To accept Mr. Nanson’s view implies that any private citizen can construct whatever he likes on public reserve and only be liable in trespass, for example, to an action for an injunction requiring him to remove whatever he built, but not to prosecution. That allows private citizens to determine what constitutes “public facility”. Any private citizen could decide, for example, that large windscreen, would be nice, regardless of what effects that may have in depriving the general public of any ability to utilize, or even walk across, the public reserve, and, regardless of whether the public authority which owned the land wanted such construction. 147) If that is proper interpretation of Sec. 197, it would leave the council in position that it would have to launch civil actions to effectuate removal of all private constructions. If that were the intention of legislation, no offence would have been created in the first place. The title holder would simply have been left with civil remedies. 148) In my view, the result of Mr. Nanson’s interpretation is that what use can be made of public reserve is left in the hands of private individuals, who will often act with an eye to their own self-interest. do not believe that it could have been the intention of the legislature to allow such chaotic situation. It would give rise to great number of disputes such as the present one. 149) As see it, the fact that the titleholder must be the Province or Municipality, and the very use of the word “public” in Sec. 197, indicate that the legislature intended that the decision as to what constitutes “public building” or “public facility”, etc. is, initially, to be made by public authority, such as the title holder in the case of municipalities, or the appropriate department in the case of lands owned by the Province, not every private citizen who cares to do something on public reserve that he chooses to say is beneficial to, or open to use by, the public, whether or not it may have every appearance of being primarily devoted to his self-interest. 150) An interpretation, which allows private citizens, be they adjacent cottage owners, or not, in effect, turns public reserve into private reserve that defeats the very objective of the legislation, which is to ensure that public reserve is used for the benefit of the public at large. 151) That, of course, does not mean that in the event to prosecution that the Court is bound to adopt the interpretation of the appropriate public authority. Public authorities, themselves, may, deliberately or by mistake, categorize things incorrectly as constituting “public facility”. However, it does mean that the initial decision as to what constitutes “public facility” is not to be made by private individual, but must be made by public authority. 152) am reinforced in my view, that such an interpretation must be contrary to the intent of the Act by the consideration that, when, as here, municipalities become title holders, they might take it upon themselves to authorize uses that did not come within Sec. 197. If they could not be prosecuted, there would be no remedy whatsoever, as they would certainly not bring civil action against themselves. 153) private individual is not entitled to do what he likes on public reserve with the result that it becomes “public facility” if he allows the general public to use it. It is not, in my view, “public facility” unless it is autorized to be built, or actually built, by the governmental agency that has the legal power to make such determinations with respect to the land in question, and, in fact, is intended to be, and is actually open for use by the general public, whenever it is open for use by anyone. 154) The result is to interpret Sec. 197 as if it said: “Public reserve or municipal reserve is required to only be used for ‘such of the following purposes as is authorized by the public authority having jurisdiction in that regard’ (addition mine) Alternatives to my Interpretation of Sec. 197 155) This interpretation is what is known as purposive one, in that it rests on my views as to the overall intention of the legislation. That approach is, in my view, the one favoured by the Supreme Court of Canada in its most recent decisions. 156) There are other principles of interpretation, which are often applied to penal statutes, which could lead to the contrary result. For example, there is principle that penal statutes are only to be applied against persons who clearly come within them. If it is not clear that person’s activities are prohibited, he is to be given the benefit of the doubt, and, thus, penal statutes are to be strictly construed. The idea is that people should not be convicted of offences, even regulatory offences, unless they clearly fall within them. People should not have to guess as to what activities constitute an offence. 157) If those are the appropriate principles to apply, rather than purposive approach, my view that no one has the right to do what they like in public reserve without authorization by public body is wrong. What constitutes “public facility”, on that approach, turns simply on whether it is left open for use by the public, as Mr. Nanson believes to be the law. If that is so, the results, for the purposes of this litigation, are two-fold. 158) Firstly, there are far fewer other violators than the defendants, and I, think there are. The result is that the council’s decision to prosecute only boathouse builders is therefore apparently less unfair. Thus, if Mr. Nanson’s view is correct, it counts against the defendants’ argument. The defendants can only say they are among, perhaps, dozens of apparent violators, rather than scores, if not hundreds. 159) Secondly, a restrictive interpretation does not give the defendants a defence to the charge in any event, as their boathouses are not open for use by the general public. Clearly they do not intend the general public to have access. They do intend to control who has access. They intend to retain ownership, of the building and its contents. They intend to authorize use of it by persons other than themselves only if they see fit to do so, not allow any public body to decide the matter, nor to allow the public at large to have access. Moreover, their very existence prevents the public from utilizing the public lands on which they are situate. 160) In short, they have constructed a private facility on a public reserve. That is not a permitted use under Sec. 197, even interpreting it as Mr. Nanson does, and, accordingly, their boathouses are illegal under Sec. 221(1)(a)(ii). 161) Thus under either approach to the interpretation of Sec. 197, the defendants must be found guilty unless the prosecution is stopped as an abuse of process, or because it violates Sec. 15 of the Charter. Was There an Abuse of the Legal Process? 162) Even if am wrong in concluding that nothing can be “public facility” within the meaning of Sec. 197, unless it is authorized by public agency, and that in holding that for things to properly be declared to be within Sec. 197, by public authority, they must also be open for the general use and benefit of the public at large, rather than kept for the use of private individuals, that error does not impact upon the number of violators that council perceived to have existed. It adopted Mr. Nanson’s opinion, in good faith, and, thus, made its decision to prosecute believing fewer private developments to be offensive than I, and the Defence, do. 163) When it decided to prosecute, the council cannot be said to have discriminated in favour of people that it thought were offenders in the face of the interpretation given by an appropriate governmental authority. Nor can it be said to have viewed the pool of prospective defendants as smaller than believe it to be out of male fides or self interest. am not prepared to say that the prosecution is “more unfair” because they did not interpret Sec. 197 as do, when they had an opinion to the contrary, on the theory that interpreting it as they did shows lack of diligence in ascertaining the law before deciding who to prosecute. 164) Thus, insofar as fairness in prosecuting turns on the size of the pool of prospective defendants, and the bona fides of council in viewing it as smaller than the defendants saw it to be, am not prepared to fault the council. On the contrary, have no doubt that council saw itself as prosecuting defendants whom they saw as committing as clear violation as any one, including builders of sheds. 165) They picked boathouse builders rather than shed builders, or any other class of violators, let alone all violators. Doubtless all boathouse builders see this as unfair and discriminatory, but it does not automatically follow that it was. On the contrary, as see it, the fact that they were picked out was, in large measure, result of the way events unfolded. 166) Mr. Zeah complained. There were no complaints against shed owners. One can say that it would have been fair to prosecute shed owners as well. Indeed it would. And, perhaps, that will come to pass. However, to have done so initially would have added to the expense to the ratepayers, materially, at no perceived benefit from the point of view of getting clarification of the law. decision on boathouses was as likely to lead to clarification as one against shed owners, and there were no complaints against them. 167) Council chose to run test case against the type of violations that had elicited complaint. One can say that it was unfair that others, particularly shed owners, were not prosecuted, but am not convinced that it was because council was motivated to proceed against boathouse owners for improper reasons. They had complaint upon which they felt they had legal duty to act. They wanted test case to determine their legal position. Test cases are common, and an entirely appropriate legal procedure, often promoted by the defence as well as the crown. Thus can see nothing “unfair” in the picking out of the defendants for prosecution, except in the sense that it can be said, as the defendants do, that it is “unfair” unless everyone is prosecuted, at whatever expense, even if it is likely that most violators will comply once the legal situation has been made clear. 168) Thus the question arises as to whether, because it would have been “fairer”, in that sense, to prosecute everyone, or at least those that council perceived, on the basis of Mr. Nanson’s advice, to be offenders, means that prosecuting only boathouse builders is an abuse of process. 169) When faced with the usual example that you do not have defence to speeding charge because the police have not prosecuted all speeders, Mr. Fraser made the point that the other violators in this scenario were not moving. 170) Although it is true that the selective prosecution here was not dictated by the circumstances of apprehension, it does not follow that selective prosecution, per se, is an abuse of process. Whether it does so depends on the circumstances. 171) Here there is no evidence that the defendants were selected for improper reasons, for example, that council wished to harm them in particular, individually, or as group, out of all possible offenders, or groups of offenders, because, for example, of personal animosity between councillors and the defendants. The mere fact that you have been selected for prosecution does not mean that you have right to demand that proceedings be stopped unless all other offenders are prosecuted, however easy, difficult, cheap, or expensive, or unnecessary that may be. The Legal Test for Abuse of Process 172) The defendants must show that they have been singled out unfairly, not just that they have been singled out. As it was put in v. Keyowski (1988) 1988 CanLII 74 (SCC), 40 C.C.C. (3d) 481, by Madam Justice Wilson, speaking for the Supreme Court, in case where the Crown sought to try defendant for third time, but there was no suggestion of misconduct or improper motive, said, stopping prosecutions for abuse of process is power that is only to be exercised in the “clearest of cases”. If it is to be done, the Defence must convince the Court that proceeding exceeded “the limits of the community sense of fair play”, and that the administration of justice is best served by stopping the prosecution. 173) Obviously, such phrases require value judgment by the court. Some may see in them change in position by the Supreme Court from its previous decision in v. Rourke (1977) 1977 CanLII 191 (SCC), 35 C.C.C. (2d) 129, wherein Mr. Justice Pigeon had said that there was no general discretion to stay proceedings because they were considered to be “oppressive”. 174) Perhaps the Alberta Court of Appeal took decisions such as Keyowski to indicate change from Rourke, inasmuch as it held in Kostuch (1993) 1992 ABCA 103 (CanLII), W.W.R., 696, that stay of proceedings is only available if the prosecution violates the community sense of fair play and decency, or it is case of oppressive or vexatious proceedings. At least, that is what the headnote says it held, as distinct from the report itself. Cf. v. Tabor (1993) 1993 CanLII 7782 (NL CA), 84 C.C.C. (3d) 449, where the Newfoundland Court of Appeal uses phrases such as “whether putting the accused on trial was ‘unfair’ or ‘fundamentally unjust’ as well as ‘oppressive and vexatious’ ”. 175) Such approaches might reflect the earlier decision of the Supreme Court of Canada in v. Jewitt (1985) 1985 CanLII 47 (SCC), 21 C.C.C. (3d), 7, wherein Mr. Justice Dickson reviewed the decision in Rourke, and subsequent decisions in the Supreme Court, and adopted the test set out by the Ontario Court of Appeal in v. Young that: “There is residual discretion in trial judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency, and to prevent the abuse of court’s process through oppressive or vexatious proceedings.” 176) Of course, one can take the view that if proceedings are “oppressive” or “vexatious”, they would violate “the community sense of fair play”, so it may be that it comes down to much the same thing, i.e. that proceedings are not to be stopped unless it is “the clearest of cases”, that “the community sense of fair and decency” has been violated. 177) am not aware of any case that holds that picking out defendants to prosecute from among possible pool of offenders, because one of their group has been the subject of complaint, even if the complaint is largely tinged by self-interest, for the purpose of ascertaining the legal position of all interested parties, violates “the community sense of fair play and decency”. 178) The defence relies most heavily on Regina v. Miles of Music Ltd. (1989) 1989 CanLII 255 (ON CA), 48 C.C.C. (3d), 96, decision of the Ontario Court of Appeal wherein Mr. Justice Krever said, at p. 106, that: “… the respondent must establish, on balance of probabilities, that the Crown has acted in an oppressive or vexatious manner, or, that the prosecution is offensive to the principles of fundamental justice and fair play. No case can fall within the category of the ‘clearest of cases’ unless it can be fairly said that the cause of the apparent unfairness complained of can be laid at the doorstep of the executive, that is to say, can be attributed to either the police or the crown or both.” 179) In that case it was held not to be so because the improprieties in issue there had resulted from the activities of an investigator for the private recording industry, although the result was that the defendant disk jockey had been selectively prosecuted for violation of The Copyright Act. Indeed he was the first person to be prosecuted for making and selling compilation cassette tapes. 180) In this case the defence suggests that council not only did not prosecute, but didn’t even bother to investigate whether other apparent offenders had violated public reserve, despite the defendants having brought to council’s attention evidence of apparent violations. 181) In the case of the fourth boathouse, it appears that the defendants are right in their suggestions that it was on public reserve, and that Mayor McCaig was wrong in his belief that it was not. In the case of the Kinsmen Beach boathouse, although the boathouse itself, as distinct from the other developments, is on public property, it is not on public reserve. Thus the builders of it were not amenable to prosecution under Sec. 197, if the prosecution was to be restricted to boathouse owners. 182) However, the individual rights or wrongs of any given case are not in issue. What is complained of is that council did not investigate, let alone prosecute, apparent violations brought to their attention by the defendants. That is so. They did not. However, having had the opportunity to watch Mayor McCaig give evidence, am satisfied that he is patently straightforward man. accept that his motive for failing to do so was not because he only wanted to prosecute the three boathouse owners he thought were violators and let the others get away with violations. It was because he, and council, honestly believed Mr. Nanson was right, and that even though there might be other violators they thought they had prosecuted all of the boathouse violators and did not intend to prosecute other violators at that stage. More diligence could only have resulted in adding one more apparent boathouse violator. While the failure to do that upsets the defendants, it was not done male fides, and the real complaint of the defendants was the decision to only proceed against boathouse owners. 183) accept that council proceeded as it did, not just because of the obvious honesty which thought Mayor McCaig exhibited when he denied suggestions of improper motives, but for additional reasons. 184) First, note that he is of the opinion that sheds are equally as violative of Sec. 197 as are boathouses and council has not prosecuted shed owners. The defendants see that as unfair to them, but do not. accept, as the mayor said, that council had not decided to only prosecute in respect of boathouses, but wished to ascertain the opinion of the court before deciding to proceed against others. 185) Council’s letter to the ratepayers of June 29, 1992 gives reasons for proceeding only with respect to “boathouses”. Whether or not others find these reasons convincing, accept that council saw them as reasonable, and that council was not just picking on boathouse owners. As the letter said, on page 3: “Boathouses often cause the greatest concern because they block people from walking around the shore of the lake, and impair the view of the lake from neighbouring properties.” 186) Next, noted that, in argument, defence counsel could only suggest that the defendants were being prosecuted “for whatever reason”. He could not suggest any male fides as to why council would have picked out boathouse owners to prosecute, nor point to any evidence of any ulterior motive that had motivated the prosecutions, such as existed in v. Miles of Music Ltd. 187) Similarly, there was no evidence that any individual councillor cast his individual ballot, or argued in council, or manipulated other council members so that they voted to prosecuted boathouse owners for improper reasons. Nor is there evidence that anyone else so motivated the councillors. 188) conclude that no improper motives existed, whether or not the defendants, or others, find the councillors’ reasons for deciding to proceed only against boathouse owners convincing. 189) Next, council had complaint, however motivated, from ratepayer, Mr. Zeah, on which they felt obliged to act, whether or not the government, or the police, would do so. No doubt they had pressure from some ratepayers who were worried about how such apparently illegal developments were multiplying, besides those who complained about Kinsmen Beach. 190) Mr. Fraser built his boathouse in the midst of the controversy. That must have been seen as putting council to the test of whether or not they were prepared to try to enforce the law. As Mayor McCaig put it, they couldn’t see their way to only proceeding against Taillons. Thus can see why council chose to proceed only against the three boathouse owners that seemed to them to be obviously in violation. The fact that they did not go against the fourth boathouse owner, when perhaps they should have, does not mean, in my view, that the defence has met the onus placed upon it by the case authorities. It is matter of being less than completely thorough, not matter of such significance that it, even with any other factors on the defence side of the coin, could be said to violate “the limits of community sense of fair play”. 191) note that, according to Mayor McCaig, part of council’s reasons were that “they did not feel that it was financially responsible to dig deeper hole than the one they were already digging”. 192) In my view, the defendants were not selected for prosecution for improper reasons, or even arbitrarily, or capriciously, or for “political” reasons but, because as Mayor McCaig put it, “if we lose, anyone can do anything”. Those are not the words of man indulging in selective prosecution because he “has it in” for boathouse owners or, indeed, only some boathouse owners, rather than shed owners and other possible violators. They are the words of man trying to find out what the law is, in order that council may fulfil its duty to uphold it, because of the pressures being created by various private developments. As he also said, “till we see this one through, we don’t know where we stand”. That, in my view, does accurately reflect his motive and that, in large measure, would also reflect the motive of other councillors. It does not constitute course of action that could be said to violate the community sense of fair play and decency. I find that council proceeded against the defendants it chose because it seemed sensible to them to do so, not because of any mala fides. It was matter of deciding where to draw the line, not of drawing one improperly. 193) Thus, in the end the Defence argument that there has been an abuse of process rests on the fact that nobody else was prosecuted, not on any male fides. 194) can understand why the defendants see themselves as having been unfairly selected for prosecution, but the fact that they see it that way does not make it so. Although “justice” may be said to be in the eye of the beholder, the value judgment as to what violates the community sense of fair play is not to be seen through the eyes of either side alone. 195) Next, defence counsel pointed out that various councillors, including those voting for prosecution, were, themselves, doing thing that might also constitute violations of Sec. 197. As he phrased it, they were “pointing the finger away from themselves”. The implication was, no doubt, that they had motive to prosecute others to avoid attention being focussed on themselves. However, the fact that one offender charges another does not, of itself, necessarily lead to any such conclusion. Policemen have been known to speed. That does not mean they should not be prosecuted. Nor does it provide any reason, in the absence of male fides, why prosecution they lodge against other speeders should not proceed. That is so whether or not they are ever charged themselves, or ever charged each other, least of all where they have legal opinion to the effect that their activities are legal, such as, for example, that it is legal to speed in the course of their duties if it should be necessary to do so. 196) note that many of the councillors who are alleged to have committed violations would not have seen themselves as having done so, given Mr. Nanson’s interpretation of Sec. 197. Moreover, the very fact that the instant defendants were prosecuted created strong possibility that their own activities would be well exposed to public scrutiny and possible prosecution. Thus, in my view, the fact that some councillors may have, wittingly or otherwise, breached Sec. 197, does not provide any reason to stop this prosecution. do not agree that this prosecution can be realistically seen as an attempt to divert attention from their own possible violations. 197) Next, defence counsel argued that the proceedings were abusive because council had laid charges for violation of its own bylaws when it did not really feel they were applicable. 198) agree with the defence position that the zoning bylaws are not applicable to public reserves. also accept that council thought that that was probably the case. Indeed they had the opinion of the department that it was so. However, if the council was going ahead with the prosecution in any event, it made sense to seek the opinion of the Court on the applicability of the bylaws, even if they thought that it would probably be held that the bylaw would not be applicable. 199) Further, it was not unreasonable to ask the Court for clarification as to whether the bylaw applied to cover the contingency that might find that Sec. 197 did not, or that proceedings under it should be halted because of delay by provincial officials. 200) Thus do not see the fact that one count was laid under the Zoning Bylaws as violating the community sense of fair play, etc. If am wrong in that regard, however, it merely means that one count should be stayed. Inasmuch as the defendants are not liable to be convicted on both in any event, there is no enhanced risk of punishment in the procedure adopted. 201) Insofar as the delay in proceedings might be said to constitute an abuse of process, find that the council, as distinct from the government, did not unreasonably delay. Council attempted, quite properly to my way of thinking, to get others to prosecute. That caused delay, but it was not unreasonable. As Mr. Fraser put it, the evidence of the violations continued. Moreover, delay did not prejudice the defendants in any event. On the contrary, they got to use their boathouses. 202) If I am wrong in concluding that the delay did not prejudice the defendants, the delay which I find to be unsatisfactorily explained was by that of the Department of Municipal Affairs, not the council. Their excuse for doing nothing was lack of staff. do not think that even the pre-charge delay by the Government founds an argument of abuse because it was to the advantage of the defendants. They wanted prosecution delayed forever. Thus do not see how they can categorize it as unfair now. 203) Insofar as the Charter gives right to trial within reasonable time, that applies after charge is laid. The delay by provincial officials was pre-charge delay, rather than post-charge delay. As such, it cannot, of itself, give rise to Charter remedy, although it might colour post-charge delay. However, in my view, there were no unreasonable post charge delays in this case, given its complexity. 204) At the end of the day, all that the defendants can complain of, in my view, is that they were the only ones selected for prosecution. They see their selection as unfair, but see it as result of circumstances. They will never be happy unless everyone else is prosecuted. However, they have no legal right to insist upon that, nor does the fact that it has not happened constitute, in the circumstances here, violation of the community’s sense of fair play, etc. The prosecution of them is no more unfair that the prosecution of any other apparent offender selected for test case. 205) am not aware of any law that says that the defendant, in test case or otherwise, has the right to have prosecution stopped until everyone else is prosecuted. It would not make sense to hold that that was the law. It may, after the test case, be unnecessary to prosecute anyone else. That may be so, not so much because everyone would immediately comply with the law as laid down by the Court, but, for example, because there might be change in the wording of Sec. 197, or, because the Municipality might be legally able to sell off the public reserve, or give it back to the Government, or runs out of money for prosecutions. 206) Thus it may be that defence counsel will prove correct in his prediction that others will never be prosecuted, even though the mayor indicates that others will very likely face prosecution. 207) However, even if after this prosecution council does not, for whatever reason, prosecute others, that does not mean that this prosecution should be stopped as being violative of the community sense of fair play, etc. There is no law that am aware of that says speculation on the likelihood of future prosecutions is to colour the fairness of the present one. 208) Thus, in my view, there is no reason to stay these proceedings on the grounds that they constitute an abuse of the legal process, least of all when the defendants, along with other apparent violators, deliberately took their chances on being prosecuted. Was There Violation of Sec. 15 Charter Rights? 209) Sec. 15(1) of the Charter says: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” 210) assume, for the purposes of this decision, that Sec. 15 applies to administrative decisions that violate Sec. 15, as well as decisions by governments. Cf. v. Bob (1991) 88 Sk. R., 302, S.C.A. 211) further accept that defence counsel is correct in arguing that Sec. 15 is not limited to the enumerated types of discrimination. They are simply examples. Discrimination based on unlisted matters is also prohibited, for example, discrimination on the basis of lack of Canadian citizenship as in Law Society of British Columbia re: Andrews (1989) 1989 CanLII (SCC), W.W.R., 289, S.C.C. 212) However, it does not follow that Sec. 15 prohibits all types of discrimination. “Discrimination”, like “justice”, is in the eye of the beholder. The defendants see the prosecution of themselves as discrimination. Mr. Zeah probably sees the Taillons’ illegal actions as discriminating against his “right” to non-obstructed view. The question is what types of discrimination are contrary to Sec. 15. 213) The very nature of law is to discriminate. Criminal law discriminates against criminals. Pension legislation discriminates in favour of the elderly. Some Income Tax provisions discriminate in favour of some persons with an eye to encouraging job creation, etc. In my view Sec. 15 is directed against discrimination that is not acceptable to the prevailing mores, from time to time, of our society. It must be commonly accepted that it is the type of discrimination that is abhorent to the basic principles of our society, such as discrimination based on the listed matters, for no reason that can justify breach of such basic principles. Usually that means discrimination based on bigotry with regard to personal characteristics such as those enumerated. 214) I know of no decision that says that it is discrimination, contrary to Sec. 15, to pick out individuals to prosecute as a test case to ascertain the state of the law, where there is no evidence that it has been done on the basis of improper consideration such as personal characteristics. Thus, in the absence of any such evidence, do not see that selecting the defendants for prosecution engages Sec. 15. 215) Of course, Sec. 15 is not merely concerned with discrimination, but with “equal protection and equal benefit of the law”. However, once again, am not aware of any case which suggests that that means that one is entitled to have prosecution stopped until everyone else that appears to have violated the enactment is also prosecuted. For the reasons I’ve already given, that often would make little sense, even if it was, in the defendants’ eyes, “fair”. There is no law am aware of, to which the defendants can point and claim the “benefit” of, that says that nobody shall be prosecuted unless all apparent violators are prosecuted. 216) Similarly, there is no law that the defendants can point to, as having been violated, so as to deprive them of “equal protection of the law”, unless every apparent offender is prosecuted. 217) Moreover, it will be noted that the right is to “equal protection and benefit of the law without discrimination”. It is not right to equal benefit of the law, even if there was law saying that nobody can be prosecuted unless everyone is. There must be, in addition, showing of discrimination. In my view, there has been no showing of the type of discrimination prohibited by Sec. 15. 218) The defendants can complain that they were selected for prosecution, but they cannot show any discrimination in their selection except the mere fact that they were the only ones selected for prosecution thus far. In my view that does not violate Sec. 15. 219) They face the same risk of prosecution as other apparent offenders. The fact that the risk materialized in their case does not make their prosecution discriminatory. 220) Defence counsel argues the decision in Law Society of British Columbia v. Andrews is to be taken as in holding that the law is not to be allowed to have unequal impact because of irrelevant circumstances, such as lack of Canadian Citizenship being utilized to preclude someone from obtaining license to practise law. 221) doubt that the case is to be read that broadly, rather than simply holding that requiring citizenship as condition of practise discriminated against an identifiable group for unjustifiable, as distinct from irrelevant, reasons. Doubtless those who enacted the law may have felt that citizens might be more concerned to see the laws upheld than non-citizens, and thus do not agree with the holding of the court as to whether it was justifiable. But, at the end of the day, the law did discriminate against an identifiable group on the basis of legal characteristics. That is not an element in the present case. 222) Picking out boathouse builders rather than shed builders is not an example of discrimination of the type prohibited by Sec. 15, as I understand it and the case law. It is not case, like Andrews, where the defendants were denied right to practise their profession, or build what they liked, because of their personal characteristics or legal status, but case where they are chosen for prosecution for reasons that have nothing to do with such things. 223) Thus, in my view, Sec. 15 has not been violated and no stay of the proceedings should be granted on the view that it has been. 224) If am wrong in the conclusion that Sec. 15 has not been violated, would, in any event, decline to stay these proceedings, as do not see that picking these defendants for prosecution, for no apparent improper reasons, from pool of all possible defendants, for the purposes of test case, should result in so drastic remedy on the grounds that it is “appropriate and just”, as is required before relief can be given under Sec. 24 of the Charter. 225) It is true that the defendants here have gone to great trouble and expense to press their view that it is not fair to prosecute them unless everyone else is prosecuted. However, it does not follow that just because they have been selected form pool of possible defendants, that it is “appropriate and just” that the proceedings should be stopped. Whether the proceedings should be stopped cannot turn on how zealously one defends himself. It must turn on how “just” it is that proceedings be stopped. That is not to be seen only through the eyes of the defendant. 226) Thus, in my view, the proceedings should not be stayed, because there has been no violation of Sec. 15 and, if I am wrong in that regard, because, in any event, it is not “appropriate and just” that such a remedy be granted in the circumstances present here. DATED at the City of Prince Albert, in the Province of Saskatchewan, this 6th day of May, A.D. 1994. T.W. Ferris, Provincial Court Judge

The defendants permitted a private building to remain on public reserve lands contrary to s. 197 of The Planning and Development Act, 1983 and the zoning bylaws of the Resort Village of Echo Bay. They contended the bylaws were inapplicable. They conceded the activities may be an offence under the provincial statute, but submitted the selective prosecution should be stayed as an abuse of the legal process, and a violation of their right to 'equal protection and equal benefit of the law without discrimination' under s. 15 of the Charter. Legislation required 10% of land intended for subdivision to be given to the province. This land was designated as 'public reserve', and its use was limited by s. 197 of The Planning and Development Act, 1983. Most public reserves were not developed by the government, but rather by cottage owners. Some cottage owners asserted the public was able to use the construction on public reserve, and allowing such access made such construction things that 'facilitate the use of the reserve as a public recreation area' under s. 197(f) and were legal. In Echo Bay, the subdivision plan created a public reserve in front of cottage lots, vested in the province on October 25, 1983. The provincial Department of Municipal Government ('Department') was to determine what fell within s. 197. The province had no policing mechanism for violations. The Department acted as if maintaining the reserves was the municipality's responsibility, even though the province held title. In August 1986, Mr. and Mrs. Taillon built a boathouse on public reserve. They did not seek permission, as their realtor said they could treat the land as part of their lot. Their neighbour Mr. Zeah complained to Mr. Brickwell, the Senior Planner of the Department. This resulted in an enquiry into if the defendant's activities violated s. 197 or the municipal zoning bylaw. On October 28, 1986, Mr. Brickwell told the mayor that Department officials inspected the site and asked council to request the Taillons remove the structure. Council advised the Department on November 24, 1986 that it was not their land or responsibility. Mr. Brickwell informed council of proposed legislative amendments that would give title and enforcement responsibilities to municipalities. In June 1989, council asked Mr. Fraser to produce authority to construct his boathouse and if not, they would issue a stop work order under the zoning bylaws, even though they believed they did not apply to public reserves. Council was trying to avoid future problems once they heard of the amendments. They received no response and issued an order. Mr. Fraser then contacted Mr. Brickwell who told him there were numerous violations, but enforcement was lacking. Mr. Brickwell said he did not demand the boathouse be removed because, in his view, his Department did not police public reserves. On October 21, 1989, council passed a motion to turn the prosecution of violations of s. 197 over to the RCMP. The province was the landowner and enforcer of the Act, so it was appropriate for the RCMP to assume prosecution. The RCMP declined, and Mr. Brickwell informed council his Department would not act. On January 31, 1991, an amendment to The Planning and Development Act passed which allowed municipalities to take title and passed responsibility for prosecuting offenders to local councils. Echo Bay took title on July 6, 1992. On February 21, 1991, council's solicitor requested the defendants and the Fosters to remove their boathouses by June 31, 1991. The Fosters complied, but the defendants did not. On November 16, 1991, council proceeded with the action. Although council believed the boathouses were illegal, the Taillon boathouse was assessed for property taxes. Council believed they must prosecute offenders to fulfill their duty to uphold the law, discourage further violations, and ensure public reserve lands were open for public use. The defendants believed either none or all violators should be prosecuted. Council stated it was wiser to prosecute only boathouses to obtain the court's opinion. If council was correct, it may not be necessary to prosecute others because they might comply with the law as expressed by the court. If the court did not agree, council should not incur any further expense. Council asserted prosecution of boathouse owners was appropriate as boathouses caused the complaint, and they were clearly private. The defendants view their selection for prosecution out of a numerous violators as unfair and discriminatory within the prohibition of s. 15 of the Charter. HELD: A municipality may further restrict uses of reserve land, but it cannot allow uses not permitted by s. 197. Taxing the boathouse was immaterial and did not imply approval. The defendants were not misled as to their legal rights by a person in authority. The Taillons could not have believed the opinion of the realtor; they knew they did not own the land. Mr. Brickwell's comment that there were numerous violations being ignored could not be taken to mean the defendants were able to build on public reserve. It was an opinion that they might escape prosecution. The case turned on whether it was an abuse of the legal process to prosecute the defendants when other violators were ignored or a case of violating their rights under s. 15 of the Charter. How unfair it was depended on how many violators were overlooked which turned on the reading of s. 197. John Nanson, the Principal Planner of the Community Planning Services Branch, believed things on public reserve available to the public were not violations of s. 197. The court did not accept this view as it allowed citizens to determine what constituted a 'public facility' and required council to launch civil actions to remove private construction. If this was intended, no offence would be created in the first place, and the titleholder would just be left with civil remedies. An interpretation which allowed private citizens to effectively turn public reserve into private land defeated the legislation's objective. The fact that the titleholder was the province or a municipality and the use of the word public indicated the legislature wanted the government authority to decide what constituted a public facility. It cannot be public unless it was authorized or actually built by the government authority and was open for public use at all times. If the legislation was interpreted as Mr. Nanson suggested, then there were fewer violators. This made council's decision to prosecute only boathouses less unfair, and it did not give the defendants a defence as the boathouses were not open for public use. They constructed a private building on public reserve contrary to s. 197, therefore the boathouses were illegal under s. 221(1)(a)(ii) of the Act. The defendants were guilty unless prosecution was stayed as an abuse of process or because it violated s. 15 of the Charter. Council prosecuted defendants whom they saw as committing clear violations. To prosecute all violators initially would add expense at no benefit. A decision on boathouses was likely to lead to the desired clarification of the law. They had a complaint upon which they had a duty to act and wanted a test case to determine the legal position. Selective prosecution, per se, is not an abuse of process; rather it depends on the circumstances. The defendants must show they were singled out unfairly, not just that they were singled out. There was no such evidence. Stopping prosecutions for abuse of process is a power only to be used in the 'clearest of cases' (R. v. Keyowski). The defence must show that proceeding exceeds 'the limits of the community sense of fair play' and the administration of justice is best served by stopping the prosecution. In R. v. Rourke, the SCC said there was no general discretion to stay proceedings because they were considered 'oppressive'. In R. v. Jewitt, the SCC adopted the test from R. v. Young that 'there is a residual discretion in a trial judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency, and to prevent the abuse of court's process through oppressive or vexatious proceedings'. Picking out defendants to prosecute from a pool of offenders to ascertain the legal position of the parties because one of their group has been the subject of a complaint did not violate 'the community sense of fair play and decency'. The defence relied on Regina v. Miles of Music Ltd. where the court said that 'no cause can fall within the category of the æclearest of cases' unless it can be fairly said that the cause of the apparent unfairness complained of can be à attributed to either the police or the Crown or both'. The defence said council not only did not prosecute, but did not investigate whether others were in violation. The court acknowledged this was so, but accepted the motivation was that council believed Mr. Nanson, and they did not currently intend to prosecute all violators. The defendant's real complaint was the decision to only prosecute boathouse owners. Council was trying to ascertain the law, so they could fulfill their duty to uphold it. The court found council proceeded against the defendants because it seemed sensible and financially responsible to do so, not because of any male fides. The municipal bylaws were not applicable to public reserves, but it made sense to seek the court's opinion on their applicability since council was going ahead with the action. The fact that one count was laid under the bylaws did not violate the community sense of fair play, but if it did, this would mean that count should be stayed. Council rightly attempted to get others to prosecute which caused a reasonable delay and did not prejudice the defendants. Any unsatisfactory delay was caused by the Department and not council. The Charter gives a right to a trial within a reasonable time, but this applies after a charge is laid. The delay by the province occurred pre-charge. There was no unreasonable post-charge delay or abuse of the legal process. Section 15 of the Charter is not limited to the enumerated types of discrimination, but it does not prohibit all discrimination. It must be commonly accepted discrimination abhorrent to the basic principles of society with no reason that justifies a breach of such principles. It was not discrimination contrary to s. 15 to select individuals to prosecute as a test case where it was not done for improper reasons. 'Equal protection and equal benefit of the law' did not mean one was entitled to have prosecution stopped until all violators were prosecuted. Picking out boathouse builders was not an example of discrimination prohibited by s. 15. The defence argued the law was not allowed to have unequal impact because of irrelevant circumstances (Law Society of British Columbia v. Andrews). This case should not be read so broadly. In the court's view, the proceedings should not be stayed because there was no violation of s. 15, and if the court was wrong, it was not 'appropriate and just' that such a remedy be granted, as required for relief under s. 24 of the Charter.

9_1994canlii7210.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 94 Date: 20060828 Between: Docket: 1342 April Schoenthal and Ryan Dalrymple Prospective Appellants and MP Equities Ltd. O/A RDL Management Prospective Respondent Coram: Jackson J.A. (in Chambers) Counsel: Ms. April Schoenthal and Mr. Ryan Dalrymple in person Ms. Larke Kimpton for the landlord via conference call Appeal: From: QBG 1257 of A.D. 2006, J.C. of Regina Heard: August 23, 2006 Disposition: Application Allowed Written Reasons: August 28, 2006 By: The Honourable Madam Justice Jackson Jackson J.A. [1] Ms. Schoenthal and Mr. Dalrymple, “the tenants,” apply pursuant to s. 49(2) of The Residential Tenancies Act[1] for leave to appeal a decision of the Court of Queen’s Bench reviewing a decision of the Rentalsman. Deputy Rentalsman granted an order of possession and issued writ of possession on July 28, 2006. Her reasons were as follows: The rent was 15 days or more in arrears when the Notice of Termination of the tenancy agreement was served and the tenant has failed to vacate the premises in accordance with the Notice. am satisfied that based on the evidence provided, the Landlord's claim has been sufficiently proven and that an Order should be made placing the Landlord in possession of the rental premises. [2] The file indicates that hearing was held on July 26 at which the tenants agreed to pay the August rent, as well as the July rent, on July 27. The tenants dispute that they agreed to pay the August rent. They indicate that they could not have agreed to pay the August rent on July 27 because they would not have been in position to pay future rent on that day. [3] The tenants advise that the landlord holds the equivalent of one month's rent as security for the payment of the last month's rent of the tenancy. The landlord contradicts this and indicates that it holds $640 as damage deposit only. [4] In any event, the parties agree that the rent for July in the amount of $640 was paid on July 27 plus late payment fee of $25, which the landlord accepted. The landlord, nonetheless, immediately applied for, and was granted, writ of possession. No further hearing was held. [5] The tenants allege that they tendered the arrears on the basis that the landlord would not apply for writ of possession and that the arrears were accepted on that basis. Ms. Schoenthal received and cashed her paycheque on July 27 to enable her to pay the July rent. Thus, there were no arrears of rent owing as of July 28. Because the tenants believe that the landlord holds the equivalent of one month's rent, they indicate they would not have tendered the rent if they were going to be evicted in any event. [6] The Rentalsman’s fiat does not speak to knowledge that the July rent had been paid, but to the rent having been in arrears when the original Notice of Termination was served, which the tenants allege was cured on July 27 when the landlord accepted the rent and late payment fee. [7] The tenants appealed the Rentalsman’s decision to the Queen’s Bench. Their appeal was heard on August 15, 2006, by which time the August rent was due not only under the disputed agreement but under the tenancy agreement. The Chambers judge dismissed the tenants’ appeal the same day, saying "[d]ue to [the] fact rent for August has not been paid, and not paid by required time, appeal is dismissed”. [8] My jurisdiction is derived from s. 49 of The Residential Tenancies Act, which reads: 49(1) Any person who is aggrieved by decision or order of the Rentalsman may appeal the decision or order on question of law or of jurisdiction of the Rentalsman to judge of Her Majesty's Court of Queen's Bench for Saskatchewan within 30 days of the date of the decision or order. (2) Any person who is aggrieved by decision or order of judge of Her Majesty’s Court of Queen’s Bench for Saskatchewan pursuant to sections 47.1 to 47.3 or pursuant to subsection (1) of this section may appeal the decision or order to the Court of Appeal within 30 days of the date of the decision or order with leave of the Court of Appeal or judge of that court. [9] I have decided the following questions warrant leave to appeal:1. Did the Chambers judge err in finding that the Rentalsman had jurisdiction to make an order granting possession on the basis that “[t]he rent was 15 days or more in arrears when the Notice of Termination of the tenancy agreement was served and the tenant has failed to vacate the premises in accordance with the Notice” if the landlord accepted the rent in lieu of seeking a writ of possession? 2. In answering the first question, did the Chambers judge err in considering that the subsequent month\'s rent was not paid? [10] The tenants have until 4:00 p.m. on August 31, 2006 to serve and file their notice of appeal and 15 days thereafter to file their appeal book and factum. [11] If the tenants serve and file their notice of appeal by 4:00 p.m. on August 31, 2006, but do not pay the August rent by the end of August 31, or do not pay their September rent, the landlord has leave to apply on 48 hours notice to lift any stay of execution. [12] There will be no order as to costs. DATED at the City of Regina, in the Province of Saskatchewan, this 28th day of August, A.D. 2006. Jackson J.A. [1] R.S.S. 1978, c. R-22.

The tenants apply pursuant to s. 49(2) of The Residential Tenancies Act for leave to appeal a decision of the Court of Queen's Bench reviewing a decision of the Rentalsman. HELD: Application allowed. 1) The parties agree that the rent for July was paid on July 27. The landlord then immediately applied for and was granted a writ of possession. 2) The tenants advise that the landlord holds the equivalent of one month's rent as security for the payment of the last month rent of the tenancy. The landlord claims it is a security deposit. 3) The tenants claim they tendered the arrears on the basis that the landlord would not apply for a writ of possession and that the arrears were accepted on that basis. 4) The Court of Queen's Bench Chambers judge dismissed the appellant's appeal the same day saying 'the rent for August has not been paid and not paid by required time, appeal is dismissed'. 5) The first issue on appeal is whether the Chambers judge erred in finding the Rentalsman had jurisdiction to make the order granting possession on the basis that 'the rent was 15 days in arrears when the Notice of Termination of the tenancy agreement was served and the tenant has failed to vacate the premises in accordance with the Notice' if the landlord accepted the rent in lieu of seeking a writ of possession. The second issue on appeal is whether the Chambers judge erred in considering that the subsequent month's rent was not paid.

7_2006skca94.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 174 Date: 2007 05 22 Docket: F.L.D. No. 57/2003 Judicial Centre: Saskatoon, Family Law Division Counsel: Helen G. Semaganis for the petitioner Cheryl A. Cuelenaere and Cara L. Haaf for the respondent JUDGMENT GABRIELSON J. May 22, 2007 [1] The respondent, I.C.M., (the “father”) applied by notice of motion dated June 26, 2006, to vary the judgment of Justice P. Foley pronounced on June 8, 2005, (the “Original Custody Judgment”). The Original Custody Judgment provided for joint custody of the child, C.A.S.M.M., born June 26, 2001, (the “child”) with shared parenting according to a specified schedule. [2] The grounds for the application to vary the Original Custody Judgment were that J.C.M. (the “mother”) failed to abide by the terms of the original judgment and refused to provide the father with any information as to the location of herself or the child since the date of the original judgment. The application also requested an order providing only supervised access to the child by the mother. [3] The mother filed material indicating she was “vehemently opposed” to the father’s application for custody and “would prefer that she be in the custody of another relative such as my parents or even in foster care instead of with the respondent”. [4] The father filed a further application on December 8, 2006, seeking an order allowing him to relocate with the child to Whitehorse, Yukon, for residential purposes. While the mother originally opposed both applications, at the trial of the matter, she no longer opposed the application for the grant of sole custody to the father, but she continued to oppose the father’s application to be allowed to change the child’s primary residence to Whitehorse. The mother also asked that she be granted less restrictive access to the child. [5] The father was born and raised in the Yukon. The mother was born in Saskatoon but lived in the Yukon from ages two to seven. She then returned to Saskatoon until she graduated from high school. She returned to the Yukon, where she resided periodically. The mother and father met in March 2000 when both were working at Whitehorse. They started living together in September 2000. The child was born on June 26, 2001. They lived together as family in Whitehorse until March 2002 when they relocated to Saskatoon, Saskatchewan. [6] The father and mother separated in January 2003. The father returned to Whitehorse because of job opportunities there. The mother then commenced an action seeking custody of, and maintenance for, the child. The father, who had returned to reside in Saskatoon, opposed the claim by the mother for sole custody of the child and requested that there be joint custody with shared parenting of the child. [7] There were several interim applications during which the mother was granted interim custody of the child and the father was granted various access orders. Access continued to be contentious issue between the parties. The matter finally came before Justice Foley for trial on June 7, 2005. The mother did not attend the trial, although she did forward fax to the local registrar asking that the trial be postponed. As the trial had already been adjourned twice at her request and had finally been scheduled on peremptory basis, Justice Foley proceeded with the trial on June 7, 2005. His judgment, dated June 8, 2005, provided for joint custody with shared parenting on specified schedule. The judgment also ordered that neither party could remove the child from Saskatchewan save with the prior consent of the Court. [8] Following the Original Custody Judgment, the mother left Saskatoon, taking the child with her. She testified that she lived in various locations in Saskatchewan, British Columbia and Alberta. The father was not advised as to the child’s whereabouts and was therefore unable to have access to the child or the shared parenting that had been ordered. The father contacted the Saskatoon Police Service and received several orders from the Court to assist in locating the child. The mother was finally located in Edmonton, Alberta, where she was arrested on Canada‑wide warrant and charged pursuant to ss. 282(1) and 283 of the Criminal Code of Canada with child abduction and contravention of custody order in respect to the child. The child was returned to Saskatoon on June 24, 2006, and placed in the care of the father. The child has remained in the father’s care pursuant to interim custody orders. Interim orders have also provided for supervised access for the mother to the child. Issues [9] The issues are: 1. Should the father be granted sole custody of the child? 2. Should the father be allowed to relocate with the child to Whitehorse, Yukon? 3. What access to the child should be granted to the mother? Legislation [10] The Children’s Law Act, 1997, S.S. 1997, c. C‑8.2, applies to the circumstances of this case. The relevant portions of that Act are as follows: 3(1) Unless otherwise ordered by the court and subject to subsection (2) and an agreement pursuant to subsection (3), the parents of child are joint legal custodians of the child with equal rights, powers and duties. 6(1) Notwithstanding sections to 5, on the application of parent ... 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. (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. nan In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child; 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. Analysis 1. Should the father be granted sole custody of the child? [11] The father’s position is that the mother ignored the orders of Justice Foley in the Original Custody Judgment, which provided for joint custody. He states that the mother was unwilling to share custody and prevented him from exercising his right to shared parenting of the child. He states that the mother’s removal of the child from Saskatchewan violated an express term of Justice Foley’s orders as well as previous orders. Finally, he states that the circumstances of the mother’s living arrangements since removal of the child from Saskatoon, such as living in campgrounds and with friends, placed the child at risk of harm. Accordingly, he states that it is in the best interests of the child that he be granted sole custody of the child. [12] The mother’s initial response in the materials filed was to reiterate her previous concerns for the safety of the child based upon allegations of sexual abuse by the father. However, at trial, the mother testified that, as result of counselling, she was now prepared to accept the findings of Justice Foley in his Original Custody Judgment that there was no evidence to support the allegations of sexual abuse, although she still had “concerns”. At trial the mother’s position regarding custody was that she was prepared to accept that the father should have sole custody of the child for an interim period but that she wished to work towards joint custody and shared parenting once she could demonstrate her ability to abide by court orders. [13] The Supreme Court of Canada, in the decision of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27, summarized the law regarding variation applications and mobility 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. 50 In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child’s access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [Emphasis in the original.] [14] Although the Gordon v. Goertz case dealt with custody order made pursuant to the Divorce Act, R.S.C. 1985, c. (2nd Supp.), its principles have been found to apply to orders made under The Children’s Law Act as well. Johnston v. Kurz, 2005 SKQB 362 (CanLII), 270 Sask. R. 194, aff’d 2006 SKCA 106 (CanLII), 285 Sask. R. 289. [15] As is indicated in the Gordon v. Goertz case, supra, and in s. 6(4) of the Act, the starting point for my review is whether the father has demonstrated material change in the circumstances affecting the child. The inquiry concerning the change in circumstances is to be based on the findings of Justice Foley, who made the Original Custody Judgment. Justice Foley’s decision is presumed to be correct. Talbot v. Henry (1990), 1990 CanLII 2648 (SK CA), 84 Sask. R. 170 (C.A.) at para. 28. This is so whether the mother appeared at the trial or not. [16] In his judgment, Justice Foley stated at paragraph 20(4): 4. Non‑compliance by the Petitioner, [J.C.M.], with the Shared Parenting Schedule as set out herein shall be material change in circumstances in any application to the Court for Variation brought by the Respondent as to the joint custody and/or shared residency granted to the parties herein. [17] Clearly, the mother in this case violated the terms of Justice Foley’s judgment. She removed the child from the Province of Saskatchewan, contrary to paragraph 20(5) of Justice Foley’s direction. In her evidence the mother suggested she was unaware of Justice Foley’s Original Custody Judgment, and that she left Saskatoon before it was rendered. did not find the mother’s evidence credible on this point, and wherever her evidence contradicted with that of the father, accepted the father’s evidence, who found to be credible and fair in his testimony. Even assuming she was unaware of Justice Foley’s order, which do not accept, the previous interim order of Justice Laing (as he then was), dated February 14, 2005, when he granted the mother’s application for an adjournment of the trial, was that “[t]here will be an order that all court orders that have been made on the file, including the residence requirement in the province of Saskatchewan, continue to be in place until further order of the court.” The mother was present when Justice Laing made this order. [18] Having taken the child out of the Province of Saskatchewan, the mother also failed to notify the father as to the child’s whereabouts and prevented the father from exercising the shared parenting, which the Original Custody Judgment had ordered. Accordingly, I am satisfied that there has been a material change in the circumstances which existed at the time of Original Custody Judgment when it was thought that the cooperation of the parties, which would be necessary for joint custody, was possible. As the mother demonstrated that it was not, review of Justice Foley’s order as to custody of the child is justified. [19] The threshold test having been met, according to the Gordon v. Goertz case, the second part of the inquiry will be whether change in the custody or access order is in the best interests of the child, having regard to all of the circumstances of this case. [20] In his decision at paragraph 8, Justice Foley stated: [8] The evidence of Dr. Greenough, together with that of the respondent’s mother and his friend and neighbour Dr. Vogt, clearly and convincingly established the respondent’s parenting skills, the strong bond he has forged between himself and his daughter despite the trying conditions under which he has operated, his fairness in recognizing and reiterating his belief that [C.A.S.M.M.] should have the advantage of exposure to both parents despite the unsubstantiated and indeed false allegations made against him by the petitioner. Again, at paragraph 10, Justice Foley stated: [10] He was, is and, am sure, will continue to be loving and caring parent while able to meet his daughter’s needs and be valuable, trusted role model in her life. Finally, at paragraph 11, Justice Foley stated: [11] This Court would have been amenable to an application for sole custody to the respondent with scheduled access to the petitioner had it been requested. ... [21] The father has now requested sole custody of the child based upon the mother’s refusal to accept the shared parenting arrangement and her removal of the child from Saskatchewan. [22] At the outset of this hearing, counsel for the mother indicated that in the circumstances, the mother was not opposing the father’s application for sole custody of the child. am also satisfied, based upon the evidence presented at trial, that it is in the child’s best interests for the father to have sole custody. The evidence indicates that since the child’s return to Saskatoon on June 24, 2006, and being placed in the father’s care, she has been well cared for by the father. The evidence provided by her kindergarten teacher, Ms. Gerein, is that the child is happy, very responsible and acts like an average five‑year‑old. She is meeting all the objectives of the school. Ms. A. Corkil, the director of the daycare centre where the child is cared for following kindergarten classes, also confirmed the child was well adjusted and has done well while in the father’s care. Ms. G. Martens, custody and access worker, testified that the relationship between the child and the father was very positive. She had no concerns regarding the father’s care. [23] Accordingly, based upon Justice Foley’s original findings, the evidence at trial that the father has cared well for the child when she was in his care, as well as the mother’s conduct since Justice Foley’s order in attempting to avoid shared parenting, I am satisfied that it is in the child’s best interests to grant sole custody of the child to the father. 2. Should the father be allowed to relocate with the child to Whitehorse, Yukon? [24] The father submits that it is in the child’s best interests to live with him in Whitehorse, Yukon, for the following reasons: (a) He has significant and strong family support in Whitehorse; (b) There is strong community support for the child in Whitehorse; (c) He has significant opportunities for employment, training and monetary advancement which would benefit the child substantially; (d) He has defined plan for the move; (e) He has defined plan for access for the mother to the child in Whitehorse; (f) There is an additional measure of security against abduction of the child by the mother because travel into and out of Whitehorse is restrictive; and (g) The mother has jeopardized the safety of the child on many occasions in the past. [25] The mother submits that it would not be in the child’s best interests to move to Whitehorse because it would limit her access to the child because of the distance between Saskatoon and Whitehorse. Her counsel also suggests that the seven factors set out by the Supreme Court of Canada in Gordon v. Goertz, supra, do not favour the order being granted. Her counsel refers to the cases of Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 136 D.L.R. (4th) 577 (Ont. C.A.) and Rosenau v. Rosenau, 2004 SKQB 275 (CanLII), R.F.L. (6th) 372. Finally, she suggests that this Court may lose jurisdiction if the move is approved, since any further applications for variation may have to be made in the Yukon. [26] In my opinion, the evidence at trial confirmed each of the seven points outlined by the father in support of the proposed relocation to Whitehorse. Furthermore, I have reviewed each of the seven factors listed in Gordon v. Goertz, which that Court states should be considered and find as follows: (a) The existing custody arrangement and relationship between the child and the custodial parent. [27] The father has had the care of the child since June 24, 2006, and by this judgment has now been granted sole custody of the child. The evidence at trial was that the father and the child have had good relationship since being reunited in June 2006. The description of this relationship as being very positive came from all the independent witnesses who testified at trial, including the teacher, the daycare worker, and the child and access supervisor. Their testimony confirmed that all of the child’s physical needs, including food and clothing, have been well provided. It also appears that the child is well adjusted socially and emotionally. (b) The existing access arrangement and the relationship between the child and the access parent. [28] Since July 2006, the mother has been entitled to supervised telephone access twice per week and since March 2007 has been entitled to supervised personal access for period of two hours every second week. The supervised personal access is also in the presence of member of security firm hired to prevent the mother from removing the child from the supervised access facility. The testimony of Ms. Martens, the custody and access worker, and Ms. Cotton, the security guard, was that the mother has been very cooperative and that there have been no problems during the supervised access visits. The mother does not dispute the need for supervised access at this point in time, but she hopes to move away from supervised secured access to more liberal access once she has demonstrated that she can be trusted not to attempt to abduct the child. It appears that the relationship between the child and the access parent (the mother) is therefore also very positive. (c) The desirability of maximizing contact between the child and both parents. [29] Supervised access is generally only temporary measure until such time as the safety of the child can be confirmed. It is impossible to tell at this point in time how long supervised access will be required. The mother still faces criminal charges pursuant to ss. 282(1) and 283 of the Criminal Code concerning the taking of this child out of the Province of Saskatchewan and preventing the father’s joint custody and shared parenting. The mother hopes to apply for changes in access once the charges have been dealt with in September 2007. While it is clear that it would be more difficult for the mother to exercise access in Whitehorse than it would be in Saskatoon, it is not impossible. Telephone access and internet access through the use of webcam would certainly still be available. The father has made arrangements for supervised access through third party, Ms. J. Laird, who works as counsellor in family services agency in Whitehorse. The cost for the mother in attending in Whitehorse is concern, but the father has proposed that he will forgo child support for the child so that the mother can save for access trips. While the mother is not currently working, having recently had second child, she has training as youth care worker in group homes and has the ability to earn significant income. [30] There is no doubt that if the father moves with the child to Whitehorse, personal contact between the mother and the child will be reduced. However, currently, personal contact is also minimal through secured supervised access. Such supervised access can also continue in Whitehorse, although it will not likely be as frequent because of the cost of travel between Whitehorse and Saskatoon. However, it is the mother’s own actions which have led to the reduction in the maximum contact between the child and both parents. Justice Foley’s order provided for shared parenting and would have resulted in such maximum contact. The mother ignored Justice Foley’s order, as well as previous access orders, and withheld the child from the father. (d) The views of the child. [31] At five years of age, the child is too young for the Court to take into account the views of the child. However, all of the evidence presented indicates that the child has very positive view of both the father and the mother. The child’s paternal grandfather, grandmother and uncle also testified at trial that the child has good relationship with each of them and they will assist in the child’s transition in Whitehorse. was impressed that the paternal grandmother, paternal grandfather and the father’s brother all travelled from Whitehorse to testify at the trial. None of the mother’s family, including her common law spouse, testified at the trial nor were they present in the courtroom to support the mother. (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. [32] The father testified that he wishes to move to Whitehorse to be closer to his family. His parents have expressed an interest and an ability to assist in childcare. Furthermore, he feels he can increase his income in Whitehorse by taking his journeyman carpenter training there. Such carpenter training is not available in Saskatoon but would have to be taken in either Prince Albert or Moose Jaw if he was to continue to live in Saskatchewan. Finally, he sees greater security for the child in Whitehorse, which is more remote and with fewer transportation options than Saskatoon, such that it would be more difficult for the child to be abducted. [33] The mother’s position is that any economic benefits to the child are too speculative and that the child’s needs could also be met in Saskatoon since she says that there is currently plenty of work for carpenters in Saskatoon. While there is no evidence presented of firm job offers in the Yukon, am satisfied, based upon the evidence of the father, that he has made the necessary inquiries and that his employment prospects in Whitehorse are good. am also satisfied that the increased contact with her extended family in the Yukon, including not only her paternal grandparents but also her maternal grandfather, who lives in Whitehorse, provides an increased social network that would be in the child’s best interest. (f) Disruption to the child of change in custody. [34] There will be no disruption to the child as the father has had interim custody since June 2006. (g) Disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [35] The mother testified that the child has half‑brother, the mother’s common law spouse, the maternal grandmother, an uncle, an aunt and other extended family members in Saskatoon, who the child could not have access to if she moves to Whitehorse. However, the evidence presented at trial was that the child had no contact with any of the mother’s family in Saskatoon since the mother left Saskatoon in June 2005 (except for the mother’s common law spouse and the half‑brother with whom the child lived while in Edmonton). No application for access to the child by any of the mother’s family, including the mother’s common law spouse, is found in the court records. [36] There is no question that there will be some disruption to the child. She is currently enrolled in kindergarten and daycare close to her father’s apartment in Saskatoon. However, her kindergarten teacher confirmed that the child copes well with changes in her environment. The father testified that he has investigated the school and daycare facilities close to his planned residence in Whitehorse (his mother’s home) and they appear to be appropriate. [37] Accordingly, it is my view that allowing the father to move with the child to the Yukon will not result in any greater disruption to the child than normally could be the case for any child who changes schools and homes yet stays in the same city. Best Interests of the Child [38] Section 8(a) of the Act confirms that am only to have regard for the best interests of the child and not the wishes of the parents. In this case, it would appear that both parents love this child and want the best for her. Based upon the evidence, it appears that, notwithstanding the difficulties between the parents, the child is happy and well adjusted. [39] The father, who is the custodial parent (based upon my finding in this judgment), feels that it is in the best interests of the child to move the child’s residence to Whitehorse. While there is no legal presumption in favour of the wishes of the custodial parent, the views of that parent are to carry significant weight provided that the reason for the move is not improperly motivated. [40] In the Gordon v. Goertz case at paragraph 48, McLachlin J. (as she then was) stated: 48 While legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on day‑to‑day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability. [41] It is my opinion that there is no evidence of an improper motive on the father’s part and that his plans regarding the move to Whitehorse are well thought out. The father will have increased opportunity for employment and education which in the long run will have economic benefits to the child as well. The father’s family in Whitehorse will provide support for the child which is also in the child’s best interests. The father has made arrangements for he and the child to live with the father’s mother in Whitehorse until such time as the father can find his own accommodations. The living arrangements include separate room for the child and would appear to be appropriate. This is not situation such as that found in the case of Rosenau v. Rosenau, supra, where the Court found that it would not be in the child’s best interest to approve move because the petitioner’s plan was too vague or speculative. [42] It is therefore my opinion that it is in the best interests of the child to approve the father’s plan to move with the child to Whitehorse. While there are negative implications for the mother’s access arising from this decision, they cannot be avoided if it is in the child’s best interest to move. [43] If, as she testified at trial, the mother has realized that there is no merit in her accusations about the father’s abuse of the child and if she can demonstrate an ability to abide by court orders, then hopefully she can regain the trust of the father such that there will come time when the child may even spend blocks of time with the mother in Saskatchewan. 3. What access to the child should be granted to the mother? [44] Counsel for the mother indicated that the mother was not objecting to the current access arrangements. The current access arrangements provide for telephone access twice per week at times to be established by Family Justice Services and personal access pursuant to the terms of supervised access program contract. The mother’s counsel also indicated that the mother understands she has to demonstrate her commitment to abide by court orders before supervision is no longer required. She would like to move towards increased personal access and obtain access for her second child, K., and her common law partner, P.R. [45] The father’s counsel indicated that the father would support continuation of the current access arrangement. The father does not intend to move to Whitehorse until the end of the school term, which would be approximately June 28, 2007. Accordingly, the existing access arrangements can continue until that date. Following the move to Whitehorse, the father would support continued telephone access twice weekly and would facilitate internet access by the purchase and installation of webcam. Personal access in Whitehorse is also agreeable to the father provided that there is an appropriate supervisor such as the witness, Ms. J. Laird, and the availability of security guard. [46] The current custody and access worker, Ms. G. Martens, testified that the access arrangements which have been in place since July 2006 have worked well and have been positive experience for the child. The mother’s conduct has also been appropriate. [47] I am satisfied that it is in the best interests of the child to continue the mother’s existing access arrangements with the child until the child moves with the father to Whitehorse at the end of June 2007, with the following changes: (a) The mother be allowed to bring the child K. with her to the supervised personal visit if she wishes to do so and if, in the opinion of the supervisor of the access program, it does not disrupt or interfere with the normal access visits; and (b) The mother’s common law partner, P.R., may attend for up to one‑half hour of the supervised visit if appropriate security arrangements can be made for his attendance and if, in the opinion of the supervisor of the access program, his attendances at such visits remain in the best interests of the child. [48] Upon the move to Whitehorse, the following access arrangements shall apply: (a) telephone access twice per week with supervision by the father or his designate is appropriate. The father has agreed to arrange for webcam to be purchased and installed in his residence. If the mother wishes, webcam internet access can be substituted for all or any of the scheduled telephone access. (b) The mother shall be entitled to supervised personal access to the child at such times that can be agreed upon, but failing agreement, once month, upon providing at least 30 days’ prior written notice of the time for exercise of such access and providing professional supervisor agreeable to the parties can be arranged. The father testified that Ms. J. Laird would be an appropriate supervisor. In cross‑examination, the father indicated he envisaged similar schedule to that currently in place which required security in addition to the access supervisor. However, the original plan proposed by the father for access in Whitehorse did not include any provision for further security other than the access supervisor. The father also indicated that, because of the remoteness and lack of travel options, one of the benefits of approving the move to Whitehorse would be increased security from abduction. Accordingly, am satisfied that supervised access in the Yukon will not require the security arrangements currently in place in Saskatoon. The mother should recognize, however, that any failure to comply with the terms of the access order could result in additional restrictions or even the loss of access visits. Due to the distance and cost of these access visits, they should be for longer blocks of time than is the current arrangement. Failing agreement by the parties, access should be for up to two hours per day for at least three‑day period. (c) Beginning July 1, 2008, and assuming the mother has abided by the terms of the supervised access previously set forth, access may include overnight access at the maternal grandfather’s residence provided that the maternal grandfather or some third party agreeable to the mother and the father will supervise such access pursuant to an access agreement such as that currently in place. (d) It is my hope that by July 1, 2009, the mother has been able to demonstrate level of compliance with the terms of access orders that will provide agreement between the parties that will allow access visits to take place in Saskatchewan. [49] There will be the following orders: (a) The father will have sole custody of the child. Except in emergencies, he will, however, provide the mother with health and educational information and discuss major health and education decisions with her before he makes final decision regarding the child’s best interests in this regard. The subsequent notification of his decision should be by email or letter. The mother shall be entitled to request medical records and education records directly from the source if they are not provided to her by the father. (b) The father shall be permitted to relocate with the child to Whitehorse, Yukon. Pursuant to s. 5(b) of the Act, the father shall provide written notice to the mother as to the child’s residence, including phone number. The father shall also provide 30 days’ notice to the mother of any intention to change this residence. The mother shall not remove the child from the Yukon save by written agreement of the parties or further court order. (c) The mother shall have access to the child at all times that can be agreed upon between the parties but such access shall include at minimum: (i) telephone access to the child twice per week, with such telephone access to be supervised by the father or his designate if the father wishes to continue telephone supervision; (ii) internet webcam access as an alternative, at the mother’s option, to the aforesaid telephone access immediately upon the father’s relocation with the child to Whitehorse; (iii) until the child’s relocation to Whitehorse, supervised personal access to the child shall be in accordance with the terms of the interim order of Justice M‑E. Wright dated March 5, 2007; (iv) following the child’s relocation to Whitehorse, the mother shall have supervised personal access to the child for three days per month for up to two hours per day. The supervisor of the personal access shall be Ms. J. Laird or any other supervisor agreed to by the father and the mother. The mother shall execute supervision contract allowing for search and restraint of the mother in the same manner as the contract between the mother and Flaman Investigation and Security Agency Ltd. concerning the existing Saskatoon access arrangements. The mother shall pay for any costs of the supervisor for such access. As of July 1, 2008, the mother’s access may include overnight access at the maternal grandfather’s residence or such other residence as may be agreed upon, provided the maternal grandfather or some other third party agreeable to the parties agrees to provide supervision of such access similar to the terms of the access agreement currently in place; (v) prior to attending for supervised access, the mother (and P.R. if he attends the access visit with her) must surrender to the registrar of the Court of Queen’s Bench any passports that are registered in their name from any country, which passports are to be held by the registrar of the Court until the access visit is complete. (vi) following July 1, 2009, either party may apply for review of the access provisions of this order. [50] The father shall have the costs of the trial on party and party basis. J. N.G. Gabrielson

The respondent father applied by way of notice of motion to vary a custody judgment that provided for joint custody of the child with shared parenting according to a specified schedule. The grounds for the application were that the mother had failed to abide by the terms of the original judgment and had refused to provide the father with any information as to the location of herself and the child since the date of that judgment. The mother had left Saskatoon, taking the child with her and, subsequent to police involvement and several Court orders to assist in locating the child, was arrested on Canada-wide warrant in Edmonton, Alberta and charged pursuant to ss. 281(1) and 283 of the Criminal Code of Canada with child abduction and contravention of custody order. The applicant submitted that the mother had placed the child at risk of harm and accordingly it was in the best interests of the child that the father be granted sole custody. The applicant also requested an order providing only supervised access to the child by the mother. The father filed a further application seeking an order allowing him to relocate the child to Whitehorse, Yukon, for residential purposes. The mother opposed the father's application for relocation, and prayed that she be granted less restrictive access to the child. The issues were as follows. 1) Should the father be granted sole custody of the child? 2) Should the father be allowed to relocate with the child to Whitehorse, Yukon? 3) What access to the child should be granted to the mother? HELD: Application allowed. The father shall have the costs of the trial on party and party basis. 1) The starting point for the Court's review is whether the father has demonstrated material change in the circumstances affecting the child. The Court is satisfied that there has been a material change in the circumstances that existed at the time of the original custody judgment when it was thought that the cooperation of the parties necessary for joint custody was possible. As the mother has demonstrated it was not, review of the order to determine whether change in custody or access order is in the best interests of the child, having regard to all of the circumstances of this case. Based on the original findings and the evidence at trial that the father has cared well for the child, as well as the mother's conduct in attempting to avoid shared parenting, the Court is satisfied that it is in the child's best interests to grant sole custody to the father. 2) The evidence at trial confirmed the seven points that the father outlined in support of the proposed relocation to Whitehorse. In reviewing each of seven factors set out in the case law and considering the best interests of the child, the Court approves the father's plan to relocate to Whitehorse. 3) It is in the child's best interests to continue the mother's existing access arrangements with the child until the child moves with the father to Yukon, at which time the new access arrangements set out in this decision will apply. Detailed orders are issued accordingly.

e_2007skqb174.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2008 SKPC 147 Date: November 3, 2008 File: 07-1110 Location: Prince Albert Between: Brian Benson and Raymond Dobson Mr. H. Siwak For the Plaintiff Mr. J. Hardy For the Defendant DECISION S. C. CARTER, [1] The parties to this action signed handwritten agreement on the 20th day of October, 2004. The entire document reads as follows: Date 20-Oct-2004 Contract between Brian Benson and Ray Dobson This contract is to cover feeding and maintenance of about one hundred and one cows to be boarded at Brian Benson’s farm at Canwood, Sask. Conditions of this contract is as follows: 1. Brian is to provide labor and equipment necessary to feed and maintain these cows for set price of $0.50 per day per cow. 2. Ray is to provide adequate feed. This feed will be the responsibility of Brian’s to purchase at fair market price as agent for Ray. 3. Ray is responsible for all vet expenses and medical supplies. 4. Ray is responsible for all incurred costs due to trucking and transporting these cows. 5. Ray is to provide bale processor. 6. A bonus of $ is to be paid to Brian for each live calf that he gets to pasture. At the end of each month Brian is to submit an invoice to Ray for any costs associated with the above conditions. The terms of this invoice past due after 15 days is subject to 1% per month interest. THE EVIDENCE: [2] Benson took delivery of Dobson’s cows and cared for them as he had agreed to do in the October 20, 2004 contract. He looked after the cows as well as the calves as they were born. He sent monthly invoices to Dobson who paid them as they were received. Sixty calves were delivered to Dobson’s pastures in the spring of 2005. Benson did the same work for Dobson for the 2005-2006 year. No new agreement was signed but the parties conducted their business together according to the terms of the October 20, 2004 agreement with the exception that the cost of labour was raised to sixty cents per day per cow. Another sixty calves were delivered to Dobson’s pastures in the spring and early summer of 2006. [3] As to the bonus to be paid for each live calf brought to Dobson’s pastures, Benson testified that the reason the amount was left blank in the contract was because neither of them were sure what it should be. He testified that: “Later on we were going to set the price but it never happened”. He testified that he and Dobson never seemed to get chance to sit down and discuss the bonus. He had heard that some people were charging seventy dollars per calf but he felt he couldn’t charge that much. No bonus was paid for the 2004-2005 year or the 2005-2006 year. Benson testified that he never sent bill to Dobson because he didn’t know what to charge. In addition he testified that “people in our community don’t send bills, we go over to people’s places and settle up.” [4] Dobson agreed that bonus had been contemplated for the 2004-2005 year. The cows were expected to begin calving in the late winter which meant that there would be many late nights and around-the-clock vigilance. He testified that much of the extra vigilance was done by himself because Benson was not able to work around-the-clock as was required. He did not feel that bonus was appropriate given the work that he himself had to do. In the year 2005-2006 he did not contemplate payment of bonus because the cows had been more carefully bread and calving was expected to occur and did occur in the more mild temperatures of April and May. He agreed in cross-examination that bonus was requested by Benson which he refused to pay. [5] In law an agreement to come to an agreement is not enforceable. This is especially the case where an essential term, such as remuneration, has not been agreed to.[1] No consensus has been reached between the parties except that they hope to reach an agreement at some later date. [6] Benson and Dobson agreed that they would settle on the bonus amount later on but they never did. Benson thought he was still entitled to bonus. Dobson felt that bonus was not required for the first year nor did he contemplate paying one for the second year. This Court cannot now make that agreement for the parties. The plaintiff’s case as it relates to the claims for bonus payments is dismissed. [7] The plaintiff also claimed the sum of $900.00 as payment for the balance of the cost of feed for the year 2005-2006. Dobson testified that he agreed that he owed eight to nine hundred dollars to Benson. The Court has no way of accurately determining whether the figure should be $800.00 or $900.00 because the plaintiff did not have copy of the final invoice given to Dobson and he, Dobson, did not bring copy of that bill with him to Court. Because the parties are so close in their estimate as to the amount of the final cost of the feed, find that the defendant owes the plaintiff $850.00 and judgment shall issue accordingly. Because each of the parties were partially successful, there will be no order as to costs. S. C. Carter, [1] See: C.E.D. (West) (3rd) Title 34, page 206, para 9. and cases cited therein; Fridman, The Law of Contracts (2nd) page 56.

The parties entered into a handwritten agreement with regard to the feeding and maintenance of 100 cows. The plaintiff was to provide labour and the necessary equipment to feed and maintain the cows for $.50 per cow per day. The defendant was to provide the feed and medicine. At paragraph 6 the contract stipulated that the plaintiff was to receive a bonus for each live calf that he got to pasture. The amount of the bonus was left blank. The plaintiff sues the defendant, claiming a bonus for the 2004-2005 year and the 2005-2006 year. HELD: The claim is dismissed. In law an agreement to come to an agreement is not enforceable. This is especially true where an essential term regarding remuneration has not been agreed to. The parties agreed that they would settle on the bonus amount later on but they never did. The plaintiff believes he is still entitled to a bonus. The Court cannot make the agreement for the parties.

9_2008skpc147.txt

nan IN THE SUPREME COURT OF NOVA SCOTIA Citation: Morash v. Burke, 2006 NSSC 364 Date: 20061214 Docket: SH. No. 175525 Registry: Halifax Between: Lawrence Bradley Morash Plaintiff -and- Charles D. Burke, Jerome Anthony Thomas, Laura Marsh and ING Halifax, body corporate -and- Allstate Insurance Company of Canada, body corporate Third Party Decision Judge: The Honourable Justice Robert W. Wright Heard: November 27, 28, and 29, 2006 in Halifax, Nova Scotia Written Decision: December 14, 2006 Counsel: Plaintiff’s Counsel Anna Marie Butler and Denise Mentis-Smith Defendant’s Counsel (for ING Halifax) Jocelyn Campbell Defendant/Third Party Counsel (for Jerome Thomas and Allstate Insurance Company of Canada) David Farrar, Q.C. and Kendrick Douglas Wright J. INTRODUCTION [1] On December 4, 1999 the plaintiff Brad Morash, while working as security officer for The Bay store in MicMac mall, was run down in crosswalk in the mall parking lot as he was pursuing shoplifter. The van that struck him was being used as the getaway vehicle in the shoplifting heist and was being driven by second individual. As result of the impact, the plaintiff suffered serious personal injuries, mainly to his right knee. [2] The plaintiff has sued Charles Burke (the alleged driver of the van), Jerome Thomas (the alleged owner of the van) and Laura Marsh (alternatively as alleged owner of the van). The plaintiff has also joined in the action his own insurer, ING Halifax (“ING”), under his Section (uninsured motorist) coverage. [3] Allstate Insurance Company of Canada (“Allstate”) joined the proceeding as third party under the provisions of Section 133(14) of the Insurance Act, R.S.N.S. (1989) ch. 231 whereby it is defending the action against its insured Jerome Thomas under reservation of rights. [4] The defendants Charles Burke and Laura Marsh were absent from this trial and indeed, counsel have not been able to locate either of them. [5] Prior to trial, counsel for the plaintiff, ING and Allstate reached an agreement on the quantum of damages to be paid to Mr. Morash which shortened the trial considerably. The figure agreed upon was the all inclusive sum of $162,500. What remains for the court to decide in this unusual fact situation is whether that sum is to be paid by Allstate or by ING. EVIDENCE AND FINDINGS OF FACT [6] The facts in this case are very much in dispute which necessitates number of credibility findings to be made. The factual disputes essentially pertain to the issues of the identity of the vehicle which struck the plaintiff, the identity of the owner of that vehicle, the identity of the driver of that vehicle and whether the driver had the owner’s consent to operate it when the incident occurred. [7] The events of December 4, 1999 began to unfold around p.m. when the plaintiff and another security officer observed man acting suspiciously in The Bay store. They followed him out to corridor in the mall where they observed him making fraudulent return of merchandise at another store (which he had just picked up and wanted to “exchange”). As the man left the store, the plaintiff alerted the store personnel as to what had happened and with their concurrence, thereupon apprehended the man as he walked away, arrested him for shoplifting, and took him to The Bay security office. The man was extremely irate and even threatened to kill the plaintiff. The police were called to the scene and arrived shortly thereafter. [8] The plaintiff testified at trial that he only stayed five to ten minutes in the security office with the police during which time he said that he heard the man identify himself to police as Charles Burke. Because the man continued to be so agitated, however, the plaintiff decided to leave the office and complete his report in another room nearby. [9] According to information he later received from the police, Mr. Burke was charged and released on Promise to Appear. He assumed that Mr. Burke was then personally escorted out of the store by his co-worker where it is standard company policy to do so in such situation. He did not himself see Mr. Burke leave the store. [10] The plaintiff went on to testify that after spending few minutes completing his report, he went downstairs into the retail area, positioned himself beside the employee entrance door, and from there noticed another suspicious looking man entering the store through the east doors. As he continued to watch, he saw the man grab rack of jeans and head slowly but deliberately to the doors. The plaintiff said he then looked outside the employee door window for possible getaway vehicle and saw grey van parked outside. He thought the van looked suspicious because it was parked in driving area (and not in parking stall) which was adjacent to handicap parking zone. [11] Once the shoplifter exited through the doors, the plaintiff immediately pursued him outside and identified himself as security officer. The shoplifter then ran across the parking lot towards the van with the plaintiff in hot pursuit. At that moment, the plaintiff heard the squeal of tires and looked over his shoulder to see the grey van barrelling towards him. His defensive reaction was to put his hands up in front of the van which then struck him and spun him around to the ground. He testified that as he saw the van coming at him, he was looking directly through the windshield and immediately identified the driver as the man he had caught in the first shoplifting incident minutes earlier, namely, Charles Burke. [12] The plaintiff further testified that as the van sped away, he looked for some distinguishing features. He noted that the van was an older model with grey paint in shabby condition, that its rear windows were tinted black, and that there was small round after market light mounted just above the left rear bumper. He said the two back doors of the van were flapping open which perhaps explains why he was unable to discern the license plate identification or even whether license plate was on the vehicle at all. [13] The shoplifter who had snatched the rack of jeans had apparently tried to enter the van through its rear doors on the run but fell out when the van took off. That person was then arrested in the parking lot and identified himself as Peter Brown with an address of 27 Prince Albert Road in Dartmouth. [14] The plaintiff himself was then taken by ambulance to hospital. While being driven home the next day by his boss, they took route which took them past small apartment building at 27 Prince Albert Road. Parked in front of that building was van which the plaintiff identified as the van which had struck him the day before. He took down the license plate number which he immediately passed on to the police, along with the location of the vehicle. His next contact in the matter was with Cst. Jim Devine of the Halifax Regional Police whose evidence will be highlighted later in this decision. [15] On cross-examination, the plaintiff was confronted with handwritten statement which he gave to an ING representative on July 18, 2000. In that statement, the plaintiff gave slightly different version of how the incident unfolded. He wrote that after leaving Mr. Burke with the police officers in the security office, and going to another room to write his statement, he went back downstairs to the employee entrance of the store and met his girlfriend there to be shown where she had parked his car. He noted that he then looked outside and saw grey van about 30-40 feet away and that he could see Charles Burke sitting in the driver’s seat with the motor running. He recorded that he then saw man, later identified as Peter Brown, get out of the passenger side of the van and walk into the store. The plaintiff then re-entered the store and observed Mr. Brown walk over to the ladies wear section, select several pairs of jeans, and proceed to walk directly back through the east doors he had entered. The plaintiff then pursued him outside and ended up being struck by the grey van as he had previously described. [16] There were few other inconsistencies in the plaintiff’s evidence drawn out on cross-examination. On discovery, he said that he had first observed the van parked in handicap parking zone whereas at trial he said the van was parked in driving area adjacent to handicap zone but not in stall. He also testified on discovery that he did not recall the security alarm going off when Mr. Brown exited the store whereas at trial, he said that he recalled the alarm being sounded. He also acknowledged that he testified at discovery that at the time of the incident, he did not know Charles Burke by name but only by his face and may have only learned his name from the police afterwards. He was steadfast in his evidence, however, that the driver of the van which struck him and the man he had apprehended in the mall for shoplifting only few short minutes before were one and the same person. The plaintiff has never again seen Charles Burke since this incident. [17] The only other witness called for the plaintiff was Cst. Jim Devine who had been called to the scene after Mr. Burke was initially apprehended by the plaintiff for shoplifting. Mr. Burke properly identified himself to Cst. Devine in The Bay security office but gave him an old former address. Cst. Devine then released Mr. Burke on Promise to Appear in respect of the shoplifting charge (to which he ultimately pled guilty). [18] While he was completing his paperwork in the security office, Cst. Devine then heard someone from downstairs scream for the police. Cst. Devine quickly ran downstairs and out the exit doors to find the plaintiff lying on the parking lot in great pain. By that time, the van had already disappeared. As Cst. Devine put it, “within five minutes we had two shoplifting offences and hit and run”. [19] Either the next day or the day after, Cst. Devine went to the 27 Prince Albert Road address that had been given to him by Peter Brown. When he got there, he observed van parked outside that fit the description that had been given to him by the plaintiff. Cst. Devine entered the building and found an open apartment door with two men sitting inside. He asked if either one of them knew who owned the van parked outside. One of the men answered, “its mine”. That person was Jerome Thomas. [20] Cst. Devine went on to testify that he then clearly told Mr. Thomas that he was investigating hit and run incident which the van may have been involved in. He recounted that Mr. Thomas said nothing to him at the time about having sold the van or otherwise disclaiming his ownership of it. Mr. Thomas simply told Cst. Devine that he was there that day helping lady move. He was then asked by Cst. Devine if he would bring his van to the police station to be photographed as part of the hit and run investigation. Mr. Thomas agreed to do so and took the van in for photographing on December 7, 1999. Again, Mr. Thomas made no mention to the police on that occasion of having sold the van or otherwise disclaiming its ownership. [21] Meanwhile, Cst. Devine was trying to locate Charles Burke after he learned that false address had been given. He continued to keep close watch on the 27 Prince Albert Road address and sure enough, he soon spotted Mr. Burke directly in front of the building. He was then arrested and taken to the police station for purposes of preparing photo line up as part of the hit and run investigation. At that time Mr. Burke gave his current address as 27 Prince Albert Road. [22] The photo line up which Cst. Devine ultimately compiled was later shown to the plaintiff Brad Morash. After having been asked in neutral fashion if he could identify the driver of the van who hit him, Mr. Morash immediately identified photo #5 (of the six presented). Cst. Devine confirmed that photo #5 was photograph of Charles Burke. [23] Cst. Devine also showed the plaintiff the photographs of the van that had been taken on December 7th, which the plaintiff identified as the van that had hit him. [24] Following that identification, Mr. Burke was charged with several offences under the Motor Vehicle Act. His failure to appear in court on one or more occasions resulted in the issuance of an Arrest Warrant. Eventually, the case came before the court but it was dismissed when for some unexplained reason, the plaintiff was not there to testify. [25] turn now to review of the evidence of the defendant Jerome Thomas. Mr. Thomas was 30 years old at the time of this incident and was resident of Dartmouth. He did some carpentry work for living for purposes of which he had earlier acquired grey 1984 Dodge cargo van. [26] Mr. Thomas acknowledged that the van shown in the police photographs was his van. He testified, however, that he sold it sometime in early December of 1999 to the defendant Laura Marsh who lived at the 27 Prince Albert Road address. He said he could not be precise about the exact date but believed that it was “somewhere around the 2nd”. The benchmark that he used to arrive at that date of sale was that December 4th (the same date as the hit and run incident) was Ms. Marsh’s son’s birthday and the sale took place shortly before that. He said he knew this because Ms. Marsh was glad to have the van for her son’s birthday. [27] Mr. Thomas testified at trial that he had only known Ms. Marsh since about mid-November of that year but that he helped her move to new apartment at the 27 Prince Albert Road address. He initially testified that he removed his license plate from the van on the date of the sale but reinstalled it periodically after that for purposes of helping with the move (which he says took place over two or three days). [28] Although he could not remember the date, Mr. Thomas did recall being questioned by Cst. Devine at the 27 Prince Albert Road address about the ownership of the van. He acknowledged that he told Cst. Devine that the van was his. He said at trial that he gave that answer because he knew it was not legal for him to have replaced his license plate on the van after he had sold it and that he didn’t want to get in any trouble. He gave the same explanation for not having informed the police of the sale of the van to Ms. Marsh when he took it in to the police station to be photographed day or two later, despite being taken to have known that the police were then investigating hit and run incident. [29] Mr. Thomas went on to describe two further steps he later took with respect to the transfer of the vehicle. He said that shortly after the sale (which he guessed was about two weeks later) he called man named Harvey at his insurance agency to cancel his insurance coverage with Allstate. He also said that he completed the Notice of Sale form with respect to the transfer of the vehicle for Registry of Motor Vehicle purposes and dropped it in mailbox but without an envelope or stamp. [30] Sometime in 2000, after Mr. Thomas had returned to live in the Annapolis Valley area, he sought to register ownership of another vehicle with the Registry of Motor Vehicles. His attempt to do this was refused because the public record still showed that he was the registered owner of motor vehicle that had been involved in hit and run incident. Mr. Thomas testified that he was first made aware of this when his lawyer looked into it. [31] To get around the problem, his lawyer prepared, and Mr. Thomas deposed to, Statutory Declaration on August 22, 2000 in which he attests to having sold the vehicle to Laura Marsh on or about December 2, 1999 in exchange for her cheque in the amount of $500. He also recited in that declaration the mailing of the Notice of Sale without an envelope or stamp and certain details pertaining to the cancellation of his insurance coverage (of which more will be said later). [32] Mr. Thomas also deposed in the declaration that after December 2, 1999 he had no contact with Laura Marsh (which he later contradicted), no keys or control over the vehicle, nor authorized any person other than Laura Marsh to operate it. He also stated that “In early February 2000, learned that the vehicle had been involved in motor vehicle accident on or about December 4, 2000" (sic). [33] This Statutory Declaration was later referred to in certificate from the Registrar of Motor Vehicles dated December 19, 2002 entered in evidence by consent of counsel. In that certificate, it is certified that Jerome Thomas was the registered owner of the subject vehicle on December 4, 1999 and that on August 29, 2000 the Registrar received Notice of Sale in the form of an affidavit from Jerome Thomas indicating that he had sold the vehicle to Laura Marsh on December 2, 1999. [34] Mr. Thomas acknowledged at trial that he had no documentation whatsoever in proof of the sale of the van to Ms. Marsh. Hence, he retained lawyer to prepare this Statutory Declaration to enable him to register the ownership of another vehicle in August, 2000. [35] Mr. Thomas concluded his direct examination by maintaining that he does not know Charles Burke, that he did not recognize him from the police photo line up entered in evidence as part of the police investigation file and that he did not ever allow or authorize person named Charles Burke (or any other person besides Ms. Marsh) to drive his van. [36] Under withering cross-examination by counsel for ING, Mr. Thomas’ version of the events began to unravel. His evidence was replete with inconsistencies, contradictions, admitted poor memory and admitted lies in his earlier discovery evidence. [37] First of all, Mr. Thomas acknowledged that during the relevant time frame of late November to late December, 1999, Laura Marsh was drug dealer who supplied his then cocaine drug addiction. He admitted the falsity of his earlier evidence that he had sold her the van for $500 and that in fact, he traded the van for drugs. He also admitted his earlier lie of having either lost or deciding not to cash Ms. Marsh’s $500 cheque, as an explanation for having no record of it. [38] He also said under cross-examination that he was still the owner of the van at the time he helped with Ms. Marsh’s move to 27 Prince Albert Road which contradicted his earlier evidence that he drove the van periodically after the sale to help with that move and to that end, reinstalled his license plate on the van. That evidence seriously detracts from his explanation that he acknowledged ownership of the van to Cst. Devine because he didn’t want to get into trouble for illegal use of the license plate on van he no longer owned. [39] Another significant flaw in Mr. Thomas’ evidence is his version of the cancellation of his insurance coverage with Allstate. At first he said that he cancelled his coverage altogether short time after the sale. When later confronted with the Statutory Declaration he had provided to the Registry of Motor Vehicles in August of 2000, he then adopted its contents which stated that on the advice of his insurance agent, he would be well-advised to cancel his liability coverage on the van but not his comprehensive coverage and that he accordingly did so. When pressed on this, he gave garbled understanding that it would be easier for him to obtain new insurance in the future on another vehicle if he still maintained some form of coverage on current basis. [40] This explanation is totally implausible. If Mr. Thomas had sold the van on December 2nd as he said, he would no longer have any insurable interest in the vehicle upon which to maintain any form of coverage. That is so fundamental that do not accept Mr. Thomas’ evidence that he was given any such advice by his agent who, incidentally, was not called as witness. If indeed Mr. Thomas did maintain his comprehensive insurance coverage after December 2, 1999, the inference is far more easily drawn that he still then owned the van but that it was not in driveable condition. [41] Mr. Thomas also acknowledged that he lied on discovery when asked who it was that introduced him to Laura Marsh. He then said that he didn’t know who it was, only to acknowledge at trial he knew all along that it was mutual friend Roy Conrad who had introduced them to each other at bar. Mr. Thomas said that he lied at discovery in this respect because he didn’t want his past spread around. [42] He also testified at discovery that he could not recall the date when he first met Ms. Marsh. At trial, however, he said that he knows he met her about mid-November; yet when later asked how long he knew her before the sale of the van, he said “I can’t answer that”. [43] also note that in recorded interview with Allstate on March 15, 2000 Mr. Thomas stated that the van had broken down with blown motor and that Ms. Marsh had offered to buy it. At trial, however, he said that the engine was smoking and burning oil at the time but that the van was still then driveable. [44] These are not the only inconsistencies revealed in Mr. Thomas’ evidence but they are the main ones which relate to the issues in this case to be decided. [45] Another significant detractor from the credibility of Mr. Thomas’ evidence is his admitted poor memory of the events which occurred within the general time frame of late November until late December, 1999. As earlier alluded to, Mr. Thomas acknowledged that he was doing both alcohol and drugs in that time period and had cocaine addiction. He admitted in cross-examination that he was then in bad shape and made the following acknowledgments: that his memory in that time period was not good and that there are times he has no memory about some things; that he is missing some of his memory in that time period spent at Ms. Marsh’s apartment where he often hung out and became intoxicated; that he doesn’t remember lot of things during that period and that bits and pieces come and go; that there were “tons of other people” coming and going at Ms. Marsh’s apartment, he being one of them; that he possibly met or hung out there with people whose names he doesn’t remember and that Charles Burke could have been one of them; that he was intoxicated on the day of the sale although he says he only became so afterwards in the evening. [46] Throughout his testimony, Mr. Thomas was unable to remember dates, with one exception, and he admitted that his memory was poor on dates. That one exception was his steadfast assertion that he sold the van to Laura Marsh in early December of 1999 and that he knows it was before December 4th because that was her son’s birthday. At the same time, he cannot remember the son’s name, or his age, or why Ms. Marsh was glad to have the van by that date. Indeed, he said that Ms. Marsh was person who he did not want to associate with outside of her supplying him with drugs; that he rubbed her the wrong way and was “off her tree”. [47] As one final illustration reflecting on Mr. Thomas’ credibility, when asked at discovery what mailbox he used to purportedly send the Notice of Sale to the Registry of Motor Vehicles, he answered that he had no idea because he was drinking at the time; yet at trial he said that he could now recall, some seven years later, that he used the mailbox located at the corner of Portland Street and Prince Albert Road. That defies belief. [48] Here we have witness whose testimony is rife with inconsistencies, contradictions, and admitted lies at his earlier discovery who would have the court believe that he can selectively identify date of on or about December 2, 1999 as the date of the sale of the van by the weakest of benchmarks (the birthday of his drug supplier’s son who he obviously didn’t know). This he purports to be able to do going back to time period when his memory was clouded under the haze of powerful cocaine addiction. [49] For all the reasons have just recited, find Mr. Thomas’ evidence on the issue of the ownership of the van at the material time to be neither credible nor reliable. The version of events which he gave did not stand up to cross-examination and is highly improbable. Moreover, it is completely uncorroborated. simply do not accept Mr. Thomas’ assertion that he was no longer the owner of the van on December 4, 1999 and indeed, have no hesitation in finding on balance of probabilities, on the whole of the evidence, that Mr. Thomas was in fact the owner of the vehicle when the hit and run incident occurred. [50] The only other witness called on behalf of Allstate was Cody Hutchins, an eyewitness to the hit and run incident. Cody Hutchins was then 12 years of age and was returning from the mall to the family car where his father was parked in the same row as the van. As he walked by himself past the van about 10 feet away, he noticed the driver sitting with his hands on the wheel looking ahead and appearing focused or mad. He said that he was past the van about 15 feet when things started to happen with the squeal of tires. He looked back to see man already on the ground and another man jump out the back of the van which quickly took off. Frightened, he then ran to his father’s car. [51] In his direct examination, Mr. Hutchins adopted the contents of written statement he had signed immediately after the incident. In that statement, he described the driver of the van as white male with black short hair like buzz cut and wearing oval shaped glasses. When asked what the driver was wearing, Mr. Hutchins said he thought it was black sweatshirt but he was not positive. He described the vehicle itself as large black van, possibly work van. [52] On cross-examination, Mr. Hutchins acknowledged that when he first walked past the van, he was just casually looking around and had no particular reason then to look at the driver of the van. He also acknowledged that he only got fleeting glimpse of the driver, perhaps one or two seconds long. He again recalled the driver looking focused but didn’t think anything of it at the time. [53] Although Mr. Hutchins initially said he was certain the van was black, he acknowledged that it was possibility that it could be described as grey van and agreed that the van shown in the police photos accorded with the van he saw. When asked if he could remember the distinguishing features of the blacked out rear windows and the rear mounted post light, he said he was not sure because he did not get good look at the van. [54] Mr. Hutchins was obviously called as witness to cast doubt on the identity of the vehicle which struck the plaintiff and the identity of its driver. Although have no doubt but that Mr. Hutchins was doing his best to truthfully recall the details of the events he saw, can ascribe little weight to his evidence on either of these identity issues. That is essentially because he saw the incident through the eyes of frightened 12 year old and what he did see was only fleeting glimpse of the driver and perhaps five to ten second look at the van once he was alerted to it by the squeal of tires. [55] Since Cst. Devine did not reach the parking lot until after the van had sped away, the only clear evidence before the court on the identity of the van is that of the plaintiff himself. As earlier referred to, the plaintiff testified that immediately after being struck and falling to the pavement, his first instinct was to look at the rear of the escaping van for any distinguishing features. What he saw was grey cargo van with shabby paint job, heavily tinted rear windows and post light mounted just above the left rear bumper. [56] Whether it was from information he learned from the police or pure chance, it was only the next day that the plaintiff was driven by the 27 Prince Albert Road address and immediately recognized the van parked out front as the van that had struck him the day before. He recognized it by the distinguishing features earlier mentioned and promptly called the police to pass on its location and license number. Cst. Devine similarly recognized the vehicle parked in front of that address as fitting the description which the plaintiff had given him the day before. He ran check on the license plate and confirmed its owner to be Jerome Thomas. [57] Although there were few inconsistencies in the plaintiff’s evidence overall, they related more to the details of how the incident unfolded and not to the identity of the van or, for that matter, the identity of its driver (of which more will be said later). The plaintiff was consistent throughout in his evidence pertaining to the distinguishing features and identity of the van and am satisfied on balance of probabilities that it was the van owned by Jerome Thomas which struck him. [58] In coming to this conclusion, again refer to the statement of Mr. Thomas in his Statutory Declaration of August 22, 2000 that it was only later that he learned that his vehicle had been involved in motor vehicle accident on or about December 4, 2000 (sic). While am not prepared to treat this statement as formal admission of fact pertaining to the identity of the van, given the purpose and circumstances under which the Statutory Declaration was prepared, it certainly reinforces the conclusion that it was in fact Mr. Thomas’ van which struck the plaintiff. [59] The remaining finding of fact to be made is the identity of the driver. Again, the critical evidence on this issue emanates from the plaintiff where have reached the conclusion that little weight can be attached to the testimony of Cody Hutchins. [60] The court is well aware of the frailties of eyewitness identification evidence, particularly in situation where the identity of the perpetrator is previously unknown to the victim. In the case at bar, however, we have situation where the plaintiff first zeroed in on Mr. Burke as suspected shoplifter in The Bay store, followed him out of the store into the mall where the plaintiff then observed him shoplift from another store, arrested him and escorted him to The Bay security office (amidst death threats) before calling the police. Once the police arrived, he remained there with them in the security office for another five to ten minutes. The plaintiff testified that these events spanned 30 to 40 minutes overall so that he had good opportunity to observe the man who turned out to be Charles Burke. [61] It was then only very few minutes later, when the plaintiff turned to look through the windshield of the van speeding towards him while trying to apprehend another shoplifter, that he saw Mr. Burke behind the wheel. The plaintiff was adamant that he had no doubt but that the driver of the van which struck him was the same man he had apprehended for shoplifting minutes beforehand. Regardless of when the plaintiff first learned the man’s name, we know from Cst. Devine that he accurately identified himself in The Bay security office as Charles Burke. [62] Sometime later in December, Cst. Devine compiled police photo line up to show to the plaintiff. Cst. Devine said that he followed proper police procedures in doing so. He confirmed that the plaintiff identified Charles Burke as the driver of the van that struck him with no problem. The plaintiff again so identified Mr. Burke unequivocally at trial from the same police photo line up that was part of the police file entered in evidence. [63] Considering the span of time over which the plaintiff closely observed Mr. Burke as shoplifter, including his arrest of Mr. Burke amidst death threats and holding him until the police arrived, coupled with the close proximity in time within which he next saw Mr. Burke behind the wheel of the van that struck him, all seen through the eyes of security officer with several years experience, am satisfied that the plaintiff’s identification evidence is credible and reliable and that it was Charles Burke who ran him down in the parking lot. RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES [64] There are two legislative provisions which must now be applied in deciding the ultimate question of whether the plaintiff’s damages claim must be paid by Allstate or by ING. refer, of course, to s. 114(1) of the Insurance Act, R.S.N.S. 1989, c. 231 and s. 248 of the Motor Vehicle Act, R.S.N.S. 1989, c. 293. The first of those provisions reads as follows: Owner’s Policy 114(1) Every contract evidenced by an owner’s policy insures the person named therein, and every other person who with his consent personally drives an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage (a) arising from the ownership, use or operation of any such automobile; and (b) resulting from bodily injury to or the death of any person, and damage to property. [65] The key subsection of s.248 of the Motor Vehicle Act reads: Liability of Owner 248(3) person operating motor vehicle, other than the owner thereof, shall be deemed to be the servant and agent of the owner of the motor vehicle and to be operating the motor vehicle as such servant and agent acting in the course of his employment and within the scope of his authority as such servant and agent unless and until the contrary is established. [66] The latter provision is preceded by s. 248(1) which imposes an onus of proof on the owner and/or the operator of the motor vehicle to establish that the plaintiff’s injury did not entirely or solely arise through negligence or improper conduct in the operation of the vehicle. It is beyond dispute in the present case that the plaintiff’s injuries were suffered as result of the negligence or improper conduct of the operator of the van which struck him. The issue here is one of consent. [67] Counsel for ING has cited three decisions of this court in which it was recognized that the presumptions created by the legislative provisions aforesaid place considerable burden on the owner (or insurer thereof) to establish that the operator of the vehicle at the time of accident was driving it without the owner’s consent. The cases referred to are Goudey v. Malone (also reported as CGU Insurance Co. of Canada v. Noble) (2003) 2003 NSSC 257 (CanLII), 220 N.S.R. (2d) 92; Garrison v. Lively (1977) 27 N.S.R. (2d) 489; and Powers v. Pottie Estate (2000) 185 N.S.R. (2d) 111. As Justice Richard put it in Powers (at para. 11): The law places burden on the owner of motor vehicle and presumes that the automobile is being driven with the consent of the owner unless there is sufficient evidence to the contrary to find, on balance of probabilities, that there was no such consent. [68] Applying that legal principle to the case at bar, the burden hence falls on Mr. Thomas and Allstate to establish, on preponderance of evidence, that the driver of the van, Charles Burke, did not have Mr. Thomas’ consent to operate it. As Justice Richard pointed out in Powers, this is negative burden and very difficult for the bearer of that burden to prove, especially where the driver of the vehicle has not testified. Because the whereabouts of Charles Burke are unknown, the only evidence before the court in rebuttal of the presumption of consent is that of Mr. Thomas himself who maintains that he does not know Charles Burke and that he never authorized Mr. Burke or anyone else (other than Ms. Marsh) to drive his van. [69] For the reasons recited at length earlier in this decision, do not find the evidence given by Mr. Thomas to be credible or reliable. have already found as fact that he was still the owner of the van when the hit and run incident occurred. The only evidence available to then rebut the presumption of consent is the uncorroborated evidence of Mr. Thomas by itself. Having rejected his evidence in all other material respects, neither do attach any weight to his evidence of non-consent. It is simply not reliable for all the reasons earlier given and is insufficient to rebut the statutory presumption of consent found in s.248(3). [70] Counsel for Mr. Thomas and Allstate invited the court to draw an inference of non-consent from the evidence in its totality. There are no proven facts from which such an inference can be properly drawn, given the unreliability of Mr. Thomas’ evidence as whole. CONCLUSION [71] In the result, I find that Mr. Thomas and Allstate have failed to rebut the statutory presumption that Charles Burke was operating the van at the time of the hit and run incident with the consent of its owner, Mr. Thomas. It follows from the statutory provisions aforesaid that it is Allstate who must pay the plaintiff’s damages claim as the issuer of the motor vehicle liability policy to Mr. Thomas in effect at the time. The action against ING is accordingly dismissed. [72] The only other matter of which brief mention should be made is the pleading on behalf of Allstate, and repeated in its pre-trial brief, that the plaintiff should be held contributorily negligent for his injuries. This defence was not argued at trial, however, presumably because there was no evidence before the court whatsoever that would sustain such finding. [73] Lastly, will leave it to the parties to try to reach an agreement on costs, failing which would ask that written submissions be filed by counsel within 30 days.

The plaintiff, while working as security officer in mall, was run down in the parking lot as he was pursuing shoplifter. The van that struck him, driven by second individual, was being used as getaway vehicle. The issue before the court was whether the agreed-upon damages were to be paid by the liability insurer of the registered owner of the vehicle (who was not the driver) or by the plaintiff's Section D (uninsured motorist) insurer. As the first defendant remained the registered owner of the vehicle at the relevant time and failed to rebut the statutory presumption that it was being operated by the second defendant (who had now disappeared) with his consent at that time, the vehicle's insurer was responsible to pay the plaintiff's damages. The action against the plaintiff's Section D insurer is dismissed. The case turned on numerous credibility issues as the registered owner of the vehicle professed to have sold it few days prior to the incident (although he maintained insurance on the vehicle for several months afterwards), and it was argued that the second defendant (whom the plaintiff had detained for shoplifting earlier that day) was not the driver of the vehicle.

e_2006nssc364.txt

J. 2003 SKQB 397 Q.B.G. A.D. 1999 No. 2709 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: GARRY MAYER and DARRELL NORDSTROM and DATAPLAN SECURITIES LTD. DEFENDANTS L.J. Litman for the plaintiff K.L. Smith for the defendants JUDGMENT FOLEY J. September 19, 2003 [1] William Mayer (Mayer) died on June 16, 1997. His will directed that the residue of his estate be divided between two of his three children, namely, his son Garry Mayer, the plaintiff in this action and his daughter, Cheryl Pokol. One of the estate assets was Trimark mutual fund which Mayer had purchased in November 1996 for $60,000. In June 1997 its value was $68,501.10 which was eventually distributed to the two beneficiaries. [2] Garry Mayer by this action claims that the mutual fund ought never to have formed part of his father’s estate. It was, he says, his father’s intention to name him as beneficiary of the fund, but that this plan was defeated by the negligence of the defendants Darrell Nordstrom (Nordstrom) and Dataplan Securities Ltd. [3] As this action is brought under simplified procedure, the evidence-in-chief of the plaintiff, Garry Mayer and his wife Lynn Mayer, is by way of affidavit while the defendants’ case is submitted through the affidavit of Nordstrom. Each party gave notice of intention to cross-examine on the affidavits. [4] The facts arising from the affidavits and cross-examinations which are not in dispute are: 1. The defendant, Nordstrom, is chartered life underwriter and financial consultant who sells life and investment products through Canada Life Assurance Company and Dataplan Securities Ltd. He and Mayer had business relationship from 1981 to 1987 during which time Mayer purchased life insurance and made investments. 2. In 1993, Mayer purchased an annuity life policy through Nordstrom for lump sum premium of $60,000, naming Garry Mayer as its beneficiary. When the annuity matured in August 1994, it was withdrawn by Mayer and deposited to his own account. 3. In 1996, Mayer again invested $60,000 through Nordstrom who recommended the purchase of units in Trimark Select Balanced Fund, mutual fund which had shown good performance. Nordstrom was aware that Mayer wished to designate Garry Mayer as beneficiary of the fund. In his completion of the application form for the units, Nordstrom entered Garry Mayer’s name in the beneficiary designation portion at Part 10 of the form, and as well he indicated in Part of the form that Mayer’s application was for non-registered plan. The completed application form was executed by Mayer on October 31, 1996. 4. The Part 10 beneficiary designation was void and had no legal effect by virtue of it being non-registered plan. On Mayer’s death, the fund amount was paid to Mayer’s estate and, in result, Garry Mayer received only one half of the fund. [5] The plaintiff’s position is that as Nordstrom was aware of Mayer’s intention to designate Garry Mayer as sole beneficiary of the investment, it was incumbent on him to ensure that Mayer’s objective was achieved. That duty is said to have been breached when Nordstrom failed to realize that the Trimark fund would not recognize designated beneficiary or alternatively, by his failure to recommend that the investment be made in the joint names of Mayer and Garry Mayer, or in his decision not to place before Mayer known alternate investment vehicles in which the beneficiary designation would be effective. [6] Support for the plaintiff’s submission that Nordstrom was ignorant of the beneficiary limitation in this case is said to be found in Nordstrom’s entry of Garry Mayer’s name as designated beneficiary on the application form and Lynn Mayer’s evidence that, subsequent to Mayer’s death and upon being apprised by her of the designation problem, Nordstrom had merely stated that he would need to look into the matter. [7] Nordstrom acknowledges that he was aware of Mayer’s plan to have the investment pass to his son in the event of Mayer’s death, but denies being unaware of the limitation to the Trimark fund. He says “I advised William Mayer that he would have to make specific gift or bequest in his Will stating that Garry Mayer was to receive the Mutual Fund in order to ensure that the Mutual Fund would in fact be received by Garry Mayer following William Mayer’s death.” [8] On cross-examination, Nordstrom said it was his general practice to issue this type of caution and that consequently “he believed he did so” on this occasion. He agreed that there were other investment vehicles which could have borne valid designation of beneficiary and, in any event, had father and son been named as joint owners the investment would have passed to Garry Mayer on Mayer’s death. His justification or rationale for his action or lack thereof was that, having cautioned Mayer to change his will, he had satisfied any obligation and the onus to act then rested upon Mayer. He described Mayer as very private person who would not have acceded to recommendation of joint ownership or request for the production of his will for Nordstrom’s examination. He says he entered Garry Mayer’s name in the designated beneficiary section only because that was Mayer’s instruction and “in any event, it did no harm and went to intent.” [9] Even if Nordstrom gave the caution he claims he did, his completion of the beneficiary designation on the application form could do nothing but cause confusion in Mayer’s mind. That entry, for all intents and purposes, resulted in an investment and designation almost identical to the one made by Mayer in 1993. Nordstrom’s attempt to justify the entry he made in Part 10 was not convincing. Had Nordstrom refused to include this inappropriate and void beneficiary designation he may well have lost this particular product sale. So be it. Had he in fact recommended joint ownership or, alternatively, given Mayer an opportunity to consider the alternate products which he says would have achieved Mayer’s goal, the void designation may well have been avoided. In any event Nordstrom’s claim that he met his duty to the client would be more convincing. His failure to take these steps and his inexplicable compliance with Mayer’s request to designate beneficiary regardless of its efficacy do not reflect the standard of conduct and care one is reasonably entitled to expect of such professional. Indeed, such failures fly in the face of Nordstrom’s own testimony as to his professional association’s code of practice. [10] Mayer cannot give his side of the conversation. When, as here, it is alleged that deceased was the author of his own misfortune in ignoring advice and where the only evidence of the advice is from the advisor, there is an evidential onus upon that professional to demonstrate that the caution or advice was in fact given and ought reasonably to have been understood by the client. Nordstrom failed to satisfy that onus. Good reasonable practice would have been to at least make note of the advice or, better still, confirm the advice in writing with the client. Death of the client was clearly within Nordstrom’s contemplation and it is with that event Nordstrom ought to have turned his attention to give effect to his client’s intention in realistic manner. [11] In summary, given Nordstrom’s knowledge of Mayer’s intent, his failure to advance products that would meet that intent, and his reliance on Mayer fathoming that the beneficiary designation made was void in law, all evidence failure of Nordstrom to discharge his duty of care to Mayer and consequently, his negligence. [12] In this case however neither Mayer nor his estate suffered loss as result of that negligence. The issue in this case is whether, in addition to the duty owed by Nordstrom to Mayer, he also owed one to the plaintiff as an identified potential beneficiary of the fund. [13] The plaintiff says that the circumstances of this case give rise to the same considerations as occur in disappointed beneficiary cases such as Wilhelm v. Hickson, 2000 SKCA (CanLII), (2000), 189 Sask. R. 71 (C.A.). [14] In that case the Court of Appeal adopted the principles articulated in White v. Jones, [1995] A.C. 207 (H.L.), by which remedy, akin to that flowing from the application of Hedley Byrne principles, is accorded an intended beneficiary where solicitor, on taking instructions for will, can reasonably foresee the deprivation of an intended legacy if due care is not taken. [15] These defendants say that Wilhelm v. Hickson, supra, has no application in that they are not solicitors providing legal advice or services and the public interest arguments adopted by the Saskatchewan Court of Appeal have no application. Financial planners, they say, merely assist people to make appropriate investment decisions during their lifetime and therefore their advice affects testamentary issues only in minor way. They assert that any attempt to determine the investor’s intentions in particular financial planning decision subsequent to that investor’s death would amount to an exercise in speculation and should not form the foundation for liability. [16] In my opinion, the facts of this case do not involve speculation about Mayer’s intentions any more so than was the case in Wilhelm v. Hickson. Nordstrom knew (as did Wilhelm), that it was the client’s intention and instruction to benefit specific third party on the investor’s (testator’s) death. It may well be that other cases will arise where the investor’s or testator’s intentions are not clear or are not admitted and require speculation. That is not the case here. [17] The defendants also argue that to impose duty of care on financial planners in favour of third parties such as this plaintiff would give rise to indeterminate liability and potential conflicts of interest. These issues were addressed and discounted in both the White and Wilhelm cases. In this case as well there is no issue of indeterminate liability nor in the circumstances of this case is there any question of conflict of interest. consequently reject that submission. [18] Although the disappointed beneficiary principle has usually arisen and may well usually arise in the context of solicitors and will preparation, this “disappointed beneficiary” principle is not function merely of the defendant’s occupation. In Esser v. Brown, 2003 BCSC 246 (CanLII), (2003), 223 D.L.R. (4th) 560, the British Columbia Court of Appeal saw as analogous to the role of the solicitor, that of notary public who ought reasonably to have contemplated that carelessness on her part would cause harm to third party. See also: Burnett v. Took Engineering Inc., 2000 BCSC 1630 (CanLII), [2000] B.C.J. No. 2302. [19] Nordstrom was professional who held himself out as possessing special skill, judgment and knowledge in financial planning. The advice and information provided to Mayer was provided in the course of Nordstrom’s business. Nordstrom had a financial interest in the transaction and was cognizant of the fact that the realization of Mayer’s intent to benefit Garry Mayer was dependent upon there being a valid beneficiary designation. The products sold by Nordstrom are frequently used as estate planning tools why else would there be beneficiary designation? The intervention of death removed any opportunity to correct the matter and, without application of the Wilhelm principle, this financial planner would go scott free and the third party, Garry Mayer, would bear the loss. To this case, the situation is analogous to that which occurred in Wilhelm v. Hickson. Consequently the “disappointed beneficiary” principle is equally applicable in this case involving financial planner and his client. [20] In summary conclude that Garry Mayer has cause of action as disappointed beneficiary and that he suffered damages as result of Nordstrom’s negligence. He shall have judgment against Nordstrom for 50 percent of the value of the investment at its maturity, namely $34,250.55. The plaintiff shall have pre-judgment interest from the date of death of Mayer to the date of this judgment and his costs to be taxed. [21] claim was also made for excess probate fees paid by the estate. That was debt of the estate and no action having been brought on its behalf, this portion of the claim is dismissed. Although Dataplan Securities Ltd. was named as defendant, no evidence was lead against it and the claim against it is dismissed. As it was represented concurrently with Nordstrom, there shall be no order as to costs for or against it.

The plaintiff claims that his father intended to designate him as the sole beneficiary of a $60,000 mutual fund but that this plan was defeated by the negligence of the defendants. The defendant admitted he was aware of the deceased's intention to leave the investment to his son. The defendant entered the plaintiff's name in the beneficiary designation portions of the fund application. However, the beneficiary designation was void by virtue of the mutual fund being non-registered. The defendant gave evidence that he advised the deceased that he would have to make a specific bequest in his will. The deceased made no special designation in his will and, at his death, the investment became part of the residue of his estate and was divided between the plaintiff and his sister. HELD: The plaintiff was awarded judgment against the defendant Nordstrom for half the value of the investment at its maturity, plus pre-judgment interest and costs. 1) Nordstrom was a professional, who held himself out as possessing special skill, judgment and knowledge in financial planning. The advice and information provided to the deceased was provided in the course of the defendant's business. The defendant had a financial interest in the transaction and was cognizant of the fact that the realization of the deceased's intent to benefit the plaintiff was dependent upon there being a valid beneficiary designation. The products sold by the defendant are used as estate planning tools. The intervention of death removed any opportunity to correct the matter and, without the application of the Wilhelm principle, this financial planner would go scott free and the plaintiff would bear the loss. The 'disappointed beneficiary' principle was applicable in this case.

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1996 S. P. H. No.01015 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: JOHN E. BURTON; DARRYL R. BURTON; BLAIR D. BURTON and SHELDON J. BURTON; and THE MUNICIPALITY OF THE COUNTY OF INVERNESS; and DIRECTOR OF ASSESSMENT and THE ATTORNEY GENERAL OF NOVA SCOTIA, representing Her Majesty The Queen in Right of the Province of Nova Scotia; THIRD PARTY HEARD: Before the Honourable Justice D. Merlin Nunn, at Sydney, Nova Scotia, on February 25, 1997 DECISION: March 27, 1997 COUNSEL: William P. Burchell, for the Plaintiff Peter A. Mclnroy, for the Defendant, Municipality Alexander M. Cameron, for the Defendant, Attorney General NUNN, J. The main facts giving rise to this action have been extensively reviewed in four separate decisions, two in the Supreme Court of Nova Scotia and two in the Nova Scotia Court of Appeal, and all arise out of tax sale of certain lands by the defendant, Municipality. Sometime in 1990 the defendant, Municipality, sold at tax sale certain property owned by the plaintiffs to one Frank Maclnnes. Because of disputes over ownership between the plaintiffs and Maclnnes, the latter commenced an action against the plaintiffs seeking declaration as to the validity of the tax deed. This action cited as Frank Arnold Maclnnes et al v. John E.Burton et al (1991), 1991 CanLII 4277 (NS SC), 110 N.S.R. (2d) 380, Saunders, J. decided in Maclnnes' favour, upholding the validity of the tax sale and was critical of the behaviour of the plaintiffs regarding notices and knowledge of the tax sale. The Burtons appealed this decision to the Court of Appeal, Burton, et al v. Maclnnes et al (1992), 116 N.S.R. (2d), which overturned the trial division basically on the grounds that the sale itself was void. Maclnnes et al v. the Municipality of the County of Inverness and Director of Assessment and the Attorney General of Nova Scotia, (1994), 1994 CanLII 4413 (NS SC), 134 N.S.R. (2d) 170, the third related action was to recover damages suffered by the Maclnnes' as result of the aborted tax sale. In that action, Richard, J. allowed number of items of damage, including all legal costs and fees incurred in the Maclnnes et al v. Burton et al, supra, the first action, on solicitor and client basis against the Municipality and the Attorney General. This action was appealed and in Attorney General of Nova Scotia representing Her Majesty the Queen in Right of the Province of Nova Scotia and the Director of Assessment v. Frank Arnold Maclnnes, Myles Curtis Maclnnes and J.P. Maclnnes Trucking Limited and the Municipality of the County of Inverness, (1995), 1995 CanLII 4222 (NS CA), 141 N.S.R. (2d) 212, Chipman, J.A. delivering the Courts' decision, allowed certain of the amounts claimed, essentially legitimate cost items relating to the sale amounting to $7,522.95, but overturned the trial judge on the claim for legal costs incurred at the first trial, which by the time of the appeal were set forth as $39,385.82. The grounds for the reversal was that this item of damage was too remote, not foreseeable, because, indeed it was not reasonable for that first action to have been embarked upon when the true state of affairs could be discovered upon reasonable investigation. should add that the Court of Appeal apportioned liability between the Municipality and the Director of Assessment at 50% each. The present action is by the defendants in that first case to recover its legal fees together with some other items of loss and general damages. The specific ­items of loss claimed are set forth in Exhibit 2, Tab plus additional legal fees of $13,015.31 of Mr. Burchell, in addition to 5,414.00 in Tab 7. Those claims are as follows: Royal Bank interest charges (16 months April 1991 to July 1992): $5,549.00 Repairs and Maintenance: 11,000.00 Legal Fees: 18,429.31 Rental Income Lost: 10,200.00 Mileage: 1,680.00 Lost wages (John Burton): 500.00 Loss of sale of property to one Charles Dorrington: 200.000.00 TOTAL: $247,358.31 The plaintiffs are also claiming $200,000.00 for general damages making total claim of $447,358.31. The evidence regarding the loss of sale claim is statement of John Burton that he discussed sale with one Charles Dorrington at price of $200,000.00. (See Exhibit 2, Tab 4). There is no other evidence, no agreement of sale or other contract document and Mr. Dorrington is deceased since 1994. At best, this evidence, unsupported, does nothing more than indicate possibility of sale at some future time. In these circumstances this item of claim must be dismissed. With regard to the very large claim for general damages, again there is almost no evidence to warrant an award. At the time of the events of this sale and the first two court cases, the plaintiffs were also engaged in the bankruptcy of their commercial furniture business and undoubtedly were already under great stress and tension. There is no solid evidence of injury of any kind to warrant any award of damages, therefore, this item of claim is dismissed. An award of general damages may not lie against the defendants in any event arising out of tax sale held to be void. Chipman, J.A. reviews the liability of municipality on void tax sale in Attorney General et al v. Maclnnes et al, supra, and indicates that the damage consequences, in these circumstances, would not likely be different whether the action was in contract or tort and concludes the damages to the buyer to be "the price paid together with all incidental and necessary expenses." would agree and say for the owner damages would be incidental and necessary expenses relating to the recovery of the property and any damage to it while out of the plaintiff's possession. That does not include general damages for pain, suffering or other aggravation. Even if am wrong on this point, as have indicated, there just is not sufficient reliable evidence which would lay basis for any award under this head. The evidence provided on this claim is set forth in Exhibit 2, Tab and few ­supporting comments in the testimony of Sheldon Burton and his father, John E. Burton. The claim for legal fees for the first action and appeal must, in the face of the decision in the Attorney General et al v. Maclnnes et al, supra, also be dismissed. If the legal fees were too remote and unforeseeable for the plaintiff in that action against the Municipality, then they also must be too remote and unforeseeable for the defendant in the same action,To this point 1 have dismissed, $418,429.31 of the plaintiffs\' claim leaving claims totalling $28,929.00 to be considered. The evidence indicates the tax sale took place on February 1, 1990 and tax deed was received on March 4, 1991, after the one year statutory redemption period. The Maclnnes tried to take possession which the plaintiffs opposed and only gave up after the Saunders, J. decision of December 6, 1991. The plaintiffs regained possession after the Court of Appeal decision of July 2, 1992, total period out of possession of seven months. Though the plaintiffs claim bank interest on their loan used to acquire the property for the whole period of the tax sale, do not think they are so entitled having had actual possession throughout most of the period. would allow, however, interest for seven months which according to Exhibit 2, Tab is $2,210.00 and accept that figure. The plaintiffs claim series of items of damage to the property alleged to have occurred while they were out of possession. John Burton testified that he winterized the property in December 1991 leaving it "as he always did". While the damages alleged may very well have been caused by vandalism or would have occurred in any event to a property left vacant through the winter months, I am satisfied that such damage as claimed occurred and did so when the plaintiffs were out of possession and the defendants must be held responsible. The list of damage items are shown as estimates in Exhibit 2, Tab totalling $11,000.00, of which $5,000.00 relates to pool liner. In support are two estimates, one of D.C. White contracting for $6,000.00 for the miscellaneous items, and one of Aqua Pool and Accessories Ltd. for $6,402.80 for the pool repairs, totalling $12,402.80 slightly more than the Exhibit 2, Tab estimate. John Burton testified that the White estimate, though undated, was made in 1992 and the Aqua Pool estimate, though dated in 1996, was replacing an earlier one that was lost. would allow this item of damage at $12,402.80. Exhibit 2, Tab sets out as miscellaneous claims, rental income loss, mileage claim for the Burton family and lost wages of John Burton. None of these claims can succeed. No lost rental income has been proved and the mileage and lost wages claims relate to the first trial and appeal. As to the whole of this claim, have allowed total damages fixed at $14,610.80. cannot help but comment that this case should not ever have gone to court with the type and quantity of damages claimed. In view of the previous actions and decisions, reason should have prevailed and the unreasonableness of the damage claim understood and appreciated by counsel and the plaintiffs themselves. Counsel for the defendants allege contributory negligence by the plaintiffs should be found and assessed alleging that their negligence with regard to receiving notices of the tax sale and their failure to meet their obligations as owners of property, amounts to contributory negligence. Though their behaviour was, perhaps, less than that of prudent property owner, cannot agree that it should be held to make them liable for any of the loss claimed. The situation here is not one to which the doctrine of contributory negligence would apply. need not comment on any division of liability between the defendants as that has already been determined by Chipman, J.A., in Attorney General et al v. Macinnes, et al, supra, where he apportioned the fault equally between the Municipality and the Director of Assessment. The plaintiffs are entitled to their costs in accordance with Tariff A, Scale 3, at an amount involved rounded out to $15,000.00. J. March 27, 1997

The defendant municipality sold property owned by the plaintiffs at a tax sale. Because of disputes over ownership between the plaintiffs and the purchaser, the latter commenced an action against the plaintiffs seeking a declaration as to the validity of the tax deed. The deed was held to be valid at trial, but the tax sale was found to be void on appeal. The plaintiffs sought to recover their legal fees from the municipality and the Attorney General together with some other items of loss and general damages. Awarding damages to the property while the plaintiffs were out of possession and bank interest for the same period, that there is no evidence to warrant an award for general damages. Furthermore, no legal fees awarded, as they were too remote and unforeseeable.

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